SZOLF v Minister for Immigration
[2010] FMCA 658
•27 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOLF v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 658 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it breached s.424A of the Migration Act 1958, failed to ask a relevant question, failed to reach a state of “reasonable satisfaction” in accordance with the Act, and provided inadequate interpreter services at its hearing – matter turns on its own facts. |
| Migration Act 1958, ss.65, 91R, 415, 424AA, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZOLF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1162 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 27 August 2010 |
| Date of Last Submission: | 27 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1162 of 2010
| SZOLF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India and he claims to be a Muslim. He claims that he became interested in Christianity while living in Singapore and intended to convert. He claims that when he returned to India he told friends about his interest in Christianity and was subsequently accused of trying to convert people. He claims that Muslim extremists are now seeking to kill him.
The applicant claims to fear persecution in India because of his interest in Christianity.
After his arrival in Australia on 23 July 2008, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 20 November 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 15 of the Tribunal’s decision (Relevant Documents (“RD”) pages 106 – 117).
The applicant’s original application to the Minister’s department contained the following claims:
a)his family is Muslim;
b)he went to Singapore in April 2005 and, while there, attended a Seventh-day Adventist church. He returned to India via Sri Lanka in March 2007;
c)when he returned to India he started “preaching Christianity intensively”. As a result, he was attacked several times by both Muslims and Hindus. His father informed the police but no action was taken against the perpetrators;
d)on one occasion while he was taking his younger sister home from school, Muslims attacked him with iron rods injuring his right leg. His parents sent him back to Singapore in April 2007;
e)he returned to India in October 2007 and went into hiding, staying at a relative’s house. However, “they” continued to search for him so his father sent him to Japan via Sri Lanka;
f)he attended a Catholic church in Japan;
g)during the time he was in Japan, “the extremists” entered his home in India and assaulted members of his family;
h)when he returned to India in January 2008 he again went into hiding, this time staying with a friend, but the Muslim and Hindu extremists discovered where he was living. Later, when he and his friend were travelling by motorcycle to a new residence, a lorry collided with them. The applicant was thrown clear but his friend was killed. He later learned that this was a plot by the religious extremists; and
i)he went and stayed with his uncle in Chennai. When the Muslim extremists discovered where he was living they came and assaulted him and his uncle, warning him that he would be killed if he preached again. Nevertheless, the applicant continued to go to church. When the Muslim extremists learned of this they told his father that they were going to kill him. He was therefore compelled to leave India.
The applicant gave the following additional evidence at a departmental interview on 22 October 2008:
a)he attended services at a Seventh-day Adventist church in Singapore on Sunday mornings;
b)he did not convert to Christianity while in Singapore although he had been ready to do so. He wanted to convert “here”;
c)when he returned to India from Singapore in 2007 he spoke to his friends in private about Christianity and told them his personal views and what had happened to him. This is what he meant when he said in his statement that he had been “preaching Christianity intensively”;
d)he did not preach in public but his friends reported him to other Muslims and this is how they came to know that he was trying to convert people, although he also claimed that he had not been trying to convert his friends;
e)the Muslims wanted to kill him because they knew that he was going to convert to another religion and had attempted to convert others. To this end, they sent some “paid assassins” to his home in India, unaware that he was in Japan at the time. His father and uncle were attacked and his uncle, who was badly hurt, filed a “First Information Report” (“FIR”) with the police, an untranslated copy of which the applicant produced;
f)he went to church only once while in India. This was in March 2007 at the “Main Guard Gate” in Trichy;
g)his Hindu neighbours in India feared that he would attempt to convert them to Christianity. They also thought that he might be an extremist; and
h)he attended a church in Liverpool on Sundays but did not know the name of the church or its denomination.
The applicant subsequently produced to the Minister’s department a translated copy of the FIR which he had produced at the interview.
