SZQUH v Minister for Immigration & Citizenship

Federal Court of Australia|2012-11-15|Before: Katzmann J

The appeal be dismissed.
The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1004 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT 1 The appellant is an Indian national from the state of Kerala who applied to the Minister for Immigration and Citizenship for a protection visa claiming to fear persecution on religious grounds. He is a devout Catholic, who maintains that over a number of years he has been a target of death threats and the victim of vicious attacks by Muslim extremists from whom the police are unable to protect him. He alleges that in recent years violence in Kerala escalated with the emergence of a new Islamic terrorist group, the Popular Front. His application was rejected by a delegate of the Minister and, on review, the Refugee Review Tribunal affirmed that decision. He then applied to the Federal Magistrates Court for it to exercise its jurisdiction under s 476 of the Migration Act 1958 (Cth). 2 The federal magistrate dismissed the application. This is an appeal from that decision. 3 An appeal to this Court from the Federal Magistrates Court is in the nature of a rehearing but error must still be shown: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. In his notice of appeal, under the heading "Grounds of appeal", the appellant wrote (without alteration): I have given my detailed story and evidences to [the tribunal] as well as Federal Magistrates Court, but my plead was refused by the Court and gave negative judgement! Actually - the Court failed to find the jurisdictional error of [the tribunal]. 4 The alleged jurisdictional error is not particularised, so it is necessary to see how the case was run below. To give that some context, it is necessary to refer to the tribunal's reasons. 5 After a hearing that took place over two days, three weeks apart, the tribunal, like the delegate before it, accepted that the appellant was a practising Catholic but did not believe important parts of his account and was not satisfied that he had a well-founded fear of persecution. Unless the appellant could satisfy the tribunal that he had such a fear, the application for review was bound to fail. See Migration Act, s 36(2)(a) and Art 1A(2) of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol. 6 The tribunal accepted that the appellant had entered a monastery after leaving school, left it after two years and returned to his village, was involved in a youth group that merged with the Jesus Youth Group in 1993 or 1994, was a singer in a choir and was the leader of the choir. It also accepted that the choir sang at different locations including at Bible Conventions. Otherwise, however, the tribunal found that the material the appellant submitted lacked credibility, his claims were inconsistent with independent country information and some were "highly implausible" and that there were a number of inconsistencies in the evidence. The tribunal concluded that the appellant was not a witness of truth and was "prepared to fabricate his claims to give himself the profile of a refugee". In particular, it did not accept that he had formed a youth group, was the leader of the youth group, conducted Bible classes, was a preacher, organised Bible Conventions and converted people to Christianity. Nor did it accept that he was threatened and attacked, or injured and hospitalised because of such attacks, as he had maintained. And it did not accept that he was targeted because of his wife's family or because his wife's father was a priest and had been kidnapped and killed by Muslim extremists in 1988. 7 The initial application before the Federal Magistrates Court listed three grounds. They read (without alteration): (1) Interpretation mistake (2) Failure to take into account relevant consideration. (3) Taking into consideration irrelevant consideration. 8 No particulars were provided. The application was accompanied by an affidavit which merely restated grounds 1 and 2. 9 The appellant was granted leave to rely on an amended application which raised the following matters (without alteration) under the heading "grounds of application": (1) The Hon. RRT member committed serious jurisdiction error in my case. (2) He approached my story with prejudice mentality. (3) He has pre-occupied mind and he has done his duty for the sake of duty. (4) Interpretation mistake. (5) Unable to take a favourable steps, and failure to take a favourable desition. 10 Under the heading "Final orders sought by applicant" appeared the following (again without alteration): (1) I have plead to get my life protection. (2) I am expecting a positive desition from your majesty. (3) I have been given negative impact from the tribunal as well as the department, please understand the reality and do your favourable steps. 11 Attached to the amended application was a two-page document challenging some of the tribunal member's findings, which the federal magistrate treated as submissions. In that document the appellant argued that the tribunal misunderstood his monthly income and made incorrect findings about the appellant's role in the Jesus Youth organisation and the significance of the appellant's failure to follow up his police complaints, the lack of detail on his medical certificates, and the delay in submitting his protection visa application. 12 The federal magistrate rejected each ground in the amended application. 13 With respect to the first, in the absence of particulars his Honour concluded that the appellant did not understand the meaning of jurisdictional error and so the ground could only be seen as a challenge to the tribunal's factual findings. His Honour dealt with the second and third grounds together, explored whether the tribunal's decision was affected by apprehended bias and concluded that it was not. In the absence of particulars or evidence to support ground 4, his Honour held that on the material before him there was no basis for the allegation. In the case of ground 5, his Honour professed to be at a loss to understand what the appellant was trying to say, but said that if he was alleging a denial of procedural fairness, the allegation was not made out. 14 The question of prejudgment was not pursued on the appeal. Rather, the appellant's focus was on the standard of interpreting in the tribunal and the failure of the tribunal to verify for itself the contents of his material by questioning the authors of the documents before deciding not to accept what they said. 15 The appellant filed submissions to the following effect: (1) The tribunal member did not study his case properly. This submission was primarily based on an assertion that the Minister's delegate was satisfied that the appellant was involved in "the celebration of Christianity" and had been a victim of assault but that the tribunal was not. The appellant also submitted, however, that the tribunal should have studied and considered his father-in-law's murder by religious terrorists, which he described as the "the major fact" of his claim. (2) He was not satisfied with the interpreter who assisted him at the tribunal hearing. (3) The tribunal did not study the corroborative material, such as medical certificates and newspaper reports, that the appellant produced. Its finding that the material is not supportive of his claim is unacceptable. So is the tribunal's finding that the appellant did not hold a leadership position in Jesus Youth. Since he had provided a letter from Jesus Youth to indicate his involvement, the tribunal should not have found against him without first contacting the organisation. The tribunal should also have contacted his doctor, parish priest and others, who had provided statements in support of his case. (4) The tribunal "failed to find" his monthly income. In India no preachers work for a monthly income. 16 Finally, the appellant reiterated his claim that he was a Christian preacher, "hunted and brutally persecuted" by Muslim terrorists. 17 The appellant's oral submissions were mainly focussed on the tribunal's failure to make enquiries of the authors of the various documents, though he did not point to any duty on the part of the tribunal to do so. He made no reference to the alleged errors of interpretation. When I asked him to tell me what error or errors he considered the federal magistrate to have made, he said only that he did not have a solicitor and the federal magistrate did not provide him with one. His written submissions had requested further time to study the tribunal decision to provide additional evidence of interpretation errors but he did not seek an adjournment and he has had ample opportunity to provide any evidence.

