SZRGA & Ors v Minister for Immigration & Border Protection & Anor [2015] FCCA 1694

1. The applicants arrived in Australia on 1 February 2011.
2. On 25 February 2011, the applicants lodged an application for a protection (Class XA) visa with the (then) Department of Immigration and Citizenship ("the Department").
3. On 13 May 2011, the Delegate refused the applicant's application for a protection visa.
4. On 1 June 2011, the applicants lodged an application for review of the Delegate's decision by the RRT.
5. On 17 February 2012, a differently constituted Refugee Review Tribunal affirmed the Delegate's decision not to grant a protection visa.
6. On 19 December 2012, the matter was remitted to the RRT by the Federal Circuit Court of Australia for determination according to law.
7. On 20 December 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.
8. On 14 January 2014, the applicant filed an application seeking judicial review of the RRT's decision.

1. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines "Refugees Convention" and "Refugees Protocol" as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees ("the Convention").
2. Article 1A(2) of the Convention relevantly defines a refugee as a person who:
   • "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
3. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
4. Section 36(2)(aa) of the Act provides that:
   • "(2) A criterion for a protection visa is that the Applicant for the visa is:
     • (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm."
5. Sections 36(2A) and 5 of the Act defines "significant harm."
6. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Relevantly, Division 4 Part 7 includes s.425, which is as follows:
   • "425 Tribunal must invite Applicant to appear
     • (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review."
7. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

The applicant's application for a protection visa

1. In his application for a protection visa, the Applicant referred to a submission provided in support by his representative and provided little other detail.
2. I understand that submission to be the applicants' then-representative summary of the applicants' claims in a letter dated 25 February 2011. Those claims are as follows:

1. The applicants are Alevis from Adana in Turkey. The Applicant conducted a small business selling white goods and jewellery. The Applicant was discriminated against by reason of his religion and membership of a social group. Once the Alevis' status is known, they are economically and socially ostracised. 2. The Applicant was under Christian religious instruction at the time he departed Turkey and also in Australia. Such religious exploration would not be tolerated in Turkey.

1. The risk in Turkey is the possible emergence of Islamic fundamentalists who will further erode Islam's only secular state.

1. The social group to which the Applicant belongs is of a business man with local prominence, his reliance on non-Alevis and his perceived Christian sympathies.
2. On 9 April 2011, the applicants' representative made a further submission which stated that:

1. The Alevi group comprises of multiple groups that do not subscribe to conventional worship in Islam. Meetings are conducted in the homes of members and there are many acts of charity in service to the poor. 2. The Applicant is continuously persecuted as a member of this group. He has been continuously followed by undercover police who monitor him and enter his shop.

1. On 30 November 2008, the Applicant was detained by police in Adana for approximately one-and-a-half hours and was 'warned'.

1. On 19 December 2009, the Applicant was pulled over again by police while travelling to a religious celebration. The Applicant was detained for approximately 2-3 hours at the police station where he was physically mistreated. He had a gun placed in his mouth and had his genitals kicked and squeezed. The Applicant was questioned as to why he did not attend a Mosque and why his wife did not wear a Hijab. 2. Such persecution from the police resulted in the collapse of his business in 2010; he lost customers due to police monitoring and harassment. 3. The Applicant did not believe there was a place for him or his family in Turkey because society is dominated by increasingly radicalised Sunni Muslims. The Applicant would be required to continue his worship in secret and there are obvious indications of his faith, such as his lack of formal worship and private meetings.

1. On 19 April 2011, the Applicant attended an interview with the Delegate. The Applicant referred to his detention by police on 13 November 2008 and in December 2009. The Delegate accepted that the Applicant is an Arab-Alevi and may have been discriminated against in Turkey because of his religion, including detention by the Police on two occasions, including physical mistreatment on one occasion.
2. The Delegate found the applicant's claims regarding lack of freedom to practise his religion to be vague and lack detail and did not amount to "serious harm" for the purposes of s.91R of the Act and that the Applicant would not be prevented from practising his religion if he were to return to Turkey.
3. The Delegate found the Applicant's evidence about religious instruction he undertook in Turkey to be "quite evasive". The Delegate found that there was no basis for the Applicant's claim that his exploration of Christianity would not be tolerated in Turkey. Further, the Delegate was not satisfied that the Applicant had made a serious effort to explore Christianity and that conversion to Christianity is not a prospect for him in the foreseeable future.
4. The Delegate found that the Applicant did not suffer serious harm amounting to persecution in Turkey for any Convention ground and will not suffer such persecution in Turkey for the foreseeable future. The Delegate found that the Applicant does not have a genuine fear of harm.
5. On 13 May 2011, the Delegate refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

