FEDERAL COURT OF AUSTRALIA

MZWMQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1263

MIGRATION – protection visa – grounds of appeal raise no jurisdictional error – whether s 424A of the Migration Act 1958 (Cth) required the Refugee Review Tribunal to give written notice to the first appellant of its intention to rely on adverse information provided by the second appellant – adverse information provided by “the applicant” - Refugee Review Tribunal exempt from providing notice

Migration Act 1958 (Cth) s 424A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, (2005) 215 ALR 162, discussed

Minister for Immigration and Multicultural and Indigenous Affairs v Awan (2003) 131 FCR 1, cited

MZWMQ, MZWMR and MZWMS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 263 OF 2005

MARSHALL J

9 SEPTEMBER 2005

MELBOURNE

ON APPEAL FROM A JUDGMENT OF THE FEDERAL

MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal is added as a respondent.

2.                  The appeal is dismissed.

3.                  The appellants pay the first respondent’s costs of the appeal.

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

ON APPEAL FROM A JUDGMENT OF THE FEDERAL

MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of Federal Magistrate McInnis in which his Honour dismissed an application by the appellants for judicial review of a decision of the Refugee Review Tribunal (“the RRT”).

2                     The RRT dismissed an application by the appellants for a review of the decision of a delegate of the first respondent (“the Minister”) to refuse to grant protection visas to them.

Background

3                     The appellants are husband, wife and child respectively.  They are citizens of Sri Lanka.  The first appellant claimed that he had a well founded fear of persecution if returned to Sri Lanka in the foreseeable future.  The other appellants made no independent claims and the outcome of their applications depended on the success of the application of the first appellant.

4                     The first appellant claimed that he would be persecuted if returned to Sri Lanka by reason of an imputed political opinion.  He alleged that he was at risk of being killed by members of the prominent Ratwatte family because he possessed information, which could hurt the political career of Anuruddha Ratwatte, a former Deputy Defence Minister in the Sri Lankan Government.

The RRT’s findings

5                     The RRT considered that there were difficulties with the credibility of key aspects of the first appellant’s claims.  It rejected his submission that he was employed by the Ratwatte family and had serious doubts about the veracity of the first appellant’s claim that the Ratwattes intended to kill him. It found the first appellant’s evidence, about his role in delivering ammunition to the Liberation Tigers of Tamil Eelam (“the LTTE”) on behalf of the Ratwattes, not to be credible.  It considered it to be highly improbable that the Ratwattes would have supplied ammunition to the LTTE but that, if they did, they would not have entrusted that role to the first appellant.

6                     The RRT disbelieved the first appellant concerning his claim to have performed other tasks on behalf of the Ratwattes, such as disrupting elections, moving dead bodies and being involved in other illegal activities.  It also rejected his claim to have seen the Ratwattes murder two of his colleagues.

7                     The RRT considered that the first appellant had fabricated his account of his involvement with the Ratwatte family.  It further considered his evidence to be lacking generally in credibility.  The RRT rejected the submission that the first appellant belonged to a social group of “people who have witnessed politically motivated crimes or political crimes by the [Peoples’ Alliance] or Ratwatte family”.  It did not accept that he witnessed any such crimes or belonged to a particular social group of people who witnessed such crimes.

8                     The RRT accepted that the first appellant was a member of the Peoples’ Alliance (“the PA”) and that he worked for the election of a PA candidate in the 1994 elections.  Nevertheless, it did not accept that he had a profile which would bring him to the adverse attention of whatever authorities were in power in Sri Lanka.

9                     The RRT did not accept that there was a real chance that the first appellant would face serious harm amounting to persecution for reason of his real or imputed political opinion, or for any other Convention reason, if he returned to Sri Lanka.

The judgment below

10                  Before his Honour, counsel for the appellants submitted that the interpreter used to interpret the evidence of the second appellant had wrongly interpreted it, such that there was a conflict in the evidence of the first and second appellants.  The appellants raised other issues, which the Court regarded to be “criticisms of weight”.

11                  At [12], In respect of the interpretation issue his Honour said:

“… I cannot see any basis upon which it could be suggested…that the interpretation in this case was so inadequate or incompetent that the [appellants] were prevented effectively from giving their evidence.”

12                  His Honour also considered that the conclusions reached by the RRT, on the facts before it, were open to the RRT.

The appeal grounds

13                  The appellants raised three grounds of appeal.  The first two claimed that his Honour had failed to find that the RRT made a jurisdictional error when it failed to take into account relevant considerations and by it taking into account irrelevant considerations.

14                  The other ground of appeal alleged that the RRT denied procedural fairness to the appellants because they were “not given an opportunity to examine the interpreter on…perceived inconsistencies”.

The first two grounds

15                  In their written submissions in support of the first two grounds, the appellants took issue with the RRT’s adverse credibility findings and other matters of merit, rather than pointing to any judicially reviewable error.  Their position was not improved, in that regard, by any further oral submissions on the appeal.

“The interpreter ground”

16                  The appellants contended that the RRT was misled by an incorrect translation.  The full transcript of the RRT hearing was not before his Honour and it is not before this Court on appeal.  Further, a recording of the hearing is not before this Court and it was not before the Court below.  However, part of the second appellant’s evidence, as transcribed, is set out in the “Court book” which was before his Honour.

17                  At 28-29 of the RRT reasons, in a long passage dealing with the second appellant’s evidence, the RRT said:

“I have also considered carefully the evidence given by the Applicant wife at the hearing.  I note, by her own admission, the witness was privy to limited, mostly heresay, information about the Applicant’s alleged activities in connection with the Ratwattes.

