SZSWP v Minister for Immigration

[2014] FCCA 29

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSWP & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 29

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal did not consider the applicants’ claims, made incorrect findings of fact, provided inadequate interpreter services at its hearing and prevented the applicants from presenting their case fully.

Legislation:

Migration Act 1958, ss.36, 425, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Pererav Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142

First Applicant: SZSWP

Second Applicant: SZSWQ

Third Applicant: SZSWR

Fourth Applicant: SZSWS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1153 of 2013

Judgment of: Judge Cameron

Hearing date: 12 December 2013

Date of Last Submission: 12 December 2013

Delivered at: Sydney

Delivered on: 24 January 2014

REPRESENTATION

The first applicant appeared in person.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1153 of 2013

SZSWP

First Applicant

SZSWQ

Second Applicant

SZSWR

Third Applicant

SZSWS

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of India.  The first and second applicants, who are married or de facto partners, and the third applicant, their son, arrived in Australia on 28 September 2011.  On 25 October 2011 they lodged an application for protection visas with what is now the Department of Immigration and Border Protection, alleging that they feared persecution in India because of the first applicant’s involvement with the Bharitya Janata Party (“BJP”) and because of a familial dispute with a member of the ruling Congress Party.  The fourth applicant was born in Australia on 5 December 2011 and was added to the visa application on 20 December 2011.  On 6 March 2012 the applicants’ application was refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicants’ application for visas. Its 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.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicants’ claim for protection visas are set out on pages 6-19 of the Tribunal’s decision. Relevant factual allegations are summarised below.

Protection visa application

1. The first applicant made the following claims for protection in the applicant family’s application form and in a written statement lodged with that form:

   a)he had been persecuted in India due to his political beliefs and his activism on behalf of the BJP.  He and the second and third applicants left India because their lives were at risk;

   b)he was the son of a respected businessman and member of the BJP local executive.  His family were devout Hindus and strong supporters of the BNP (recte: BJP);

   c)he had organised and participated in rallies, demonstrations and campaigns against the ruling Congress Party in the 2007 local elections and in December 2008 he became the organising secretary of his local BJP unit;

   d)he and his family feared harm or mistreatment from a Mr Kumar, the leader of the Congress Party in their local area.  Mr Kumar had considered the first applicant’s work against him as a major threat to his political career.  In April 2009, Mr Kumar instructed his thugs to threaten the first applicant and his family and warned the first applicant to cease his involvement in any political activity against the Congress Party;

   e)on 1 May 2009 a group of people attacked his office and destroyed furniture and equipment.  He was injured and blamed the attack on Mr Kumar;

   f)on 24 May 2009 he travelled to the United States because he believed his life was in danger.  He returned to India on 20 August 2009 to restart his business because he believed the situation would be normal.  His situation was brought to the attention of his local BJP candidate who encouraged him to work hard for the election and gave him hope that the situation would resolve itself after the election;

   g)in December 2009 his brother married the daughter of a Mr Bhatia, the personal secretary to Mr Kumar.  Mr Bhatia’s family opposed the marriage and for political reasons Mr Bhatia forced his daughter to break off the relationship.  He also influenced her to behave badly.  On 21 May 2010, Mr Bhatia’s daughter filed a false case of domestic violence against the first applicant and his brother.  He and his brother were detained and assaulted by the police.  He was released on bail on condition that he left politics.  Members of the Bhatia family also continuously made threatening phone calls to him and his family members;

   h)on 26 July 2010 his brother was seriously injured in a motor vehicle accident.  After Mr Kumar threatened to kidnap the third applicant in August 2011, it became clear that the accident had been a plot to kill the applicants;

   i)in September 2010, Mr Bhatia’s family hired “goons and anti-social elements” to harass and threaten him at his business on a regular basis.  The police refused to accept his complaint because of the influence and connections of the Bhatia family;

   j)on 24 September 2011, while on her way home from work, his wife was verbally and physically assaulted by Mr Bhatia’s son.  She left her job because she was fearful;

   k)following the Congress Party’s election to power in India, BJP activists had been oppressed, persecuted and discriminated against;

   l)he feared that should they return to India, he might be killed, his son kidnapped and his (other) son’s studies disrupted.  His wife would also have to live a restricted life; and

   m)the authorities gave shelter and support to the leaders and activists of the Congress Party.  Before he and his family left India, they did not receive any protection from authorities and would not be protected should they return to India.