1. On 23 May 2013, the RRT wrote to the applicants inviting them to appear before the RRT on 13 June 2013 to present evidence and make arguments.
2. On 12 June 2013, the applicants requested that the RRT hearing be adjourned. On 13 June 2013, the RRT confirmed that the hearing would be adjourned.
3. On 28 June 2013, the RRT wrote to the applicants inviting them to appear on 10 July 2013. The applicants attended the RRT hearing with their representative.
4. On 13 August 2013, the RRT wrote to the applicants inviting them to appear before the RRT again on 23 October 2013. The applicants attended the second hearing on that date.
5. The RRT noted that it had before it the Department's file, the Delegate's decision record and other materials available to it from a range of sources.
6. The RRT explored the Applicant's claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT put to the Applicant country information for comment. The RRT identified with particularity the country information to which it had regard.
7. The RRT accepted that the Applicant was an Alevi Arab and that he had faced ostracism and discrimination at school, in the community and in business. The RRT accepted that Turkey was a majority Sunni country.
8. The RRT did not accept the Applicant's claims to have been detained by police on two occasions or to have been subject to ill-treatment by police or monitored by authorities. The RRT did not accept that these incidents had occurred as they were not referred to in the applicants' initial application to the Department or in his advisor's accompanying letter dated 25 February 2011. The RRT took into account the stress involved in giving evidence in relying on the Applicant's failure to mention the police incidents in his initial application. However, given that the Applicant was able to present his other claims, the RRT found that the Applicant would have mentioned those significant events if, in fact, they had occurred.
9. The RRT therefore did not accept that the Applicant was forced to close his business because of police harassment. The RRT accepted that while discrimination against the Applicant may have been a factor, it was not clear to the RRT how it had occurred.
10. The RRT accepted that the applicants attend meetings of the Australian Alevis Cultural Centre and was satisfied that such conduct was engaged in for reasons other than bolstering their refugee claims.
11. The RRT found that the Applicant is not a political activist in Turkey and would not become one if he returned to Turkey.
12. The RRT considered the claims of each of the applicants individually as well as on the basis of being members of the Applicant's family.
13. Based on country information before it, the RRT accepted that the applicants' places of worship in Turkey would not have legal status, that their religion may not be able to be included on their identification cards and that their children would have to study Sunni Islam at school. However, the RRT did not accept that they would not be able to practise their religion freely or that they must abide by Sunni customs.
14. The RRT was not satisfied that the mere fact of being an Arab Alevi in Adana province establishes a real chance of persecution for any Convention reason.
15. The RRT considered the Applicant's reference to his attendance at a church in Adana, however found there was no suggestion that any of the applicants had converted or wished to convert to Christianity. The RRT did not accept that there was a real chance of persecution of the applicants should they return to Turkey on the basis of their taking an interest in or attending a Christian church on a few occasions.
16. The RRT then considered the Applicant's claims to have reduced his charitable activities because of incidents with the police. On the basis of its previous finding that no incident with the police took place, the RRT did not accept that the Applicant reduced his charitable activities on this basis.
17. The RRT considered the Applicant's claims that the third and fourth applicants would be conscripted to fight against the Partiya Karkerên Kurdistanê (Kurdistan Worker's Party) ("the PKK") in the East. Based on the third and fourth applicant's young age, the RRT did not accept that there was a risk that six years from the date of the decision that the third and fourth applicants would be sent to fight the PKK.
18. The RRT also gave weight to the fact that the first and second applicants had a visa to visit the United States for a year prior to their leaving Turkey. The RRT did not accept that the Applicant would not have taken the opportunity to flee Turkey if he did fear serious harm.
19. In considering the applicants' claims individually and cumulatively, the RRT found that there was not a real chance that the applicants would experience serious harm for a Convention-related reason if returned to Turkey.
20. The RRT then considered the applicants' claims under the complementary protection criterion. On the basis of its previous findings of fact and the country information before it, the RRT did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Turkey, that there was a real risk that the applicants would suffer significant harm.
21. Accordingly, having determined that the applicants did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

