SZTZT v Minister for Immigration

[2014] FCCA 2080

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTZT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2080

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal affirming decision of delegate of Minister for Immigration and Border Protection to refuse to grant the applicant a Protection (Class XA) visa – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.411, 414, 424A, 425, 425A, 426, 426A. 441A, 441C

Migration Regulations 1994 (Cth), r.4.35D

Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SZLSY v Minister for Immigration and Citizenship [2008] FCA 1144

Applicant: SZTZT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 600 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 8 July 2014

Delivered at: Sydney

Delivered on: 12 September 2014

REPRESENTATION

The Applicant: The Applicant appeared by telephone with the assistance of an Arabic interpreter.

Solicitor for the First Respondent: Ms A. Carr of DLA Piper

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application filed on 12 March 2014 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 600 of 2014

SZTZT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1314758, a decision of Tribunal Member S. Roushan dated 19 February 2014, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.

2. In accordance with the Court Orders made on 1 April 2014 the solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.  

3. The applicant was granted leave on 1 April 2014 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely, however, elected not to do so.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.

2. The applicant is a citizen of Egypt born on 8 December 1979 (CB 62).  He arrived in Australia on 3 May 2013 as the holder of a Temporary Maritime Crew (Class ZM) Subclass 988 visa.

3. The applicant applied to the Department of Immigration and Border Protection (at the time of the application the Department of Immigration and Citizenship) (the “Department”) for a Protection (Class XA) visa on 22 May 2013 (CB 2-92).  His claims were set out in a statutory declaration dated 16 May 2013 (CB 83-87).  A delegate of the Minister refused to grant the applicant a Protection visa on 1 October 2013 (CB 233-248).

4. On 3 October 2013 the applicant applied to the Tribunal for review of the Minister’s delegate’s decision (CB 250-255).  The applicant’s representative provided the Tribunal with written submissions (including further claims) on 18 November 2013 (CB 298-317).

5. The applicant was invited to a hearing before the Tribunal on 22 November 2013 where he attended and gave evidence (CB 318-320).  On 19 February 2014 the Tribunal handed down its decision affirming the Minister’s delegate’s decision to refuse to grant the applicant a Protection visa (CB 329-342).

Applicant’s Claims

1. The applicant claimed that, in 2003, he was approached by representatives of the Islamic Brotherhood (the “IB”) who asked him to join them.  The applicant refused and the IB threatened him.  He claimed that during the elections in Egypt, the IB asked him to write poetry praising them and to participate in election activities, however, the applicant refused.  The applicant claimed in 2012 while he was overseas, the Islamic brotherhood attacked his family’s farm and his brother was injured.  He claimed police would not assist his family.

2. The applicant claimed that his family was forced to begin to sell their farm and was accused by the IB of not supporting the organisation when they did not arrange to sell the farm to the IB.  He claimed that on 9 November 2013 his family’s farm was shot at while his family was in the house, and a letter was left under the door threatening that the family would die if they sold the land to Christians.

3. The applicant also claimed that from July 2006 to 3 May 2013 he was employed by the [Shipping Company], and that one of the company’s owners was a cousin of the former president’s wife.  The applicant claimed the [Shipping Company] was perceived by the IB as being sympathetic to the previous regime in Egypt.

4. The applicant also claimed that, although he identified as a Sunni Muslim he was not religiously observant and, consequently, he would be harmed for failing to observe Islam.  The applicant further claimed he would face persecution for reason that he had spent an extensive amount of time overseas and for reason that he had sought asylum in Australia.  The applicant also claimed he would face harm due to the ongoing political instability and violence in Egypt.

Tribunal’s Decision

1. The Tribunal, in its Decision Record did not accept the applicant had been pressured to join the IB (CB 334 at [28]).  The Tribunal:

   a)Accepted that in 2012 the applicant’s farm had been attacked, however, the Tribunal was not satisfied that it was anything other than an opportunity for burglary.  The Tribunal found that if the IB wanted to press their demands for acquiring the applicant’s family farm by force, the group had ample opportunity to do so from late 2011 (CB 335 at [34]);

   b)Was not satisfied that the applicant’s or his family’s political or religious views were the essential and significant reason behind the pressure to sell the family farm (CB 336 at [36]); and

   c)The Tribunal accepted that the applicant may not be as strict in his religious observance as those who were members of the IB (CB 338 at [41]), however, it was not satisfied that the applicant faced a real chance of harm because he did not adhere to strict religious practice or standards sanctioned by the IB (CB 338 at [42]).

