SZUCF v Minister for Immigration and Border Protection

[2014] FCA 1207

FEDERAL COURT OF AUSTRALIA

SZUCF v Minister for Immigration & Border Protection [2014] FCA 1207

Citation:	SZUCF v Minister for Immigration & Border Protection [2014] FCA 1207
Appeal from:	SZUCF v Minister for Immigration & Anor [2014] FCCA 1863
Parties:	SZUCF v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 844 of 2014
Judge(s):	BUCHANAN J
Date of judgment:	17 November 2014
Catchwords:	MIGRATION – appeal from judgment of Federal Circuit Court of Australia – application for an extension of time in which to file an appeal – whether applicant denied procedural fairness before the Refugee Review Tribunal because no interpreter provided – no denial of procedural fairness
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(e), 5(2)(a) Migration Act 1958 (Cth), s 425
Cases cited:	Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; (1980) 4 ALD 139 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 SZTDQ v Minister for Immigration & Anor [2014] FCCA 537 SZUCF v Minister for Immigration & Anor [2014] FCCA 1863
Date of hearing:	11 November 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	32
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	DLA Piper Australia
Counsel for the Second Respondent:	The second respondent filed a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 844 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZUCF
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	17 NOVEMBER 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Time in which to appeal against the judgment of the Federal Circuit Court of Australia delivered on 8 July 2014 be extended to 8 August 2014. 

2.The grounds provided on 10 November 2014 be taken to be incorporated in the draft notice of appeal filed 8 August 2014 and be taken to be the grounds of appeal. 

3.The appeal be dismissed with costs. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 844 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZUCF
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	17 NOVEMBER 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Papua New Guinea.  He is in immigration detention.  He has applied for an extension of time in which to appeal to this Court against a judgment of the Federal Circuit Court of Australia (“the FCCA”) (SZUCF v Minister for Immigration & Anor [2014] FCCA 1863).

2. In support of his application for an extension of time, the applicant explained in an affidavit: 

   15.I was awaiting pro bono and legal aid assistance to lodge my appeal. I regret to advice that both legal aid and pro bono refused my application and with no legal experience I have to file the application myself which took me some time to finish. I am now representing myself and that is why I ran out of time.

3. The delay is of the order of 13 days.  I am prepared to accept his explanation, and grant the applicant an extension of time.  However, for the reasons which follow, the appeal must be dismissed. 

4. The judgment of the FCCA rejected a challenge to a decision of the Refugee Review Tribunal (“the RRT”).  The RRT had affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

5. The background circumstances are adequately summarised in the following paragraphs of the first respondent’s written submissions on the present application: 

   3.The Applicant is a citizen of Papua New Guinea (PNG) who arrived in Australia on 3 October 2010. He applied for the protection visa on 2 December 2013. He was interviewed by the delegate on 16 December 2013, and the delegate refused the visa on 9 January 2014. The Applicant applied to the Tribunal for review on 13 January 2014. The Tribunal held a hearing on 5 February 2014.

   4.The Applicant claimed to fear criminal violence in PNG. He claimed to have been attacked a long time ago over an ongoing land dispute between his clan and another clan. He also claimed that a rock was thrown at him in 2004. He claimed the police were far away from his home and under-resourced.

   5.The Tribunal accepted that the Applicant was a member of a clan involved with a land dispute with another clan, but that this was being dealt with through the PNG court system, and there was no evidence of current threats to the Applicant or his family. The two incidents the Applicant had referred to occurred some considerable time ago, and the latter at least the Tribunal regarded as a random attack. The Tribunal was not satisfied on the basis of the Applicant’s evidence that he had a well founded fear of serious harm or significant harm as defined in the Migration Act 1958.

6. To that summary, it might be added that the applicant arrived in Australia on a student visa, overstayed his visa and was then detained as an unlawful non-citizen.  It was from that circumstance that he applied for a protection visa. 

7. At the hearing before the RRT the applicant asked for an interpreter in Pidgin English, but one could not be provided.  The RRT recorded: 

   23.The applicant appeared before the Tribunal on 5 February 2014 to give evidence and present arguments. The applicant was unrepresented before the Tribunal. 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.

8. As for his claims for a protection visa, the RRT recorded: 

   24.In his oral evidence to the Tribunal the applicant stated that he came to Australia in 2009 on a student visa and with a [sport] Scholarship to play for a team in [city] Queensland. He subsequently overstayed his student visa and was detained in immigration detention after an acquaintance contacted the police. He stated that he is in a de-facto relationship with an Australian citizen …

   25.When asked about why he had applied for a protection visa he stated that he is safer in Australia and that he wanted to keep away from criminal activity.

