SZQEB v Minister for Immigration
[2011] FMCA 974
•9 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQEB v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 974 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – whether Tribunal failed to provide procedural fairness – whether there was a failure to comply with s.425 of the Act – whether Tribunal acted “unfairly” – whether Tribunal acted with bias– no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 425, 476 |
| Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 SZFDE & Ors v Minister for Immigration and Citizenship& Anor [2007] HCA 35; (2007) 232 CLR 189; (2007) 237 ALR 64 Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1 Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259, (1996) 136 ALR 481 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 |
| Applicant: | SZQEB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 788 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 5 December 2011 |
| Date of Last Submission: | 5 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2011 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr M Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 21 April 2011, and amended on 18 November 2011, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 788 of 2011
| SZQEB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 21 April 2011, and amended on 18 November 2011, under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 March 2011 to affirm the decision of a delegate of the respondent Minister to refuse the grant of a protection visa.
Background
The applicant is a citizen of Egypt. He arrived in Australia on 15 April 2006 on a student visa. A further student visa was issued on 18 August 2008 and was valid until 22 March 2010. He applied for a protection visa on 19 March 2010 (see Court Book – “CB” – CB 1 to CB 36 with annexures). He was assisted in this application by a registered migration agent (CB 8, CB 25 to CB 28).
Claims to Protection
The applicant’s claims to protection were based on his religion.
He claimed to be an orthodox Coptic Christian, and to be a “deacon” of his church. He worked informing tourists to his church as to “our Christian true history in my Country”. As a result, Islamic groups and the police arrested him and accused him of defaming “the Egyptian Islamic history”. In addition, the Islamic brotherhood accused the applicant of having a personal relationship with a “Muslim girl” in order to force her conversion, and the police have accused him of encouraging Muslims to convert (CB 17).
He claimed he would be arrested, and that Islamic groups “threaten to kill me” if he returns to Egypt (CB 18).
The Delegate
Before the delegate, the applicant expanded his claims to protection. He indicated that his relationship with the “Muslim girl” was a sexual relationship, and that she had conceived a child in May 2005. However the pregnancy was either aborted or miscarried in June/July 2005. This woman had indicated that she would convert to Christianity. The applicant indicated that, because of his relationship with her, he would have to convert to Islam or be killed, and that the girl’s brother was an Internal Security officer with the Egyptian government, and that he and her father and the women in her family would kill him (CB 62).
The delegate was not satisfied that the applicant had a well-founded fear of persecution for a number of reasons (CB 69 to CB 70):
1)While accepting that the applicant was born into a Coptic Christian family, and would be regarded as affiliated with that faith in Egypt, the delegate did not accept that the applicant continued to practice that faith due, particularly, to the failure to provide letters of support from priests, clerics or members of the Church.
2)As the delegate did not accept the applicant was a practising Christian, he did not accept he was involved in “religious tourism” in a way that defamed or denigrated Islam. Nor did the delegate accept that the applicant encouraged Muslims to convert to Christianity, or that he was arrested for this reason. Nor would the applicant be of interest to Islamic groups for this reason.
3)As the applicant did not provide further details about the “Muslim woman” or his relationship with her, or any corroborating evidence, the delegate found that “if any such relationship did exist in the past it is now over”. Thus her family would not take any persecutory action against the applicant.
4)The written claims were brief and lacking detail, or any corroborative evidence. The applicant (and his migration agent) failed to take the opportunity following the interview to provide a “more comprehensive written statement”.
5)The delegate did not accept the applicant’s explanation for his delay (of almost four years) in applying for a protection visa. The application for a protection visa three days prior to the expiration of the applicant’s student visa was seen as indicative of a wish to extend the applicant’s time in Australia, rather than for reason of having a well-founded fear of persecution.
The delegate was not satisfied that the applicant was owed protection obligations by Australia, and refused to grant a protection visa (CB 71).
The Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 29 October 2010 (CB 73 to CB 78). He continued to be represented by the same migration agent (CB 74, CB 77 to CB 78).
