WALQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1737

FEDERAL COURT OF AUSTRALIA

WALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1737

MIGRATION – protection visa – issues of credibility – subjective thought processes of Tribunal

Migration Act 1958 (Cth), s 424A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 cited
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 followed

WALQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
WAD 105 OF 2005

SIOPIS J
22 NOVEMBER 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 105 OF 2005

BETWEEN:

WALQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

SIOPIS J

DATE OF ORDER:

22 NOVEMBER 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1The Refugee Review Tribunal be joined as the second respondent.

2The applicant’s application dated 12 May 2005 is dismissed.

3The applicant is to pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 105 OF 2005

BETWEEN:

WALQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SIOPIS J
DATE:	22 NOVEMBER 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 27 April 2005.  The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse the applicant’s application for a protection visa.

2. In accordance with the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, I order that the Tribunal be joined as the second respondent.

   Background

3. The applicant arrived in Australia on 26 December 2004 as a stowaway on a ship that he had boarded in Durban, South Africa.  Before boarding the ship he had been living in South Africa illegally since February 2003.

4. The applicant applied for a protection visa on 1 February 2005.  He said that he had been born and lived in Kenya and he feared persecution if he returned there.

5. In a declaration in support of his claim for a protection visa, the applicant said that his family were Muslim and he was raised as a Muslim.  He attended the mosque until January 2003 when he converted to Christianity.  He had been baptised and was now a practising Roman Catholic.  He said that when his father learned that he had converted to Christianity his father became enraged and sent people to try and harm him.  He said that he had decided to leave Kenya because he was afraid that his father was going to kill him because he had changed his religion.  He said that if he returned to Kenya his father would never accept the new religion of Christianity and that he would be alienated from his family and would have to live in hiding from his father.  His father would send people to track him down and harm him.  The Kenyan authorities would not protect him because the government does not interfere in conflicts relating to religious beliefs.  The government does not interfere with Islamic laws of the Muslim people.

6. The delegate refused the application on 16 February 2005.  On 21 February 2005, the applicant applied to the Tribunal for review of the delegate’s decision.  On 27 April 2005 the Tribunal affirmed the decision not to grant the applicant a protection visa.

7. The Tribunal found that the applicant lacked credibility and his claims could not be accepted.

8. The Tribunal said there were inconsistencies, contradictions and implausibility in the applicant’s claims.  The Tribunal said that there were inconsistencies in his protection visa application, his interview with an official from the Department of Immigration and Multicultural and Indigenous Affairs, and his evidence before the Tribunal.  These inconsistencies related to the dates on which he had converted to Christianity and had been baptised; and also the date when his father learned of his conversion to Christianity and the manner in which his father reacted on hearing that news.

9. The Tribunal also relied upon the applicant’s lack of knowledge of basic elements of the Roman Catholic religion in coming to its view that the applicant lacked credibility.  The Tribunal said:

   ‘The Applicant’s knowledge of the Catholic religion was clearly lacking in that he was unable to explain to the Tribunal the meaning of the celebrated mass.  When asked what the handling of the bread and wine during the celebration of mass signified, the Applicant was unable to provide an explanation which demonstrated any real knowledge about the religion.  When asked what he could tell the Tribunal about the Roman Catholic religion, he stated that one should not commit adultery or do anything that is against the law.  He was unaware of the meaning of the Holy Trinity.’

10. The Tribunal also said:

    ‘The Applicant was constantly vague in his replies when questioned about details relating to his decision to change from Islam to Christianity.  He was also vague and unconvincing in relation to why the dates differed in connection with his conversion and baptism.  This vagueness was not due to any claimed state of confusion on the part of the Applicant in relation to his claims of persecution.  His demeanour gave every impression of a person attempting to come up with answers on the spot without any real history.  It was this in my view that led to the inconsistencies and vagueness in the evidence that he gave.’

11. The Tribunal did not accept that the applicant had converted to Christianity as he claimed.  The Tribunal also said that it did not accept that he was assaulted by his father and forced to leave Kenya because of fear of persecution for a religious reason.  Further, the Tribunal said that it was not satisfied that the applicant had a genuine fear of persecution on the basis of his religion as claimed by him.  Accordingly, the Tribunal said that it was unable to find that the applicant has a well founded fear of persecution for a Convention reason if he were to return to Kenya.

    Application for judicial review

12. On 12 May 2005, the applicant filed an application for judicial review of the decision of the Tribunal.  The written application is as follows:

    ‘The applicant claims:

    1.        The Tribunal erred in not granting a protection visa.

    2.Due consideration was not given to the effect my change of religion has made to the safety of my life.

