FEDERAL COURT OF AUSTRALIA

SZMXS v Minister for Immigration and Citizenship [2009] FCA 1542

MIGRATION — duty to make inquiries — adequate inquiries undertaken — duty to obtain translation of documents — circumstances in which duty may arise — duty does not arise

PRACTICE AND PROCEDURE — attempt to rely upon a ground of appeal abandoned before the Federal Magistrate — leave to raise as ground of appeal refused

Held: Appeal dismissed

Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546, followed

Cabal v United Mexican States (No 3) [2000] FCA 1204, 186 ALR 188, referred to

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, 259 ALR 429, cited

S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153, cited

SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321, 103 ALD 580, cited

SZMXS v Minister for Immigration and Citizenship [2009] FMCA 537, affirmed

SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436, cited

X v Minister for Immigration and Multicultural Affairs [2002] FCA 56, 116 FCR 319, considered

SZMXS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 718 of 2009

FLICK J

22 December 2009

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  Appeal dismissed.

2.                  The Appellant is to pay the costs of the First Respondent.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The Appellant is a citizen of India who arrived in Australia on 7 February 2008.

2                     On 14 March 2008 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. A statement provided in support of that application claimed persecution by reason of his Muslim beliefs. Persecution was allegedly increased by reason of the now Appellant’s position as a journalist with an Indian newspaper, variously described as the “Gujarat Today” and the “Gujarat Daily”. The statement claimed that he had become one of “the leading activists of the Muslim community” and “was their hope and inspiration”. The application was refused by a delegate of the Minister on 10 April 2008. The now Appellant sought review by the Refugee Review Tribunal on 30 April 2008.

3                     The Tribunal affirmed the delegate’s decision on 13 October 2008. In affirming the delegate’s decision, the Tribunal made adverse findings as to the credit of the now Appellant, including (in part) the following:

[138] Based on the above-noted evidentiary concerns and in consideration of the evidence as a whole, the Tribunal finds that the applicant is not a credible witness and that he has fabricated claims in order to support his application for a protection visa.

[139] The Tribunal does not accept that the applicant was oppressed and targeted by Hindu students at school because he was a Muslim, or that he left school because he was targeted or oppressed. It does not accept that he wrote articles for a Muslim daily newspaper as he has claimed. It does not accept that he was jailed on any occasion because of the articles he wrote, or because he was a Muslim and an activist or because he provided social services to the Muslim community. It does not accept that the applicant was a leading Muslim activist. …

4                     On 11 November 2008, an Application was filed with the Federal Magistrates Court of Australia. The Grounds set forth in that Application were expressed as follows (without alteration):

The Grounds of the Application are:

1. The Tribunal committed jurisdictional error of law by failing to consider an integer of the applicant’s claim.

Particulars:

a. The applicant was not provided the documents to the Applicant which he was relied in making the decision of the application.

b. In respect to the enquiries to the Gujrat daily it was admitted that the Applicant was worked there.

2. The Tribunal made irrelevant consideration in deciding the case.

3. The Tribunal founding was based on wrong footings and no basis in making this decision.

4. In term of a false case the Tribunal said that the there is no charges against the applicant. There is no basis of this as such the Tribunal made an error in making this decision.

A Response filed on behalf of the First Respondent on 20 November 2008 contended that “[t]he matters expressed as particulars in relation to the first ground do not meaningfully identify any jurisdictional error, and the remaining grounds are completely unparticularised”.

5                     The Application was subsequently amended on 30 January 2009. The Amended Application set forth the Grounds upon which it was advanced as follows (without alteration):

Ground one.

The Tribunal failed to take into account a relevant consideration, and failed to give genuine, realistic, and proper consideration, to a central aspect of the Applicant’s claim, which was that the Applicant worked as a journalist for the Gujarat daily, and published numerous articles with his byline attached, which supported his claims to be a Muslim activist, targeted by the authorities in India (Tickner v Bropho (1993) 40 FCR 183, at 197-199).

Particulars.

