SZQUH v Minister for Immigration

Case •

[2012] FMCA 534

•

27 June 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQUH v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 534
MIGRATION – Review of decision of Refugee Review Tribunal – allegation of bias or apprehension of bias – alleged interpreter mistake – request for impermissible merits review – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.424A, 425, 425A, 426, 426A, 427, 441A, 441C, 476
Migration Regulations 1994 (Cth), r.4.35D
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 41
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1
Applicant: SZQUH
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2428 of 2011
Judgment of: Nicholls FM
Hearing date: 19 June 2012
Date of Last Submission: 19 June 2012
Delivered at: Sydney
Delivered on: 27 June 2012

REPRESENTATION

The Applicant: In Person
Appearing for the Respondents: Mr I Temby
Solicitors for the Respondents: Minter Ellison

ORDERS

  1. The application made on 25 October 2011, and amended on 12 March 2012, is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2428 of 2011

SZQUH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made on 25 October 2011 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 12 March 2012, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 20 September 2011, to affirm the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

Background

  1. The applicant is a citizen of India (Court Book – “CB” – CB 1). He arrived in Australia on 28 July 2010 on a temporary business visa (CB 3). On 19 October 2010 the applicant applied for a protection visa (CB 1 to CB 75 with annexures). Amongst other documents, the applicant provided with that visa application a statement in which he set out his claims to protection (CB 15 to CB 23). Those claims were, relevantly:

    1)He was a Catholic Christian and, as a result of his faith and preaching activities, he had been targeted and persecuted by Muslim extremist, in particular the People Democratic Party (“PDP”) ([2] to [3] at CB 15).These included threats to the applicant’s life if he did not cease preaching ([11] at CB 17).

    2)The applicant married the daughter of a locally prominent Christian family. Following his marriage he was targeted both because of his activities and his association with his wife’s family ([13] at CB 17).

    3)In October 2005 the applicant was attacked while travelling. He was hospitalised and, although the matter was reported to the police, nothing was done to find the people who attacked him. As a result the applicant went into hiding for five months ([17] – [18] at CB 18).

    4)In April 2006 the applicant returned to his village and confined his preaching activities to that area. During that time he was not attacked ([15] – [16] at CB 18). However in April 2010 he was detained and physically assaulted by a group of ten men from the Popular Front (“PF”) (Muslim extremists). Again, when the matter was reported to the police, they did nothing.

    5)Despite leaving his village, the applicant continued to be threatened and followed ([21] – [23] at CB 20 and [24] – [26] at CB 21). The applicant ultimately decided that his “enemies” would “not spare [his] life” and that he would have to leave India ([28] at CB 21).

    6)The applicant feared that if returned to India, and if he continued to preach, he would be “attacked and possibly killed” by the PF ([34] at CB 22). Further, that the police in India would not be able to “protect” him ([35] at CB 23).

The Delegate

  1. The applicant was invited to attend an interview with the Minister’s delegate on 16 December 2010 (CB 76 to CB 77). He attended on that date (CB 101).

  2. On 10 February 2011 the delegate decided to refuse the grant of a protection visa to the applicant (CB 98 to CB 104).

  3. The delegate was satisfied that the applicant was a Christian, was involved in “the celebration of Christianity”, and had been a victim of assault, although his injuries merely amounted to “some bruising” (CB 103). However the delegate was not satisfied that the applicant was a religious leader (CB 103), nor that he would put his preaching activities before the safety of his family (CB 104). The delegate considered that the applicant had put no evidence before him to show that he had reported any of the assaults to the police (CB 104).

The Tribunal

  1. On 7 March 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 105 to CB 108). He was invited to attend a hearing before the Tribunal on 5 May 2011 (CB 117). On 14 April 2011, the applicant indicated his intention to attend on that occasion by way of the “Response to Hearing Invitation” form (CB 124 to CB 125). In that document, in answer to the question “Does anyone have any special requirements or preferences?”, the applicant requested that the Tribunal “… allow Mr Jackson Fernandez as my interpreter. I know him personally” (CB 124).

  2. Prior to the hearing, on 21 April 2011, the applicant provided a letter to the Tribunal in which he expressed his concerns about the delegate’s decision and purported to provide a “detail explanation of [his] pathetic condition” (CB 126 to CB 128). Included with that letter was information from several different websites about the persecution of Christians in India by Muslim groups (CB 129 to CB 140).

  3. The applicant attended at the hearing before the Tribunal and gave evidence. He was assisted by an interpreter, “Mr Chelat Quasim”, on that occasion (CB 143).

  4. The hearing was adjourned and, on 16 May 2011, the applicant was invited to resume the hearing on 27 May 2011 (CB 153). The applicant attended on that occasion and was assisted by an interpreter in the Malayalam language. At the conclusion of that hearing the applicant sought further time to provide documents in support of his application to the Tribunal, including the complaints he had made to the police ([144] at CB 188).