The alleged discrepancy between the delegate's findings and those of the tribunal 18 The difference between the positions taken by the delegate and the tribunal is illusory. As I mentioned earlier, both accepted that the appellant was a Christian. The delegate said that he gave convincing testimony of being a victim of assault, but that the injuries he sustained amounted to "some bruising" and, in substance, were inconsistent with his claim that Muslim extremists severed the limbs and tongues of their victims. The delegate made no finding that the appellant had been the victim of an assault. This is not a case where the issue of whether he was assaulted was not apparent to him for the tribunal hearing (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]). The appellant was clearly alive to the issue, was not only questioned extensively about it but also requested additional time to provide documents addressing it.

The problem of interpretation 19 Giving evidence through an interpreter is often problematic. The interpreter may misunderstand the witness. The witness may misunderstand the interpreter. The skills of interpreters vary. Interpreters do not always provide literal translations. Subtle nuances may be lost in the process. An unresponsive or inconsistent answer may not reflect a lack of candour but a problem of communication with the interpreter. Yet, there is no such thing as perfect interpretation; "no interpretation will convey precisely the same meaning as the original testimony": Shulman, MB, 'No Hablo Inglés: Court Interpretation as a Major Obstacle to Fairness for Non-English Speaking Defendants' (1993) 46 Vand L Rev 175 at 177, cited in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [26]. Nor will any or every lapse in standards invalidate a decision. Jurisdictional error will only arise where the errors in interpretation deprive the applicant of a real opportunity to give evidence and present arguments which s 425 of the Migration Act requires and which is a precondition to the exercise by the tribunal of its jurisdiction under the Act: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37]-[38]; Perera 92 FCR 6 per Kenny J at [26], [38], [45]. In the present case, there is no material before the Court to support such a finding. 20 The appellant submitted that the interpreter assigned to him in the tribunal came from another religious background and, for this reason, did not understand many "Christian religious terms" and was unaware of some "Christian religious words". He also submitted that he (the appellant) did not understand some of the member's questions due to poor interpretation, with the result that the questions had to be repeated "again and again". Moreover, he contended, the interpreter failed to convey his replies to the member in English. 21 The difficulty with the appellant's submissions is that there is no evidence to substantiate them. As I mentioned earlier, the appellant had ample opportunity to provide evidence and at the first directions hearing in the Federal Magistrates Court he was ordered to file and serve any affidavit containing additional evidence to be relied upon, including any transcript of the tribunal hearings. He was given more than three months to do so. Yet, he filed no evidence and he made no application for leave to call evidence on the appeal. 22 The appellant submitted that if I were to hear the CD of his tribunal hearing I would get a clear picture of errors in interpretation. Without the assistance of an expert, that is doubtful. In any event, however, the appellant did not submit to the federal magistrate or to this Court a copy of the CD. 23 The federal magistrate adopted in effect the Minister's submissions on the law and then rejected the appellant's complaint, referring to the lack of evidence or even submissions to indicate that the standard of interpretation was relevantly deficient. All he had to go on was the tribunal's account of the hearing in the decision record and that provided no support for the appellant's allegation. The Minister's submissions were correct and his Honour's conclusions do not disclose error. To the extent that the appellant's submissions on the appeal provide any particularity about the nature of the errors they concern the appellant's religious beliefs, a matter about which the tribunal found in the appellant's favour. 24 At the hearing before the tribunal, in the Federal Magistrates Court and in this Court the appellant was assisted by a Malayalam interpreter, as he, himself, had requested. In his response to the tribunal's invitation to attend a hearing he responded to the question whether he had any special requirements or preferences: I request you to not allow Mr Jackson Fernandez as my interpreter. I know him personally. 25 Rightly or wrongly, the federal magistrate interpreted this as a request that the tribunal allow Mr Fernandez to interpret. The tribunal hearing records show that Mr Fernandez was not the interpreter on either occasion. His Honour correctly observed that there is nothing in the legislation to compel the tribunal to provide an interpreter of the applicant's choosing. Be that as it may, the appellant made nothing of this on the appeal.