1.1 A simple inquiry of the editor of the Gujarat Daily, as requested by the Applicant, would have revealed that the Applicant had worked for the Gujarat Daily as claimed.

1.2 The Tribunal’s own request that DFAT in India verify that the form of the press card held by the Applicant was consistent with the press cards issued by the Gujarat Daily newspaper had not been complied with, and could simply have been followed up.

1.3 The form of DFAT’s response to the Tribunal request that it attempt to verify these claims central to the Applicant’s case was sufficient to alert the Tribunal to an obvious obscurity or problem with the inquiries made by DFAT; the source was clearly either unco-operative or not sufficiently informed.

Ground two.

The Tribunal failed to comply with section 425 of the Migration Act 1958, and failed to give the applicant a proper opportunity to appear before the Tribunal and present evidence and argument in relation to the issues upon which the case turned in refusing to accept the tender of articles written by the Applicant in the Gujarat Daily newspaper, which were relevant because they could easily have been authenticated through DFAT in India.

The Minister was called upon to show cause why relief should not be granted on these Grounds. The Federal Magistrates Court dismissed the Application before it on 25 June 2009: SZMXS v Minister for Immigration and Citizenship [2009] FMCA 537.

6                     Before the Federal Magistrates Court the now Appellant was represented by Counsel.

7                     A Notice of Appeal was thereafter filed in this Court on 14 July 2009. The Grounds of Appeal provide as follows (without alteration):

1.       In term of false case the Respondent said that there is no charges against appellant. There is no basis of this as such the Respondent made an error in making this decision –

2.       The Respondent committed jurisdictional error of LAW by failing to consider an integer of Appellant’s claim: (a) that Appellant no provide documents which was relied in making the decision (b) about enquiries to the GUJRAT DAILY employment.

3.       The Respondent made irrelevant consideration in deciding the case and Respondent founding was based on wrong footing and no basis in making this decision

8                     The Appellant appeared before this Court unrepresented, although he did have the benefit of an interpreter. The Appellant had requested that a male interpreter be provided, but the interpreter available on the day of the hearing was female. The Appellant sought a male interpreter, he explained, to avoid “confusion”. The hearing of the appeal nevertheless proceeded with the benefit that the female interpreter provided. As events unfolded, no “confusion” emerged.

9                     The appeal is to be dismissed. None of the Grounds of Appeal, it is considered, should prevail. None of the Grounds of Appeal, it should be noted, attempt to identify any appellable error said to have been committed by the Federal Magistrate. Nor is the Appellant’s position improved even if the Notice of Appeal is to be construed as seeking to contend that the Federal Magistrate erred in not acceding to like contentions. None of the Grounds — however construed — have any apparent merit.

The False Case

10                  This Ground of Appeal, it will be noted, has more in common with the fourth Ground relied upon in the Application as initially filed in the Federal Magistrates Court than with any Ground thereafter relied upon in the Amended Application.

11                  In the absence of explanation as to why this Ground was initially raised for resolution and thereafter not relied upon, it is not considered that leave should now be given to rely upon this argument for the first time on appeal.

12                  Although leave may be granted to rely upon an argument raised for the first time on appeal, leave should not too readily be granted — especially where it is not evident that the grant of leave is necessary in the interests of the administration of justice: SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436.

13                  In refusing leave in the present proceeding to depart from the manner in which the case was advanced before the Federal Magistrate, particular reliance has been placed upon the fact that the now Appellant was previously represented by Counsel and the apparent lack of merit in the argument now sought to be advanced.

Jurisdictional Error

14                  Although the second Ground of Appeal suffers from the defect that it alleges no error said to have been committed by the Federal Magistrate, it has been construed as an argument that the Federal Magistrate erred in rejecting a comparable argument. So construed, it is a Ground without merit.

15                  In support of his claim before the Tribunal, the now Appellant sought to rely upon a number of newspaper articles that he said he had written and a press identity card.

16                  In some circumstances it may be accepted that a Tribunal should make inquiries into aspects of a claimant’s case: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [24], 259 ALR 429 at 436.