The applicant made the following additional claims at a hearing before the Tribunal:
a)he did not preach Christianity when he returned to India from Singapore; he simply told his friends that he wanted to become a Christian and invited them to join him but they “misunderstood”;
b)he attended services in India every week between March and April 2007;
c)he was attacked in India on one occasion only, i.e. when returning home after having taken his sister to school;
d)he was warned but not attacked by Hindus. When he said in his original statement that he had been attacked by Muslims and Hindus several times, this was wrong;
e)he did not apply for refugee status in Japan because he had no one to help him and had not been able to talk much. Also, there was a language problem;
f)he and his uncle were not attacked in Chennai; this was another mistake in his statement. Instead, they were called to the mosque where they were warned that their lives would be in danger if they failed to follow Islam;
g)his visa to travel to Australia was granted on 27 May 2008 but he did not leave India until 22 July 2008 because he could not get a seat on a flight. He was advised by his travel agent that all the flights into Australia from Asia had been fully booked for a period of two months because of World Youth Day;
h)he was attending a Fijian Indian church in Liverpool but did not know the name of the church; and
i)he was going to convert to Christianity “very soon”.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant claimed that he had attended services at a Seventh-day Adventist church in Singapore on Sunday mornings. However, one of the beliefs which distinguishes the Seventh-day Adventist church from other Christian churches is that it holds its services on Saturdays. The Tribunal considered that this information cast doubt on whether the applicant had attended the Seventh-day Adventist church in Singapore at all;
b)the applicant claimed that after he returned to India in March 2007 he told his friends about Christianity and yet, at the time of the Tribunal hearing in February 2009, he was unable to say much about Christianity other than that he liked it. Given this, it was difficult for the Tribunal to accept that the applicant would have been in a position to say much more two years previously, in March 2007. In the circumstances, the applicant’s claim that he had been accused of trying to convert people to Christianity or that he himself had been accused of having converted was difficult to accept;
c)the various inconsistencies in the applicant’s evidence cast doubt on whether he was telling the truth:
i)at the departmental interview the applicant said that he had gone to church once in India but at the hearing before the Tribunal he said that he had gone to church in India every week;
ii)in the statement accompanying his protection visa application the applicant claimed that he had been attacked several times by Muslims and Hindus but at the Tribunal hearing he said that this was not correct and that he had only been attacked on one occasion. He also gave inconsistent evidence concerning whether this attack had occurred as he was taking his sister home from school or after he had dropped her off at school; and
iii)in his statement the applicant said that he and his uncle were attacked by Muslim extremists at his uncle’s house in Chennai. However, at the hearing before the Tribunal he said that this was not correct and that all that had happened was that they had been called to the mosque and warned;
d)in the Tribunal’s view, the following information did not suggest that the applicant had had any problems in India at all:
i)he did not apply for refugee status in Japan. This cast doubt on the applicant’s claim that he went to Japan because he was fleeing persecution in India;
ii)the applicant went to Sri Lanka and Hong Kong in 2008 and returned to India each time. The fact that he was travelling freely did not suggest to the Tribunal that he was in hiding as he claimed;
iii)the applicant was granted a visa to travel to Australia in May 2008 but did not leave India until July 2008. The Tribunal did not accept the applicant’s explanation that he was told by a travel agent that all the flights into Australia from Asia were fully booked for a period of two months because of World Youth Day;
e)the FIR which the applicant produced in relation to the attack on his uncle and father in November 2007 differed from his own evidence. In light of this, and given the known prevalence of document fraud in India, the Tribunal did not consider that the purported FIR outweighed the problems which it had identified with the applicant’s evidence. The Tribunal accorded the FIR no weight;
f)the applicant claimed that he was attending a church in Australia but was very vague as to what church this was. He also appeared to know nothing about Christianity;
g)for these reasons, the Tribunal did not regard the applicant as a witness of truth and did not accept his claims to have been interested in Christianity. Accordingly, the Tribunal did not accept that he was threatened or attacked by Muslims or Hindus in India for the reasons he claimed; and
h)having rejected his material claims, the Tribunal was not satisfied that the applicant had engaged in the conduct of attending a church in Australia other than for the purpose of strengthening his claim to be a refugee. Pursuant to s.91R(3) of the Act, the Tribunal therefore disregarded this conduct.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The Tribunal failed to appropriately deal with the documents in particular the inference that the document is fabricated thus breaching section 424A.
2.The Tribunal failed to ask a question that it was, in the circumstances of this case, legally required to ask.
3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
Breach of s.424A
The first ground of the application was particularised was follows:
The Tribunal inferred that the FIR that the applicant submitted was fabricated. The Tribunal has not given the applicant an opportunity in the section 424A letter to deal with the claim raised by the applicant.
In relation to the first allegation in the application, it should be recorded that the Tribunal did not notify information to the applicant by means of s.424A but used the alternative method provided by s.424AA. Those sections relevantly provide:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) …
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; …
424AA Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Oral notification of information pursuant to s.424AA relieves the Tribunal of the obligation to notify that information in writing pursuant to s.424A. Section 424AA is an alternative method of discharging the Tribunal’s s.424A obligations. However, if certain information which should be notified is not notified orally at the hearing, then it must be notified in writing.