By letter dated 12 November 2010, the applicant was invited to attend a hearing before the Tribunal on 11 January 2011 (CB 82).
A “casenote” (apparently authored by an officer of the Tribunal) dated 5 January 2011 indicates that the applicant contacted the Tribunal by telephone to confirm that he could attend the hearing “without his lawyer, who cannot be found”, and that his agent’s office was no longer the relevant address for service (CB 83). By facsimile dated 11 January 2011, the office of the migration agent indicated that “… I instructed to inform you that Mr Mark Mercurius [the agent] is suffering minor heart attack and unwell to attend the hearing today. He requests to adjourn the hearing” (CB 84).
Following the hearing on 11 January 2011, a further “casenote” indicates that in a telephone conversation with a Tribunal officer on 17 January 2011, the applicant indicated that the applicant “had lost confidence in [Mr Mercurius] as a lawyer and so went ahead with the hearing on the day”. The applicant also indicated that he wanted an extension of time in which to make further submissions (CB 112). This was confirmed by a written application made on 19 January 2011 (CB 113). The Tribunal granted an extension until 1 February 2011 (CB 114).
On 1 February 2011 a newly appointed representative wrote to the Tribunal indicating that he had recently received instructions, and seeking a further extension of time (CB 115, see also CB 117). The Tribunal officer indicated that a further extension of time was granted until 15 February 2011, and that the request for further time would be brought to the Tribunal’s attention (CB 121 to CB 122). This additional further extension was later refused (CB 123). Further evidence was provided to the Tribunal by the representative on 15 February 2011 (CB 124).
On 17 February 2011 the applicant’s representative wrote to the Tribunal, seeking that evidence be taken from the applicant’s mother, brother and cousin (CB 127 to CB 128). By letter also dated 17 February 2011, the applicant was advised that this request was refused. Leave was granted for written statements from these witnesses to be provided by 3 March 2011 (CB 131). On 3 March 2011 the applicant’s representative wrote to the Tribunal attaching a draft witness statement from the applicant’s mother, and seeking further time for the statement to be adopted by the witness in Egypt (CB 133 to CB 135). A further extension of time was granted until 14 March 2011 for the making of submissions (CB 138).
By letter dated 16 March 2011, the applicant’s representative provided further written submissions (CB 139 to CB 141). The applicant’s mother’s witness statement was provided by facsimile dated 21 March 2011 (although still stamped as a draft) (CB 142 to CB 144).
By decision of 29 March 2011, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 147 to CB 169).
While the Tribunal accepted that the applicant was a Coptic Christian, it did not accept that he had been persecuted (in a Convention sense) for this reason ([80] to [81] at CB 166). The Tribunal did not accept that there was a long-term (sexual) relationship between the applicant and a “Muslim girl” ([82] at CB 166). It found the applicant to be “evasive” in answering questions about the relationship ([83] at CB 166 and [85] to [86] at CB 167). It also found the applicant not to be telling the truth and his account to lack credibility ([83] at CB 166). The Tribunal also noted inconsistencies between the applicant’s account and that provided in the communications from his mother and brother ([83] at CB 166 to [84] at CB 167). The Tribunal found these communications to be “self-serving”, “implausible and inconsistent with the claims made by the applicant” ([92] at CB 169).
The Tribunal was ultimately not satisfied that there was a real chance the applicant would suffer serious harm or persecution if he were to return to Egypt ([91] at CB 168 to [95] at CB 169). It was not satisfied the applicant was a person to whom Australia had protection obligations ([96] at CB 169), and affirmed the decision of the delegate not to grant the protection visa ([97] at CB 169).
