SZJZE v Minister for Immigration and Citizenship

Federal Court of Australia|2007-10-30|Before: Middleton J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate of 21 June 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') signed on 28 November 2006 and handed down on 7 December 2006. 2 The appellants are citizens of Indonesia who arrived in Australia on 9 December 2005. The appellants lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it was then known) on 18 May 2006 and a delegate of the first respondent refused the application on 24 May 2006. On 27 July 2006 the appellants applied to the Tribunal for a review of that decision.

THE TRIBUNAL'S DECISION 3 In their application for a protection visa, the appellants claimed to have been subject to persecution by Jemaah Islamiyah ('JI'), which targeted the appellants with personal threats because the appellant husband informed police about neighbours who were terrorists associated with JI. The appellant wife claimed she was at home when the police stormed their neighbours' home and that a bomb exploded outside their home which resulted in the partial destruction of their home, and the death of a well known terrorist. The appellants claimed that the police reported on television that they had been able to storm the house because of information received from a neighbour. The appellants claimed that they received approximately seven threatening phone calls in the period 14 November 2005 to 26 November 2005, and that they relocated on 27 November 2005, moving to the home of the appellant wife's parents. 4 Accompanying the application for review was a statement outlining the claims of the appellants and a psychological report detailing problems suffered by the appellant wife. This report also revealed the appellant wife to be of an ethnic Chinese background. A psychological report for the appellant husband, along with statutory declarations from the appellants, were also provided to the Tribunal. 5 On 26 October 2006 the Tribunal wrote to the appellants indicating inconsistencies between the statement in the initial protection visa application and the written submission made to the Tribunal. The Tribunal also noted that independent country information indicated that the tip-off which led to the killing of the terrorist came from a terrorist suspect who had been arrested acting as a terrorist for JI. The Tribunal outlined that this cast doubt on the claims that the appellants were the source of information which led to the killing of the terrorist. The appellants responded in a letter dated 9 November 2006. 6 The Tribunal had difficulty believing that it was the appellants who provided the information which led to the terrorist being killed. The Tribunal noted the inconsistency between the original protection visa application and the evidence as subsequently presented. The Tribunal did not accept the explanation for this inconsistency, being that their initial advisor had incorrectly completed the forms, and further considered that the inconsistencies in the explanation given at hearing, as to how the appellant wife came to claim that she rather than the appellant husband had given information to the police, cast doubt on whether the appellant wife was telling the truth. 7 The Tribunal considered a letter from a friend of the appellants which was provided and found that the account contained in that letter was different from the account given by the representatives of the appellants. The Tribunal noted that no press reports mentioning the appellants were submitted to the Tribunal although they were referenced in the submission by the advisor for the appellants. The Tribunal considered that another letter put before it offered limited corroboration however this did not outweigh the concerns arising from the inconsistency. 8 The Tribunal also noted press reports regarding those who provided police with the tip-off resulting in the killing of the terrorist. Having regard to internal inconsistencies and the inconsistencies with the press reports the Tribunal did not accept the appellants were telling the truth regarding the incident in which the terrorist was killed or that the role was revealed to the police and resulted in threatening phone calls. The Tribunal accepted that the home of the appellants was destroyed in the incident on 9 November 2005 and this would be sufficient for them to fear for their safety and to want to leave, however this did not bring the appellants under the Refugees Convention definition of a refugee. 9 The Tribunal accepted the appellants were of a Chinese ethnicity and Christian and considered the details in the psychologist report which revealed the appellant husband had been caught up in rioting in 1998. The Tribunal presented independent country information to the appellants and although accepting that there were problems securing permits to build churches in Indonesia as referred to by the appellant husband, the Tribunal did not accept on the evidence before it that there was a real chance that either the appellant wife or husband would be persecuted for reasons of religion if they return to Indonesia now or in the reasonably foreseeable future. Further the Tribunal did not accept that the appellants would face persecution on the basis of their race. The Tribunal did not accept that state protection was not available to them or that the government was unwilling or unable to protect all Indonesian citizens without distinction.