  5. On 14 June 2011 the applicant provided documents relating to his medical treatment to the Tribunal (CB 157 to CB 159). In the accompanying letter the applicant claimed that his wife had sought to obtain a copy of the complaints he had made to the police, however she had been advised that the police had never received the complaints. The applicant claimed that this was because his attackers had used their influence to remove the complaints from the police record.

  6. On 20 September 2011 the Tribunal found that the applicant was not a person to whom Australia owed protection obligations and accordingly affirmed the decision of the respondent Minister’s delegate (CB 164). The Tribunal’s findings and reasons were set out in its decision record ([127] at CB 185 to [174] at CB 193), a copy of which was provided to the applicant (CB 163).

  7. The Tribunal found that the applicant’s “material claims lack credibility and cannot be accepted” ([131] at CB 186). Further, that the applicant was not a witness of truth and “…was prepared to fabricate his claims …” ([166] at CB 192).

  8. Those findings were, in part, based on the fact that the applicant’s ultimate claims as put before the Tribunal were not consistent with country information before it, nor his claims as originally set out in his application for a protection visa ([131] – [132] at CB 186). The Tribunal also found that there were further inconsistencies in the evidence he gave over the course of the two occasions of the hearing. Aspects of his claims were found to be highly implausible and the Tribunal had difficulty accepting some of his claims. The Tribunal considered the documents submitted by the applicant, including newspaper reports and medical certificates, and found variously that they did not support the applicant’s claims ([139] at CB 187), nor assist the Tribunal ([164] at CB 191), and little weight was placed on them ([147] at CB 189 and [164] at CB 191). The Tribunal also found as implausible the explanation for the delay in the applicant applying for protection after arrival in Australia ([162] at CB 191).

  9. Ultimately, while the Tribunal accepted that the applicant was a Catholic, it did not accept that he was involved in preaching, nor that he had been threatened or attacked in the past by Muslim extremists or members of the PF ([167] – [169] at CB 192). On that basis the Tribunal concluded that the applicant would not be the subject of persecutory harm if he returned to India in the reasonably foreseeable future ([173] to [174] at CB 193).

Application to the Court

  1. At the first Court date the applicant indicated that he wished to file an amended application. Consent orders were made granting leave for an amended application to be filed by 21 February 2012.

  2. An amended application was filed by the applicant on 12 March 2012. Despite being filed out of time the applicant sought to rely upon that application at the final hearing. Leave was so granted.

  3. The amended application contains the following under the heading “Grounds of application”:

    “1. The Hon: RRT members committed serious jurisdictional error in my case.

    2. He approached my story with prejudice mentality.

    3. He has pre occupaid mind and he has done his duty for the sake of duty.

    4. Interpretation mistake

    5. Unable to take a favourable steps, and failure to take a favourable decision.”

  4. In addition, under the heading “Final orders sought by the applicant/s”, the following statements have been made by the applicant:

    “1. I have plead to get my life protection.

    2. I am expecting a positive decision from your majesty.

    3. I have been given negative impact from the tribunal as well as the department, please understand the reality and do your favourable steps.”

  5. The applicant also attached a written statement to the amended application. I ultimately understood from the applicant that that statement was put in the nature of submissions.

Before the Court

  1. The applicant appeared in person and was assisted by an interpreter in the Malayalam language. Mr I Temby appeared for the first respondent.

  2. Before the Court the applicant confirmed that the document containing a narrative, which was attached to his amended application, was made by way of written submissions. He stated that that document was drafted with the assistance of a “friend” who was not a lawyer. The submission assert facts contrary to the factual findings made by the Tribunal.

  3. The applicant also explained that while the Tribunal asked him a number of questions (presumably at the hearing) it did not understand his “statement” (presumably the statement of his claims to protection). If it had understood that document then the result would have been different.

  4. What is immediately apparent is that this explains why his written “submissions” to the Court are directed solely to a disagreement with various factual findings made by the Tribunal. The applicant is clearly aggrieved that the Tribunal found against him. But, despite opportunity to ascertain the nature of the current proceedings, his written “submissions” do not assert legal error on the part of the Tribunal. Rather they seek impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

  5. I should note that at the first Court date in this matter (9 November 2011) the applicant sought access to, and was referred to, a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. A certificate on the Court’s file from the lawyer on that panel assigned to the applicant certifies that while attempts were made to contact the applicant, including by telephone, no meeting took place with the applicant. Nonetheless, written legal advice was sent to him dated 14 December 2011.

  6. The applicant complained that he had not received any legal advice. However he did not now seek any adjournment to obtain such advice. In any event, he also stated that he had changed his residential address at or about the time of his appearance at the first Court date.