17                  Whatever may be the extent of that duty and the circumstances in which it arises, in the present proceeding it may be accepted that inquiries were in fact made. The reasons for decision of the Tribunal thus record in relevant part the following:

DFAT inquiries made at “Gujarat Today”

[118] The Tribunal requested DFAT on 5 August 2008 to make inquiries in regard to the newspaper which the applicant claimed to write for. DFAT responded as follows:

Gujarat Today is a non-partisan newspaper covering political and social issues. It is run by reputed NGO, Lok-Hit Sarvajanik Trust which was established in 1985 to bridge the “communal divide” caused by widespread religious unrest in that year. The Trust is managed by the Muslim community, and in addition to the newspaper is also involved [sic] charitable work such as free medical treatment camps in slum areas, educational [sic] for the poor, rehabilitation services to those affected by floods, earthquakes, etc. Gujarat Today is known to have raised and highlighted social issues of relevance to Gujarat (Department of Foreign Affairs and Trade 2008, DFAT Report 875 – India: RRT Information Request IND33642, 2 September).

[119] The rest of the DFAT response is set out below.

Summary

Further to RRT request IND33642, post has confirmed that a Mr [X] worked with newspaper Gujarat Today for a short period four or five years ago. Post could not verify the validity of the press identity card provided in reftel [ie research request]. Post could not obtain a photograph of the person whose name appears on the press identity card.

Cable provides post response to RRT Country Information Request IND33642.

2. Post made enquiries at the office of Gujarat Today. Gujarat Today staff informed us that a Mr [X] worked with Gujarat Today some four to five years ago for around two months. Post did not provide the newspaper with a copy of the press identity card provided in reftel as they informed us that due to inadequate records management they would be unable to verify its authenticity.

3. Post was unable to verify the photograph of Mr [X] through other sources. Most staff at Gujarat Today either knew very little about Mr [X] or were too new to the organisation to provide any information (Department of Foreign Affairs and Trade 2008, DFAT Report 875 – India: RRT Information Request IND33642, 2 September).

18                  The Tribunal thus made some inquiries. No jurisdictional error is exposed by the Tribunal not making further inquiries or not causing further inquiries to be made. Nor is an error exposed in the reasons for decision of the Federal Magistrate in rejecting arguments founded upon any alleged failure to make inquiries: [2009] FMCA 537 at [14] to [26].

Irrelevant Considerations

19                  As with the previous Ground of Appeal, this Ground too suffers from the defect that it does not identify any appellable error said to have been committed by the Federal Magistrate. But it, too, can be construed as a contention that the Federal Magistrate erred in rejecting a comparable argument with respect to the Tribunal’s decision.

20                  So construed, the Ground was understood to relate to the myriad newspaper articles sought to be relied upon by the now Appellant when appearing before the Tribunal. Although the Ground refers to the Tribunal “refusing to accept the tender of articles”, that may not be an accurate manner in which to describe what happened.

21                  The newspaper articles are referred to throughout the reasons for decision of the Tribunal. For present purposes it is sufficient to note the following paragraph in those reasons for decision:

[102] The Tribunal noted that the applicant had been requested to produce documents to support his claim in May 2008. However, he had produced a number of documents on the day of the hearing which he had not referred to previously. Many of the documents were written in Gujarati. The Tribunal was concerned about why the applicant had done this. The representative told the Tribunal that the applicant had not translated the documents in Gujarati because the cost of a translation would be $500. The Tribunal asked the applicant whether there was anything he particularly wanted to refer it to within the large amount of material submitted shortly before the hearing.

The Tribunal thereafter stated:

[107] The Tribunal said that the applicant could keep all the articles written in Gujarati that he had brought in with him. However, it took the identification card and the warrant which the applicant had submitted (folios 195-196).

Whether it is correct to contend that the Tribunal refused to accept a tender of those newspaper articles in such circumstances may thus be doubted. But it matters not. The now Appellant sought to rely upon the articles and the Tribunal returned them to him at the conclusion of the hearing.

