FEDERAL COURT OF AUSTRALIA

SZNIH v Minister for Immigration and Citizenship [2009] FCA 1374

SZNIH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1064 of 2009

MCKERRACHER J

24 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant is to pay the costs of the first respondent fixed at $2500.

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

INTRODUCTION

1                     The appellant is a citizen of India.  He arrived in Australia on 6 July 2008 as a World Youth Day delegate.  On 18 August 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department).  A delegate of the first respondent refused the application on 4 November 2008.  On 27 November 2008 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.  The Tribunal affirmed the delegate’s decision and the appellant appealed to the Federal Magistrates Court.

2                     This is an appeal from the judgment of a Federal Magistrate delivered on 4 September 2009 (SZNIH v Minister for Immigration & Anor [2008] FMCA 905).  By that decision his Honour dismissed the application for judicial review of the decision of the Tribunal handed down on 10 February 2009.  

THE APPELLANT’S CLAIMS

3                     The appellant claimed to have a well-founded fear of persecution because of his political opinion.  This was claimed on the basis of his father’s and his own involvement in the Communist Party of India (Maoist) (CPI-Maoist).  He claimed that his father was a member of the CPI-Maoist while he himself was a member of the Radical Youth League (RYL), the youth wing of the CPI-Maoist.  He claimed that his father was tortured by the police on a number of occasions and that in March 2004 his father was arrested and since that time he had not been seen and ‘no-one knows where he is’.  He claimed that he sent many letters to the police commissioner and the President of India seeking the release of his father but heard nothing in response.  He claimed in 2007 police threats forced him to go to Trissur and look for work.  

4                     He claimed, however, that he was arrested and returned to Kollam where he was detained for three months.  He further claimed that the police threatened to kill him if he did not stop looking for his father.  He claimed he was sacked by his employer and was unable to find work anywhere and that his family dispersed to places outside of his home area.

BEFORE THE TRIBUNAL

5                     The Tribunal did not accept that the appellant faced Convention related persecution in India, primarily because he lacked credibility.  

6                     It found that he disclosed only the barest knowledge of the Maoists and their goals, methods and ideology.  The Tribunal also noted that the appellant said he was not really interested in the Maoists’ activities or cause and that the only reason he had joined was to help free his father.  The Tribunal was not convinced that the appellant had any overriding interest or logical purpose in affiliating with the Maoists.  The Tribunal also noted that the independent country information indicated that the CPI-Maoist was not formed until September 2004, six months after the date that the appellant claimed his father had been arrested.  

7                     The Tribunal further noted that the appellant’s claims regarding his work and whether or not his family dispersed after he was arrested were inconsistent with his claims made to the Department.  

8                     Overall the Tribunal was of the opinion that the appellant had shown a disregard for the truth in the process of seeking the protection visa.  The Tribunal stated that the appellant’s political opinion claims failed due to a lack of credibility.  It concluded that the appellant’s claimed fear of Convention related persecution in India was not well-founded.

THE FEDERAL MAGISTRATES COURT

9                     Before the learned Federal Magistrate the appellant stated that due to his ‘active membership [in the RYL]’, the ‘police and other authorities’ wanted ‘to eliminate’ him and that he wanted a protection visa to ‘save [his] life’.

10                  His Honour stated that the grounds in the application were ‘manifestly inadequate to provide jurisdictional error’, noting that the application invited the Court to make a decision about the appellant’s refugee claims, a function which the Court could not do.

11                  His Honour addressed the appellant’s oral submission that the Tribunal had already made up its mind at the hearing and listened to the recording of the Tribunal hearing.  His Honour found that the Tribunal had genuinely sought to establish the truth or otherwise of the appellant’s claims which had not been supported by any other evidence.  His Honour was satisfied that it was open to the Tribunal to have found that the appellant had ‘improvised himself out of factual tangles and at times had been evasive’.  

12                  The learned Federal Magistrate was also satisfied that the hearing was not flawed as a result of incompetent interpretation as his Honour could not be satisfied that the appellant had been at any disadvantage in the course of the hearing in relation to his capacity to participate and present his evidence to the Tribunal.  

