FEDERAL COURT OF AUSTRALIA

SZMDZ v Minister for Immigration and Citizenship [2009] FCA 1304

Migration Act 1958 (Cth) s 424A and s 425

SZMDZ v Minister for Immigration & Citizenship [2009] FMCA 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SZMDZ, SZMEA, SZMEB and SZMEC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 729 of 2009

REEVES J

13 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 26 June 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

BACKGROUND AND PROCEDURAL HISTORY

2                     The appellants are citizens of India who arrived in Australia on 28 May 2007.  On 20 and 21 June 2007, the appellants lodged applications for protection visas with the Department of Immigration and Citizenship.  A delegate of the Minister for Immigration and Citizenship (“the Minister”) refused those applications. 

3                     The appellants then applied to the Tribunal for a review of that decision.  The Tribunal, originally constituted, affirmed the delegate’s decision in a decision handed down on 25 March 2008. On 30 June 2008, Federal Magistrate Scarlett made orders, by consent, quashing that decision and remitting the matter to be reconsidered according to law.  This appears to have been brought about by the Tribunal’s failure to take evidence from the appellant’s wife:  see [2009] FMCA 559 at [14].

4                     The second appellant is the wife of the first appellant (“the appellant”) and the third and fourth appellants are the children of the appellant and the second appellant.  The second, third and fourth appellants did not make any separate claims as to persecution.  They applied for protection visas on the basis of their membership of the appellant’s family.  It follows that whether they are found to be refugees under the terms of the Convention depends on the outcome of the appellant’s appeal.

CLAIMS OF POLITICAL PERSECUTION

5                     Before the second, differently constituted, Tribunal the appellant claimed that he was a Muslim and a local leader of the National Development Front (“NDF”).

6                     The appellant stated that in 1998 a person who had converted from Hinduism to Islam was murdered by a gang of Rashtriya Swayamsevak Sangh (“RSS”) supporters.  He claimed that the killers were acquitted but they were then killed by a Muslim youth.  These killings gave rise to a fresh and heightened round of conflict between the RSS and NDF.

7                     The appellant claimed that he was falsely accused of the murder of an RSS member, Lakshmanan.  He stated that the police raided his house, seizing NDF documents and threatening his wife and children, while he was hiding on another property in a neighbouring State.  He stated that two of his colleagues were arrested, but released, and that the RSS continued to put pressure on his wife and children.

8                     The appellant claimed that he fled to Chennai; however he was recognised by RSS workers and he then sought a tourist visa to come to Australia in order to escape harm.

THE tribunal AFFIRMS THE DELEGATE’S DECISION – APPELLANT NOT A CREDIBLE WITNESS

9                     In its decision handed down on 31 October 2008, the second Tribunal accepted that a number of events occurred in 2007 as claimed by the appellant, including the murder of Lakshmanan.  However, the Tribunal did not believe the appellant’s claims that that he was in any way linked to these events.

10                  The Tribunal found that the appellant was not a credible witness and therefore did not accept his claims to have been harassed.  The Tribunal concluded that the appellant’s evidence about his activities with the NDF was variously:  lacking in detail; unconvincing; and generally evasive and circular.

11                  The Tribunal further noted that the appellant gave confused evidence about his role in the local NDF structure. The Tribunal stated that overall it was “overwhelmingly dissatisfied” and was unconvinced by the appellant’s:  poorly detailed and sometimes contradictory written and oral evidence about his involvement in the NDF.

12                  The Tribunal also relied upon the results of inquiries it had made with the local post of the Department of Foreign Affairs and Trade, which indicated that the appellant was not one of the accused in the Lakshmanan murder case.

13                  The Tribunal therefore did not accept that the appellant was a member of the NDF at any level, that he was implicated in the murder of Lakshmanan, or that he was suspected of any involvement or complicity before, during, or after the fact.  The Tribunal also found that the RSS did not have any significant interest in the appellant.

14                  Accordingly, the Tribunal concluded that the appellant did not have a well-founded fear of Convention related persecution in India.

THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

15                  The appellants filed an application for judicial review in the Federal Magistrates Court of Australia on 25 November 2008. On 13 February 2009, they filed an amended application which contained the following grounds (as summarised):

1.                  The Tribunal breached s 424A of the Migration Act 1958 (Cth) (“the Act”) by failing to invite the appellant to comment on adverse information.

2.                  The Tribunal failed to afford the appellant procedural fairness.  The interpreter at the Tribunal hearing did not translate accurately or properly, effectively preventing the appellant from giving evidence at the hearing.

3.                  The Tribunal breached s 425 of the Act as it did not consider the appellant’s request for a new hearing.

16                  The appellant provided six separate particulars of the first ground, which the Federal Magistrate noted were not all necessarily related to s 424A.  His Honour dealt with those particulars in order.

17                  In particulars 1 and 2 of Ground 1, the appellant pointed to para [30] of the Tribunal’s reasons for decision and submitted that it contained information that plainly did not relate to the appellant and was not put to him for comment under s 424A.

18                  The Federal Magistrate found that para [30] was part of a “cut and paste” passage from an earlier decision of the Tribunal concerning a different applicant and therefore accepted that the paragraph did not relate to the appellant.  However, the Federal Magistrate concluded that, when the whole of the Tribunal’s reasons were read with the appropriate latitude (referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291), this “typing error” did not vitiate the Tribunal’s decision.  I take this to mean that, since the information crept into the Tribunal’s reasons for decision as a result of an error, it was, therefore, not information that the Tribunal actually took into account in making its decision.  As a consequence, there was no breach of s 424A which would justify the Tribunal’s decision being quashed for jurisdictional error.

19                  In particular 3 of Ground 1, the appellant claimed that an internet citation for a quote in the Tribunal’s reasons for decision “did not exist”.  He said set out a long quote from Wikipedia under the heading “NDF and Human Rights Movement”.  On this aspect, the Federal Magistrate was not satisfied that the Tribunal had taken account of irrelevant material and was otherwise unable to discern how either of these matters gave rise to any jurisdictional error.

20                  In relation to the letter on NDF letterhead, which was the focus of particular 4 of Ground 1, his Honour was satisfied that the appellant was put on notice during the hearing that the Tribunal may not be persuaded by that document and that he was given more time to submit better proof of his claimed involvement with the NDF.  His Honour concluded that the Tribunal’s treatment of that letter did not demonstrate any breach of s 424A of the Act, nor any failure to afford the appellant procedural fairness, and nor did it give rise to any obligation requiring the Tribunal to conduct further enquiries about its contents.

21                  In particular 5 of Ground 1, the appellant contended that he was correct; and the Tribunal was wrong, in recording in its reasons for decision that he had referred to a man as “Yasar” when his real name was “Ausar”.  The Federal Magistrate was not persuaded that, even if the Tribunal made an error in this respect, it constituted jurisdictional error.

22                  In relation to the appellant’s complaints about the standard of interpretation at the Tribunal hearing, as identified in particular 6 of Ground 1, his Honour concluded that the appellant had not identified any particular error in the interpretation of his responses to the Tribunal’s questions about his NDF activities and it was open to the Tribunal to make an adverse assessment of the appellant’s evidence about his involvement in the NDF.  His Honour added that the appellant had not demonstrated any material failure of the Tribunal to provide an adequate level of interpretation services.

23                  The Federal Magistrate elected to consider Grounds 2 and 3 together.  The essence of the appellant’s complaint in those grounds was that he had sent a letter to the Tribunal by facsimile on 4 September 2008 requesting a new hearing because of errors that he claimed had been made by the interpreter at the Tribunal hearing.  He claimed the Tribunal had failed to afford him procedural fairness by not granting that adjournment.  His Honour was not persuaded, on the evidence, that such a letter had, in fact, been transmitted to the Tribunal as claimed by the appellant.  Moreover, his Honour concluded that, even if the appellant did send such a letter as claimed by him, the Tribunal was not required, in the circumstances, to accede to the appellant’s request in order to afford him procedural fairness.

