SZUCF v Minister for Immigration
[2014] FCCA 1863
•8 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUCF v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1863 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal denied the applicant natural justice, failed to consider the applicant’s submissions and evidence and breached s.425 of the Migration Act 1958 by not providing interpreting services at its hearing. |
| Legislation: Migration Act 1958, ss.36, 422B, 424A, 425, 474 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZUCF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 763 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 8 July 2014 |
| Date of Last Submission: | 8 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 763 of 2014
| SZUCF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Papua New Guinea who arrived in Australia on 3 October 2010 as the holder of a student visa. On 2 December 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Papua New Guinea because of his family’s involvement in a clan land dispute. On 9 January 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. 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.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa were summarised by the Tribunal in its decision. As summarised by the Tribunal, the applicant relevantly claimed that:
a)his father was the head of his clan. Since 1997 his clan had been involved in an ongoing conflict with other clans over land. The case was being considered by a land court and an appeal process was also available;
b)once while walking he was attacked with a long bush knife and he believed that the attack was connected to the land dispute. He could not remember when the attack occurred because it was a very long time ago. In 2004 a rock had been thrown at him while he was walking with his brother. He had also been shot at because of the land dispute;
c)he had not reported the incidents to the police or gone to the hospital because the police would not do anything. Whilst there was a police presence in his district, his family lived in a remote area and it took time for the police to get there. Also, the police were poorly resourced, were short of vehicles and did not have enough officers. If the police came, they often arrived after the event and they had at times killed the wrong people;
d)he could not live in another part of Papua New Guinea because the “payback system” there meant that he could be attacked by another clan as pay back for a past grievance. The protection of his family was important and he could not isolate himself from them by moving to another part of the country;
e)he had applied for a protection visa because it was safer for him to stay in Australia and because he wanted to stay away from criminal activity; and
f)he feared that if he returned to Papua New Guinea he would be harmed by other clans because of the land dispute. Also, at times some people in Papua New Guinea set up roadblocks in order to stop other people and rob them.
The applicant provided the Tribunal with documents concerning the land dispute.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that he is a person 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 accepted that the applicant was a member of his clan, which was led by his father, and that the clan was involved in a land dispute involving several other clans. However, it did not accept that the land dispute gave rise to a well-founded fear of persecution for a Convention reason because:
a)the applicant had not provided evidence of current acts of violence or threats to life made against him or his family. The Tribunal noted that the applicant had referred to being attacked with a bush knife although he could not recall when it occurred other than to say it had been a very long time ago. Based on the applicant’s evidence that the land dispute had been on foot since 1997, the Tribunal accepted that the bush knife incident might have been related to the dispute. It also noted that the applicant had referred to having a rock thrown at him but, as the attack had not been accompanied by verbal threats, had only surmised that it was related to the dispute and did not know who was responsible. The Tribunal therefore did not accept that one, or possibly two, random acts which had taken place a considerable time in the past gave rise to a well-founded fear of serious harm. It noted that the applicant had also referred to carjacking and robbery. The Tribunal found that the applicant had not referred to threats of significant or actual harm made against him or his family which were over and above concern about random criminal activity; and
b)the information provided by the applicant indicated that the land dispute was being dealt with through the Papua New Guinean court system. Given that the applicant’s family continued to live in Papua New Guinea and was availing itself of state instrumentalities in the form of land courts, and given the absence of evidence that the dispute had descended into physical violence or intimidation, the Tribunal did not accept that the applicant would be a target of serious harm on his return to Papua New Guinea.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.I have more evidence and enough information for a fair complementary protection review.
2.The R.R.T. deprived me of natural justice.
3.Trying to send me back home will result in jeopardising my life, pushing me into life threatening situations being physically harmed, mentally tortured and emotionally unstabled for the rest of my life.
4.The R.R.T. made an error of law for not considering my submissions.
5.I have been a debate amongst the gangsters that I may be coming back to Papua New Guinea so they can physically harm me.
6.Lots of threats have been sent as to my significant harm to my vulnerability which are never to be settled for the rest of my life.
7.The situation had I had to go back home would be very critical and life threatening to myself; also I will be tortured for the rest of my life.
8.There are escalating crimes including violence, extortion and intimidation throughout the country of Papua New Guinea.
9.The secondary respondent made an error of law by not considering evidences which were significant and critical to the decision under review.
At the hearing of this application the applicant also raised an issue concerning whether the absence of a Pidgin English interpreter at his hearing before the Tribunal raised issues of jurisdictional error.
Ground 1
What the applicant appeared to want to do by the first ground of the application was to reopen and reargue the merits of his visa application by reference to additional material. However, as explained earlier in these reasons, the Court’s task is to determine whether the Tribunal erred in law. It cannot reopen the Tribunal’s review and conduct a new merits review of its own. For these reasons, the first ground of the application does not set out any basis upon which the Tribunal’s decision might be set aside.
