FEDERAL COURT OF AUSTRALIA

SWKB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1217

SWKB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S136 of 2004

FINN J

ADELAIDE

16 SEPTEMBER 2004

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs of the application. 

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

REASONS FOR JUDGMENT

1                     The applicant is a Thai national of Chinese ethnicity who has applied unsuccessfully for a protection visa under the Migration Act 1958 (Cth).

2                     In his original application he claimed he left Thailand because of systematic discrimination over many years because of race, both during his education and in employment.  He has a university education but was unable to get suitable employment and he was in fact unemployed at the time he left Thailand.  He claimed racial discrimination against ethnic Chinese was practised and condoned by the Thai government. 

3                     His application was rejected by a delegate of the respondent Minister on the bases (i) of country information contradicting the practice of discrimination against ethnic Chinese which he had alleged;  and (ii) that the harm of which he complained was not “serious” for the purposes of s 91R of the Migration Act and that there was no evidence that he lost his job for a Convention reason.

4                     In applying to the Refugee Review Tribunal to review the delegate’s decision, the applicant contested the accuracy of the country information relied upon by the delegate.  This application was signed by the applicant.  There is nothing on its face to suggest he was assisted in its preparation by an interpreter, a lawyer or otherwise;  nor is there anything in the Tribunal’s reasons to suggest such was not the case. 

5                     At the Tribunal hearing he abandoned the claims he made in his original application.  He acknowledged that these were false and that they had been prepared by his lawyer.  In their stead he substituted a second version of claims.  This related to an event involving what he said was his used car business.  The Tribunal recorded his claim in the following terms:

“One of his clients was the owner of an illegal casino.  By a combination of unfortunate circumstances and an agreement the casino owner would bring cars to the applicant of gamblers who could not pay their debts.  The applicant would pay money to the casino owner and resell them.

As time went on powerful people including the mafia, politicians and police had their cars confiscated for non payment of debts.  These people approached the applicant to have their cars returned.  The applicant wanted his money back from the casino owner.  It was not forthcoming.  He believes his life is at risk from these powerful people if he returns to Thailand.”

6                     He was asked by the Tribunal what the current version had to do with prosecution for a Convention related reason.  The applicant replied that he did not think that his claim was Convention based.  The Tribunal commented upon the falsity of the original application, a falsity that the applicant maintained right up until the hearing.  It said it had great difficulty in accepting the second version of events.  It found, as the applicant in effect conceded, that there was no Convention based reason which brought it within the Tribunal’s power.  It was of the view that:

“[i]f the second version is true there is no convention-based reason which brings it within the Tribunal’s power.  Either the applicant is in an uncomfortable business relationship with the casino owner which has brought him to the adverse attention of unsavoury characters or, alternatively, the agreement somehow involves an illegal element and it is, therefore, a criminal matter.  Either way, neither comes within the definition of a convention-based reason and consequently the Tribunal’s jurisdiction.”

7                     In consequence, it affirmed the delegate’s decision not to grant a protection visa. 

THE PRESENT APPLICATION

8                     In the application to this Court under the Judiciary Act 1903, s 39B, the applicant complains of an error in the interpretation of his evidence before the Tribunal.  The application identified one error.  It was that the interpreter translated what he had said as being that he lived in fear for more than ten years whereas he said his fear was only for one year before his departure.

9                     As the respondent in its submissions correctly points out, it is not apparent from the Tribunal’s reasons that it proceeded on a premise different from that which the applicant says was his actual evidence.  The Tribunal did rely on the fact that he had the same address in Bangkok for more than ten years.  It did not find that he had a fear for more than ten years. 

10                  Directions were given to the applicant prior to the hearing of the application to file written submissions supporting his application.  He failed to do so, but in any event the hearing had to be adjourned because at the last moment the translator was unavailable.

11                  I gave a further direction for written submission.  This has been done.  The submission attempts to raise a new variant on his second version of events.  In part it also purports to describe events at the hearing.  No transcript of the hearing has been put in evidence.  The operative part of the submission is as follows:

“TO:   THE JUDGE AND COURT

I’ve had a problem in my case, because

1.                  My interpreter.  She couldn’t clearly realize and translate my words and meaning that changed my story.  Ex.

