SZQUY v Minister for Immigration
[2012] FMCA 319
•3 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQUY v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 319 |
| MIGRATION – Review of decision of Refugee Review Tribunal – persecution – ground of political opinion – where applicant claimed Tribunal did not understand him – whether adequate translation at review hearing – procedural fairness – whether applicant’s claimed mental condition prevented proper hearing. |
| Migration Act 1958, (Cth) ss.414, 420, 422B and 424 |
| SZGYN v Minister for Immigration & Anor [2007] FCA 140 M175/2002 v Minister for Immigration & Anor [2007] FCA 1212 SZJZE v Minister for Immigration & Anor [2007] FCA 1653 Perera v Minister for Immigration & Anor [1999] FCA 507 WACO v Minister for Immigration & Anor [2003] FCAFC 171 SZBEL v Minister for Immigration & Anor (2006) 228 CLR 152 Minister for Immigration & Anor v SCAR (2003) 128 FCR 553 Minister for Immigration & Anor v SZNVW [2010] FCAFC 41 |
| Applicant: | SZQUY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2502 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 April 2012 |
| Date of Last Submission: | 3 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 April 2012 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the First Respondent: | Minter Ellison |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2502 of 2011
| SZQUY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh who arrived in Australia in August 2009. On 31 August 2009 he applied for protection (Class XA) visa. On 27 November 2009 a delegate of the Minister refused to grant a protection visa and on 15 December 2009 he applied for review of that decision from the Refugee Review Tribunal. The applicant was interviewed by the Tribunal on 2 February 2010 and the decision of the Tribunal was handed down on 13 October 2011. The Tribunal determined to affirm the decision under review.
The ground upon which the applicant claimed to be a person to whom Australian owed protection obligations was the convention one of political opinion. The applicant claimed that he was a prominent member of the BNP and that he had been the subject of threats and attacks from members of the Awami League. He told that his father had been killed by Awami League members. He was studying at university and it was there that he became involved in his political activities.
“[59]I asked the applicant when he said that he had first had problems as a result of his involvement in the BNP. The applicant said that the problems had started in 2002 after he had completed his SSC. I noted that this was when the applicant had said that he had joined. The applicant said that other party people had seen him returning from meetings or attending meetings. He said that when they had found that he was writing good speeches and organising programs successfully, they had realised that this man would be a problem for them in the future and if they did not stop him right now, he would be a problem. He said they had threatened him verbally on an ongoing basis, starting in 2000. After I queried this, he said that it had started in 2002. He said the people from the Awami League and the Kaptura League had told him that he was a good student so he did not need to involve himself in these activities. He said they had also referred to the fact that he was an only son and had said that if he continued in politics it would be his family’s loss. He said that this was how they had threatened him.” [CB 228]
At one stage during his studies, the applicant moved to Hong Kong where he studied at a university there. He told that he had to leave Hong Kong from time to time because of threats. He received threatening calls on his mobile phone and in late February or March 2009 he had been attacked by five to seven Bangladeshi men in Hong Kong. He went to a clinic in the university for treatment. He did not report this attack to the police. He said that the phone threats continued until he left Hong Kong in July 2009. He returned to Bangladesh and stayed in his home. He said that on 28 July 2009 members of the Awami League had thrown bombs at his home and started firing at it. He thought that if he returned to Bangladesh, he would be detained by the Awami League.
“[79]I put to the applicant that the Awami League had never made any attempt to detain him. The applicant said that they had threatened to detain him because their anger had turned into rage against him. He said that this had been when he had been in Hong Kong: people at home had received threats and telephone calls and letters. I noted that the applicant had said that these had been threats to kill him, not to detain him. The applicant said that they used to put two statements, kill you or detain you, always the same.” [CB 232 – 233]
The Tribunal discussed with the applicant matters which caused it concern in relation to his statements and in relation to some evidence that he had produced from persons in Bangladesh. After the hearing concluded, the applicant provided a post-hearing submission.