THE FEDERAL MAGISTRATE'S DECISION 10 On 4 January 2007 the appellants sought judicial review in the Federal Magistrates Court. Before the Federal Magistrate the appellants effectively raised four grounds: that the Tribunal failed to exercise its jurisdiction in accordance with the Migration Act 1958 (Cth) ('the Act') by not acting judicially in affirming the decision of the delegate, that the Tribunal erred in finding that the appellants were not persons to whom Australia has protection obligations, that the interpreter was not competent and failed to translate properly, and that the appellants were denied procedural fairness as their case was not properly and accurately heard by the Tribunal member. 11 The Federal Magistrate described the adverse credibility findings as harsh and said it was unsurprising that appellants, who considered they had given evidence honestly, would take exception to having their evidence described as having been fabricated. His Honour however outlined that the Court could not take issue with the factual findings of the Tribunal and could only scrutinise the decision of the Tribunal as to whether or not there was a jurisdictional error. 12 The Federal Magistrate asserted that there was no obligation upon the Tribunal to make further enquiries. Its power to do so under s 424 of the Act is discretionary and the Tribunal did not have a duty to investigate the claims of the appellants. Although the Tribunal does have a wider power to make enquiries under s 427 of the Act this was not described as a case where any such obligation was generated. 13 In relation to the first ground, the Court asserted that the decision of the Tribunal was made on findings on the credibility of the claims based on inconsistencies of evidence. As there was evidence, such as independent country information, upon which such findings could be made, the Federal Magistrates Court conducting a judicial review would not interfere. 14 The second ground was similarly rejected, being described as a challenge to the factual findings of the Tribunal. This was a matter which went to merits review not open in the circumstances. 15 For the claim in ground three to succeed the Court held that there would need to be a transcript of the hearing and other evidence and that, in the absence of such evidence, the ground was rejected. 16 The Federal Magistrate asserted that there was no arguable case for jurisdictional error although expressing sympathy for the circumstances of the appellants. The psychological reports were considered by the Federal Magistrate, who noted that the appellants do have significant concerns arising from the incidents of 9 November 2005. The Court found that although the matters were considered by the Tribunal in the context that the Tribunal considered the psychological report, it was clear that the Tribunal did not give them weight that would enable the Tribunal to be satisfied that the appellant had made out a case that they meet the criteria of s 36(2) of the Act. It was noted that the strong subjective issues could form a basis for making a claim for ministerial intervention under s 417 of the Act. 17 His Honour found no jurisdictional error and dismissed the appeal.

GROUNDS OF APPEAL 18 In the notice of appeal filed on 12 July 2007 in this Court, the appellant raised two grounds of appeal: that the Federal Magistrate showed sympathy but failed to detect jurisdictional error in the decision of the Tribunal as the Tribunal "failed to recognise what happened and the error in interpreting the evidence", and that the Tribunal failed to take evidence from the migration agent, who "badly represented" the appellants, failed to refer to the evidence given by the appellants, and failed to take into account the state of mind of the appellants given they were detained in Villawood. 19 At the hearing of the appeal before me the appellant made submissions which effectively questioned the correctness of the Tribunal's findings on the merits. For the purposes of this hearing, I am not to make a merits review.

CONSIDERATION 20 I then turn to the grounds of appeal themselves. 21 With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. See generally Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17]; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [64]; (see also Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at 6 [27]; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 22 [38]-[41]; NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1319 at [42]). 22 The appellants have not filed a transcript of evidence that demonstrates error on the part of the interpreter. In the absence of transcript or other suitable evidence, I cannot infer that the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing or errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. I can ascertain no breach of s 425 of the Act. See generally Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18]. 23 The appellants did rely upon part of the transcript said to be "carried out by" the appellant husband. However, the appellant husband himself required an interpreter for the Tribunal hearing and before me. The Federal Magistrate considered this issue and implicitly found that the evidence of the transcript carried out by the appellant husband was not probative. The asserted errors in translation are based on the opinion of a person whose understanding of English was not of a sufficient level to undertake the task of translation. 24 To be accepted as having any probative value, evidence would need to be led by a person competent in English and Indonesian to indicate the matters that had been mistranslated or not translated at all. This has not been done. I can find no merit in the first ground of appeal. 25 With respect to the second ground of appeal, the Tribunal referred to the evidence given by the appellants and the submissions made by their representatives. It considered the appellants' claims and gave its reasons for rejecting those claims. The appellants' fears arising from the publication of their role as police informants were rejected on credibility grounds. Their ethnicity and religious claims were rejected based on the Tribunal's consideration of independent country information. The Tribunal gave adequate and appropriate reasons for its decision in respect of those claims: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [68]. 26 In the circumstances, the Tribunal was not obliged to make further findings as to each factual matter or contention arising before it: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [65]-[67]; Yusuf 180 ALR at [68], [73]-[74] and [91]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. The Tribunal was not obliged to make findings as to the quality of the appellants' migration agent or to refer specifically to the appellants' state of mind and how they may have been affected by their detention in Australia. The Tribunal was not obliged to take evidence from the migration agent who represented the appellants. I can find no merit in the second ground of appeal. 27 In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were correct, and no jurisdictional error arose. 28 Accordingly, the appeal should be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Solicitor for the Respondent: Blake Dawson Waldron

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