Application to the Court
The amended application to the Court is in the following terms:
“1. The Tribunal erred by failure to provide the applicant with procedural fairness:
Particulars:
a. The Tribunal erred by failing to postpone the hearing upon receiving the notification that the Migration Agent, Mr Mark Mercurius had suffered minor heart attack on the day of the hearing;
b. The Tribunal erred by dismissing the applicant’s claim that not all of the evidence had been presented before the Tribunal by the said Migration Agent prior to the hearing or alternatively, the wrongful conduct of the said Migration Agent failing to submit all the relevant information prior to the hearing contributed to the Tribunal finding that the applicant’s claims lacked credibility and substance.
c. The Tribunal denied the applicant a second hearing which may have been necessary for the applicant’s comments on the evidence submitted to the Tribunal after the hearing.
2. The Tribunal failed to comply with the requirement of s425 of the Act and thereby and further and/or in the alternative the Tribunal took into account irrelevant considerations:
Particulars:
a. The Tribunal considered the letter form the applicant mother dated 3 March 2011, which contained a translation error at para 10. ‘If I had known I would have made him stop.’ This in fact should be translated to the following effect ‘If I had known that he was getting into a relationship with the Muslim girl in the first place, I would have made him stop.’ Had this been properly translated this could have led to the Tribunal forming an different view to the finding that the letter was implausible and inconsistent.”
Before the Court
Before the Court the applicant appeared in person. He was assisted by an interpreter in the Arabic language. Mr M Alderton appeared for the first respondent. In addition to the Court Book, the Court was assisted by written submissions filed on behalf of the first respondent.
The applicant put the following to the Court:
1)He wished to press the matters in the amended application, which had been drafted by lawyers on the panel of the Court’s “RRT Legal Advice Scheme”. He had written advice from them which he used to assist in his submissions.
2)Just prior to, and at the commencement of the Tribunal hearing he had requested an adjournment so that he could provide documents to the Tribunal which were in the possession of his (first) agent/lawyer (Mr M Mercurius). The Tribunal refused this and denied him the opportunity to fully put his case.
3)He had provided a medical certificate to show that, amongst other things, he had impaired concentration. He complained that before the Tribunal he had been asked to remember events of 10 years ago.
4)The Tribunal was in error because, given items 2 and 3 above, the Tribunal should not have rejected his claims on the basis that he had made mistakes with dates and on an “incomplete” set of documents and an unclear photograph.
5)A friend, who was also an applicant before the Tribunal, had found that Mr Mercurius had had “his licence withdrawn”. The Tribunal knew about this. He had not.
6)The Tribunal had made up its mind half-way through the hearing that it did not believe him.
To the extent relevant, I will deal with the complaints in the context of the grounds advanced. The remainder are dealt with subsequently.
Consideration
Ground one asserts error by the Tribunal in that it failed to provide procedural fairness to the applicant. It is unclear whether this attack seeks to make this assertion in the context of the statutory code or more broadly at common law, or both.
In any event, even putting to one side the operation of s.422B of the Act, as understood in light of Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204, the applicant’s complaint does not succeed on any of the three bases advanced in support of the complaint.
The first particular asserts a failure to provide procedural fairness on the basis that the Tribunal failed to postpone or adjourn the scheduled hearing with the applicant after notification that the applicant’s first migration agent had suffered a minor heart attack.
It is the case that the material before the Court does contain a communication from the firm of solicitors of which the applicant’s migration agent was a principal (in his capacity, presumably, as a solicitor) requesting an adjournment of the hearing given the “minor heart attack” (CB 84 – Received by the Tribunal at 9.48am on 11 January 2011).
The difficulty for the applicant now is that, despite the claim made in the particulars (which have been drafted for him) prior to the hearing, on 5 January 2011, he rang an officer of the Tribunal to “ask if he could attend without his lawyer” (CB 83.5). The clear inference in this is that he wanted to attend, and was seeking to do so without his lawyer.
It is the case that evidence of this communication relies on a casenote by a Tribunal officer. However the applicant has not directly challenged this before the Court (see further below at [30] – [31]).
In any event, the Tribunal records in its account of the hearing with the applicant that at the commencement of the hearing the applicant told the Tribunal he had received a text message the night before, after being unable to contact his lawyer for some time, that the adviser was seeking to have the hearing adjourned. The applicant told the Tribunal that: “… he had now dispensed with the services of the adviser…” ([28] at CB 153). The applicant has not brought any evidence to the Court to challenge the Tribunal’s account of what occurred in this regard.
