FEDERAL COURT OF AUSTRALIA

SZFMW v Minister for Immigration and Multicultural Affairs [2006] FCA 1110

MIGRATION – judicial review – whether errors by interpreter affected Tribunal decision – failure to tender transcript before Federal Magistrates Court – evidence on appeal – breach of s 424A(1) of the Migration Act 1958 (Cth) – whether a separate and independent line of reasoning disclosed

Held: Appeal dismissed.

Migration Act 1958 (Cth) s 424A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 162 CLR 24 referred to

SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53 applied

SZFMW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 933 OF 2006

COWDROY J

22 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs in the sum of $4,500.

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

REASONS FOR JUDGMENT

1                                             The appellant appeals from the judgment of Smith FM given on 4 May 2006. That judgment determined that there was no jurisdictional error in a decision of the Refugee Review Tribunal handed down on 11 December 2003, which determined that the appellant was not entitled to a protection visa.

The TRIBUNAL’s DECISION

2                                             The appellant is a citizen of Lebanon who arrived in Australia on 16 January 2003. On 21 February 2003, the appellant applied for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 27 March 2003 a delegate of the first respondent refused to grant the protection visa and on 8 April 2003 the appellant applied to the Tribunal for a review of that decision.

3                                             The appellant, who was born on 9 November 1973, is a Maronite Christian and formerly resided in Hadchit in North Lebanon. He claimed that he joined the Lebanese Armed Forces (‘LAF’) as a volunteer in 1993 to protect himself from harassment as a suspected member of the Lebanese Forces (‘LF’). The LF was originally a Christian militia engaged in fighting during the Lebanese civil war. After the civil war ended in 1990 the LF continued to exist as a political party. The appellant said he had no involvement with the LF but because of his religion and his residence in Hadchit, a town in which three quarters of the population supported the LF, he was accused of supporting the party.

4                                             The appellant claimed that he initially joined the LAF for a period of three years and that he encountered numerous difficulties during his army service because of his religion and imputed political opinion. He said he had wished to leave the army but was not allowed to do so. In October 2002 he was demobilised with the assistance of his cousin, a colonel in the LAF.

5                                             Amongst other claims, the appellant told the Tribunal that when he returned to Lebanon after three months leave spent in Australia in 2000 he was court-martialled on charges of being an Israeli agent and a member of the LF and of taking information to Australia, and was sentenced to 60 days’ imprisonment. This information had not been disclosed in his written statement to the Department, which stated that he had been detained for seven days on his return from Australia.

6                                             The Tribunal accepted that the appellant had experienced some difficulties during his military service, but considered that he had exaggerated his experiences. Further, the Tribunal found that the appellant had not been targeted for harassment essentially or significantly because of his religion. The Tribunal characterised many of the events described by the appellant as personal disputes or reasonable applications of military discipline.

7                                             The Tribunal rejected the appellant’s claim to have been court-martialled on charges of being an Israeli agent following his return from Australia in 2000. The Tribunal said that the appellant’s reasons for not having mentioned it in his original application were not plausible, and further that the sentence given would have been excessively light if such a charge had really been made.

8                                             The Tribunal considered that the events described by the appellant (excluding the court-martial, about which it was not satisfied) did not represent harm of sufficient seriousness to constitute persecution under the Refugee Convention.

9                                             The Tribunal further found that, even if it were wrong in that conclusion, it was satisfied that there was no prospect that mistreatment would occur in the future if the appellant returned to Lebanon, because he had now been discharged from the LAF. The Tribunal did not accept that the appellant had a profile as an LF supporter since, on the appellant’s evidence, he was not a member of the LF and had not been involved in LF activities.

10                                          For these reasons the Tribunal was not satisfied that the appellant had a well-founded fear of persecution in Lebanon.

THE FEDERAL MAGISTRATE’S DECISION

11                                          The appellant appealed the Tribunal’s decision to the Federal Magistrates Court on 17 January 2005. When the proceedings in the Federal Magistrates Court were first filed, the appellant was represented by a firm of solicitors. However, a notice of ceasing to act was filed on 18 April 2006. Accordingly, when the hearing before the Federal Magistrates Court took place on 4 May 2006, the appellant was unrepresented.

12                                          Before the Federal Magistrates Court, the appellant alleged that the Tribunal had made a jurisdictional error by failing to apply the Refugee Convention, misdirecting itself as to the nature of persecution under the Convention, and erring in law in its construction of the protection obligations under the Migration Act.

13                                          The appellant made allegations at the hearing about statements which had been made before the Tribunal. However, Smith FM noted that the transcript of the Tribunal proceedings had not been tendered, despite the fact that the appellant had been on notice that it would be required to prove his claims.