  7. The letter from the Court’s registry notifying the applicant of the appointment of a “Panel lawyer” was sent some days after the first Court date to the address for service (also his residential address) noted on his application and confirmed as the address for service at the first Court date. The applicant asserted that he notified the Court of his change of address by way of his amended application. That application was filed some four months later. He could not explain why he had failed to notify the Court of his change of address earlier.

  8. In the circumstances, the applicant must bear responsibility for the inability of the panel lawyer to contact him. In any event, there is no entitlement to any such legal advice (see SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [3] to [4] per Gyles J, a matter on appeal from this Court (SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 41)).

  9. In light of the above, the Court attempted to take the applicant through each of the grounds of the amended application, especially given the obvious deficiencies in particularity of some of the grounds.

  10. The applicant said that he had nothing further to say in relation to the grounds. He then proceeded to press the merits of his claim to be a refugee, and to press some of the complaints about the Tribunal’s findings of fact as set out in his written submissions.

  11. The applicant’s challenge to the Tribunal’s factual findings, including its adverse findings as to the credibility of many of his claims, must fail. None of that reveals jurisdictional error on the part of the Tribunal. The Tribunal’s findings in that regard were properly within the exercise of its power and jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). The Tribunal dealt with each of the applicant’s claims. It gave reasons for its findings which were reasonably open to it on what was before it (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547).

  12. Nor, for the reasons set out below, do the grounds of the application as stated reveal jurisdictional error.

Ground One

  1. Ground one asserts “serious jurisdictional error” on the part of the Tribunal. No particulars are provided. Nor did the applicant tell the Court what they were. In the circumstances this can only be seen as a challenge to the Tribunal’s factual findings in circumstances where the applicant plainly (and understandably) does not understand the concept of jurisdictional error. In any event no such error, “serious” or otherwise, is evident.

Grounds Two and Three

  1. Grounds two and three assert “prejudice” on the part of the Tribunal member. While it appears that this is an attempt to assert actual bias, it may be prudent to deal with these grounds also as an allegation of apprehended bias.

  2. But, whichever of these two complaints the applicant’s bare assertion may be said to attempt to invoke, neither reveals jurisdictional error on the part of the Tribunal. As the Minister submits, the relevant test for both can be summarised as (at [24](a) and (b) of the Minister’s written submissions):

    “(a) second respondent was so committed to a conclusion already formed prior to the hearing as to be incapable of alteration, whatever evidence or arguments may have been presented (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; or

    (b) a fair-minded lay observed might reasonably apprehend that the second respondent had not brought an impartial mind to the resolution of the questions to be decided (Ebner v Official Trustee (2000) 75 ALJR 277.”

  3. There is nothing in the material before the Court to show that either can be made out. Nor has the applicant provided any evidence to support any such allegation. It is a rare case when such allegations can be made out with reference to the decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). Given the seriousness of any such allegation, which attacks the very integrity of the decision maker, some evidence would be necessary to found this complaint, let alone make it out.

  4. The only evidence before the Court, in effect the Tribunal’s decision record, reveals that the Tribunal kept an open mind. It cannot be said that it did not give the applicant every opportunity to explain his evidence. Further its reasoning was both rational and logical and forestalls any charge that bias was involved in reaching its conclusion.

  5. In any event, and ultimately, this complaint, if indeed grounds two and three are such, fails because such an allegation requires that it be distinctly made and clearly proven (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421 at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ and VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102).

Ground Four

  1. In ground four the applicant simply asserts “interpretation mistake”. There is no particularity or any coherent explanation of this. There is nothing in the applicant’s submission to even vaguely attempt to explain this bold assertion. Attempts by the Court during the hearing to get the applicant to focus on the specifics of each of his grounds were forestalled with his response that he had nothing further to say than what was contained in the written submissions.

  2. The Minister provided comprehensive submissions on what the applicant would need to establish if he were to succeed in relation to this charge ([30] to [33] of the Minister’s written submissions):

    “[30] The first respondent submits that in order for the applicant to succeed in relation to Ground 4, he must establish that the interpretation before the second respondent was so incompetent that it prevented the applicant from giving evidence: Perera v Minister for Immigration and Multicultural (1999) 92 FCR 6 at [38]. That is, that the required level of interpretation is not one of perfection, but rather it must be sufficiently accurate to convey the idea or concept being translated to be communicated (WACO v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 511 at [66] so as not to prevent the applicant from taking part in the hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37].

    [31] Put another way, the standard of interpretation required to provide an applicant with a fair hearing is one that is ‘not so inadequate that the applicant is effectively prevented from giving evidence at the Tribunal’: SZJZS v Minister for Immigration and Citizenship [2008] FCA 789 at [32] per Flick J, citing with approval W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788, Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322, and Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230. In considering a claim that an interpretation was inadequate, the Court must perform a qualitative assessment of the conduct of the second respondent’s hearing as a whole: SZQBN v Minister for Immigration and Citizenship [2010] FCA 1280.