24                  In drawing this conclusion, his Honour noted that the appellant was unable to present any evidence to him to support his claim that errors had been made by the interpreter.  Furthermore, his Honour was unable to detect from the transcript of the hearing which the appellant placed before him, any material disadvantage suffered by the appellant from any deficiencies in the interpreting services provided at the hearing.  His Honour was therefore not persuaded that the appellant had been denied a fair opportunity to participate in the hearing and was satisfied that the Tribunal had complied with its obligations under s 425 of the Act.

25                  The Federal Magistrate accordingly dismissed the appellant’s application for want of jurisdictional error.

THE CONDUCT OF THE PRESENT APPEAL

26                  On 8 July 2009, the appellant filed a notice of appeal in this Court which alleged that (as summarised):

1.                  The Federal Magistrate failed to consider the grounds of the application.  His Honour ought to have found that on the evidence before the Tribunal it was open to it to find that the appellant was a refugee.  The appellant claims that:  the Tribunal breached s 424A by failing to invite him to comment or respond to adverse information; the Tribunal denied him natural justice; the interpreter used at the Tribunal hearing did not translate accurately and he was effectively prevented from giving evidence at the hearing; and, the Tribunal breached s 425.

2.                  The Federal Magistrate erred in not considering the transcript of the Tribunal hearing submitted by the appellant.

3.                  The Federal Magistrate erred in ordering that the appellants pay the respondent’s costs.

4.                  The Tribunal’s finding was illogical. The Tribunal failed to properly weigh the appellant’s claim.

27                  At the hearing of the appeal before me on 10 November 2009, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Mr Bevan appeared for the first respondent.

28                  The appellant was content to rely upon the grounds stated in his notice of appeal.  Similarly, Mr Bevan was content to rely upon the written outline of submissions which had been filed on behalf of the Minister.

CONSIDERATION

First ground of appeal

29                  In the first sentence of the first ground of appeal before me, the appellant claims that the Federal Magistrate failed to consider the grounds of his application.  From my reading of his Honour’s reasons for decision, I consider it is quite clear that his Honour carefully considered all of the grounds of review put forward by the appellant, including each of the six particulars to Ground 1.  I therefore reject this aspect of Ground 1.

30                  In the second sentence of the first ground of appeal, the appellant claims that the Federal Magistrate ought to have found, on the evidence before the Tribunal, that he was a refugee.  Absent jurisdictional error – and the appellant has not identified any such error in his notice of appeal – what the Tribunal ought to have found, on the evidence, about the appellant’s refugee status was entirely a matter for the Tribunal.  Neither this Court, nor the Federal Magistrates Court, has any power to interfere with this fact-finding role of the Tribunal.

31                  Next, in the first ground of appeal, the appellant alleges that the Tribunal breached s 424A by failing to invite him to comment on adverse information.  The appellant has not identified what adverse information he is referring to.  Without this information, it is not possible to assess whether or not the Tribunal has committed any breach of s 424A.  However, if the appellant intended to refer to the information he identified in the various grounds of review before the Federal Magistrate, I do not consider his Honour committed any error in rejecting that claim:  see [17] – [21] above.

32                  Finally, the appellant alleges in the first ground of appeal that the interpreter used at the Tribunal hearing did not translate accurately and, as a result, he (the appellant) was effectively prevented from giving evidence at the hearing.  This, he claims, amounted to a breach of s 425 of the Act.

33                  On this aspect, I consider the Federal Magistrate accurately stated the current state of the law when he observed (at [2009] FMCA 559 at [55]) that:

…  On current authorities, this obligation arose under ss.422B and 425 only if, in fact, “the interpretation was so incompetent that he was effectively prevented from giving his evidence” (see Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [39]). Later judgments which have applied this test have considered the nature of any insufficient or incomplete translations, the existence of material factual errors which were not corrected, and whether any errors “deprived the appellant of a fair opportunity to succeed” (compare Finkelstein J in VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [27], and Gray J in M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 at [51]).

