FEDERAL COURT OF AUSTRALIA

MZZGY v Minister for Immigration and Border Protection [2014] FCA 488

THE COURT ORDERS THAT:

1.    The appeal filed 3 March 2014 be dismissed.

2.    The appellant pay the respondent's costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

introduction

1    The appellant has appealed the decision of the Federal Circuit Court of Australia (“the FCC”) dismissing his application for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal upheld the decision of a delegate of the first respondent (“the Minister”) to refuse to grant the appellant a Protection (Class XA) Visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

Background and claims

2    The appellant is a citizen of India from the Punjab region. On 9 August 2012, the appellant applied for a Protection (Class XA) Visa, claiming to fear persecution by reason of his political beliefs as an active supporter of the Congress Party. He claimed that he was threatened with violence by the opposition leader during an election campaign in 2007 and that there were several attempts to attack him, as the result of which the family made the decision that he should go overseas for study. He came to Australia on 6 October 2008 on a student visa. He returned to India in 2009 and then again in 2010 and claimed that both times the threats of violence and attacks continued. He also claimed that the local police were unable to provide protection to him and that he feared that if he returned to India he would be sought out and attacked and would come to significant harm even if he moved to a new area.

3    On 21 September 2012, a delegate of the Minister refused to grant the appellant a Protection (Class XA) Visa. The application was refused because the Minister’s delegate was not satisfied with the reliability of his evidence. Specifically, the delegate did not accept that the appellant had been attacked as he had described.

The tribunal’s decision

4    The Tribunal’s reasons for affirming the delegate’s decision to refuse to grant the appellant the visa set out in considerable detail the claims made by the appellant and the evidence that he gave. The Tribunal disbelieved the appellant. It rejected his claims that he had been involved in politics in the Punjab, and that he had been threatened and had been a target of violence. The Tribunal accordingly held that it was not satisfied that the appellant was the target of politically motivated violence and therefore found that the appellant’s fear of persecution for political belief was not well founded and, further, rejected his claim for complimentary protection under s 36(2)(aa) of the Act, which had relied on the same factual matrix as his claim for refugee status. The Tribunal also rejected his claim that he would suffer significant harm in any location in India, including his home region of the Punjab and, in any event, found that it would be reasonable for the appellant to relocate to another part of India had the Tribunal found the appellant faced harm in the Punjab region.

THe FCC decisioN

5    The appellant sought judicial review in the FCC of the Tribunal’s decision, making an umbrella claim that the decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction, and also claiming:

(a)    a denial of procedural fairness and a failure to comply with s 425 of the Act by reason of the poor quality of the interpretation by the interpreter at the hearing;

(b)    that the Tribunal had erred in its consideration of the appellant’s claim for complementary protection; and

(c)    that the Tribunal had committed a jurisdictional error in relation to its findings on relocation.

6    The appellant, in written submissions, claimed that his evidence was not properly interpreted by the interpreter at the hearing before the Tribunal. It was claimed that on many occasions the English interpretation given to the Tribunal was not what the appellant had said in his evidence and that on many occasions the Tribunal was forced to ask the interpreter to explain his interpretation. It was put that the errors made by the interpreter were material to the conclusions of the decision maker which were adverse to the appellant. The alleged errors made by the interpreter were not identified.

7    The FCC rejected this claim, reasoning as follows:

[23]    From the transcript of the Tribunal hearing (“the transcript”), it is apparent that the member of the Tribunal explained to the Applicant the role of the interpreter. The Applicant was then asked, “do you understand the interpreter?” to which he responded “yes”, and “do you have any objections to using this interpreter?” to which the Applicant responded “no”. The Tribunal member then said, “I’m going to ask the interpreter if he understands you” and the interpreter responded “yes”. The Tribunal member also stated, “if there’s something that you don’t understand … it’s important for you to let me know so that I can try and clarify it for you”.

[24]    The Tribunal recounts in some detail the questioning of the Applicant and his responses. This included the Tribunal asking the Applicant similar questions on the same topic in an effort to elucidate and clarify his answers.

[25]    The Applicant was questioned about his involvement with the Congress Party and the reasons why he said he would suffer harm if he returned to India. From both the recording provided by the First Respondent and from the transcript, it is apparent that the Applicant’s answers were vague and, to an extent, non-responsive. After considerable questioning, the Tribunal member said:

I’m having a little bit of difficulty understanding your evidence and in particular understanding the chronological flow of events so what happened first, what happened next, where you were et cetra, I’m having some difficulty understanding your evidence.

[26]    It is not apparent that the Tribunal member’s difficulty in understanding the Applicant was due to poor interpretation, but rather that the Applicant appeared to have difficulty in giving consistent answers or recalling a chain of events in chronological order. I am satisfied that it is in this context that the use of the words ‘fail to understand’ should be considered.

(citations omitted)

8    The FCC held that no jurisdictional error was demonstrated on the other grounds.

THE APPEAL PROCEEDING

9    The appellant relied on the same grounds to appeal from the FCC decision. The appeal must fail because the FCC correctly held that no jurisdictional error had been established.

10    As to ground 1, a failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a failure to provide procedural fairness by denying the applicant proper opportunity to present his evidence as required by s 425(1)(a) of the Act: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [17] per Kenny J; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 at [66]-[67]. However, for the reasons given by the FCC, a review of the transcript before the Tribunal does not disclose that either the appellant or the Tribunal had difficulty with the quality of the interpretation, but rather the questioning of the Tribunal was directed at the substance of the answers which the appellant gave which were vague, non-responsive and inconsistent.

11    Having regard to the findings of the Tribunal, and its rejection of the appellant’s claim that he had been the subject of attacks, grounds 2 and 3 amount to no more than an expression of dissatisfaction with the Tribunal’s conclusion and, as the FCC correctly stated, it is not the function on judicial review to reconsider the merits of the appellant’s case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. No legal error is shown.

ADJOURNMENT APPLICATION

12    The appellant did not attend the hearing but had notified the Court the previous day by email at 5.40 pm that he would be unable to attend Court because of bad health and requesting an adjournment. He later emailed a medical certificate and a copy of a prescription (both dated 12 May 2014) to the Court at 10.25 pm. The medical certificate simply stated:

This is to certify that [the appellant] attended this clinic on Monday 12/5/14.

In my opinion he is unfit for work from Tuesday 13/5/14 to Tuesday 13/5/14 (inclusive).

[signed by the medical practitioner]

13    These documents were wholly inadequate to support an adjournment application. The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing. Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice. I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.

Conclusion

14    The orders will be:

1.    The appeal filed 3 March 2014 be dismissed.

2.    The applicant pay the respondent’s costs to be taxed if not agreed.

Associate:

Dated:    16 May 2014