2. The first applicant attended an interview with the delegate on 21 February 2012 and gave the following additional evidence:

   a)he was made the organising secretary in December 2008 having been elected to the position in November 2008.  When it was put to him that he had been in Germany on his home town’s polling day on 29 November 2008, he responded that his mental condition was not as good at that time as it should have been;

   b)his troubles with the Congress Party supporters started in 2006 before he became the organising secretary;

   c)it was his sister’s husband who had been involved in the car accident.  His brother-in-law had borrowed the car so that is why he believed that he had been the target of the attack;

   d)he had not applied for asylum in the United States in April 2011 because it was not until his pregnant wife was attacked that he had wanted to leave India; and

   e)he would not be able to relocate to another part of India because the Congress Party had contacts throughout the country and they would be able to find him and kill him and his family.

3. He also provided the delegate with documents including:

   a)a letter from a doctor in India dated 24 September 2011 stating that the second applicant had been brought by her parents-in-law for treatment after being hit by her sister-in-law;

   b)a CT report dated 2 August 2010 regarding a facture suffered by a Mr Naveen; and

   c)photographs of a man with apparent head injuries in a hospital bed.

4. The first applicant appeared before the Tribunal on 3 and 13 July 2012 to give evidence and present arguments.  The hearing was adjourned on 3 July 2012 after the first applicant stated that he was feeling unwell.  At the hearing the first applicant gave the following additional evidence:

   a)police officers had come to his parents’ home with a letter from the Australian Embassy (sic).  The police threatened to kill his parents and the doctor who had treated his wife if the applicants did not withdraw their case and return to India;

   b)he had been appointed the local BJP secretary in 2008.  He said that he had slowly begun to follow the BJP in 2006 and became more involved in 2007.  He then said that he became fully involved in 2006 before going on to state that he had become more involved in 2007.  He later said that he had become the youth secretary for the BJP in December 2006;

   c)he had approached a senior figure in the BJP for assistance on a couple of occasions.  On one of those occasions he was told that that person would not be able to help and that the applicants should take care of their own safety;

   d)he was not involved in the 2008 state elections because he was scared and had been threatened.  He was unable to give the Tribunal more details about why he could not be involved because his brain was numb as he was suffering a bad time and his family was unwell.  He then said that there were no elections in 2008 and that at that time he had been involved in demonstrations against the Congress party’s demolition of poor people’s homes.  He later agreed that there had been an election in 2008 but said that he had not been allowed to be involved because he was from a lower caste;

   e)in August 2011 associates of Mr Kumar attempted to kidnap his son.  They threatened to kill him, his son and his family if he did not give up politics.  He had not quit politics even though it was a condition of his bail;

   f)he was not intending to go back into politics should he return to India; and

   g)he did not know why the doctor’s letter said that Mr Bhatia’s daughter, rather than his son, had attacked his wife or why it said that his parents had taken her to the doctor.  He said that strangers had taken her.

5. On 30 July 2012, the Tribunal received a written submission from the first applicant.  In the submission the first applicant stated that his mind had been “distraught” during the hearing and he confirmed that Mr Bhatia’s daughter had attacked his wife.

The Tribunal’s decision and reasons

1. After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons 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”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)it considered that until the point it asked him about a material inconsistency in his evidence, the first applicant had been able to answer its questions unaffected by any illness.  The Tribunal was satisfied that the first applicant’s capacity to present evidence and make arguments was not unreasonably impacted by any illness prior to the adjournment of the first hearing session.  It also found that the first applicant feigned illness as a means to avoid the Tribunal’s questions regarding the 2008 election;

   b)it did not consider the first applicant to be a credible witness.  The Tribunal found his evidence vague, inconsistent and implausible, that he often changed his evidence when inconsistencies or implausibilities were put to him and that his explanations were not persuasive or reasonable.  In this regard, the Tribunal found that the first applicant:

   i)was unable to explain with any detail the variety in his positions within the BJP;

   ii)provided inconsistent and implausible evidence regarding the elections in which he had been involved on behalf of the BJP.  In this connection, the Tribunal noted his claim that he had made mistakes in his evidence because he was under pressure and had been suffering depression.  However, the Tribunal also noted that he provided no medical evidence which satisfied it that he had in fact been suffering depression;

