WZAVI v Minister for Immigration

[2016] FCCA 2961

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAVI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2961

Catchwords:
MIGRATION – Judicial review – former Refugee Review Tribunal – Indian citizen – application for Protection (Class XA) visa – whether relevant evidence overlooked – whether well-founded fear of persecution – whether misinterpretation – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476

Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2

Cases cited:
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609
SZELX v Minister for Immigration & Anor [2007] FMCA 209
SZRMQ v Minister for Immigration & Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

Applicant: WZAVI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 415 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 28 May 2015

Date of Last Submission: 28 May 2015

Delivered at: Perth

Delivered on: 30 November 2016

REPRESENTATION

For the Applicant: In person (with the assistance of an interpreter)

Counsel for the First Respondent:	Mr B Dube
For the Second Respondent:	Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the second respondent be changed to “Administrative Appeals Tribunal”.

2. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 415 of 2014

WZAVI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant has filed an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, made on 10 November 2014, is at Court Book (“CB”) 167-176. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”). The Delegate’s Decision, made on 1 September 2014, is at CB 60-73.

Background facts

1. The relevant background facts are set out below.

2. The applicant was born on 13 August 1990 in India: CB 3.

3. The applicant lodged an application for a Protection Visa on 24 July 2014: CB 2-29, claiming at CB 21-24 that:

   a)if he returned to India he would be arrested and tortured due to his political opinion;

   b)on 23 August 2013 he was “brutally attacked”;

   c)he had stopped to answer a phone call whilst driving when a car stopped behind him and five to six people got out and started attacking him;

   d)passers-by took him to hospital and he still has a permanent mark on his right leg from the attack.

   e)as a result of the attack he hid, did not stay with family and was “running from one place to another”;

   f)he went to Indonesia in November 2013, however “they” came to know about his whereabouts, “came to know his family” and he started receiving calls from “them” in Indonesia; and

   g)authorities in India could not protect him as “some police belong to the ruling party arrested and tortured me at the time. I tried to seek help from Police but every time my request was overturned and was ask (sic) not to lodge any application against them or against corrupt police officials”.

4. In support of the Protection Visa application the applicant filed affidavits from associates: CB 33-36 (“Associates’ Affidavits”). The Associates’ Affidavits claimed that:

   a)the applicant was an active member of the “Akali Dai Party” and that the police had arrested the applicant many times “on instance (sic) of opposite Political party”;

   b)the applicant had been falsely accused by Congress and police of “having relations” with militants, and that the police had beaten and tortured him “very seriously”; and

   c)the police regularly visited the house of the applicant’s family and pressured them to produce the applicant.

5. The applicant had elaborated on his claims in an interview before the Delegate on 15 August 2014. On 1 September 2014 the Delegate refused to grant the applicant the Protection Visa: CB 55-73.

6. On 14 September 2014 the applicant lodged an application for review to the Tribunal: CB 77-79. The applicant lodged a Response to Hearing Invitation: CB 87-88, signed by his migration agent “… on behalf of, and with the consent of, all applicants”: CB 88, and in which it was indicated that the applicant required an interpreter, and specified the language for the interpreter as “Urdu”: CB 87.

Tribunal Decision

1. In the Tribunal Decision the Tribunal found that the applicant was not a witness of truth in relation to critical aspects of his claims, and did not accept that:

   a)the applicant was a supporter or member of the Siromani Akali Dai party (“Amritsar Party”);

   b)the applicant was tortured or threatened or beaten because of any political activity or support for any political activity or support for any political party;

   c)the applicant was detained or beaten or threatened by police;

   d)the applicant fled India because of threats;

   e)the applicant’s brother was threatened or tortured or beaten by police looking for the applicant;

   f)the applicant received threatening phone calls in Indonesia;

   g)the applicant’s cousin was killed due to his political activity;

   h)the applicant’s father was a member of the Amritsar Party or knew the Amritsar Party President; and

   i)the applicant genuinely feared returning to India for the reasons he claimed: CB 170 at [11].

2. The Tribunal did however consider that the applicant had some knowledge of the Amritsar Party: CB 174 at [33].

3. The Tribunal also found that:

   a)the applicant changed his oral evidence to address the inconsistencies raised by the Tribunal at the Tribunal hearing in relation to whether he was a member or, as previously claimed, a supporter of the Amritsar Party, and the harm faced by his family: CB 170-171 at [14]-[18];

   b)there was no country information to indicate systematic targeting of someone with the low political profile claimed by the applicant, and considered it implausible that the applicant would be contacted and threatened five or six months after leaving India: CB 172 at [21];

   c)the applicant's oral evidence in relation to his movements between the time he was attacked in August 2013 and when he left India in November 2013 was vague and unpersuasive: CB 172 at [22];

   d)it was not satisfied that a number of documents provided in support of the application were genuine: CB 173-175 at [26]-[27] and [30]-[32];

   e)although the applicant's cousin had recently been killed in a road accident it was not satisfied that the road accident was deliberate or connected to politics in India: CB 174 at [31]; and

   f)the applicant did not satisfy the criterion in ss.36(2)(a) or (aa) of the Migration Act for the grant of the Protection Visa.

Grounds of the Judicial Review Application

1. The Judicial Review Application set out the following grounds of review:

   1. The evidence provided by me was overlooked was related to my claims.

   2. Return back to my country of origin may result in prosecution.

   3. Misconstruction of my claims by member of RRT because of the language barrier.

Registrar’s orders

1. On 18 March 2015 a Registrar of the Court made orders allowing the applicant to file and serve any amended Judicial Review Application or affidavit material and written legal submissions. No documents were, however, filed by the applicant.