22                  There are two reasons why this final Ground of Appeal should be rejected.

23                  First, the Tribunal is under no unqualified duty to obtain a translation of all material that a claimant may seek to rely upon. Thus, in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546, Wilcox, Whitlam and Marshall JJ thus observed:

[25] There may be occasions in which the RRT is under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained to the RRT. However, the primary judge was correct when he said, as a general proposition, at [46] that the RRT “is not required to translate material in a foreign language” or “consider large volumes of material whose relevance is not explained”. Its failure to do so will not mean that it failed to consider or review an application in accordance with s414(1) of the Act or s54 of the Act, if applicable, when it has otherwise dealt with all material considered by it to be germane to its task of reviewing the decision of the delegate. In the present case the additional material was voluminous (including 19 textbooks in Spanish) and its relevance unexplained.

To the extent that an occasion may arise as to whether a translation of materials should be obtained, such occasions may be confined to securing the translation of “a particular document”. There is no general requirement to secure the translation of “voluminous” material.

24                  Indeed, there may be no requirement imposed upon the Tribunal to secure the translation of even a particular document. But, if a document that has not been translated is to be relied upon, there may be a necessity to inform a claimant that the Tribunal will not take that document into account because a translation has not been furnished: X v Minister for Immigration and Multicultural Affairs [2002] FCA 56, 116 FCR 319. There in issue was a diary obtained from Burma. The Tribunal affirmed the decision under review and concluded that it could not take the diary into account as it had not been translated. Moore J there observed:

[53] The point addressed by the Full Court in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 was whether the Tribunal was under a general obligation to obtain for itself a translation of documents furnished by an applicant. The issue in this appeal is slightly different. I do not suggest that the Tribunal was obliged to obtain a translation of the diary itself nor that it was obliged to defer deciding the appellant’s application until the appellant had provided a translation. What it did not do was inform the appellant that it would not take into account the contents of the diary because a translation had not been furnished. Generally, an applicant would be likely to know what a document relied on said and its significance. Both matters could be explained by the applicant if comment was invited before the document was effectively rejected. The Tribunal is not bound by any “best evidence” rule and can rely on secondary evidence, as it is described in curial proceedings, of the contents of documents: see s 420(2). Moreover, it is open to the Tribunal to request (as it routinely does) that an applicant provide translations of documents on which he or she relies particularly if the applicant says the document is significant or the Tribunal believes it may be. If a translated document provided by an applicant bears upon the claim of the applicant and the Tribunal is to have regard to it, the Tribunal can either accept the translation or independently seek to verify its accuracy. It is improbable that the statutory scheme would require the Tribunal ordinarily to obtain a translation if none was provided, after invitation, by the applicant: see Cabal v Minister for Immigration and Multicultural Affairs. However, equally, it is unlikely that the statutory scheme authorised the Tribunal to disregard the contents of a document relied on by an applicant simply because it was not in English, when the applicant was not put on notice that the contents would be disregarded without a translation being provided, before the decision was made to reject the application for a protection visa.

Both Gray and Moore JJ concluded that the Tribunal could not decline to consider the document simply because it was not in English. Gray J further found that the present case was one where a translation should have been obtained. His Honour relevantly concluded:

[30] … The appellant’s diary was the only document tendered. It related only to 1988. Its relevance to the issue of the appellant’s involvement in political activities in 1988 was explained (in the sense that the appellant had submitted, and the Tribunal understood, that this was what the diary was relevant to). This was an occasion on which the Tribunal was “under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained” to it. To fail to do so was to act without power, because the Migration Act should be construed as not permitting the Tribunal to distinguish against the appellant on the ground of his race, language, or national or social origin, by refusing to take into account a document of his making because it is not in the English language. It is one thing for the Tribunal to request that documents be translated into English. It is quite another to refuse to take into account a document that is asserted to be relevant to a specific issue on the ground that it has not been so translated.

O’Loughlin J dissented. In doing so, however, His Honour observed that “[t]here is room for a variety of views — so much so that I do not think it appropriate for this Court to lay down inflexible guidelines”: [2002] FCA 56 at [44], 116 FCR at 331.