34                  To succeed on this ground, the appellant needed to adduce evidence before the Federal Magistrate to show that the standard of interpreting at the Tribunal hearing was deficient to the extent described above.  It is apparent from the Federal Magistrate’s reasons that his Honour gave the appellant ample opportunity to bring forward such evidence:  see [2009] FMCA 559 at [27] – [35].  In the end result, the only evidence the appellant produced was an unauthenticated transcript of the hearing before the Tribunal.  The Federal Magistrate described this evidence as:  an unauthenticated and confusingly presented transcript tendered after the deadline allowed by the Court:  see [2009] FMCA 559 at [57].

35                  Nevertheless, the Federal Magistrate considered this transcript and concluded (see [2009] FMCA 559 at [58]) that:

… it leaves me with the impression that both the interpreter and the Tribunal may have encountered difficulties extracting coherent evidence from the applicant, since he frequently interrupted or corrected the interpreter in English, or answered directly in English, or was unresponsive or verbose. Although at times some frustrations with the interpreter are expressed by him and by the Tribunal, any particular problems seem to have been corrected in the course of the hearing. Some of the applicant’s responses may have been condensed or not precisely translated by the interpreter, but I could not detect any significant evidence which was withheld from the Tribunal as a result of this.

36                  And further (at [59]):

The applicant appears to have a good grasp of English, and to have been keenly alive in the course of the hearing to draw attention to the occasions where he was dissatisfied with an interpreted answer, and he corrected the interpreter several times.  …

37                  Furthermore, the Federal Magistrate noted that the appellant had made no attempt to identify any particular errors in the transcript, or point to parts of it that were of concern to him.  His Honour also noted that the appellant had not adduced any evidence from an expert in the Malayalam language identifying any material error and explaining how that affected his opportunity to properly participate in the hearing.

38                  Ultimately the Federal Magistrate was not satisfied that the standard of interpreting services provided to the appellant at the Tribunal hearing fell below the requisite level described in the authorities (above), such that he was deprived of a fair opportunity to participate in the hearing.

39                  Having carefully considered the Federal Magistrate’s reasons for decision on this aspect, I consider that:  his Honour has accurately identified the relevant law; properly and fully considered all the evidence placed before him; and correctly concluded that the standard of interpreting services did not fall below the requisite level.  It follows that I cannot detect any error on the part of the Federal Magistrate on this issue and, therefore, this final aspect of the first ground of appeal must be rejected.

Second ground of appeal

40                  The second ground of appeal before me claims that the Federal Magistrate erred in not considering the transcript of the Tribunal hearing submitted by the appellant.  For the reasons I have stated above, this ground of appeal must also be rejected.  It is quite clear from the Federal Magistrate’s reasons that he did consider the transcript adduced by the appellant and concluded that it did not support the appellant’s claims about the deficiencies in the interpreting services provided at the Tribunal hearing.

Third ground of appeal

41                  The third ground of appeal seeks to quibble with the costs order the Federal Magistrate made against the appellants.  Since costs usually follow the event and the appellants were unsuccessful in the application before the Federal Magistrate, I can see no error in the exercise of the Federal Magistrate’s discretion to award costs against the appellants.

Fourth ground of appeal

42                  Finally, the fourth ground of appeal before me alleges that the Tribunal’s findings were illogical and that the Tribunal failed to properly weigh the appellant’s claims.  No particulars are given of these very broad allegations and, even if they were given, there is clear authority that errors in the Tribunal’s factual conclusions cannot, without more, amount to jurisdictional error.  Furthermore, as I have already observed (see [30] above), it is not the role of this Court, nor is it the role of the Federal Magistrates Court of Australia to interfere with the Tribunal’s fact-finding role, or to engage in a merits review of the Tribunal’s decision.  These are matters that fall squarely within the fact-finding jurisdiction of the Tribunal.

43                  It follows that this ground of appeal must also be rejected.

CONCLUSION

44                  For these reasons this appeal must be dismissed.  I so order.  I will hear the parties on the question of costs.

Associate:

Dated:         13 November 2009