The material before the Court also contains a file note authored by a Tribunal officer recording a conversation with the applicant after the hearing on 17 January 2011. The note records (CB 112):
“… [The applicant] said that … although Mr Mercurius had requested an adjournment he had lost confidence in him as a lawyer and so went ahead with the hearing on the day…”
Further, as the Minister submits, there was no obligation on the Tribunal to invite the migration agent to the hearing. Nor was there anything from the agent in seeking the adjournment to say that he had information or evidence or documents that he wished to provide in person to the Tribunal.
Before the Court the applicant’s submissions were not clear on this point. At best, I understood him to confirm that he had a telephone conversation with the Tribunal officer following his unsuccessful attempts to contact his agent. That much is consistent with the material otherwise before the Court.
Where his submissions diverge, however, is that he now claims that on the morning of the hearing with the Tribunal, that is on 11 January 2011, he approached someone at the Tribunal’s reception desk and told them he wanted an adjournment.
Although the submissions were not clear, he appeared to say to the Court that his lawyers had asked for an adjournment and he sought to pursue this. Further, that at the commencement of the hearing with the Tribunal he also asked for an adjournment. He said the Tribunal refused this and just told him to give his account in support of his application.
The applicant’s submission suffers, as does much of his application to the Court, by a lack of evidence to support the submission made. Ultimately, the Court can only proceed on the evidence presented. The applicant has had the opportunity to obtain legal advice as to how to go about putting evidence before the Court. That he has not done so leaves the Court in the position of having to deal with his submissions as lacking any probative basis or substance. They remain in these circumstances baseless assertions, and should be rejected on that basis.
I note also that subsequent to the hearing the applicant was able to engage another agent/lawyer who assisted him before the Tribunal. There is nothing in the many communications from that lawyer to the Tribunal to complain about any refusal of an adjournment of the hearing.
The applicant’s submissions in this regard do not assist his cause.
In all the circumstances, it cannot be said that the Tribunal erred in that it failed to postpone the hearing. Whatever the person acting for the agent had requested, on the evidence before the Court this was plainly countered by the applicant himself, who proceeded to then participate at the hearing.
The second particular asserts that the Tribunal erred by not accepting the applicant’s claim that his agent had not presented all of the evidence to the Tribunal prior to the hearing. Further, that the agent’s conduct was “wrongful” in failing to present documents before the hearing. The complaint is that this contributed to the Tribunal’s finding that the applicant’s claims lacked credit and substance.
While the failure to present corroborative documents may have been a factor in the delegate’s analysis, I cannot see that any claimed failure to provide documents prior to the hearing was a factor in the Tribunal’s analysis, let alone that the Tribunal made an adverse finding in that regard.
The reason for the Tribunal’s rejection of critical parts of the applicant’s claims derived from the applicant’s own evidence and inconsistencies in that evidence.
Further, the Tribunal provided the applicant and his new adviser every opportunity to submit documents after the hearing. It extended the time on a number of occasions (see [56] at CB 159, CB 112, CB 113, CB 117, CB 122, CB 124, CB 127, CB 132, CB 138 and CB 139). Indeed, it extended the time available when the adviser indicated some difficulty in obtaining a document from Egypt.
As the Minister submits, the Tribunal had express regard to all of the documents submitted by the applicant in support of his claims (see variously [28] to [31] at CB 153 to CB 154, [91] at CB 168; [24] at CB 150, [28] to [32] at CB 153 to CB 154, [82] at CB 166, [92] at CB 168 to CB 169).
That the analysis of some of the documents themselves (the photograph and the supporting letters from his mother and brother) contributed to the Tribunal’s adverse view of the applicant’s claims does not reveal error on the part of the Tribunal.