25                  The second reason why this final Ground of Appeal should be rejected is that, in the present proceeding, the now Appellant had been expressly invited by the Tribunal to draw its attention to any particular document that he specifically sought to rely upon. He apparently declined that invitation. The reasons for decision of the Tribunal thus record that it asked the Appellant “whether there was anything he particularly wanted to refer it to within the large amount of material submitted …”. And that arose, it is to be recalled, in a context where the now Appellant had been requested to provide documents to the Tribunal in advance of the hearing and yet only produced many of the documents on the day of the hearing itself. A claimant cannot complain of any inadequacy of an opportunity to be heard, or of any failure to take into account a particular matter, in circumstances where he produces a vast number of documents at a hearing before the Tribunal and fails to avail himself of an opportunity to draw the Tribunal’s attention to a particular matter or matters contained within those documents. Even where a document is not translated, there may be no error where the Tribunal in fact takes into account a point sought to be made by a claimant in reliance upon untranslated documents: SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321 at [16], 103 ALD 580 at 584. Where the “gist” of a document which is otherwise untranslated is understood, there may be no error: S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 at [49] per Moore J.

26                  Moreover, the reason for the return of the newspaper articles became apparent when the Tribunal published its reasons for decision. The Tribunal formed a very adverse view as to the credit of the now Appellant — including an adverse view as to whether the articles had indeed been written by the now Appellant as claimed. The Tribunal thus recorded its findings relevant to this issue as follows:

[140] Based on the adverse credibility finding the Tribunal does not accept that the applicant wrote the articles written in Gujarati in 2004, which he brought along to the hearing.

[141] Based on the adverse credibility finding the Tribunal places no weight on the Gujarat Today Hon. Reporter identity card, or the warrant which he claimed was issued in regard to the January 2006 FIR.

In so proceeding it is not considered that the Tribunal did not extend to the now Appellant an adequate opportunity to present his claims.

27                  The present appeal is thus not the occasion to give any detailed consideration to those circumstances in which an opportunity to be heard or the requirement to take into account a consideration relevant to a decision to be made may embrace a requirement to have documents relevant to a claimant’s case translated from a foreign language into English. Not unexpectedly, there has been no examination in the present proceeding of any more generally expressed requirement for evidence in civil or administrative proceedings to be in English. Nor has there been any real examination of such guidance as may be gleaned from those cases — such as extradition cases — where documents supplied in support of an extradition request may need to be translated: e.g. Cabal v United Mexican States (No 3) [2000] FCA 1204 at [154] to [164], 186 ALR 188 at 247 to 251 per French J.

28                  But considerations which may readily be identified as relevant to any such requirement extend to such matters as:

·                    the number of documents in issue;

·                    the relevance of those documents to the claims being advanced;

·                    the ability of a claimant to otherwise advance his case and any prejudice that may be suffered if documents are not translated;

·                    the availability and ability of an interpreter present during the course of a hearing before the Tribunal to translate particular documents or particular parts of documents identified by a claimant as relevant to his claims; and

·                    the financial ability of a claimant to himself pay for the translation of documents and the ability of the documents to be translated by any community-funded agency.

No jurisdictional error, it is considered, is exposed simply by reason of the fact that a claimant seeks to rely upon documents written in a foreign language but not translated. More needs to be established. In the present appeal, no jurisdictional error is disclosed by the fact that numerous newspaper articles were not translated and were returned to the now Appellant at the conclusion of the hearing.

Conclusions

29                  The fundamental difficulty confronting the Appellant before the Federal Magistrates Court — and this Court on Appeal — is the adverse findings as to credit made by the Tribunal. Those were findings of fact, however, entrusted by the legislature to the Tribunal. No jurisdictional error is disclosed in the manner in which the Tribunal proceeded or in its reasons for decision.

30                  The appeal is to be dismissed.

31                  There is no reason why the Appellant should not be ordered to pay the costs of the First Respondent.

ORDERS

32                  The Orders of the Court are:

1.                  Appeal dismissed.

2.                  The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:         22 December 2009