2. The applicant made brief oral submissions at hearing.

Consideration

Ground 1

1. Ground 1 is unparticularised and cannot be maintained: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM, and see now WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited).

2. The Tribunal listed the documents provided by the applicant: CB 169 at [8]. Some of those documents were again listed by the Tribunal later in its reasons: CB 173 at [24].

3. The Tribunal:

   a)considered the applicant’s identity documents provided at the time of the application: CB 170 at [10];

   b)noted that it had concerns that the applicant's oral evidence was different to the information contained in various affidavits filed on the applicant’s behalf: CB 171 at [16]-[l7], and concluded that it did not accept the documents were genuine: CB 173 at [26];

   c)referred to the applicant's father’s party identification card and put to the applicant that the provision of the card was inconsistent with the oral evidence he had provided to the Department: CB 172 at [19], and noted that given the inconsistency in the applicant’s evidence it had significant concerns that the document was genuine: CB 174 at [28], and ultimately did not accept that the applicant's father was a member of the Amritsar Party: CB 175 at [33];

   d)the Tribunal referred to the letter from the Amritsar Party President and noted that it had considered the country information enclosed in the letter: CB 172 at [21], and further considered that the initial paragraph of the letter was inconsistent with the applicant's oral evidence, and considered that the applicant's response to the inconsistency was not persuasive, and found that the letter was not genuine: CB 173-174 at [27];

   e)considered the photograph of two men described by the applicant as his father with the Amritsar Party President and found that, given its concerns in relation to the applicant's credibility, it gave the photograph little weight as it did not provide any further evidence other than that the applicant's father was once photographed with the Amritsar Party President: CB 174 at [30];

   f)found that, after consideration of the country information in relation to the availability of fraudulent documents in India, and due to concerns in relation to the genuineness of other documents and the applicant's credibility, it gave no weight to a letter on Amritsar Party letterhead and was not satisfied it was genuine: CB 174 at [30]; and

   g)considered relevant affidavit material, and the death certificate and the evidence provided by the applicant in relation to his cousin's death, and found it was prepared to accept that the applicant’s cousin was killed in a road accident. It was not however satisfied that the accident was deliberate or connected with politics in India: CB 174 at [31].

4. The Tribunal dealt with the applicant's evidence, and did not overlook the evidence provided by the applicant. The Tribunal not only made reference to all of the evidence provided by the applicant, but also considered the content of the documents and whether they could be considered to be genuine. It is for the Tribunal to identify such material as it finds relevant to its reasoning and to give it appropriate weight: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7], and insofar as the Tribunal made adverse credibility findings, those findings were open on the material before the Tribunal, and were findings of fact par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J.

5. It follows from the above reasons that ground 1 is not made out and establishes no jurisdictional error on the part of the Tribunal.

Ground 2

1. Ground 2 is not particularised, and in the absence of particulars cannot succeed: see the authorities cited at [13] above. Ground 2 is therefore no more than an impermissible plea for merits review of the Tribunal Decision based on the applicant's dissatisfaction with the Tribunal’s findings, a task which forms no part of the Court’s role in judicial review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. No jurisdictional error arises in respect of this ground.

Ground 3

1. Given the lack of particulars to ground 3 it is unclear whether the applicant alleges that:

   a)the interpreter misinterpreted his evidence; or

   b)the Tribunal erred in its findings at CB 170-172 at [14]-[18] because inconsistences in the applicant’s evidence were because of misinterpretation.

2. Whether or not there was inadequate interpretation such that it is considered that a Tribunal hearing has not been fair, depends upon the circumstances of the case: SZRMQ v Minister for Immigration & Border Protection& Anor [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 at [5] per Allsop J (“SZRMQ”). Where interpretation of evidence is necessary, it must be adequate to “convey the substance of what is said”: SZRMQ at [9] per Allsop J. It is not necessary, or perhaps even possible to achieve a perfect interpretation: Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 at [26] per Kenny J. What is required is that “the essential elements that were being conveyed by the appellant were received by the Reviewer”: SZRMQ at [90] per Robertson J.

3. The Court notes that the applicant requested an Urdu interpreter for the Tribunal hearing: CB 87. The applicant submitted that the interpreter at the Tribunal was an Urdu interpreter and not a Punjabi interpreter and that he felt that he was “misjudged on that basis” because it was “a different dialect”. When the applicant was asked by the Court whether he confirmed to the Tribunal that he could understand the Urdu interpreter and that he was happy to proceed, the applicant said that “I’m sure that I was happy and that’s what I said at that time”: Transcript at page 3; see also CB 168 at [4].

4. The applicant has filed no affidavit material or a transcript of the Tribunal hearing in support of his allegations, and has not detailed any aspect of his evidence he claims was “misconstructed” (or perhaps, more accurately, misinterpreted).

5. In circumstances where:

   a)the applicant requested an Urdu interpreter for the Tribunal hearing;

   b)the Tribunal noted that it confirmed with the applicant “a number of times” if he could understand the interpreter, and the applicant confirmed that he could and was happy to proceed: CB 168 at [4]; and

   c)where there are no particulars of any alleged misinterpretation or a transcript of the proceedings, both of the English portions and a translation to establish any alleged misinterpretation,

   the applicant cannot make out ground 3.

6. Ground 3 is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.

Conclusion and orders

1. The Court has concluded that the applicant has failed to establish any jurisdictional error in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.

2. The Court will also order that name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.

3. The Court will hear the parties as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 30 November 2016