The Tribunal’s adverse findings in this regard were not based on any finding that the agent had not submitted these before the hearing, but on the Tribunal’s analysis of the documents, and its assigning of weight to what was depicted and said. The assigning of weight is a matter for the Tribunal (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]).
It is the case that conduct amounting to fraud on the part of a third party, such as the agent, may serve to vitiate the process before the Tribunal such as to reveal jurisdictional error (SZFDE & Ors v Minister for Immigration and Citizenship& Anor [2007] HCA 35; (2007) 232 CLR 189; (2007) 237 ALR 64 (“SZFDE”)). However, in the current case, even if the agent had been negligent in this regard, or indeed otherwise, this would not establish jurisdictional error on the part of the Tribunal (Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501).
In any event, there is no clear assertion before the Court that the agent was negligent. But even any inference would, for the reason above, not assist the applicant now.
The applicant’s submission before the Court that the Tribunal did not give him sufficient time to lodge his documents in support of his claims cannot, in the face of overwhelming evidence to the contrary, be sustained.
The third particular asserts that the Tribunal denied the applicant procedural fairness in that it denied the applicant a second hearing which it is asserted “may” have been necessary to enable the applicant to comment on the evidence he submitted after the hearing.
This complaint is equally misconceived in the circumstances.
It is not clear whether this complaint asserts a failure of procedural fairness pursuant to s.425 of the Act. Given that this is asserted in relation to ground two, there is an inference that the complaint did not seek to emanate from s.425. In any event, even if it is meant as some failure of procedural fairness arising out of the Tribunal’s obligation pursuant to s.425, it does not succeed.
The Tribunal’s obligation in this regard is to raise or to discuss with the applicant matters such that he becomes aware of the issues in the review that are dispositive or determinative of it. Of course, the obligation does not extend to those issues already notified to the applicant as a result of the delegate’s decision record (see generally SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”)).
The issue determinative of the review, namely the credibility of the entirety of critical aspects of the applicant’s factual account, was discussed at the hearing. The Tribunal squarely put its concerns to him in this regard and gave him the opportunity to comment (see in particular [44] at CB 156, [48], [49], [50] at CB 157 to CB 158, and [56] at CB 159 of the Tribunal’s decision record).
As the Minister submits, to the extent that it is implicit in the applicant’s complaint, the Tribunal was not required to provide the applicant with a running commentary about what it thought of the evidence submitted after the hearing. Certainly not in circumstances where the determinative issues had already been exposed. Nor was the Tribunal, in the circumstances, required to disclose to the applicant what it was minded to find in relation to these documents submitted by him.
Further, the applicant’s complaint also does not succeed if it was sought to be derived from principles at general law.
It is clear that, by the time of submitting the photograph and the letters from the brother and mother, the applicant was seized of the Tribunal’s concerns. He clearly knew the case “against him” at that time. Plainly, the applicant submitted these documents going to his claimed relationship with the Muslim woman and the claimed consequences arising from this relationship in response to the Tribunal’s expressed doubts about these matters.
Before the Court the applicant complained that the Tribunal found that the photograph he had submitted was not clear. Yet it did not give him the opportunity to provide further evidence.
Again, this complaint fails to reveal legal error on the Tribunal’s part for all the reasons exposed immediately above. This was a photograph advanced by the applicant himself through his “second” representative. The Tribunal noted this ([60] at CB 159):
“Also attached to the submission is a very blurry photo of what appears to be a man in the outdoors (there are trees) carrying someone in light trousers. It is not possible to distinguish anything useful about this photo, such as whether the figure being carried is wearing a veil. On the back of the photo is a notation saying that the photo is of the applicant and his girlfriend taken at a park in Tanta when the applicant was about 24. The photo was taken in about 2004-5.”
The complaint now is not with the Tribunal’s description of the photograph, but with its failure to provide him with an opportunity to give further evidence. The applicant was provided with a reasonable opportunity to provide documentary (and photographic) evidence in support of his claims. That he chose to provide a photograph with the characteristics described by the Tribunal does not reveal error on the part of the Tribunal.