The failure to make inquiries 26 This allegation was not apparently raised in the court below. Nor is it raised in the notice of appeal. Leave is required to raise the argument and where, as here, no explanation is given and the point is of doubtful merit, leave will generally be refused: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48] and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [154]-[166] per Madgwick J, Conti J agreeing at [229]. Nevertheless, I propose to consider the argument on its merits. 27 Section 424 of the Migration Act gives the tribunal the power to obtain any information it considers relevant and to invite a person to give additional information. But, generally speaking, there is no corresponding duty to invoke it. Cf. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [43] per Gummow and Hayne JJ, Gleeson CJ agreeing at [1]; Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 ("SZIAI"). 28 In SZIAI the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) emphasised (at [1]) that the tribunal's duty was to review the decision of the delegate. For that purpose it may obtain any information it considers relevant and in that sense it has an inquisitorial function. But it held that the Migration Act did not impose a general duty on the tribunal to undertake inquiries and said it was inappropriate to speak of the tribunal having a duty to inquire. Rather, their Honours observed at [25]: The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. (References omitted.) 29 In that case a Bangladeshi asylum seeker claimed he had converted from the Sunni Muslim faith to become an active Ahmadiyya Muslim and that subsequently his life had been threatened by Sunni Muslims. In support of his claims he submitted two certificates signed by people purportedly associated with the Ahmadiyya Muslim Jamaat in Bangladesh (and featuring mobile telephone numbers apparently belonging to the authors). The tribunal sent copies of the certificates to the Ahmadiyya Muslim Association Australia Inc. The Association forwarded to the tribunal a letter from the National Ameer of the Ahmadiyya Muslim Jamaat Bangladesh stating that no record was found of SZIAI's name and that the certificates were "fake & forged". The tribunal wrote to the applicant inviting him to comment on that information in conformity with its obligations under s 424A of the Act. The applicant's solicitors replied, stating that the applicant disagreed with the contents of the National Ameer's letter but that he was unable to prove what he (the applicant) said. The tribunal referred to the National Ameer's letter in its reasons and concluded that SZIAI was not a witness of truth and there was no truth in the claims he had made in support of his application for a protection visa. 30 A single judge of this Court sitting on appeal from the Federal Magistrates Court held that the tribunal had fallen into jurisdictional error because the certificates had been put in issue by the information the tribunal had received from the Association, the issue was centrally relevant to the tribunal's decision and the tribunal should have inquired of the authors of the certificates. The High Court unanimously allowed the Minister's appeal. 31 The plurality said that it was unnecessary to explore the questions of principle because there was nothing on the record to indicate that any further inquiry could have yielded a useful result. Heydon J (at [36]) said it was unnecessary to formulate a duty because there was no doubt in the circumstances of the case that the tribunal was not obliged to make further inquiries. His Honour also said (at [52]) that whether the tribunal should have made further inquires must be assessed on the premise that it was for the applicant to demonstrate that his claims were genuine. The applicant had provided the certificates in the first place, knew the authors and was in at least as good a position as the tribunal to contact them. He noted that he did not ask the tribunal to do so. His Honour said it was not unreasonable for the tribunal to proceed on the basis that if any further evidence was to be provided to support the certificates, it would come from the applicant. 32 As Logan J pointed out in SZLGP v Minister for Immigration and Citizenship (2009) 81 FCR 113 at [49]-[50], all the High Court did in SZIAI was to admit of the possibility that jurisdictional error might arise in certain exceptional circumstances. A court ought not leap to such a conclusion. Reasonable minds might differ about what amounts to an obvious inquiry. 33 So did the tribunal commit jurisdictional error by failing to make the suggested inquiries in this case? 34 The first of the appellant's complaints related to medical certificates dated 10 October 2005 and 11 April 2010. They were not supplied to the Department or submitted to the tribunal until almost three weeks after the hearing concluded, presumably in response to the tribunal's concerns that he had not provided it with any documents to prove he was in hospital. At the same time the appellant informed the tribunal that he had asked his wife to get copies of his complaints to the police (about which the tribunal had also questioned him) but, he wrote, the police claimed they never received them. He claimed that "the Group" had used its power and money to influence the police to remove the complaints from its records. 