SZWCU v Minister for Immigration

[2015] FCCA 1936

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1936

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether Tribunal denied the applicant procedural fairness – whether Tribunal failed to take into account relevant claims and documents provided – no jurisdictional error – application dismissed.

Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189
SZHEW v Minister for Immigration & Citizenship [2009] FCA 783
SZRMQ v Minister for Immigration & Border Protection [2013] FCAFC 142
SZSEI v Minister for Immigration & Border Protection [2014] FCA 465
WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131

WZAQB v Minister for Immigration & Anor [2012] FMCA 688

Applicant: SZWCU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 371 of 2015

Judgment of: Judge Smith

Hearing date: 2 July 2015

Date of Last Submission: 2 July 2015

Delivered at: Sydney

Delivered on: 24 July 2015

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr R. White, Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 371 of 2015

SZWCU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant worked for the security services in Georgia until he came to Australia in early 2013. He seeks asylum here claiming that he would be harmed in Georgia by people connected to the government to whom he had refused to give assistance. His claims were rejected by a delegate of the first respondent (“Minister”) and, on review, by the second respondent (“Tribunal”). The issue for determination is whether the Tribunal’s decision was affected by jurisdictional error.

2. Although the scope of the grounds pressed by the applicant was narrow, it is necessary to briefly set out the background facts as well as the reasons given by the Tribunal for affirming the delegate’s decision.

Background

1. The events giving rise to the applicant’s claim for protection started in October 2011 in the lead up to the Prime Ministerial elections in the following year. The applicant claimed that at that time he was approached by two people he knew and who were aligned to an opposition candidate in those elections. Those people suggested that if the applicant swapped sides he would be well-looked after the elections and that if he had any compromising information about the then President, he should tell them. The applicant refused this request and reported it to his superiors.

2. The applicant claimed that one of the people by whom he had been approached was kidnapped in August or September 2012 and that he believed that this was a direct result of the information that he had passed on to his superiors.

3. The applicant attempted to distance himself from these events by resigning from his position and was formally discharged in March 2012.

4. The party to which the two people were aligned gained power in the 2012 elections and the applicant was told through a mutual acquaintance that his life would be at risk for what he had done. For that reason, he left for Australia in January 2013.

5. On 27 February 2013 the applicant applied for a protection visa on the basis of these events and claimed that if he were to return to Georgia he would be detained and tortured and that he would disappear, be ill-treated and be killed. Further, he claimed that he would lack the capacity to subsist because he would find it very difficult to find other suitable employment and that his family would be harmed if he were to return to Georgia.

6. The applicant engaged a migration agent who was employed by the Refugee Advice and Casework Service (Australia) Inc. That agent prepared submissions in support of the visa application in which he dealt with the issues that arose in the application as well as certain information regarding the circumstances pertaining in Georgia.

7. On 27 September 2013 the delegate decided to refuse to grant the applicant a protection visa and, with the assistance of the same migration agent, the applicant applied to the Tribunal for review of that decision.

8. In a supplementary statement given to the Tribunal, the applicant claimed that his wife and family were no longer in Georgia but had crossed the border into Turkey for safety.

9. When the applicant was invited to attend a hearing before the Tribunal he requested that he be assisted by an interpreter in the Russian language, rather than in Georgian. The reason for this was that the applicant had found it difficult at an interview with the delegate to explain his case through a Georgian interpreter via telephone and that he was concerned that any other Georgian interpreters might know persons involved in the matter.

10. Prior to the hearing, the applicant’s migration agent prepared and submitted a submission in support of the applicant’s case and lodged it together with a declaration made by the applicant. In that declaration, the applicant stated that that submission had been explained to him in general terms and, in addition, that all of the supporting documents attached to the submission had been explained to him and that those documents, taken together with his earlier statement, accurately and completely presented his claims.

11. The Tribunal made its decision on 20 January 2015 affirming the decision of the delegate. The Tribunal found that the applicant had not been truthful about his experiences in Georgia, or the reasons for which he had left that country and was not satisfied that he had a genuine fear of persecution or that there was a real chance that he would suffer serious or significant harm on his return to Georgia. The reasons for those findings were essentially that central aspects of the applicant’s claims were vague, unsubstantiated, often implausible and inconsistent with country information from independent sources.