   (Emphasis added.)

9. The applicant referred to a land dispute.  The RRT recorded: 

   27.He stated that there is tribal conflict over land and that he had experienced harm in the past. When asked about incidents of past harm the applicant stated that he had been attacked with a metre long bush knife when he was walking on a track and that he believed the attack was over the ongoing land dispute between his clan and other clans. When asked when this took place, the applicant stated he could not remember as it was a very long time ago. He also stated that in 2004 he was walking with his brother when a rock was thrown at him and his brother but he could not recall any other events.

   …

   31.When asked what he thought would happen to him if he returned to PNG now the applicant stated that because of the land dispute he feared harm from other tribes and he believed that they would target him. The applicant stated that people at times put up road blocks to stop you and then rob you.

   32.In regard to the land dispute the applicant indicated that it was ongoing since 1997 and that it involved several clans including the clan his father headed. The Tribunal noted that he had provided information indicating that the case is under consideration by a Land Court. The applicant stated that this is the case.

   33.The Tribunal noted that in respect to the land dispute the applicant’s family is availing themselves of the court system to settle the dispute and that there was also an appeal process. The applicant indicated that this is the case.

   (Emphasis added.)

10. It will be necessary to return to the two passages I have emphasised, in a particular respect. 

11. The RRT assessed the applicant’s claims for a visa on “protection” and “complementary protection” grounds as follows: 

    36.The applicant claims to fear harm on returning to Papua New Guinea by reason of tribal animosity over land. The Tribunal finds as follows. The Tribunal accepts that the applicant is a member of [a] Clan of which his father is clan leader. The Tribunal accepts that the applicant’s clan is involved in a land dispute involving several other clans. The Tribunal makes these findings on the basis of the various Court correspondence provided by the applicant and set out above …

    37.The Tribunal does not accept that this land dispute gives rise to a well [sic] fear of persecution for a Convention reason on the applicant’s return to PNG now or in the reasonably foreseeable future. The Tribunal makes this finding for the following reasons.

    38.The information provided by the applicant indicates that the dispute over land is currently being dealt with through the Court system. The applicant has not provided evidence of current acts of violence or threat to life to his family or himself. When at the hearing the Tribunal sought evidence from the applicant of harm the applicant referred to two events; an attack with a bush knife and a rock throwing incident. The applicant could not recall when the first incident occurred other than it was a very long time ago and nor was he sure who had thrown the rock at him and his brother. Other events referred to by the applicant were carjacking and robbery. The Tribunal notes that the applicant could not recall when the first event occurred and he was unsure who in 2004 had thrown a rock at him and his brother.

    39.The Tribunal notes that the applicant referred to land dispute as dating back to 1997 thus the Tribunal accepts that the first event may well have been related to the land dispute. In respect to the rock throwing incident the applicant only surmises that it was related to the land dispute as it was not accompanied by any verbal threats and the applicant did not know who was responsible. The Tribunal does not accept that one, possibly two random acts, of some considerable time ago give rise to a well-founded fear of serious harm on the applicant’s return to PNG now or in the reasonably foreseeable future.

    40.In addition given that the applicant’s family is currently availing itself of state instrumentalities in the form of land courts to settle the land dispute with other clans and given the absence of evidence that the land dispute has descended into physical violence or intimidation the Tribunal does not accept that the applicant will be the target of serious harm on his return to PNG by reason of the land dispute.

    41.In respect to ‘complementary protection’ provisions the Tribunal finds that there does not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country that there would be a real risk of the applicant suffering significant harm.

12. To succeed in any challenge before the FCCA it was necessary that the applicant show that the RRT had made a jurisdictional error.  It was not open to the FCCA to review the merits of the RRT decision not to grant the applicant a protection visa. 

13. The FCCA recorded: 

    8.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. 

    9.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. 

14. Only the second and fourth (and perhaps the ninth) of these written grounds made any reference to a possible jurisdictional error.  The other written grounds concerned the merits of the applicant’s claims and the FCCA rightly rejected them as being beyond its province. 

15. As to Ground 2, subject to consideration of the complaint about not being provided with an interpreter the FCCA observed that the applicant had not identified any way in which he might have been denied natural justice. 

16. As to Grounds 4 and 9 the FCCA said: 

    Ground 4

    14.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

    15.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. 

17. I see no error in the FCCA’s conclusions about those matters.  Those grounds do not appear to me to raise any real question of jurisdictional error on the part of the RRT. 