In relation to events of which she claimed to have had direct knowledge, I consider that the witness’ evidence was unconvincing and contradictory in a number of respects.  I think it implausible that, having had her life and that of her child threatened by thugs – once in person and, subsequently, a number of times by phone – the Applicant wife would have stayed unprotected at home with her daughter and called neither her parents nor the police.  Her reasons for not acting were unconvincing.  I find it implausible that, a few days after receiving such threats, she would have opened the door at night to unidentified callers.  I also consider it to be implausible that these people were “scared off” by neighbours turning on their lights.  If in fact people were sent by Lohan Ratwatte to threaten or harm the Applicant wife for the reasons given by the Applicant, it is highly unlikely that such an action would have deterred them.

The witness’ evidence also contradicts the Applicant’s version of events in a number of key respects.  In this regard, I consider the witness’ evidence in relation to communication between her husband and Lohan Ratwatte in the days after the election to be significant.  The witness stated alternately that the Applicant had spoken to Lohan, that he had only tried to speak to Lohan and that he had not spoken to Lohan after the election.  She also said at one point that she didn’t know whether he had or hadn’t spoken to Lohan.  The Tribunal tried several times to clarify with the Applicant what in fact had occurred.  Her responses suggest that she was unsure of what to say and was deliberately dissembling in order to avoid contradicting her husband’s statement.  The independent translation of the evidence, sought by the Tribunal after the hearing, did nothing to clarify these conflicting statements and lead me to conclude that the Applicant was unsure of how to respond to this question as she did not know the ‘right’ answer; i.e., one which was consistent with that given by her husband.  The witness also gave very different accounts of the time of day the party occurred and suggested her husband’s visit to the Ratwatte estate happened a full day later than the Applicant claimed it did.  I consider this material to the claim, given she was able to recall the occasion for which the party was held, for whom the party was held and the time they left for the party and the fact that they returned at night.  Given this, I find it implausible that she was unable to identify the day or time when her husband left home, particularly as he had been absent for work for long periods until that time, according to both of their accounts.  Given that the Applicant alleges that he didn’t come back after allegedly being summoned to a party by the Ratwattes, I consider it implausible that these events were not inextricably linked in the Applicant wife’s mind.

When I put to the Applicant the substance of those inconsistencies, he downplayed the importance of his wife’s evidence stating that his wife was confused and mistaken.  His wife stated that she was nervous and did not have a good memory for such facts.  While making some allowance for nerves in the context of the hearing, the problems with the witness’ evidence seemed to me to be the result of her confusion as to what had taken place.  I note that no claim regarding the Applicant wife’s problems in providing evidence was made before the Applicant wife gave evidence, and only arose in the context of the Tribunal putting to the Applicant the substance of inconsistencies between his version of events and that of his wife.  Given the internal contradictions in crucial aspects of the Applicant wife’s evidence – which, despite my best efforts, I have been unable to resolve – and the Applicant’s comments regarding the unreliability of his wife’s evidence, I place no weight on her account of events in considering the Applicant’s claims.  This view is reinforced by the fact that the Applicant wife claimed not to have first hand knowledge of her husband’s job or activities.”

18                  The extract of the second appellant’s evidence which appears in the Court book is part of the certified “independent translation” obtained by the RRT.  It sets out the following exchange between the second appellant and the RRT:

19                  The Court agrees with the written submission of counsel for the respondents that the above transcript shows that, without help from the interpreter, the second appellant gave evidence about telephone conversations between Lohan Ratwatte and the first appellant in 2000.  As noted by RRT in its reasons for decision, the transcript of the hearing shows the second appellant gave other accounts to it about such conversations and about whether they had even occurred.

20                  It is difficult to grapple with the contentions of the appellants in the absence of a full transcript of the RRT hearing and without listening to the tape recording of the hearing.  The utility of the latter course would be undermined by the Court’s inability to understand Sinhalese.  Moreover, no such material was before his Honour and none was sought to be tendered on appeal.

21                  As counsel for the respondents submitted, there is no evidence before the Court to enable it to consider what, if any, errors the interpreter made and whether they were so serious as to deny the appellants a fair hearing.  Also there is no evidence of any complaints concerning the standard of interpretation during or within a reasonable time after the hearing.  Any such issues may have been addressed in the post-hearing written submissions made by the appellant’s solicitor, but no such issue was canvassed in those submissions.

22                  The appellants have not established any basis for their contentions that the interpretation was so inadequate or incompetent such that they were prevented from effectively giving their evidence.  His Honour correctly rejected this aspect of the appellants’ case before him.

SAAP

23                  In accordance with the judgment of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, (2005) 215 ALR 162, the RRT will be added as a respondent to this appeal. 

24                  As a consequence of a matter raised on behalf the first respondent as a model litigant, the Court has also considered the possible impact on this appeal of the fact that the RRT gave no written notice to the first appellant about its intention to rely upon adverse evidence of the second appellant.  Whatever other answers there may be to any submissions, if put, in reliance of that aspect of SAAP, s 424A(3)(b) of the Migration Act 1958 (Cth) operates to excuse the RRT from giving any written notice in the circumstances.  That is because the second appellant was an applicant before the RRT; see by way of analogy, Minister for Immigration and Multicultural and Indigenous Affairs v Awan (2003) 131 FCR 1 at [58].

Disposition

25                  The orders of the Court, having regard to the foregoing, are:

1.         The Refugee Review Tribunal is added as respondent.

2.         The appeal is dismissed.

3.         The appellants pay the first respondent’s costs of the appeal.

Associate:

Dated:              9 September 2005