12. For those reasons, the Tribunal rejected all of the applicant’s claims and found that he did not meet the criteria for the grant of a protection visa.

Consideration

Ground 1

1. The applicant raises five grounds in support of his application for judicial review. The first ground is that the Tribunal erred by not considering relevant claims and relevant documents provided. The applicant explained this ground at the hearing by saying that, although he had given documents to his migration agent, the agent did not explain those documents properly to the Tribunal or had not passed them on to the Tribunal. That complaint appears to be at odds with the fact, noted above, that the applicant had signed a declaration that the agent’s submissions and the documents presented in support were a complete representation of his claims. In any event, even if the applicant’s factual assertions were accepted as correct, they would have no relevant impact upon the Tribunal’s decision.

2. In SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 the High Court found that fraudulent dealings by a migration agent had led to jurisdictional error in the Tribunal’s decision. However, the Court emphasised, at 207 [53], that there were sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. Although the Court did not explain what the policy reasons referred to were, it is possible that, if the negligence of an agent could affect a decision with jurisdictional error, there is a significant risk that judicial review proceedings would turn into professional negligence suits.

3. That warning applies to the circumstances of this case. At the most, the applicant’s submission is that his migration agent was not good enough to represent him before the Tribunal and had made mistakes in doing so. That, however, is insufficient to impugn the Tribunal’s decision and for that reason the first ground must be rejected.

Grounds 2, 3 and 4

1. The second, third and fourth grounds, taken together, are that the applicant was denied procedural fairness because of the standard of interpreting during the Tribunal hearing. There is no doubt that the quality of interpretation at a hearing conducted by the Tribunal can lead to jurisdictional error: see for example Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131, SZHEW v Minister for Immigration & Citizenship [2009] FCA 783 SZRMQ v Minister for Immigration & Border Protection [2013] FCAFC 142, and SZSEI v Minister for Immigration & Border Protection [2014] FCA 465. However, the applicant’s real concerns, as explained by him at the hearing before me, were that it was apparent from the Tribunal’s questions that information about his case had not been passed on to the Tribunal by his agent and for that reason his case was not presented properly. In other words, these grounds were another way of expressing the issue raised by the first ground. These grounds must be rejected for the same reasons as the first ground.

2. In any event, there was no evidence before the Court about the quality of the interpretation and, in particular, nothing to suggest that it was such that the applicant was effectively prevented from giving his evidence or that errors had occurred in translation which were so material as to cause the decision-making process to miscarry: WALN at [29].

Ground 5

1. The fifth ground in the application was that the Tribunal decision had not been made according to law. This ground was not particularised in the application and the applicant made no submissions in support of it. Indeed, he expressly stated at the hearing that he did not doubt that the Tribunal had acted according to law and that his real complaint was that the agent had not conveyed information to it so that he could prove the truth of his claims relating to Georgia. Further, as submitted by the Minister, the Tribunal’s decision turned on findings of credit which were based upon an assessment of the applicant’s evidence and of the independent evidence before it. Nothing in its reasons reveals that it made any error of law in that respect and for that additional reason, this ground is rejected.

2. There is no jurisdictional error in the Tribunal’s decision.

Further matter

1. The Minister submitted that the applicant had not correctly raised the jurisdiction of this Court. That submission was based upon the fact that, in the application form, the applicant had only put a mark against the order that the decision of the Tribunal be quashed and had not sought the issue of a writ of mandamus. A similar argument was accepted by Lucev FM (as his Honour then was) in WZAQB v Minister for Immigration & Anor [2012] FMCA 688. However, I would be slow to dismiss an application for that reason when the applicant is unrepresented, does not speak English and where there appears to be only one interpreter available to the Court in the Georgian language. However, as the matter must be dismissed in any event, I do not need to decide whether to accept the Minister’s submission.

Conclusion

1. The application is dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 24 July 2015