18. The FCCA viewed the complaint about the lack of an interpreter as, in substance, a complaint that the applicant: 

    16.… was denied the real and meaningful hearing impliedly guaranteed by s.425 of the Act.

19. The FCCA said: 

    19.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. 

    20.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) 

    21.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. 

20. In substance, this is a finding that the applicant suffered no practical injustice through the lack of an interpreter at the RRT hearing.  As Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (at [37]):

    37A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs… Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

    38No practical injustice has been shown. The applicant lost no opportunity to advance his case…It has not been shown that there was procedural unfairness…

    (Citations omitted.)

21. I turn with those matters in mind, to the application to appeal to this Court. 

22. For reasons which are not entirely clear, the material which the applicant initially supplied in support of his present application was incomplete.  In particular, no grounds of appeal were identified and the affidavit in support of the application, although containing paragraph 15 (set out earlier) contained no preceding paragraphs. 

23. After further inquiries were made by the Court, the missing material was supplied.  The proposed grounds of appeal were as follows: 

    1.        No Evidence

    Minister for Immigration & Ethnic Affairs v Pochi (1980) 4 ALD 139

    Deane J at (ii) – the Tribunal must make decisions of fact based on “rationally probative evidence” not “as a matter of suspicion or speculation”. 

    2.Lack of Procedural Fairness and constructive failure to exercise jurisdiction

    SZTDQ v Minister for Immigration and Anor [2014] FCCA 537

    Manousaridis J at [12]: 

    Where the Tribunal fails to make a finding on a “substantial, clearly articulated argument relying upon established facts”, that failure can amount to a failure to accord procedural fairness and a consecutive failure to exercise jurisdiction. 

    3.        Improper Use of Power

    There is a right to appeal an improper use of power under s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) Under s 5(2)(a), an improper use of power can be made out when a decision is based on irrelevant material.

    4.I was not provided a translator at the tribunal hearing and that is denial of procedural fairness. 

1. The missing parts from the affidavit stated a series of propositions which may be summarised as follows: 

   ·the RRT denied the applicant procedural fairness and natural justice.  (The only particular complaint about this was the failure by the RRT to provide an interpreter);

   ·the RRT “constructively committed jurisdictional error”;

   ·the RRT failed to understand various international conventions to which Australia is a party;

   ·the RRT adopted “an erroneous standard of proof”;

   ·the RRT ignored relevant materials. 

2. Apart from the specific complaint that the applicant was denied procedural fairness by the RRT, because he was not provided with an interpreter, the other complaints (and the grounds of appeal) bear all the hallmarks of generalised “legal” propositions supplied to the applicant for use in support of his wish to appeal.  They are each unfocussed and unparticularised.  They bear no apparent relationship to the complaints made to the FCCA about the proceedings before the RRT.  None of those matters raises for serious consideration any appellable error by the FCCA, or any respectable allegation of jurisdictional error by the RRT. 

3. Although directions were made on 18 August 2014 that the applicant file written submissions in support of his appeal, no further written material was filed by the applicant. 

4. At the hearing of the present application an interpreter in Pidgin English was made available.  I invited the applicant to address me directly on the grounds for the appeal which he wished to pursue.  He repeated the complaint about a lack of an interpreter before the RRT.  He referred to the RRT decision and stated that the decision did not reflect what he had said.  When asked to identify the errors he alleged, the applicant said that the RRT had said, wrongly, that he was “not scared” and “would not be harmed”.  When asked a little later to confirm that these were the matters about which he complained the applicant said that the RRT was “pushing him to go back” but did not really appreciate his “feelings”. 

5. If it was the case that the lack of an interpreter at the RRT had resulted in a relevant failure to understand or address the elements of the applicant’s claims for protection there would be no doubt that his claims would require re-assessment.  However, I do not accept that there was any misunderstanding by the RRT. 

6. The passages which I emphasised earlier from the RRT decision ([25] and [31]) make it apparent that the RRT understood that the applicant claimed to fear some form of harm if returned to his own country.  The RRT did not say he was “not scared”.  The RRT’s assessment was that any fear the applicant had was not a well-founded fear of serious harm on return to Papua New Guinea now or in the reasonably foreseeable future.  That assessment about the merits of the applicant’s claims is not reviewable in this Court, and was not reviewable in the FCCA. 

7. There is no reason to think that the RRT failed to understand or address the claims made by the applicant. 

8. The complaint about non-provision of an interpreter should, for the reasons given by the FCCA, not be accepted to be a denial of procedural fairness to the applicant. 

9. An extension of time in which to appeal will be granted.  The appeal will be dismissed with costs. 

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:       17 November 2014