2. The Tribunal accepted the applicant began work with the [Shipping Company] in 2006 (CB 338 at [44]), however, it did not accept the [Shipping Company] was run by the military or that the present government exercised any control over the company (CB 339 at [47]).  It accepted the applicant sustained a work injury while working on a ship in 2012 (CB 338-339 at [44]-[45]), and that the applicant believed he was entitled to compensation (CB 340 at [49]). 

3. On the basis of country information the Tribunal did not accept that the applicant faced a real chance of serious harm for being critical of the [Shipping Company] or that he intended to make a compensation claim, or that he would be imputed with a political opinion as a result of his dispute with the [Shipping Company] (CB 340-341 at [50]).  The Tribunal was also not satisfied that the fact the [Shipping Company] stopped the applicant’s wages after he abandoned ship amounted to serious harm (CB 341 at [52]).

4. The Tribunal accepted the applicant had been randomly involved in incidents of general violence, however, it did not accept this amounted to serious harm (CB 341 at [55]).  The Tribunal also accepted that Egypt was experiencing some instability and political violence, but was satisfied that it was a real risk faced by the population generally and not by the applicant personally (CB 342 at [57]).  Further, on the basis of country information, the Tribunal was not satisfied that the applicant would be at risk of harm for being a returnee or failed asylum seeker (CB 341 at [51]).

5. Ultimately, the Tribunal was not satisfied the applicant met the criteria set out in ss.36(2)(a) or 36(2)(aa) of the Migration Act and, therefore, was not a person to whom Australia owed protection obligations (CB 342 at [58]-[60]).

Current Proceedings

1. The application before this Court pleads the following grounds of review:

   1.  The Tribunal was in error because it had made the decision in denial of procedural fairness and denial of natural justice to me.

   2.  The Tribunal had constructively failed to exercise jurisdiction.

   3.  The Tribunal had failed to take into account relevant materials and considerations.

   4.  The Tribunal had ignored relevant materials.

   5.  The Tribunal had failed to ask relevant questions prescribed by law and its decision was beyond its power.

2. At the hearing the applicant confirmed he had not filed any amended application or written submissions.

Applicant’s Written Grounds

1. At the hearing, the applicant indicated he had received assistance from a friend when preparing his application and also expected to have legal representation at the hearing, however, his lawyer withdrew his instructions.  The applicant did not address the grounds of his application any further.

Applicant’s Oral Submissions

1. The applicant referred to his written claims (CB 84 at [13]) relating to the attack on his and his family’s farm.  He stated that in his first interview he mentioned he had received threats from “Y.S.”, however, the interpreter did not translate this to the Tribunal who overlooked it.  This is made clear from the audio recording of the hearing.  The applicant claimed there were errors in what the Tribunal stated in its Decision Record as against what the applicant actually said to the interpreter, particularly at [29]-[30] (CB 334).  The applicant claimed what was interpreted to the Tribunal was not what he said and, as a result, the Tribunal miscomprehended his claims and evidence.

2. The applicant claimed that in both the delegate’s and Tribunal’s decision records the date of the applicant’s interview with the delegate was wrongly recorded as 21 July 2013 when it actually occurred on 21 June 2013.

3. The applicant next stated that his name was also released on the internet in May 2014 and this was noted in The Guardian news service on 20 June 2014.

4. The applicant also stated that there had been errors in the numbering of his review application before the Tribunal.  He stated that at some points the number given to him was “XXXXX X2”, but on the documents it was “XXXXX X8”.

5. The applicant claimed the Tribunal also should have not named the [Shipping Company] in its Decision Record, but it did.  The applicant claims if anyone saw the Tribunal’s Decision Record they could use that with records of injuries at sea to work out who he was.  Someone could go on the internet and find the Tribunal’s Decision Record and this should not have occurred.

Minister’s Written Submissions

Ground One

1. The Minster submits the Tribunal complied with its obligations under Division 4 of Part 7 of the Migration Act. Pursuant to s.425 of the Migration Act the applicant was invited to attend a hearing before the Tribunal. That hearing invitation complied with all of the statutory and regulatory requirements (ss.425, 425A, 426, 426A, 441A, 441C of the Migration Act and reg.4.35D of the Migration Regulations 1994 (Cth)).

2. The Minister submits that at the hearing the Tribunal traversed with the applicant issues dispositive of the review. Particularly, extensive country information was put to the applicant to comment on at the hearing. No obligations pursuant to s.424A arose therefrom.

3. The Minister submits that, consequently, Ground One cannot be made out and should be dismissed.

Grounds Two, Three, Four and Five

1. The Minister submits that pursuant to s.411 of the Migration Act the Minister’s delegate’s decision not to grant the applicant a Protection visa was a decision reviewable by the Tribunal. As the applicant’s application to the Tribunal was made in the approved form (see s.412 of the Migration Act), pursuant to s.414 the Tribunal was required to review the delegate’s decision.

