FEDERAL COURT OF AUSTRALIA

SZOSF v Minister for Immigration and Citizenship [2011] FCA 1234

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs to be agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        The appellant is a citizen of India who arrived in Australia on 9 July 2008 on a tourist visa to participate in World Youth Day. The appellant was a full-time worker for the Kerala Catholic Youth Movement (KCYM). On 21 August 2008, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.

2        In his application to the department, the appellant claimed to be a member of the Catholic Christian faith. The appellant claimed that while he was a student, he was a frontline worker for the Kerala Students Union (KSU), a student wing of the Indian National Congress (Congress Party) and that he had been a targeted by communists when he stood for election as Arts Club Secretary in the 1999 college election. The appellant claimed members of the rival Students Federation of India (SFI), a student wing of the Communist Party, had attacked him and injured his right leg. The appellant went on to claim that due to this injury he was in hospital for eleven days. The appellant also claimed that he received threats to the effect that if he went to the police, he and his family would be killed. The appellant stated that he was forced to leave Kerala and live in Chennai for six months following this incident.

3        The appellant said that he was born and lived in Thumba but he claimed he could not live there peacefully because of the large Communist Party presence there. The appellant claimed there were violent incidents in the area between “criminals” who owed allegiance to the Communist Party, and the police. He said that a man named Varghese was shot by police during one of these violent incidents and died. The appellant said that he saw his “native place turning into a communal cauldron”. The appellant said that he then moved to Mumbai but due to harassment from the Shiv Sena Party, returned to Kerala in February 2004.

4        The appellant claimed that in January 2005, an incident occurred in Thumba which resulted in a Hindu member of the community losing his life and because of this incident the appellant was not able to move out of Thumba.

5        The appellant stated that if the Bharatiya Janata Party (BJP) won the election in 2009, then Christians like him would not be able to survive in India. The appellant claimed he was unable to return to India for “political and communal reasons”.

6        A delegate of the first respondent refused the appellant’s application for a protection visa on 10 November 2008.

THE TRIBUNAL

7        On 5 December 2008, the appellant applied to the Refugee Review Tribunal for a review of the delegate’s decision.

8        The Tribunal conducted three hearings on three different occasions, namely, on 3 February 2009, 28 October 2009 and 23 August 2010 respectively. At each of the hearings, the appellant gave evidence to the Tribunal through a Malayam interpreter. The appellant also, on a number of occasions during the review process, supplied documents and newspaper articles relating to events in India to the Tribunal in support of his application for review.

9        At each of the Tribunal hearings, the appellant provided different versions of events to that described in his statement which accompanied his visa application.

10        At the Tribunal hearing on 3 February 2009, the appellant claimed that upon his return to Kerala from Chennai in 2001, he was threatened by members of the SFI. Following this incident, the SFI “would bring up this problem against the appellant” at election time. The appellant further claimed that, were he to return to India, he would be threatened by the SFI and Hindu extremists. The appellant also claimed that, because the Communist Party was in government, and was supportive of Hindus and also in control of the police, the entire government “was against him”. The appellant also claimed that in August 2008, after he had left India, the SFI came to his house and threatened his wife, telling her that they would not leave the appellant alive if he returned.

11        At the Tribunal hearing on 28 October 2009, the appellant made the additional claim that he had joined the United Democratic Front (UDF), a coalition led by the Congress Party, and had actively worked for them during elections. He further claimed that, as a result of his involvement in the UDF, he feared and continued to fear persecution from the Left Democratic Front, led by the Communist Party. He also stated that the incident in which the SFI threatened his wife and family had occurred in January 2009.

12        At the hearing of the Tribunal on 28 October 2009, the Tribunal also took evidence from the appellant’s wife in India who corroborated aspects of his claims.

13        At the Tribunal hearing on 23 August 2010, the appellant made a number of additional claims. He claimed that, some ten years earlier, one of his KSU colleagues was killed by Communist Party activists, and that the appellant would have also been killed, had he not been in Tamil Nadu at the time. The appellant also claimed that the communists were against him because he became an active member of the Congress Party after leaving college. The appellant further claimed that Varghese, the man who was killed by the police in 2001, had been his uncle, and that the appellant had been present when his uncle was shot but managed to save himself. Finally, the appellant claimed that, although he remained in Kerala from 2004 until his departure from India in July 2008, he was always with colleagues and party members so that his opponents “had not had a chance to find him alone”.