35 The dates of the medical certificates are significant because on each of them the appellant claimed to have been assaulted. He told the tribunal that on 10 October 2005 he had been attacked and injured by 10 armed Muslim men and was hospitalised for two weeks as a result, (although when he was asked for the location of the hospital he said it was not a hospital but "a place for traditional medicine" instead). He said that the ten armed Muslims stopped the bus on which he was travelling when returning from a Bible Convention. He said he fled because he assumed they were after him and they pursued him. He said one threw an iron stick at him and hurt his left leg. He said he fell down and they did a lot of "bodily harm" to him. He told the tribunal that he suffered injuries to his left leg and "the rest of his body", although the delegate only records that he had marks from being hit on the legs with a piece of wood. In his account to the delegate he claimed he was bashed mercilessly with weapons (including pieces of wood) on the legs and chest and other parts of the body. The certificate bearing that date indicated that the appellant was suffering from a problem with his back, left leg and shoulder and had been recommended treatment and bed rest for two weeks. It did not refer to the cause of the problem or the type of treatment received. 36 The appellant told the tribunal that on 11 April 2010 he was stopped by a group of men in a van while he was riding his bicycle. He said that when the men alighted, he fled and the men followed him. He said they caught him, threw him on the ground, hit him and took him to the van where they were kicked and hurt him. He said he tried to shout for help but one of them collected urine and forced it in his mouth and the men bound his hands and legs. He said he tried to call for help but someone put underwear in his mouth. In his statement to the Department he wrote that his assailants "smashed and crushed" him "like anything", poured urine into his mouth, kicked him in the rib (sic), bound and gagged him and left him to die on the road. The medical certificate of that date merely indicated he was suffering from a problem with his back and had been recommended treatment and bed rest for two weeks. Once again it did not indicate the cause of the problem or the type of treatment received. The tribunal pointed out that the appellant had not provided these certificates to the Department in support of his application or to the tribunal before the hearing, and considered that this raised concerns about their authenticity. In any case, it observed, the contents were of limited assistance and so placed little weight on them. 37 It is possible that further inquiry would have revealed more information but I am not satisfied that the failure to do so in this case reveals jurisdictional error. What is the obvious inquiry the tribunal should have made? The appellant never identified it. Would there have been any utility in making it? The doctor could not prove the assaults. In his statement to the Department the appellant described the doctor as a friend of a friend of his, which might have affected the reliability of anything he might have said. In any case, at most, the doctor's evidence might reveal a history consistent with the appellant's account. On their face, however, the certificates, especially the second, are inconsistent with that account and there are inconsistencies between the various descriptions of the events given by the appellant. The tribunal was concerned at the hearing that he had not provided any documents to prove he was in hospital. The evidence about whether he was actually hospitalised at all was contradictory and confusing. The appellant said he could get the documents but never did. The later provided medical certificates do not prove he was in hospital. 38 Several documents were provided to the tribunal apparently under the seal of St Thomas Church, Poonthura, in the Latin Archdiocese of Trivandrum, Kerala. None of them was signed by the parish priest. Each bore the same indecipherable signature of a person signing "for parish priest", whom the appellant never identified 39 The first was entitled "marriage certificate" and was dated 20 August 2010 referring to the marriage of the appellant and his wife in 2004 and confirming details the appellant had provided the Department about his family. The second, also dated 20 August 2010, stated that the appellant belonged to his parish and was active in the parish ministries over the previous 18 years, was a leading singer in the church choir and dedicated himself to the youth ministry for 15 years. The tribunal did not disbelieve any of this. Indeed, as I read its reasons, it accepted the substance of it. 40 The third was entitled "death certificate". It was dated 23 July 2010 and stated that "Joseph H/O Celine Poonthura died on 24 April 1988 and was buried in the Church Cemetry. The entry is made in the Register of Deaths kept in this Church." The deceased was the appellant's father-in-law. The tribunal did not, however, find that Mr Joseph did not die on that date. Its adverse findings related to his occupation and the circumstances of his death. 41 The fourth, dated 20 August 2010, certified that the appellant belonged to the parish and that his father-in-law was killed brutally in the Poonthura communal riot between Muslims and Christians on 24 April 1988. It also stated that the case was "still being trialed in Kerala" and that now the appellant faced "life-threat from the fundamental muslims" in that state. It finished with a plea that he be granted refugee status. The tribunal did not find that the appellant did not belong to the parish. The author of the certificate did not say he had witnessed either the death or any threats from Muslim fundamentalists. And the appellant did not suggest he had. Neither did he suggest he knew who was responsible. Without the name or names of the accused, it would be difficult, if not impossible, to obtain information from the trial that might confirm that the appellant's father-in-law had been killed in the riot. 42 In all the circumstances I am not satisfied that the tribunal failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained. In my view, the failure of the tribunal to inquire of the authors of the documents does not give rise to jurisdictional error.