1.1       I was living in Bangkok 10 years before I came to Australia.  But in fact.  I was living in Bangkok for 29 years.

1.2       She said I’ve had a problem 10 years ago but I could still living in Bangkok.

            But in fact.  I just have had problem last year before I came to Australia.  That’s why I can’t go back to my country.

1.3       I told the RRT interviewer about ‘Military Mafia’ I tried to explain about ‘Military Mafia’ in my country, but she didn’t care about it, and she said ‘my case is about business’.

            But in fact.  There are lot of ‘Military Mafia’ in my country, everywhere, every town.  And Military Mafia is very dangerous, because they are police, soldier and politician, if I go back to my country it is very dangerous for me. 

2.                  The RRT who interview me she was easily surprised about my case.  Although my interpreter’s translation isn’t clear.  And she didn’t ask me anymore.  She just said ‘why’re you repeating about your job and mafia, I realized in that’. 

But I thought she didn’t realize or understand about ‘Military Mafia’ in my country.

3.                  As a result.  The RRT decided my case, it was incorrect and wrong.  And they said ‘I made up the story while I was hearing’.  That isn’t true.  Because when the immigration officers arrested me in March 2004.  I told them I’ve problem with ‘Military Mafia’ and I don’t know about my details in bridging visa, because a lawyer who cheated me and took my money wrote everything for me.  I just signed and he told me ‘you just sign and after I’ll write everything’.  He made up the story not me.  You can ask the immigration officers.  And above all I would like to tell everyone ‘I didn’t make up the story, everything is true and I’ve had big problems’.”

12                  The obvious anomaly in this insofar as it concerns interpretation is that, though requiring an interpreter, the applicant now purports to judge the quality of the interpretation – a matter I return to below.

13                  There is nothing in what the applicant points to relating to misinterpretation (i.e. the “ten year” issue) that has been relied upon by the Tribunal as a part of its reason for its decision.  And there is no basis at all for concluding that the alleged misinterpretation was such as to result in a denial of procedural fairness:  cf STPB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 818.

14                  The allegation that the Tribunal was indifferent to his claims about the “Military Mafia” appears, in my view, to be a late attempt to recast his claims so as now to bring them within the Convention.  It was not raised in his application to this court.  He had an opportunity to raise it in submissions before the adjourned hearing but did not do so, though he did send newspaper clippings and other country information to the Court without explanation two days before that hearing.  These were bundled under the heading “Thai Politically Religion War” and “Thai Mafia, Military Mafia, Politically Mafia”.

15                  At the hearing he could provide no explanation as to why the Military Mafia matter was not raised in his application to this Court.  He gave an explanation of how he became alerted to alleged mistranslation by the interpreter which he could not substantiate.  This led to his conceding that he may himself have misinterpreted the Tribunal’s reasons in concluding that it said he had feared for ten years.  I have considerable doubts as to whether there was any such misinterpretation on his part. 

16                  In his oral submissions to this court he gave a version of events concerning his last year in Bangkok which was quite at variance with that which the Tribunal attributed to him in its reasons.  He alleged, for example, that from 2002 he went underground and moved about for a year “evading the authorities”.

17                  My function, manifestly, is not to engage in merits review of the Tribunal’s decision let alone to consider untested “new claims”:  Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611.  Nonetheless, I regard his recent assertions as throwing light on his credibility.  The Tribunal clearly had grave doubts as to the veracity of the applicant’s second version.  It did not found its decision on this matter.  It had no need to as, in its view, the application did not engage the Convention in any event.  I share those doubts. 

18                  The course of events before this Court mirrors significantly that before the Tribunal – the making of an application on one basis;  its prosecution on another.

19                  In this proceeding the applicant bears the onus of establishing his claim.  I am mindful in this both that he is an unrepresented litigant and of the disadvantages this entails.  Nonetheless, I am not satisfied on the material before me that there was significant material misrepresentation of his second version of claims.  Nor am I satisfied that the Tribunal misapprehended the nature of those claims as presented to it, particularly in relation to the “mafia” claims.  The findings it made disclosed no jurisdictional error.  This court is not the place in which to advance a different and hopefully more advantageous case. 

20                  I will dismiss the appeal with costs. 

Associate:

Dated:              16 September 2004