14        On 5 October 2010, the Tribunal affirmed the decision of the delegate.

15        The Tribunal formed an adverse view of the appellant’s credibility. The Tribunal concluded that the appellant’s claims had been embellished for the purposes of obtaining a protection visa. The Tribunal also considered that the appellant and his wife had collaborated to ensure she gave consistent evidence.

16        Although accepting some parts of his claim, the Tribunal did not accept the appellant’s claims that he and his family had continued to be threatened by the communists in Kerala. The Tribunal did not accept the appellant’s claim that the SFI or Communist Party would pursue him some ten years after his time of political involvement at college. The Tribunal did not accept that he was unable to lead a peaceful life in Kerala. The Tribunal had regard to independent country information which stated that Kerala was a comparatively safer place for Christians to live, than other parts of India. The Tribunal also observed that the appellant had stayed in Kerala from 2004 until he left India in July 2008.

17        The Tribunal concluded that the appellant would not be at risk of persecution if he returned to India.

THE FEDERAL MAGISTRATES COURT

18        On 25 October 2010, the appellant filed an application for judicial review of the Tribunal decision. That application contained the following grounds:

1.    In rejecting his claim, the Tribunal did not use the country information specified by the appellant but had used country information gathered by the Tribunal.

2.    The Tribunal did not comply with s 424A of the Migration Act 1958 (Cth) because it failed to write to him about its intention to use the country information which it did to reject his claim.

3.    The Tribunal failed to consider an integer of his claim, in that, it had failed to consider whether or not a member of the Catholic faith in India was at risk of harm from radical Hindus, and able to access effective state protection.

4.    The Tribunal constructively failed to exercise its jurisdiction because the Tribunal ultimately gave the news articles he provided to the Tribunal to corroborate his claims, no weight in assessing his credibility. It was an error for the Tribunal to assess the appellant’s credit without first assessing whether the substance of the documents corroborated his claims.

19        On 25 October 2010, the appellant also filed an affidavit in support of his claim for judicial review. In that affidavit, the appellant stated that the Tribunal had failed to investigate his claims and “therefore, the Tribunal decision was effected [sic] by actual bias” constituting jurisdictional error.

20        There were two hearings before the Federal Magistrate. The first hearing was on 1 February 2011.

21        At the first hearing on 1 February 2011, the Federal Magistrate heard submissions from the parties on the grounds of review then before the Federal Magistrate. However, at that hearing, the appellant also raised an additional complaint, namely, that the interpreter services which had been provided to him at the third Tribunal hearing, which took place on 23 August 2010, had been inadequate. In respect of that complaint, the Federal Magistrate ordered that the appellant file and serve an amended application for judicial review to include, as a ground of review, the complaint in relation to interpreter services. The Federal Magistrate also directed that, by 1 March 2011, the appellant file any affidavit annexing the transcript of the impugned Tribunal hearing and evidence relied on to demonstrate that the hearing miscarried by reason of the interpreting error. The Federal Magistrate granted an adjournment of the hearing to 15 March 2011, for the purpose of considering only the additional complaint as to interpreter services.

22        The appellant did not file and serve an amended application, nor any evidence in support of his complaint as to jurisdictional error on the basis of defective interpreter services. However, on 1 March 2011, the appellant did file written submissions. Attached to the written submissions was a document called “Attachment 2” in which the appellant set out the alleged inadequacies in the interpreter services at the impugned Tribunal hearing. The appellant referred to two 10 second segments of the hearing (at a time point between “30:30” to “30:40” and at a time point between “53:30” to “53:40” on the recording of the hearing), during which, the appellant contended that the interpreter had misinterpreted certain spoken words.

23        At the hearing before the Federal Magistrate on 15 March 2011, the appellant was provided with interpreter services by the same interpreter who had provided interpreter services at the third Tribunal hearing, of which the appellant had complained. At the commencement of the hearing, the appellant complained to the Federal Magistrate about the presence of the impugned interpreter. The appellant applied for an adjournment of the hearing on the basis that another interpreter should be engaged to provide interpreter services at the hearing. The Federal Magistrate refused to grant the adjournment of the hearing.