    The grounds of the application are:

    Not enough weight has been given to the fact that to return me to Kenya will put my life at risk.  I fled Kenya because even my own father wanted to kill me he is Muslim and I am now branded an infidel and the Muslim belief is that death to the infidel is a prime consideration.

    I believe in the teachings of Christianity where all men are created equal and peace and love should be the only truth taught.

    To be sent back to Africa where there is so much fighting between religions and groups will cause me to be an outcast and face persecution.’

13. At the commencement of the hearing this morning the applicant, who is a Swahili speaker, objected to the interpreter who was present in Court.  The applicant said that although the interpreter spoke Swahili the interpreter was from the Republic of the Congo and not from Kenya and that there were some differences in the Swahili spoken in the two countries.  He also said that the interpreter had misinterpreted what he had said when he had been used before.  I declined to adjourn the hearing of the application because I was of the view that the applicant would not be prejudiced by the use of the interpreter who was in Court.  I was of the view that the applicant had a basic understanding of English and would be able to tell whether the interpreter had correctly interpreted his submissions to the Court.  This view was based on a brief exchange that I had with the applicant in Court in English and the fact that the applicant had told me that for the period of almost two years that he was in South Africa, he had been required to communicate in English.  I advised the applicant to complain if he believed that the interpreter had misinterpreted what he said.

14. The applicant made brief oral submissions in support of his application.  In his oral submissions the applicant said that the interpreter had not correctly interpreted what he had said before the Tribunal and the interpreter did not raise things that he had said before the Tribunal.  The applicant also said that if he was returned to Kenya he would be detained for five years.  Further, the applicant submitted that he feared being returned to Kenya because he feared that he would be killed.  The applicant made no complaint as to the manner in which the interpreter interpreted his submissions.

15. As to the submission that the interpreter did not properly interpret what the applicant had said before the Tribunal, this is not a complaint which was made until today and it is not one of the grounds which the applicant included in the grounds for review in his written application.  I accordingly reject that ground as a ground of review in this application.

16. Further, the applicant also sought to raise for the first time a ground of complaint that he would be detained for five years if he were sent back to Kenya.  This was not raised before the Tribunal and, in any event, is not a ground for review which discloses a mistake in the procedure of the Tribunal.  I, accordingly, also reject that ground as a ground of review in this application.

17. The Court only has jurisdiction to interfere with the decision of the Tribunal where there has been a mistake in the process of the Tribunal in reaching its decision or a serious mistake of law by the Tribunal.  Lawyers refer to this as jurisdictional error.  None of the grounds raised by the applicant disclosed any jurisdictional error.  The Tribunal affirmed the decision of the delegate on the grounds that the applicant was not truthful and lacked credibility.  It is well recognised that matters of credibility are matters that are within the province of the Tribunal and not this Court.  The findings that the Tribunal made were open to it.  The Tribunal did not commit jurisdictional error.

18. In addition, counsel for the first respondent raised the question of whether it was incumbent upon the Tribunal to appraise the applicant under s 424A of the Migration Act 1958 (Cth) (‘the Act’) of its proposed findings in relation to the inconsistencies between the previous answers that the applicant had given in his protection visa application and his interview and the evidence which he gave at the hearing before the Tribunal, and give him an opportunity to comment.

19. In the case of Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428, at [95] Allsop J, with whom Heerey J agreed, observed:

    ‘…  I agree with the distinction drawn by Sackville J in Tin v Minister for Immigration and Multicultural Affairs that the information of which particulars must be provided is information or knowledge that has come to or be gained by the Tribunal and is not the subjective appraisal or thought processes of the Tribunal.  For example, as in Tin, “information” does not extend to the subjective view in the mind of the Tribunal of the evidence, in that case that the applicant was “not credible” or, as here, that Mr John Knight appeared to give his evidence honestly. However, the distinction can become very fine. If the subjective thought processes of the Tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of s 424A(1)(b)) of information (for s 424A(1)(a)), requiring the Tribunal to give particulars of that information and to explain its relevance.’

20. I accept the submissions of counsel for the first respondent that this was one of the cases where there was no obligation on the Tribunal to inform the applicant of the subjective thought processes of the Tribunal. The Tribunal held an adverse view of the applicant’s credibility on several grounds and this is not a case where the subjective thought processes of the Tribunal were founded on the ‘perceived importance of some piece of knowledge’. Accordingly, I am of the view that there was no obligation on the Tribunal to invite the applicant to comment under s 424A of the Act.

21. It follows that I am of the view that there was no jurisdictional error by the Tribunal.  This application is dismissed with costs.

I certify that the preceding twenty‑one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:             30 November 2005

The applicant appeared in person.
Counsel for the First Respondent:	Mr J D Allanson
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	22 November 2005
Date of Judgment:	22 November 2005