The failure to find the monthly income 43 There were inconsistencies in the appellant's evidence about whether he had earned income in Kerala and, if so, what he had earned. The tribunal does not seem to have made any findings about this question. Rather, it noted the inconsistency between evidence given in the appellant's application that he received a monthly salary and his other evidence that he had never been paid a wage, describing the inconsistency as one which "raises concerns in relation to the credibility of the [appellant]". This observation may have influenced the tribunal's finding that he was not a preacher. Be that as it may, this complaint reveals no error on the part of the federal magistrate.

The want of a solicitor 44 Doubtless the appellant's chances of success would have been enhanced had he had the benefit of legal assistance. Apparently the Federal Magistrates Court referred him for assistance and a solicitor provided some written advice but the appellant did not receive it because it had been sent to his former address, the only address he had given the tribunal. This is unfortunate, but it does not mean that the proceeding in the Federal Magistrates Court miscarried. In a civil proceeding procedural fairness does not require the provision of legal representation, let alone advice: New South Wales v Canellis (1994) 181 CLR 309 at 329-331; Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. 45 Before the federal magistrate the appellant complained he had not received any legal advice. His Honour dealt with his concerns in a way that does not bespeak error.

The other matters considered by the federal magistrate 46 For completeness I should say that I also find no error in the federal magistrate's treatment of the other issues with which he dealt. On the question of bias, his Honour adopted a passage from the Minister's submissions referring to the tests for actual and apprehended bias. The test for apprehended bias was misstated. But the allegation the appellant made of "prejudice" was really an allegation of actual bias and there was no evidence of actual bias. Nor is there anything in the tribunal's reasons that might reasonably cause a fair-minded lay observer to apprehend that the tribunal might not have brought an impartial mind to the resolution of the issues (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337).

Conclusion 47 I have some sympathy for the appellant. There may well be a benign explanation for at least some of the inconsistencies in his evidence. But this Court's powers are limited. Whether or not the appellant was telling the truth was a matter entirely for the primary decision maker and, on review, the tribunal. Absent any proof that the quality of the interpreting at the tribunal hearing was so sub-standard as to deprive the appellant of a meaningful opportunity to give evidence and present arguments, or the demonstration of any other jurisdictional error on the tribunal's part, or, more accurately, any error by the federal magistrate in failing to find one, the appeal must be dismissed. There is no reason why the appellant should not pay the Minister's costs. There will be orders accordingly. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Migration Act 1958(Cth)ss 424, 425, 476

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