    [32] Further, the departure from the requisite standard of interpretation must relate to matters which were significant to the Applicant’s case in the Second Respondent as well as to the Second Respondent’s decision: Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.

    [33] The second respondent invited the applicant to a hearing in compliance with section 425 of the Act and provided the applicant with a proper opportunity to be heard, including by providing a Malayalam – English interpreter to interpret between the second respondent and the applicant at the hearings before the second respondent on 5 May 2011 and 26 May 2011 [CB 143 – 144, 160 – 161]. The first respondent submits that there is no evidence that the interpretation provided at the second respondent’s hearing fell short of the required standard and that the applicant should accordingly not succeed on the basis of Ground 4 of the amended application.”

  1. The problem for the applicant is that beyond the merest of suggestions, and in the absence of any submissions whatsoever, he has provided no evidence to even indicate that the standard of interpretation was deficient in any of the ways outlined above.

  2. The only relevant evidence before the Court is the Tribunal’s account of the hearing in its decision record. Any plain reading of that reveals that there is no basis for the applicant’s charge. Ground four is not made out.

  3. As noted above (at [6] and [8]), the applicant sought that a particular interpreter assist him before the Tribunal. The reason advanced was that this person was a friend. Nothing was put about his competence or capacity to provide an adequate level of interpretation. That the Tribunal does not appear to have acted upon the applicant’s request does not reveal any jurisdictional error on its part. The provision of an interpreter is at the discretion and direction of the Tribunal (s.427(7) of the Act). There is nothing in the legislation to compel the Tribunal to provide an interpreter of the applicant’s choosing. The Tribunal’s discretion is directed to addressing any lack of proficiency in English on the part of the applicant. On the material before the Court, the Tribunal did that.

Ground Five

  1. Just what the applicant is seeking to assert in ground five remains, in light of the squandered opportunity afforded to him before the Court to clarify it, a mystery.

  2. If the reference to “favourable steps” is some attempt to invoke some failure of procedural fairness on the part of the Tribunal then it is unsuccessful. If that phrase is meant to refer to the invitation to the hearing pursuant to s.425 of the Act, or in some way assert a breach of s.424A of the Act, then no jurisdictional error is evident in either regard.

  3. The applicant was invited to a hearing. The invitation complied with all the relevant statutory and regulatory requirements (ss.425, 425A, 426, the reference to ss.426A, 441A, 441C and r.4.35D of the Migration Regulations 1994 (Cth)). The issues dispositive of the review were raised at the hearing. The applicant was on clear notice of the Tribunal’s concerns (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592).

  4. Nor, as the Minister submits, is s.424A engaged in the current circumstances. The Tribunal’s decision was based on, and arose from, its doubts and appraisals of the applicant’s evidence and the inconsistencies and implausabilities that it found. None of these fall within the scope of s.424A of the Act (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] – [18]).

  5. Even if procedural fairness principles at common law were to apply, it is clear on the material before the Court that the applicant knew the case against him and was given the opportunity to respond.

  6. The applicant’s reference to a “favourable decision” in the collection of phrases said to constitute ground five epitomises the applicant’s inability, or unwillingness, to understand the extent of the review available to him before the Court. While the applicant is entitled to a fair process, that obligation on the Tribunal does not guarantee a “fair outcome” (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1). Ground five is not made out.

Orders Sought

  1. The orders sought by the applicant in these proceedings are reproduced at [18] above. The orders, even with the “flattering” address to the Court (“your majesty”), do nothing to reveal jurisdictional error. The only way the applicant can receive a “positive decision” from the Court is if jurisdictional error in the Tribunal’s decision is revealed. These complaints, again, show the applicant’s misunderstanding of the nature of the current proceedings.

  2. When the applicant’s submissions are taken into account, the “orders” seek a “positive” outcome from the Court on the basis of the applicant’s plea and hopeful expectation that the Court will see the “reality” of the situation. That is that, unlike the Minister’s delegate and the Tribunal, the Court would be persuaded by his evidence before the Tribunal and that the applicant should be granted a protection visa. I do not see this as rising above a request for impermissible merits review (Wu Shan Liang).

  3. To the extent that the applicant may imply some expectation of review of the delegate’s decision by the Court, then s.476(2) of the Act, when read with s.476(4), would stand in answer. The Court has no jurisdiction to review the delegate’s decision as it is a “primary decision”, and has been reviewed by the Tribunal under Pt.7 of the Act.

Conclusion

  1. As I tried to explain to the applicant at both the first Court date and the final hearing in this matter, for him to be successful he would need to show jurisdictional error on the part of the Tribunal. Nothing in the applicant’s amended application, written submissions or oral statements to the Court has established such error. In the circumstances the application should be dismissed. I will make such an order accordingly.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  27 June 2012

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