On the state of the evidence before it, therefore, it was reasonably open to the Tribunal to find that, with reference to the “very blurry photo” (and the applicant’s assertions, the mother’s and brother’s letters), there was no other evidence in support of the applicant’s claim to have had a long-term relationship with a Muslim woman ([82] at CB 166).
In all, the applicant was not denied the opportunity to put his evidence to the Tribunal. Any “deficiencies” in this evidence, that is specifically with reference to the photograph, would have been obvious to the applicant at the time, in circumstances where he now does not cavil with the Tribunal’s description of it.
In all, ground one is not made out.
Ground two asserts that the Tribunal failed to comply with the requirements of s.425 of the Act or, in the alternative, took into account an irrelevant consideration.
The claimed factual basis for this complaint is said to derive from a claimed translation error in the letter from the applicant’s mother. The error is said to be in the omission of the words emphasised:
“If I had known that he was getting into a relationship with the Muslim girl in the first place, I would have made him stop.”
[Emphasis added.]
A copy of the letter, although expressed to be a “DRAFT”, appears at CB 134 to CB 135 and CB 143 to CB 144.
This appears to arise from circumstances where a draft was submitted to the Tribunal by the second adviser prior to its being sent to the applicant’s mother in Egypt for signature. It remains unexplained why the second copy still bears the word “DRAFT”, although it bears a signature, presumably that of the applicant’s mother.
In any event, the ground does not succeed.
The author of the applicant’s ground appears to have conveniently overlooked that the English version of the mother’s letter said to have been “translated” was provided by the applicant to the Tribunal through his second adviser.
If there was some error it was the applicant’s, not the Tribunal’s, in circumstances where it is for the applicant to provide his evidence to the Tribunal in such fashion and detail to enable the Tribunal to establish the relevant fact.
It is not for the Tribunal to question the accuracy of any translation in circumstances when it was submitted by the applicant. The Tribunal is not obliged to make out the applicant’s case for him (Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1 at [187]).
If some error of translation did exist then, in the circumstances of this case, it was for the applicant to have brought it to the attention of the Tribunal (Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]).
Further, as the Minister submits, the applicant has put no evidence before the Court now to argue as to the “correct” version of any translation. There is nothing in any evidentiary context before the Court to allow for any comparison (VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 at [10]).
It is trite to say that pleadings are not evidence.
In any event, even just looking at what has been pleaded in the particulars, the claimed omission or difference in translation does not affect the meaning of the “version” of the mother’s letter put to the Tribunal. In context, plainly, what the mother’s statement told the Tribunal was that, if she had known that he was in a relationship with a Muslim girl, she would have made him stop the relationship.
Before the Court the applicant also complained that the “incorrect” translation was the fault of his second adviser, who caused the translation to be made. The implication in the complaint appeared to be that the applicant should not be disadvantaged because of the adviser’s “mistake”. If what the applicant sought to achieve by this complaint was that the Tribunal’s process was somehow vitiated by this conduct, than on what is before the Court the agent’s conduct cannot be said to come anywhere near fraud for such a complaint to assist him (SZFDE).
Even assuming that the applicant’s submissions are correct, there was no evidence before the Court as to the provenance of the translation.
Even further, contextually there is no difference in substance between the two “versions” of what the mother is said to have actually wanted to say.
The applicant also complained that the Tribunal only focussed on the “one point”, as incorrectly translated, to disbelieve the “whole story”.
It was not clear whether the reference to “whole story” was meant as a rejection of his mother’s account in her statement, or the rejection of his factual claims. If the former, then the remainder of the mother’s statement contains biographical or family details, none of which were at issue before the Tribunal. If, as it most likely, it is the latter, then the complaint really does not rise above a challenge to the Tribunals relevant findings of fact. A challenge which does not assist the applicant (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259, (1996) 136 ALR 481).