13                  His Honour concluded that there was no evidence satisfying the test of actual or apprehended bias. 

14                  Having found that the Tribunal decision did not disclose jurisdictional error, his Honour dismissed the application for review.

GROUNDS OF APPEAL

15                  The notice of appeal raises the following grounds:

1.         I am the citizen of India.

2.         I have been given decision from RRT as well as Federal Magistrate Court, but they refused my demands for refugee protection.

3.         I am eligible for protection visa. I am not at all satisfied with this decision. The Hon: Court did not consider my real incidents and actual matter. So I wish to appeal.

4.         My RRT hearing was very wrong because interpreter transiting (sic-translating) is very deference (sic-different). And case manager is decide the decision I think before the interview, because don’t get a chance to me for speak

16                  In argument before me, the appellant developed his complaints about bias.  He submitted that the nature of the questions being put by the Tribunal Member demonstrated that the Tribunal Member had already made up his mind adversely against the appellant.  An example given was that the appellant had been questioned as to how he could be both an adherent to the Catholic faith on the one hand, a follower of Maoism on the other.  The appellant explained that he found the two beliefs consistent as they each reflected a search for truth.  I will address the bias ground below (at [27] and following).

17                  A significant focus of the argument by the appellant in oral submissions was as to the inadequacy of the interpretation facilities.  The appellant made the point that the interpreter provided was not officially recognised in speaking his language and that the interpreter made certain errors.  The appellant focussed, in particular, on an error concerning the question of whether or not the appellant’s father was still at home to which he said that his father was ‘not there’.  The interpreter understood this to be a euphemism for ‘passed away’ and translated it as such.  This error subsequently became apparent and was recognised.  It was noted that to the extent that it was an honest error, it was resolved entirely in favour of the appellant.  The record does not suggest otherwise.

18                  The other primary example in oral submissions in relation to interpretation was the complaint that it had been put to the appellant by the Tribunal that the CPI-Maoist was not registered until 2004 (which post-dated activities with which the appellant was said to be involved).  As made clear in subsequent reviews about this complaint, the question concerning the CPI-Maoist was based on a premise either of it having been formed or founded rather than being registered.  The appellant points out, that the CPI-Maoist is banned in India and has never been registered but in any event it was not registration as a party to which the delegate and the Tribunal had each alluded.  In the Tribunal and in the Federal Magistrates Court, the complaint raised by the appellant has received close scrutiny.

19                  I note in particular that the learned Federal Magistrate took considerable trouble to examine the materials supplied in relation to the question of interpretation and recorded in detail his impression about the translation and his reasons for ruling against the appellant on the topic of inadequate interpretation.  On the question of bias and on translation, the Federal Magistrate listened to the CD and was unable to discern support of the appellant’s complaint.  The appellant, nevertheless, still pressed me in oral submission for the opportunity to have an official interpreter review the contents of the CD recording of the Tribunal hearing so that he could prove that the translation of the questions and answers was not adequate. 

ANALYSIS

Grounds 1, 2 and 3

20                  Giving them a beneficial construction, the first three grounds raised by the appellant are nevertheless essentially a claim for a merits review of the Tribunal decision.  It is well-established that to engage in fact-finding about the merits of the appellant’s case is no part of the function of the Court in dealing with judicial review of an administrative decision; Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259.  The task of findings of fact, including findings of credibility, is for the Tribunal alone; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.

21                  The appellant contends that the Federal Magistrate did not consider his claims.  In my view, such a complaint can not be sustained.  Before his Honour the appellant merely made a number of complaints that went to the merits of the Tribunal decision.  He claimed that due to his active membership in the RYL the police and other authorities wanted to eliminate him and that to save his life he wanted to get a protection visa from the Australian government.

22                  His Honour did consider the grounds raised by the appellant but found that they were manifestly inadequate to establish jurisdictional error, as the review application only invited the Court to make a decision about the appellant’s refugee claims, a function which the Court could not do.  No error is disclosed in the reasoning of his Honour.