Ground 2
The allegation that the Tribunal deprived the applicant of natural justice was, at least as far as the application was concerned, unparticularised and thus lacked material substance. The Tribunal’s natural justice obligations to an applicant are codified by s.422B of the Act in those provisions founds in div.4 of pt.7 of the Act. The applicant has not identified any particular section in div.4 which might have been contravened and it is not apparent that any was.
The most important provisions in that division are ss.424A and 425. A consideration of the Tribunal’s decision reveals that it was under no s.424A obligation to give the applicant information and, subject to the following consideration concerning the applicant’s allegation regarding the lack of an interpreter at the Tribunal hearing, a breach of s.425 is not apparent either. In that regard, the applicant was invited to a hearing and the Tribunal’s decision was based on the lack of evidence that there was any threat against the applicant, not a disbelief of his underlying factual claims. Moreover, the evidence in question related to issues which the applicant himself raised and which were apparent from his claims, rather than matters which the Tribunal was obliged to identify to him.
Grounds 3, 5, 6, 7 and 8
Each of grounds 3, 5, 6, 7 and 8 raised additional allegations inviting merits review on the Court’s part which, as already noted, is not available in proceedings such as these.
Ground 4
The allegation that the Tribunal did not consider certain of the applicant’s submissions was also not particularised. As the applicant did not identify any submissions which he said the Tribunal had not taken into account, there is no basis to make the finding the applicant sought in this ground. Nevertheless, it is not apparent that the Tribunal did fail to consider any of his arguments. The Tribunal did consider the applicant’s claims but was simply not persuaded by them.
Ground 9
The applicant’s allegation that the Tribunal erred by not considering evidence was, like other allegations, unparticularised. In particular, the applicant did not identify any evidence which was not considered and which, by not being considered, would produce a situation that the Tribunal’s decision was affected by jurisdictional error.
Ground 10
The final ground, raised by the applicant at the hearing of this application, concerned the lack of an interpreter at the Tribunal hearing. This submission had to be inferred from what the applicant said during the course of his address to the Court but, interpreted into the language and jurisprudence of the Act, should be understood to be an allegation that the lack of an interpreter meant that the applicant was unable to communicate adequately with the Tribunal such that he was denied the real and meaningful hearing impliedly guaranteed by s.425 of the Act.
In his evidence at the hearing of this application the applicant said that his English was not good, although he had done his best to understand and respond to the Tribunal. He said that he had not been completely clear about everything and had been confused, saying that he was not confident in his English language skills. In cross-examination the applicant conceded that at his interview with the delegate he had largely spoken English, although from time to time he had used the interpreter available to him. The applicant also said that what was in the Tribunal’s decision was not consistent with what he had told it.
In considering the applicant’s fresh allegation and the evidence which he gave at the hearing, I have also had to take into account the fact that there is no transcript of the Tribunal hearing before the Court or any identification by the applicant of any specific misunderstanding manifested in the Tribunal’s decision.
Although I accept that the applicant may not be confident in his English language abilities and may have been hesitant about his presentation at the Tribunal hearing, a number of matters satisfy me that his concern in relation to his communication skills at the Tribunal is misplaced. First is a file note of the Tribunal’s communications with the applicant on 29 January 2014 reproduced at page 118 of the Court Book which was exhibit A. There it is recorded that the Tribunal had spoken earlier to the applicant and that although he had said that he did not need an interpreter he was then saying that he would like one. The Tribunal officer recorded the conversation in the following terms:
I said that as the date of the hearing was very close (5 Feb) that it may not be possible to source an interpreter in time for the hearing, and that the hearing might need to be postponed to another date. The RA [review applicant] said he would still like to go ahead with the hearing on 5th – even without an interpreter.
Further, in the absence of a transcript and any particularised allegations concerning the Tribunal’s record of its hearing with the applicant, I accept the Tribunal’s summary of its hearing with the applicant as accurate, noting that no indication is given in that summary that the applicant raised with the Tribunal any issues concerning his ability to communicate with it or that he was, in fact, having any difficulty of that sort. I further note that the applicant did not challenge the accuracy of the Tribunal’s statement in para.23 of its reasons:
The applicant had requested a Pidgin English interpreter. The Tribunal was unable to source an interpreter. The Tribunal noted that despite the presence of a Pidgin English interpreter at his interview with the delegate the interview was conducted in English. On this basis and with the agreement of the applicant the hearing was conducted in the English language. (emphasis added)
Taking all these matters into account, and specifically the applicant’s failure to identify any example of communication problems, I am not persuaded that his communication with the Tribunal at its hearing was of a quality such that he was denied a real and meaningful hearing.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 20 August 2014
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