In the circumstances, whatever the “correct” translation, it was plainly open to the Tribunal to find that the mother’s statement that she would have put a stop to her son’s relationship with a Muslim woman if she had known about it earlier clearly contradicts the applicant’s own evidence that his family had been attacked as a result of the relationship and had, amongst other things, led to his father’s death.
It was also plainly obvious that the mother’s statement made no reference to a number of other relevant matters which, if the applicant’s account were to be believed, were plainly within his mother’s knowledge (see in particular [82] at CB 166).
In all the circumstances, no legal error on the part of the Tribunal arises in relation to this complaint.
Also before the Court, the applicant complained that the Tribunal knew that his first lawyer’s “licence had been withdrawn”. He submitted that a friend who was also an applicant before the Tribunal, and who had engaged the same agent, was told by an employee of the Tribunal that this had happened.
There is no evidence before the Court to support any of this. That is sufficient to dispose of the complaint. It is not for the Court to conduct its own investigation in this regard. In any event, in the circumstances it is not clear how this could assist the applicant. He subsequently engaged a second lawyer who was given a reasonable opportunity to put the applicant’s documents before the Tribunal.
The applicant also submitted that he had provided a medical certificate to the delegate which set out his medical problems following a car accident in July 2008 (“Certificate” reproduced at CB 49 to CB 54).
It was not made clear by the applicant how the Tribunal could be said to have fallen into error in relation to this “certificate”.
First, the Tribunal noted that the applicant had submitted a medical report to the delegate ([24] at CB 150):
“… He also brought with him documents relating to his academic progress in Australia, and documents relating to a motor vehicle accident in Australia which took place on 16 July 2008, including a medical report by a Dr Lance in relation to a medical compensation claim. The medical report does not appear to disclose any matters relevant to his claims for protection.”
Second, the Tribunal also noted that before it the applicant claimed that following the car accident his ability to concentrate had been affected ([30] at CB 154).
Third, it is clear that the Tribunal found the applicant’s oral evidence before it to be unsatisfactory in a number of ways. It is also plain from the evidence before the Court that the applicant understood the Tribunal’s view of his evidence. He provided an explanation (by way of the medical certificate) to the Tribunal for the perceived difficulty with his evidence ([53] at CB 158):
“… He said that he did not know why the Tribunal did not believe him. He could not remember details very well, things such as dates. His doctor has confirmed this to him.”
Having recorded this matter and this explanation, the Tribunal was aware of the applicant’s claimed situation and explanation in this regard. That it chose not to accept this explanation and found adversely to the applicant’s credit does not in the circumstances reveal legal error.
The applicant also complained before the Court that the Tribunal “made its decision half-way through the hearing”. The complaint was that the Tribunal told him it did not believe him. In these circumstances it failed to give him an opportunity to put further documents.
The latter complaint must be rejected for reasons already canvassed elsewhere in this judgment.
What remains, at best, is a complaint that the Tribunal acted unfairly towards him, or did not bring an open mind to the proceedings.
It is difficult not to comment on the irony of the applicant’s complaint. If the Tribunal had not taken steps at the hearing to “sufficiently indicate” to the applicant that his entire factual account was at issue, it may well have opened itself to a charge that it had denied the applicant procedural fairness pursuant to s.425 of the Act in the way explained by the High Court in SZBEL (see in particular at [47]).
Far from acting unfairly, the Tribunal acted fairly in putting the applicant squarely on notice of the concerns that it had with his evidence. Concerns which he plainly, but albeit unsuccessfully, sought to address with the brother’s and mother’s statements and the “blurry” photograph.
In the circumstances, any charge that the Tribunal acted with bias or could be apprehended to have acted with bias, in the absence of anything else, cannot be formulated, let alone made out (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69] and [71] – [72] and Kirby J at [127], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [43], VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ at [27] - [28] and [30] - [31], Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 per Branson, Finn and Bennett JJ at [14]).
Conclusion
For the applicant to succeed in his application the Court would need to discern jurisdictional error in the Tribunal’s decision. I cannot see such error. The application should be dismissed. I will make an order accordingly.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 9 December 2011
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