   iii)had not been a local party secretary of the BNP (sic) or a holder of any other position within that party and had held no role in any election which would have brought him to the attention of anyone in the Congress Party or any other party.  The Tribunal based this finding on multiple inconsistencies in and changes to his evidence and on his implausible or inconsistent explanations;

   iv)provided inconsistent evidence regarding how Mr Kumar made the threat to kidnap the third applicant.  The Tribunal did not find the first applicant’s explanation of the inconsistencies convincing and therefore did not accept that Mr Kumar, his thugs or anyone else had made any threat to kidnap the third applicant;

   v)provided inconsistent evidence regarding how he became aware that the car accident was a plot to kill him.  The Tribunal did not accept that he had been the target of such a plot.  It also placed no weight on the CT scan or the photographs provided by the first applicant which depicted a man in hospital with apparent head injuries.  It did not accept that that person suffered injuries as the victim of mistaken identity; and

   vi)provided inconsistent and implausible claims regarding who attacked his wife, the second applicant, and why they attacked her.  The Tribunal referred to inconsistent evidence regarding who assisted the second applicant after the claimed attack.  It placed no weight on the letter from the doctor and considered that the first applicant had procured that letter for the purpose of bolstering fabricated claims with harm to him and his wife;

   c)the Tribunal considered it implausible that Mr Kumar, as a member of parliament, would risk his position to harm anyone of the applicants’ profile, let alone perpetrate or orchestrate criminal attacks against them; and

   d)as the Tribunal found that the first applicant was not a credible witness, it rejected his evidence that he and his brother had been part of a false claim of domestic violence or that he had been released on bail on condition that he quit politics.  Due to his lack of credibility, the Tribunal also rejected the first applicant’s claim at the hearing that his parents and the doctor who had treated his wife had been threatened by police officers in India and as well as the allegation that those officers had had a letter from the Australian “Embassy” regarding the applicants’ application for protection visas. It also rejected the assertion that the applicants would be denied state protection should they return to India.

Proceedings in this Court

1. The first, second and fourth applicants attended the hearing of this application.  The first applicant presented the applicants’ case. 

2. In the application commencing these proceedings the applicants alleged:

   1.The Tribunal did not consider my fear of persecution (first named applicant) for my political belief as an activist of BJP and also arising from the marriage between my brother and [Mr Bhatia’s daughter] and made errors of jurisdiction.

   2.The Tribunal did not accept me as a credible witness as the Tribunal found my evidence was vague, inconsistent and implausible and made errors of jurisdiction.

   3.The Tribunal found that my harm for my political belief is not well-founded and refused my application and made errors of jurisdiction.

3. At the hearing of this application the applicants also submitted that:

   a)the interpretation services available to them at the Tribunal hearing might have been inadequate;

   b)the first applicant had told the Tribunal at the hearing that the interpreter was not interpreting correctly; and

   c)the Tribunal had stopped the first applicant from giving the responses he wanted to make and would not let him say everything he wanted to say.

4. At the commencement of the hearing of this application the first applicant also stated that prior to the matter being called on the interpreter provided by the Court had failed to translate the Minister’s written submissions adequately.  At my request the interpreter then undertook at the hearing a further translation of those submissions and the first applicant largely agreed that that translation had been adequate.  To the extent that he said it was not, I am satisfied that his complaints related to the fact that the interpreter did not interpret the submissions word-for-word but conveyed the meaning of the submissions in phrases which were appropriate to the purpose or that the first applicant did not understand the concepts expressed in the submissions, a matter over which the interpreter had no control.  In this latter regard, I provided the first applicant with explanations of the concepts and submissions which he indicated he had not understood.  Further, as the hearing progressed and the first applicant made his address to the Court, it appeared from his interaction with the interpreter that he was having no difficulties communicating with her or in having his exchanges with the Court interpreted effectively.  The first applicant, who had a reasonable if not particularly fluent grasp of English, made no complaint about his ability to communicate with the Court or with the Minister’s solicitor-advocate.

Ground 1

1. Contrary to the allegation made in the first ground of the application the Tribunal did consider the first applicant’s claims to fear persecution by reason of his political beliefs and for reasons associated with the marriage of his brother to Mr Bhatia’s daughter.  Consequently, this ground is not made out on the facts.