24        In refusing the appellant’s application for an adjournment, the Federal Magistrate referred to the fact that, notwithstanding that he had been given the opportunity to do so, the appellant had provided no evidence in support of his claim that there had been inadequate interpreting services at the third Tribunal hearing. The Federal Magistrate said that he was not prepared to adjourn the application on the basis of unsubstantiated allegations in respect of the skill of the interpreter retained by the court.

25        The Federal Magistrate then entertained submissions from both parties in respect of the complaint of interpreter error made in the appellant’s written submissions, on the assumption that the assertions in the submissions could be established as fact. At the end of the hearing, the Federal Magistrate reserved his decision.

26        On 1 April 2011, the Federal Magistrate dismissed the appellant’s application for judicial review.

27        As to the first ground review, the Federal Magistrate held that it was a matter for the Tribunal to determine which country information it relied upon.

28        As to the second ground of review, the Federal Magistrate held that there had been no obligation on the Tribunal under s 424A of the Migration Act, to write to the appellant inviting him to comment on the country information it relied upon, because country information was excluded from the operation of s 424A(1) by s 424A(3)(a) of the Migration Act.

29        As to the third ground of review, the Federal Magistrate held that the Tribunal had considered the position of the appellant by reference to his fear of persecution in Kerala, and did not accept that there was a real chance that the appellant would be persecuted by the BJP or Hindu extremists, by reason of his religion, or his involvement in the KCYM, were he to return to Kerala. The Federal Magistrate said that, in reaching this conclusion, the Tribunal had considered the level of support for the BJP in Kerala, the size of the Christian population in Kerala and their economic situation, the weakness of the BJP and Hindu extremist groups in Kerala and the effectiveness of the action taken by Kerala’s authorities in tackling incidents of violence against Christians.

30        The Federal Magistrate found that it was not the task of the Tribunal to embark on a general inquiry into the position of Catholics in India.

31        The Federal Magistrate also found that although the Tribunal had not made a specific finding that state protection would be available to the appellant, such a finding was implicit in the Tribunal’s finding of the general effectiveness of the Kerala police authorities in dealing with violence against Christians, in the course of finding that there would be no real chance of persecution by the BJP or Hindu extremists, were the appellant to return to Kerala.

32        As to the fourth ground of review, the Federal Magistrate found that the Tribunal had considered the newspaper articles which had been submitted to it by the appellant but had not given the newspaper articles the weight the appellant would have wished. This, said the Federal Magistrate, did not amount to a jurisdictional error. The Federal Magistrate said that, provided the Tribunal considered an applicant’s evidence given to corroborate his or her claim, a Tribunal does not fall into jurisdictional error by making an assessment of an appellant’s credibility before determining the weight to be given to that evidence. In this case, said the Federal Magistrate, the Tribunal had considered the newspaper articles submitted by the appellant, and explained why these articles did not assist the appellant’s claim.

33        The Federal Magistrate observed that in his written submissions filed on 17 January 2011, the appellant had made further claims, namely, that the Tribunal had failed to address an integer of his claims and also that the Tribunal’s finding that he did not face a real chance of persecution was illogical. The Federal Magistrate considered and rejected each of these contentions by the appellant, as well as the appellant’s claim that the Tribunal was biased, made in his affidavit of 25 October 2010. As to the alleged failure to address an integer of his claims, namely, that he was a member of a particular social group whose defining characteristics comprised Christianity and liberal political views, the Federal Magistrate found that the Tribunal had addressed the appellant’s claim insofar as he alleged he was a Christian, and no claim had been advanced on the basis of him being a member of the particular social group defined in his written submissions.

34        The Federal Magistrate also found that the impugned finding was not illogical and that the appellant’s complaint amounted to an impermissible attack on the factual findings made by the Tribunal.

35        As to the question of actual bias, the Federal Magistrate found that there was no obligation on the Tribunal to carry out its own investigations and that the failure to do so did not demonstrate actual bias.

36        The Federal Magistrate then went on to consider the appellant’s complaints as to the inadequate interpreting services by the interpreter at the third Tribunal hearing.

37        The Federal Magistrate observed that, notwithstanding the orders made by the court at the hearing on 1 February 2011, the appellant had failed to amend his application to allege jurisdictional error on the grounds of the defective interpreting services; and had also failed to adduce any evidence dealing with the quality of the interpreter services at the impugned Tribunal hearing.