14                                          The appellant made two main challenges to the Tribunal’s decision at the hearing. Firstly, the appellant alleged that his original migration agent did not provide an accurate translation of the statement he had made in support of his application for a protection visa, in particular as it related to his alleged court-martial following his return from Australia. The original statement in English provided to the Department provided:

‘I was in Australia before two years. When I was returned back to Lebanon I was detained and interrogated by L. Colonel [name]. I was detained for 7 days and paid LL 300,000.’

15                                          The appellant tendered a new translation of his statement in Arabic which said:

‘I was in Australia two years ago and when I returned to Lebanon I was put in jail then interrogated by Commander [name] and was put in jail seven days and paid 300,000 Lira in lieu of 60 days jail.’

16                                          His Honour found that, even if the original translation had been incorrect, this did not constitute a jurisdictional error by the Tribunal. There was no evidence that the appellant gave information to the Tribunal which should have caused it to doubt that the English statement attached to the appellant’s application form accurately represented the instructions given by the appellant to his agent. In these circumstances no jurisdictional error could arise.

17                                          The appellant also contended that the interpreter who assisted him before the Tribunal had been unable to translate accurately the positions and ranks in the Lebanese Army, which prejudiced the applicant. Smith FM found that this claim had not been factually established, since the transcript of Tribunal proceedings was not before the Federal Magistrates Court. His Honour added that he had ‘difficulty seeing how any errors in relation to “positions and rank” in the army would have made a material difference to the Tribunal’s assessment of the evidence’.

18                                          The third issue which arose in the proceedings in the Federal Magistrates Court, raised by Counsel for the Minister, was whether the Tribunal had breached its obligations under s 424A(1) of the Migration Act. The potential breach of s 424A(1) was based upon the fact that the Tribunal drew an adverse conclusion from the absence of a reference to his imprisonment for 60 days in his written statement accompanying his application for a protection visa.

19                                          Smith FM accepted that the reasoning of the Tribunal might reveal the use of ‘prior information’ which would be required to be the subject of a written notice from the Tribunal if the prior information was the reason, or part of the reason, for affirming the decision under review. However, Smith FM considered that the Tribunal in the present case used two entirely independent lines of reasoning, one of which was not reliant upon information used in breach of s 424A. Accordingly, the decision could be sustained on a separate ground.

APPEAL TO THIS COURT

20                                          The appellant in this Court appeals the decision of Smith FM on the following grounds:

‘2. His Honour failed to consider my Affidavit filed on 19 April 2006 and the serious errors involved in the translation and also the failure of the Refugee Review Tribunal to consider my circumstances and discrimination during my duty as an Army soldier as meeting convention reasons.

3. His Honour failed to take into consideration the transcript, a copy of which I assumed was lodged by my previous Solicitor as per the cost agreement.

4. I ask the Federal Court to consider the statement in English language submitted by my first Migration Agent, Australian Immigration Information Centre, as a document which does not reflect the contents of my Arabic statement given to him.’

21                                          The appellant was assisted at the hearing by Mr Toufic Laba Sarkis. Mr Laba Sarkis is not legally qualified and is acting as a friend to the applicant, with no objection from the first respondent and with the leave of the Court. Despite Mr Sarkis’ efforts, which I note were provided on a voluntary basis, his assistance was not equivalent to the assistance of a legal practitioner. Accordingly, I consider it appropriate to examine the judgment of Smith FM and of the Tribunal to ensure that there is no jurisdictional error which has escaped the attention of the appellant.

22                                          As to the first ground of appeal, the appellant claimed that the interpreter in the Tribunal hearing was inadequate, resulting in several errors revealed by the transcript of the hearing before the Tribunal. The appellant accepts that the transcript was not tendered before the Federal Magistrate, but says that he believed the transcript was being obtained by his solicitor as part of the preparation for the hearing before Smith FM, as he paid his solicitor to obtain it.

23                                          In support of his claim, the appellant sought to tender a copy of the costs agreement made with his former solicitor. He also sought to tender a version of the transcript, although not an official version. The respondent objected to the tender of both of these documents on the basis that new evidence could not be filed on an appeal of this nature, and, in the case of the transcript, because it had not been authenticated and, on the face of it, contained obvious errors. However, I allowed the tender of these documents, as I considered them necessary for me to understand the appellant’s arguments.

24                                          The appellant’s agent took the Court to several examples when the interpreter had difficulty in translating the appellant’s evidence. The appellant claims that he was prejudiced because of the difficulties in translation. He submitted that had a more competent interpreter been present, he may have been able to establish to the Tribunal’s satisfaction that he had a well-founded fear of persecution.