23                  Further there are no errors of law discernable in the Tribunal decision.  The Tribunal understood the appellant’s claims and discussed them with him during the hearing, putting its concerns to him throughout the discussion.  

24                  The credibility findings against the appellant were on a broader basis than in those areas which he has canvassed in argument (see, for example, [6] above).  It could be expected that such findings would be most detrimental to his refugee claims. 

25                  The Tribunal decision was based on its dissatisfaction with his evidence, which included internal inconsistency and conflict with the independent country information before the Tribunal.  It arrived at its findings, which were open to it, after a careful consideration of the evidence.  Further, the Tribunal correctly set out the law at the start of its reasons for decision and correctly applied that law to its findings.  No error is disclosed in the approach of the Tribunal.

26                  These grounds do not identify any jurisdictional error affecting the decision of the Federal Magistrate.  The grounds must be dismissed.

Ground 4

27                  Before the Federal Magistrate, as with the current appeal, the appellant claimed that the Tribunal’s mind was made up before the hearing and subsequent decision.  In dealing with this request his Honour listened to the recording of the Tribunal hearing.  His Honour found that the Tribunal genuinely sought to establish the truth or otherwise of the appellant’s claims and was satisfied that it was open to the Tribunal to have found that he had improvised himself out of factual tangles and at times had been evasive. His Honour concluded that there was no evidence satisfying the test of actual or apprehended bias. 

28                  There is nothing wrong with testing the veracity of an applicant’s claim – even with some vigour.  To demonstrate bias involving pre-judgement, the appellant must show the decision-maker had a closed mind to the issues raised and was not open to persuasion by his case.  The decision-maker is entitled to form a strong adverse view; the question to be asked is whether by their mental state the decision-maker was disabled or unwilling to have regard to other relevant circumstances.  The onus to demonstrate bias lies on the appellant and it is a heavy onus; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.  Actual bias is not easily proved, and it is a rare case in which it will be established on the basis of the Tribunal reasons alone; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668.  Further, the test for apprehended bias in a Tribunal decision is formulated by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.

29                  There is no evidence to support a contention that the Tribunal decision is affected by actual or apprehended bias.  The findings of the Tribunal had a clear evidentiary basis and were open to it on the evidence and material before it.  The Tribunal has given full consideration to all of the appellant’s evidence and discussed with him each of the matters that led to the decision.  Its decision was based on a careful and rational analysis of his claims.  There is no substance to suggest that the Tribunal did not bring an open, independent mind to the decision, or that a well-informed lay observer would perceive the Tribunal to be biased.  

Interpretation

30                  Before the Federal Magistrates Court, the appellant was directed to file a transcript of the Tribunal hearing recording, or such parts that the appellant wished to draw the Court’s attention to, which was to be verified by affidavit.  The appellant provided a 28 page document which his Honour assumed to be the transcript.  That document has been included in the appeal papers.  The appellant did not present any verification of the transcription of the English parts of the recording of the hearing, nor any evidence as to the competence of the person who translated what was said in Malayalam.  His Honour read the appellant’s transcript and compared this to part of the recording of the Tribunal hearing.  His Honour found that the English transcribing of the recording was significantly defective in the appellant’s transcript, and as a result found that the transcript was unreliable evidence of what occurred at the hearing.  That course was open to his Honour. 

31                  As there was no evidence to support the appellant’s claims about the inadequacy of the interpretation, his Honour found that the appellant was unable to prove his assertions of inadequacy.  Based on the Tribunal’s decision record it does not appear that the Tribunal or the appellant had trouble understanding each other.  It can not be said that the standard of interpretation was so incompetent that it prevented the appellant from giving evidence: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [38] and Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230.

32                  The suggestion at the end of this ground that the appellant had no opportunity to speak, is without foundation as the record demonstrates. 

33                  In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were not shown to be in error in the manner alleged or otherwise. 

CONCLUSION

34                  The appeal will be dismissed.  The appellant is to pay the costs of the first respondent fixed at $2500.

Associate:

Dated:         24 November 2009