38        The Federal Magistrate went on to say that as a result, there was no evidentiary basis on which to conclude that the interpreter services provided at the impugned Tribunal hearing were inadequate, as the appellant had claimed.

39        However, the Federal Magistrate went on to consider the contents of the written submissions which had been filed by the appellant, and observed that the appellant had specifically identified, and relied upon, two interpreting errors.

40        The first error which the appellant relied on (at a time point between “30:30” to “30:40” of the recording of the hearing), was that the interpreter had confused a reference to the SFI with the KSU; and had said that the KSU had threatened the appellant, when the appellant had said that the SFI had threatened him.

41        The second error (at a time point between “53:30” to “53:40”), said the appellant, occurred when the presiding Tribunal member had said that “Kerala is economically well place [sic]” but the interpreter had said “he knows all things about that”.

42        The Federal Magistrate went on to find that, even if the two specific matters referred to in the appellant’s submissions were substantiated by the evidence, that would not be enough to make out that the interpreting services provided to the appellant, had been so deficient as to result in the denial of a meaningful opportunity to the appellant to give evidence or present arguments.

43        The Federal Magistrate found that the Tribunal’s decision record showed that there was no confusion on the Tribunal’s part as to the roles which the KSU and the SFI played in the appellant’s claims. The Federal Magistrate said that the Tribunal clearly recognised that the appellant claimed to have been a member of the KSU and that he claimed to have been attacked by members of the SFI.

44        As to the second alleged error, the Federal Magistrate identified, by reference to the Tribunal’s decision record, that that statement was made in the context of the Tribunal putting to the appellant that:

the Christian community in Kerala was relatively safer than in other states as they constituted around 19% of the population and were economically well-placed.

45        The Federal Magistrate found that the economic position of the Christian community in Kerala, was only one of several factors cited by the Tribunal as grounds for its ultimate conclusion that the appellant did not have a well-founded fear of persecution in Kerala by reason of his Christianity. This factor, said the Federal Magistrate, was of comparatively little significance in light of the other factors that supported the Tribunal’s finding on that issue. These factors included the proportion of population in Kerala which was Christian, the weakened position of the BJP and other Hindu extremist groups, the effectiveness of the Kerala police in tackling isolated incidents of violence against Christians, the freedom with which Christian groups held meetings and functions and the fact that the appellant had been prepared to leave his wife and child behind in Kerala when he came to Australia.

46        The Federal Magistrate found that, therefore, even if the interpreter had misinterpreted the phrase in question, it could not be said that deficiency was so material that it caused the decision-making process to miscarry, and so amount to jurisdictional error.

47        The Federal Magistrate also noted that the appellant’s written submissions included assertions that the interpreter had omitted many essential words and had “given wrong ideas to the RRT member”, but that the appellant had not specified any examples.

48        The Federal Magistrate also found that the Federal Magistrates Court was not empowered to review the merits of the appellant’s claims and that his written submissions of 1 March 2011 had been directed to that end.

THE APPEAL

49        On 20 April 2011, the appellant filed a notice of appeal in this Court with the following grounds:

1.    I am a citizen of India,

2.    I faced real persecution and torturing in India,

3.    The Department and RRT did not accept my plead and

4.    The Court affirm the decision and refuse my application.

50        Under the “orders sought” section, the appellant stated the following:

1.    I expected a favourable step from Federal Magistrate Court but they refused.

2.    I wish to give more evidences to support my case to the Hon Federal Court.

3.    I expect a positive decision from Hon Federal Court Magistrate and send me back to RRT.

51        The grounds of appeal relied upon by the appellant do not identify any appealable error by the Federal Magistrate. The appellant also filed written submissions in support of the appeal.

Refusal of the Federal Magistrate to grant an adjournment on 15 March 2011

52        In his written submissions, the appellant complained that the Federal Magistrate made a “serious jurisdictional error” in refusing his application for an adjournment of the hearing before the Federal Magistrate on 15 March 2011. This complaint was also the focus of the appellant’s oral submissions before me. I will now deal with that complaint.