During the course of the hearing, the applicant told the Tribunal that he was suffering from psychological problems as a result of his experiences. From [109] to [113] [CB 238 - 239] the Tribunal considers these matters and the evidence provided by the applicant. It concludes at [CB 238]:
“[112]The opinions of the psychologists at STARTTS and the psychiatrists are relevant in assessing whether the applicant had the capacity to participate in the Tribunal hearing [see SZNMJ v Minister for Immigration & Anor] 2009 FCA1345 [36] per Cowdroy J although neither of them in fact expressed any opinion about his capacity to participate effectively in a hearing before the Tribunal. However although both the applicant and his representative said that he had difficulty in concentrating and in recalling information, as I noted, it did not appear to me that the applicant had any difficulty in recalling things. In his statement he claimed to be able to recall the specific times at which events had occurred.
[113]Putting to one side some obvious mistakes on which I would not in any event place any weight, I consider that the applicant was able to recall the events which he claims have occurred. He was able to answer my questions and to address the issues which I raised with him in relation to his claims. I consider that he was able to participate effectively in the hearing before the Tribunal.”
In its Findings and Reasons the Tribunal expressed its doubts as to the extent of the applicant’s involvement in the BNP and then:
“[118]With all due respect to the applicant, there is obviously a difference between following a political party and claiming, as the applicant has done, that he was a member the student wing of the party, that he wrote speeches and organised programmes and that he was being prepared for a future leadership position. I consider that the applicant’s lack of any understanding of the essential ideology of the BNP casts doubt on his claimed involvement with the party or its student wing.” [CB 240]
The Tribunal pointed to some inconsistencies in the applicant’s evidence and cast doubt on the quality of the independent evidence from a Dr Khan that had been produced by the applicant in support of his claims. The Tribunal noted the inconsistencies in the applicant’s evidence about his involvement with the BNP.
“[132] As I put to the applicant, his claims appeared to involve a series of contradictions. He claimed that he was involved in public activities but he then said that they had not been public, he claimed that he had been receiving threats for six years but that nothing had ever happened to him, he claimed that the reason that nothing had happened to him had been that he had not held any position in the party but he had claimed that he had been very active in the party and that he had written all the speeches.” [CB 242]
The Tribunal concluded that it could not accept that the applicant was involved with the BNP or its student wing in Bangladesh or in Hong Kong nor that people threatened his life in Bangladesh or in Hong Kong or attacked him in Hong Kong because of his involvement in the BNP or its student wing. It did not accept that the applicant had received threatening letters or that the attack on his home had occurred. The Tribunal concluded that the letters in support had in fact been drafted by the applicant and gave them little weight. Whilst the Tribunal accepted that his father had been killed on 5 August 2009 there was no evidence as to the reasons why that incident had taken place. The Tribunal concluded that it could not accept that there was a real chance that the applicant would be persecuted for reasons of his political opinion if he returned to Bangladesh now or in the reasonably foreseeable future.
On 3 November 2011 the applicant filed an application with this court for review of the decision of the Tribunal. There were three grounds of application:
“(1) I thik[sic] RRT not understand my explanation.
(2) RRT misunderstand my answers during my hearing.
(3) Not get justice from RRT.”
What I think the applicant meant by his first ground was that the Tribunal did not accept his explanation because it is quite clear from the length of the decision record that the Tribunal listened with considerable care to those explanations given by the applicant and then raised with him the concerns that it had in regard to them. The decision record explains quite adequately the Tribunal’s grounds for not accepting the applicant’s story. I have shown that, at least in part, by the extracts from the Tribunal’s decision that have been quoted in these reasons. I do not believe there is any suggestion being made by the applicant that the reference to not understanding was a reference to poor translation but if it was the applicant has in no way established any fault and certainly not the type of fault that would vitiate the hearing itself; SZGYN v Minister for Immigration & Anor [2007] FCA 140; M175/2002 v Minister for Immigration & Anor [2007] FCA 1212; SZJZE v Minister for Immigration & Anor [2007] FCA 1653; Perera v Minister for Immigration & Anor [1999] FCA 507.