However, the matters which the applicant alleges should have been notified to him do not, in fact, fall within the ambit of s.424A’s operation. An inference that a document is fabricated is obviously a factual conclusion. A conclusion is not “information” as that word is understood for the purposes of s.424A. Thus the inference referred to in the allegation did not need to be notified to the applicant pursuant to s.424A.
Further, the information relied on to reach the relevant conclusion was independent country information, as the Tribunal discloses at para.78 of its reasons. That information did not need to be notified because it falls within the exception to notification found in s.424A(3)(a).
The Tribunal failed to ask a relevant question
The second allegation in the application, that the Tribunal failed to ask a question, was particularised as follows:
Whether the Indian authorities provided a standard of protection comparable with international standards.
As the Minister’s submissions point out, there was no requirement for the Tribunal to consider the standard of protection available in India in the present case because it was not satisfied of the truth of the applicant’s claim to fear a real chance of harm for any Convention reason. For that reason, the second allegation in the application is not made out.
“Reasonable satisfaction” not arrived at
The third allegation of the application is based on an understanding that the Tribunal was reasonably satisfied of something. However, this allegation is not particularised and was not addressed by the applicant today in his submissions so it is difficult to gauge what it really means. If the applicant refers to those places in its decision record where the Tribunal makes findings of fact, namely paras.80-83, it must be said that those findings were reasonably open to the Tribunal on the evidence. For this reason, and because none of the facts in question was a jurisdictional fact, the Court cannot reconsider them.
If the applicant’s allegation is to the effect that the Tribunal’s decision was actually based on a reasonable satisfaction of something, then this misunderstands the Tribunal’s decision. Under s.65 of the Act the Tribunal’s task is to determine whether it is satisfied that an applicant meets the criteria for the grant of a protection visa. If it is not satisfied of this then under s.65(1)(b) and s.415 it must affirm the delegate’s decision. That is what happened in this case. In para.84 of its decision the Tribunal stated, having set out the evidence and reasons for reaching its conclusion, that it was not satisfied that the applicant is a person to whom Australia owes protection obligations under the Convention.
At no point was it a question of the Tribunal’s decision being based on its “reasonable satisfaction.” Rather, the Tribunal’s decision was based on it not being satisfied that the applicant met the criteria for the grant of a protection visa. For that reason, the allegation does not address the actual basis of the Tribunal’s decision and must fail on that account.
Interpreter at Tribunal hearing
Today the applicant alleged for the first time that the interpreter provided to him at the Tribunal hearing spoke Sri Lankan Tamil rather than the applicant’s Indian Tamil and that because of this the translations were not understandable. Although invited today to give evidence in support of this allegation, the applicant chose not to do so, preferring to remain at the bar table. There being no evidence adduced by the applicant, resort must be had to the only evidence which is before the Court, that is, the bundle of Relevant Documents. Firstly, I note that on p.85 of the bundle of Relevant Documents, the Tribunal’s hearing record sheet is reproduced. There it is noted that the hearing lasted from 2:20pm to 4:02pm and that the Tamil interpreter retained by the Tribunal on that occasion was accredited to NAATI Level 2. Plainly the person was reasonably skilled in the task he was required to perform.
However, the real test of the allegation is found in the Tribunal’s decision record. A consideration of it reveals nothing which suggests any comprehension difficulties on the part of the applicant. Importantly, it records no complaint about the quality of the interpreter services which had been provided. Nor does the bundle of Relevant Documents evidence a complaint having been made after the Tribunal hearing concerning the quality of interpreter services which the Tribunal had provided to the applicant. This is important given what the Tribunal said at paras.66 and 67 of its decision:
I put to the applicant that all of the information we had discussed was relevant to the review because it cast doubt on whether he was telling the truth in relation to his claims of persecution in India. I put to him that if I relied on this information it might form part of the reason for my concluding that he was not a person to whom Australia owed protection obligations and that he was therefore not entitled to be granted a protection visa. The applicant said that he understood. I invited him to comment on or to respond to the information we had discussed. He said that he had nothing to add.
I noted that as I had mentioned earlier the applicant was entitled to seek additional time to comment on or to respond to the information we had discussed. The applicant said that he had already provided the Tribunal with whatever information he had. I asked the applicant if there was anything further he wanted to say to me before I closed the hearing. The applicant said that whatever he had told me was correct and true and he was following Christianity but he was not able to express a complete picture of Christianity.
Given this evidence, and the fact that the applicant has adduced no evidence of his own in support of the allegation of inadequate interpreter services at the Tribunal hearing, I find that the applicant has failed to make out that allegation raised by him today.
Conclusion
For these reasons, I find that jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 9 September 2010
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