53        During the hearing before me, I asked the first respondent to provide the Court with a copy of the transcript of the appellant’s application for the adjournment in question, before the Federal Magistrate. This was done following the hearing and I have examined the transcript.

54        It is apparent from the transcript that at the commencement of the hearing, the appellant objected to the interpreter who had been provided by the court to provide services at the hearing. The appellant complained that the interpreter present in court, was the same interpreter whose performance before the Tribunal he was impugning; and that he was not confident in the interpreter’s competence.

55        It is also apparent that the appellant had not amended his application to allege jurisdictional error on the grounds of interpreter error, nor had he filed any affidavit annexing the transcript of the impugned Tribunal hearing and evidence in support of his claim of jurisdictional error on the grounds of interpreter error. However, the appellant said that he had obtained a compact disc recording of the hearing of the Tribunal on 28 August 2010, and after listening to the recording, had identified the two interpreting errors which he had recorded in his written submissions. In response to a question from the Federal Magistrate, the appellant said that he did not have the compact disc with him.

56        The first respondent opposed the adjournment on the basis that there was no evidence to support the appellant’s contention that the interpreter had provided defective interpreter services at the impugned Tribunal hearing.

57        As I have already mentioned, the Federal Magistrate refused to grant the adjournment on the basis that there was no evidence that the interpreting services that were provided at the Tribunal hearing were inadequate.

58        It was within the discretion of the Federal Magistrate to decide whether to grant an adjournment. A court, on appeal, will only interfere in the exercise of the discretion, where the court below has acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect the decision, mistaken the facts, or failed to take into account some material consideration (House v The King (1936) 55 CLR 499, at 505).

59        In my view, it was open to the Federal Magistrate in the proper exercise of his discretion, to refuse to grant the adjournment. The appellant had been given an opportunity to put evidence before the Federal Magistrate demonstrating the deficiencies in the interpreter’s performance before the Tribunal. There was an evidentiary burden on the appellant to support his complaint that the interpreter had previously provided defective interpreter services.

60        In the case of Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, the Full Court observed at [18]:

If the appellant sought to show that the interpretation provided was incompetent in significant respects it was necessary for the appellant to place evidence before his Honour capable of persuading his Honour that material errors occurred in the interpreting of the appellant’s statements and, therefore, that miscarriage in the decision-making process had occurred.

61        In my view, in the absence of evidence before the Federal Magistrate as to past deficiencies in the interpreter’s performance, it was open to the Federal Magistrate to refuse the adjournment.

62        I observe that before me, the appellant did not seek to demonstrate that he had suffered prejudice at the hearing before the Federal Magistrate, nor that he was inhibited in any way from making his case before the Federal Magistrate, by reason of the presence of the interpreter, nor by reason of any inadequacy in the interpreting services provided by that interpreter.

63        In my view, therefore, the Federal Magistrate did not err in refusing the appellant’s application made on 15 March 2011, for an adjournment of the hearing.

Federal Magistrate’s findings on interpreter error

64        In his submissions before the Court, the appellant complained that the Federal Magistrate’s finding that the interpreting errors were not so serious as to give rise to jurisdictional error, was erroneous. In particular, the appellant complained that the first interpreting error went to the very heart of his claim, and was a serious jurisdictional error.

65        In the case of WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131, the Full Court dealt with the question of whether errors in translation would give rise to a jurisdictional error. At [29], the Full Court observed:

To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence…Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry. (References omitted.)

66        In my view, the Federal Magistrate conducted a thorough review of the appellant’s contentions as to the interpreting errors identified. The Federal Magistrate properly understood and applied the law to the facts. Further, in my view, for the reasons which the Federal Magistrate gave, the two interpreting errors identified by the appellant were immaterial, in the sense that they did not, in the circumstances in which they were made, affect the outcome of the review process. The interpreting errors did not cause the decision-making process to miscarry. Accordingly, the interpreting errors did not give rise to a jurisdictional error. It follows, that in my view, the Federal Magistrate did not err in making the decision that he did.

The remainder of the appellant’s written submissions

67        Otherwise the appellant’s written submissions before this Court were directed to the merits of his claim to be a refugee. It was not open to the Federal Magistrate to consider the merits of the appellant’s claim, nor is it open to this Court to do so.

68         It follows that the appellant’s appeal is dismissed.

Associate:

Dated:    2 November 2011