25                                          The transcript was not in evidence before Smith FM, although directions had been made in the Federal Magistrates Court for it to be filed. Whilst the appellant claimed that the omission resulted from the default of his former solicitor, I do not consider the costs agreement alone provides sufficient evidence to establish this fact. It is evident that the agreement between the appellant and his solicitor was, for some reason, terminated, which led to the filing of a notice of ceasing to act in these proceedings. The reasons for that termination have not been given. Accordingly, I am not satisfied that there are any grounds for allowing the transcript to be tendered as new evidence in this appeal.

26                                          Even if I were to consider the transcript, the grounds of error alleged by the appellant could not succeed. The primary error relied upon by the appellant was the inability of the interpreter to interpret properly the correct military ranks. This subject matter has no bearing upon the ultimate decision of the Tribunal. Further, it is clear from the transcript which has been provided that the interpreter alerted the Tribunal to this problem. The Tribunal itself observed that it would be of no significance in its decision.

27                                          As a second ground, the appellant says the Federal Magistrates Court erred in rejecting the ground of appeal which alleged errors in the translation of the appellant’s original statement. However, I consider the Federal Magistrate was correct to reject this ground. As Smith FM noted, there was nothing before the Tribunal which might have caused it to doubt that the appellant’s statement had been incorrectly translated. The Tribunal was entitled to rely upon the documents which were before it. Further, Smith FM said that even if the correct translation was that subsequently tendered by the appellant, there was no significant difference between the two statements and it would not have been capable of materially affecting the conclusions of the Tribunal. I agree. I would add that the transcript tendered by the appellant in these proceedings indicates that he told the Tribunal that he had actually been imprisoned for 60 days, which is, in any event, inconsistent with the newly translated statement provided by the appellant.

28                                          The appellant further submits that the Tribunal misapplied the definition of ‘persecution’ by not finding that the appellant’s experiences, namely being required to serve in dangerous areas, being denied promotion, fines, loss of pay and leave entitlements, removal of religious symbols from his motorcar and imprisonment, constituted persecution.

29                                          I accept that, if they had occurred for a Convention reason, the experiences described above might constitute persecution. However, the Tribunal in this case found that the experiences of the appellant were not suffered as a result of his religion. Nor was it satisfied that the authorities may have imputed to the appellant an affiliation with the LF. Accordingly the appellant could not be said to have a well-founded fear of persecution for a Convention reason.

30                                          A further issue considered by Smith FM was whether the Tribunal had breached s 424A of the Migration Act by relying upon the discrepancy between his original statement attached to his protection visa and his statements to the Tribunal concerning his imprisonment on return to Lebanon in 2000. I agree with Smith FM that the Tribunal did breach s 424A(1) in this respect.

31                                          The question, therefore, is whether, as Smith FM suggests, the decision of the Tribunal can be sustained because there is a separate and independent line of reasoning which is not affected by the breach of s 424A(1): see SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53.

32                                          The finding of the Tribunal relied upon by Smith FM states as follows:

‘In any event, even if I am wrong in relation to these findings, I am satisfied that given that the applicant has now been discharged from the LAF, there is no prospect that this mistreatment would continue if he were to return to Lebanon. I do not accept the applicant’s evidence that his relative the colonel advised him to leave Lebanon once he was demobilised. There is no sensible reason arising from the evidence before me to suggest that the applicant would be at risk of any continuing harm or human rights violations arising from his military service once that service had ended. Whatever ill treatment he may have encountered during that period, I am satisfied that there is no real chance that it would continue in the future.’

33                                          I accept that this is a separate and independent line of reasoning as discussed in SZECD and that, if this finding is unaffected by jurisdictional error, the decision of the Tribunal can be sustained. Accordingly, the question is whether this finding is free from jurisdictional error.

34                                          I consider that it was open to the Tribunal to find that there was no real chance that the appellant would be subject to mistreatment if he were to return to Lebanon because he had been discharged from the military, even given the possibility that the appellant might be called up for reservist duty. The Tribunal was clearly aware of this possibility. It recorded in its reasons the fact that the appellant is a reservist, noting:

‘The applicant submitted copies and translations of his military service exemption card, issued in January 2003, stating that the applicant had completed more than two years service in the armed forces and was free to travel overseas, among other things; his army reservist card, indicating that he is eligible for reservist duty at first level until 2007, and at second level until 2017 …’

35                                          The Tribunal’s reasons also record that the appellant specifically raised the matter of his reservist status, noting that the appellant claimed:

‘Also, because he is a reservist, if a war breaks out he will have to fight; he does not want to fight because he does not want to hurt anyone, and they will put Christians in the front line.’

36                                          In view of this, and mindful of the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 162 CLR 24, I do not consider that the words ‘no prospect’ in the reasons given by the Tribunal indicate that the Tribunal did not take into account his reservist status in making this finding. The finding that there was no real chance of future persecution was open on the evidence. I can see no jurisdictional error in the finding. Accordingly, the appeal should be dismissed with costs.

Associate:

Dated: 22 August 2006