Remembering always that in WACO v Minister for Immigration & Anor [2003] FCAFC 171 the Full Bench said at [66]:
“However the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.”
I believe that the remarks made above cover the applicant’s claim that the Tribunal misunderstood his answers. The applicant has not pointed to any particular area within the Tribunal’s decision that he can highlight as an example. The applicant says he did not get justice from the RRT. He is reminded that in SZBEL v Minister for Immigration & Anor (2006) 228 CLR 152 at [25], the High Court said that procedural fairness requires:
“A fair hearing not a fair outcome.”
Insofar as the applicant may be raising an argument that his mental condition at the time of the hearing precluded him having a full and fair opportunity to present his case; Minister for Immigration & Anor v SCAR (2003) 128 FCR 553, I am of the view that the approach taken by the Tribunal was correct. It examined the psychological evidence put forward by the applicant and assessed him on the basis of the responses that he gave at the actual hearing. This is not a case, as in SCAR, where the Tribunal was oblivious of the facts which established that the applicant did not have a full and fair opportunity to present his case. The case is far more aligned to that of Minister for Immigration & Anor v SZNVW [2010] FCAFC 41. At [20] Keane CJ opined:
“[20]In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this Court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship[2010] FCA 345, especially at [20] – [25], the contention that an applicant’s psychological difficulties were such as to deprive him of the "meaningful opportunity" required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him.
His Honour reviewed ss.414, 420, 422B and 424 of the Migration Act 1958 (Cth) (the “Act”) before saying at [22]:
“[22]None of these provisions of the Act affords support for the view that the Tribunal is duty-bound to press an applicant to call further evidence on an issue or to seek an adjournment of the hearing to enable him to do so, or to seek out such evidence itself. In those cases where the applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant to present his case in the best possible light.”
The applicant appeared before me today. He said that when he came here he did so because his life was at risk in his own country. He said that he was new and he did not know how to prepare an application. He said that he went to the delegate on his own and seemed to indicate that he did not have the benefit of an interpreter. It is not clear whether this is correct although I note that the applicant does seem to speak some English and has been studying in Hong Kong, presumably in English. In any event whatever faults there may have been in the delegate’s decision these were overridden by the merits review provided by the Tribunal.
By the time the applicant had appeared before the Tribunal he had been accepted as a client by RACS and a representative from that organisation sat with him at the hearing. It was that organisation which assisted the applicant to obtain some medical reports. At one stage the applicant told me that he did not believe that the RACS solicitor understood him properly. But he has provided no further evidence of that fact.
The main thrust of the applicant’s argument today seemed to be that he needed an adjournment in order to respond properly to the Minister’s submissions. It appears that the applicant had a serious motor vehicle accident in August 2010, some months after the hearing before the Tribunal. He handed up to me, and I provided Ms Weston with a copy, a bundle of medical reports. These were all relevant to the motor vehicle accident. Some of them had been obtained by his own solicitors and some appeared to have been obtained by those acting for the defendant. They did confirm that the applicant is suffering from some psychological problems at the moment and is unable to work but they did not suggest that the applicant could not conduct his case today. The applicant told me he had the benefit of advice under the Minister’s scheme which indicated to him that there were difficulties in obtaining a successful review of the Tribunal’s decision.
I do not grant the applicant an adjournment because, in my view, there will be little utility in it. Even if the applicant was able to provide me with a perfectly written and articulated series of statements they could not override my firm opinion that nothing in the Tribunal’s decision record indicates that it fell into jurisdictional error in the manner in which it reached its decision. I would suggest to the applicant that if, as I expect he will, he appeals this decision and wishes to utilise these medical reports, he submit them in proper form to the appeal court.
The gravamen of the Tribunal’s decision was that it could not accept the applicant’s story that he had been attacked and threatened and had a well-founded fear for his life because of his political activities in Bangladesh. A decision of that type is one for the Tribunal to make and it is not one with which this court can interfere.
I dismiss the application. I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $4,250.00.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 19 April 2012
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