2. The Tribunal clearly set out the applicable law at [21]-[23] of its Decision Record.  It also set out all of the claims, submissions and evidence provided at various stages of the review process.  The Minister contends the Tribunal’s findings were open to it to make on the material and evidence before it and for the reasons it gave.

3. Consequently, the Minister submits that Grounds Two, Three, Four and Five of the application cannot be made out and should be dismissed.

Minister’s Oral Submissions

1. Ms Carr, appearing for the Minister, first sought to address the applicant’s oral submission relating to the Tribunal’s use of “[his]” in the last line of paragraph 4 of the Tribunal’s Decision Record.  The use of parentheses by the Tribunal in the Decision Record was for the purposes of “quoting” the applicant’s claims and there has been no error on the part of the Tribunal.  Secondly, the Tribunal was cognisant of the applicant’s claims about the farm being the family farm.

2. In respect of the applicant’s submissions about the standard of interpretation at the Tribunal hearing, Ms Carr submits there is no other evidence before the Court relating to this issue other than the Decision Record itself.  There is no other evidence before the Court besides the Decision Record and, accordingly, the Court must accept the Decision Record is an accurate record of what occurred at the hearing.  The applicant’s references to the audio recording of the hearing must also be disregarded as the recording is not in evidence, and if it were to be, it would have to have been prepared by an interpreter.  Accordingly, no weight should be given to those submissions.  Finally, [30]-[31] of the Decision Record and the findings made therein were open for the Tribunal to make on the material in evidence before it.  Nothing was raised by the applicant or his representative at either the hearing before the delegate or the Tribunal in respect of the standard of interpretation.

3. In respect of the applicant’s submission taking issue with the delegate’s incorrect noting of the date of the hearing at CB 236, the Court has no jurisdiction to review the decision of the delegate.  The Minister accepts this date has been entered incorrectly and the month of July wrongly referred to, however, the date in the Tribunal’s Decision Record is the correct date and there is no jurisdictional error.

4. Ms Carr next addressed the applicant’s submissions that the Tribunal did not take into account relevant considerations, referring to “10,000 in the Guardian”.  Ms Carr contended that no claim or reference was made to this “10,000” before the Tribunal by the applicant or his representative.  Further, the Tribunal does make reference to two Guardian articles in the Decision Record at CB 337, but the weight given to any country information is a matter for the Tribunal itself.

5. The applicant also made reference to an article appearing in the Guardian in May 2014, which the applicant contends the Tribunal should have had regard to.  The Tribunal made its final determination in February 2014 and accordingly could not have had regard to that article.  To the extent that that applicant contends this was an obvious inquiry into a critical fact that could have been easily ascertained by the Tribunal, the Minister submits this is not the case.

6. The last issue raised by the applicant was the naming of the shipping company the applicant worked for on the Tribunal’s website.  There is no evidence of this and, accordingly, no assertion can be made out in this respect.  In the Decision Record before the Court, the Minister agrees that the Tribunal has referred to the shipping company as both “[XXY]” and “[XYY]”, however, these are only typographical errors and do not reveal any error on the part of the Tribunal.

Consideration

1. The applicant appeared at the hearing in this Court with the assistance of an Arabic interpreter.  I note that no complaints were raised in respect of the standard of interpretation at the hearing and this needs no further consideration.  I further note the applicant is a self-represented litigant with no experience in this manner of litigation before Australian courts.

2. Ground 1 of the application pleads a denial of procedural fairness in respect of the manner in which the Tribunal made its decision on the applicant’s application before it. However, the applicant did not seek to address this issue at the hearing. I have had regard to the evidence before the Court, specifically the manner in which the Tribunal invited the applicant to a hearing before it, that the hearing complied with all of the statutory and regulatory requirements, that no issue arose after the hearing under s.424A of the Migration Act, and that the applicant was notified of the Tribunal’s decision in the manner prescribed by the Migration Act. There is no error in any of these respects apparent on behalf of the Tribunal. Accordingly, as this ground was not pursued at the hearing by the applicant, it cannot be sustained and should be dismissed.

3. Grounds 2, 3, 4 and 5 of the application were not addressed (at least to any extent that directly related to them) by the applicant at the hearing.  The applicant’s oral submissions are contained above at [21]-[25] and will be addressed in detail below.  These grounds are vague and unparticularised and no written submissions or amended application were filed by the applicant in order to provide further details in respect of them.

4. I accept the Minister’s submissions which have been reproduced at [29]-[30] accurately address grounds 2 and 5 of the application.  On a fair view of the Decision Record, there has been no failure by the Tribunal to exercise it jurisdiction, no failure to ask relevant questions prescribed by law, nor has the Tribunal decision been made beyond its power.