Ground 2

1. On the evidence before it, it was open to the Tribunal to conclude that the first applicant was not a credible witness.  That being so, its finding that he was not is not affected by jurisdictional error and the second ground of the application discloses no basis upon which the Tribunal’s decision should be set aside.

Ground 3

1. The third ground of the application implicitly invites the Court to reach a conclusion on the visa application different from the one reached by the Tribunal.  The Court does not have power to do this.  The Court’s role is limited to determining whether the Tribunal’s decision is affected by jurisdictional error and it cannot substitute the Tribunal’s view of the facts with its own.

Matters raised at hearing

1. Notwithstanding the order made on 17 June 2013 that any further evidence the applicants might seek to rely on be provided in affidavit form, they filed no affidavit annexing a transcript of the Tribunal hearing or any expert evidence as to the quality of the interpreters in question in order to substantiate their allegations concerning the conduct of the Tribunal hearing.  Instead they tendered four CDs containing the sound recording of the Tribunal hearing.  I have listened to those CDs.  It appears from those recordings that two interpreters were involved, one for the first session of the Tribunal hearing and another for the second session. 

1. The allegations made at the hearing of this application were, in substance, that the Tribunal did not discharge its implied duty under s.425 of the Act to afford the applicants a real and meaningful hearing.

2. In relation to the allegation concerning the possible inadequacy of the interpreter services at the Tribunal hearing, apart from the complaint referred to above at [13(b)], the applicants did not identify in what way those services might have been deficient.  The first applicant said at the hearing of this application that the basis of his concern was the fact that the Tribunal member had been smiling during the hearing, which the first applicant said must have been because the member did not understand what the first applicant had been saying to him.  The fact that the Tribunal member might have smiled provides an insufficient basis to conclude that the first applicant’s evidence and arguments had not been interpreted correctly.  In the absence of particularised allegations concerning identified mistranslations and expert evidence of deficiencies in the interpreter services at the Tribunal hearing, there is no basis to conclude that any particular errors in interpretation occurred.  The applicants adduced no such evidence and the only relevant, particularised allegation was the one referred to above at [13(b)], to which I now turn.

3. At the hearing of this application the first applicant said that he had told the Tribunal at its hearing that the interpreter had made a mistake.  Rather than take up the applicants’ suggestion that the matter adjourn so he could identify the relevant exchange on the CDs, I indicated that I would listen to them to determine if such a complaint had been made.  Having now listened to the CDs I am not satisfied that the applicants made any complaint to the Tribunal about the first interpreter.  However, at the second hearing session the first applicant did twice complain to the Tribunal about the second interpreter.  The first of those occasions is recorded at approximately 43’00”ff on the first CD of the second hearing session and concerns the exchanges summarised at para.68 of the Tribunal’s decision record.  The applicant identified an incorrect translation, corrected it and it is the corrected version which appears in para.68.  The second occasion is recorded at approximately 38’00”ff on the second CD of the second hearing session and concerns the exchanges summarised at para.73 of the Tribunal’s decision record.  As that paragraph records, the error in interpretation was identified and addressed during the Tribunal hearing. 

4. Neither of the two identified errors in translation prevented the applicant from giving his evidence, from presenting his arguments or from responding to the issues raised. In such circumstances, no breach of s.425 is made out: Pererav Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 22 [38]; Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at 6 [28]; SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [14]-[24], [74]. At the hearing I advised the parties that if I identified in the recording of the Tribunal hearing any complaint made by the first applicant about the Tribunal’s interpreter I would afford the Minister an opportunity to make submissions on the issue. However, in light of the conclusion I have reached on the significance of the identified errors in interpretation, I have had no need to hear from the Minister on that question.

5. In relation to the allegation that the Tribunal had prevented the applicants from presenting their case, although from time to time the Tribunal spoke over the first applicant and cut him off, these occurrences did not prevent the first applicant from putting the applicants’ case to the Tribunal.  When the Tribunal hearing is considered as a whole, the first applicant was given full opportunity to say what he wanted to say.  Moreover, at the end of the hearing he was invited to identify any issues which had not been covered and was also permitted to provide additional, written submissions. 

6. In the circumstances, I do not find that the applicants were prevented from enjoying their right to a real and meaningful hearing before the Tribunal.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 24 January 2014