5. In respect of grounds 3 and 4 of the application, both grounds plead a failure by the Tribunal to take into account relevant materials and considerations (or ignorance thereof).  These grounds were not addressed by the applicant and, on a fair reading of the Decision Record, no error in this respect can be seen.  Accordingly, these grounds cannot be sustained.

6. I now turn to the applicant’s oral submissions made at the hearing on 8 July 2014, which are paraphrased above at [21]-[25]. 

7. First, the applicant has made complaints about the standard of interpretation at both the hearing before the delegate and the Tribunal hearing.  His Honour McKerracher J in SZLSY v Minister for Immigration and Citizenship [2008] FCA 1144 stated at [16]:

   16. The difficulties in interpretation have not been raised on any previous occasion. … No transcript or tape was provided to support the assertions. No specific incorrect translations were identified. In the absence of evidence before the Court disclosing any incompetence or other defect in interpretation such that the appellant was, in effect, prevented from giving her evidence in relation to a matter of significance for her claim or the Tribunal’s decision, there is no support for the appellant’s fresh contention about interpretation difficulties: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.

1. No transcript of the hearing was provided to the Court by the applicant and, as a result, there is no support for the applicant’s contentions in respect of the standard of interpretation at the Tribunal hearing.  Accordingly, on the evidence before it, the Court is bound to accept the Decision Record as being an accurate record of what occurred at the Tribunal hearing.  These submissions by the applicant cannot be sustained.

2. I next turn to the submissions made by the applicant in respect of alleged typographical errors in the Decision Record.  His Honour Marshall J in Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 stated at [48]:

   … Occasionally the RRT, like other decision-makers, deliver reasons for decision without 100% proofreading. Occasionally mistakes are not discovered even when the best of proofreaders have examined draft reasons. The existence of a typographical error is best acknowledged rather than attempted to be exploited; see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682.

3. I accept there have been a number of typographical errors contained in the Decision Record, however, it has not been demonstrated that any of these errors reach the threshold of constituting jurisdictional error on the part of the Tribunal. The typographical errors were not capable of affecting the exercise of the Tribunal’s jurisdiction.  Further, a number of the errors claimed by the applicant are unable to be substantiated on the evidence before the Court.  Accordingly, this claim must also fail.

4. I now turn to the applicant’s submissions relating to the release on the internet of the names of approximately 10,000 asylum seekers by the Department of Immigration and Border Protection in February 2014 and the article in The Guardian in May 2014.  The Tribunal handed down its decision on 19 February 2014 and, accordingly, could not have had regard to any article published in the Guardian in May 2014.  Accordingly, there has been no error on the part of the Tribunal in that respect.  Further, there is no evidence before the Court that the applicant was indeed one of the people whose names were released by the Department and how this would constitute jurisdictional error on the part of the Tribunal.  Accordingly, this submission cannot be sustained and should be dismissed.

5. I now turn to the applicant’s submissions relating to the publishing of the Tribunal’s decision on the internet.  I have had the opportunity to view the Tribunal’s website and have located therein the decision made in respect of the applicant on 19 February 2014.  That decision is in a different form to the decision available to the Court, with a number of names and references removed.  The applicant complains, however, that some references that jeopardise his safety are still contained in the decision on the Tribunal’s website.  In my view, this submission asks the Court to go beyond its function of reviewing the Tribunal’s decision and cannot be sustained.  Further, the Tribunal’s website, under the web page titled “Decisions”, states:

   Removing a published decision

   If the publication of a decision causes concern to a person with a close interest or involvement in the decision, a request for deletion of portions of the decision or its withdrawal from may be made to [e-mail].

   
   
   

   A published decision may be edited or removed if it is determined that that is in the public interest to do so.

   This page must be accessed before proceeding to view individual decisions.  If the applicant has legitimate concerns in this respect, he may wish to contact the email address noted above to have the decision removed.

6. His Honour Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 291 stated:

   The reasons under challenge must be read as a whole.  They must be considered fairly.  It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate-tooth comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

   His Honour’s statement is particularly relevant to the current proceedings, and in my view, there has been no error of law made by the Tribunal when the Decision Record is read as a whole, noting what has previously been said in respect of the applicant’s submissions.

7. I otherwise accept the Minister’s representative’s oral submissions accurately address the applicant’s claims made at the hearing.

Conclusion

1. None of the pleaded grounds in the application can be sustained, nor can any of the oral submissions made by the applicant at the hearing.  On a fair reading of the Court Book and Decision Record, no error is apparent on the part of the Tribunal.  Accordingly, the application should be dismissed and the applicant ordered to pay the Minister’s costs.

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

Associate: 

Date:  12 September 2014