1. The applicants were represented before this Court by Mr Richard Killalea, solicitor.
2. The applicants were given leave, by consent, to rely on the ground of an Amended Application filed in Court this morning. That Amended Application contained the following ground of review:
   • "1. The Tribunal's decision was made in breach of section 425 of the Migration Act 1958 (Cth).
     • Particulars (i)
       • The Tribunal did not accepted ([37]; Statement of Decision and Reasons) that SZRGA was twice detained by the Turkish Police because SZRGA said that "he was fearful of speaking out against the authorities especially as he has a family in Turkey. However he did speak out against the authorities in regard to a number of other matters."
       • In regard to the above, SZRGA spoke in Turkish and his words were to be translated by a Turkish translator. The Turkish translator did not fully translate what SZRGA said to the Tribunal:
       • - see the Affidavit ("B") of Mert Ilgin, affirmed 2 June 2015, as to transcription of audio record of English language used in the Tribunal hearing.
       • - see the Affidavit ("SK3") of Suat Kocyigit affirmed 11 June 2015, as to what was said by SZRGA, in the Turkish language in relevant part."
3. The applicant's solicitor, Mr Killalea, read the affidavit of Suat Kocyigit, affirmed 11 June 2015, annexing extracts from the transcript of the RRT hearing, together with translations of those relevant paragraphs from Turkish into English.
4. The RRT transcript question is as follows:
   • Tribunal: Also, I wanted to ask you about information in your initial application to the Department of Immigration, which was in February 2011. So in your initial application, you filled in some forms and also an advisor provided some information on your behalf. You did not include any information about the two times that you had an event with the police, and you only included this information in April 2011. So this to me appears unusual because if there is a key event to your claim, it is unclear to me why it would not be included in your application. This may lead me to conclude that if information is added later, it has been added to bolster your claims rather than being the facts.
5. The translation of this paragraph from English to Turkish by the Applicant's interpreter was as follows:
   • "Judge: the application you made to the Department in February 2011 and information contained in your application I will ask questions. You filled in a form and the advisor gave some information. The events you have twice lived with the police you did not mention these. You only did in April 2011. In the report you submitted, you did not mention those very important matters. Similar to these are mentioned in later dates. It is only to strengthen your application which was added later on it is seen as."
6. The Applicant does not contend that there was any error in the interpretation of the RRT's question that could amount to jurisdictional error.
7. However, the Applicant contends that the difference in the RRT transcript of the Applicant's response and the Turkish to English translation of the Applicant's response was such as to prevent the Applicant from giving evidence to the RRT because the errors made in interpretation at the RRT hearing were material to the conclusions the RRT and adverse to the Applicant, thereby in breach of s.425 of the Act.
8. The transcript of the RRT hearing discloses the Applicant's response as follows:
   • "Interpreter: You might recall that I already mentioned that I only talked about this to my wife. I was told that you should not be disclosing what happened to any authorities, as they would be informed first. They threatened that it would cause further more harm to you. I have got brothers and sisters and my mum in Turkey. I could not put in my initial statement. I asked a friend's wife to see if it would cause any problem for me if I disclosed any information of what happened, if the Turkish authorities would know. What was said by the solicitor, when I went to solicitor, I asked him if it would go back to Turkey and he said no, no such thing. He said, why don't you tell what you really experienced, don't be scared he said. I felt relaxed when he said that, then I told everything from the beginning to the end, in the end I've got a family in Turkey. If I had bad intentions, I would have said all these earlier, but there is no such thing by being informed about this by the solicitor. It gave me some relief."
9. The translation of this paragraph from English to Turkish by the Applicant's interpreter was as follows:
   • "Interpreter: now I'll say like this if you remember what I did say before I said this to my wife only. Because police had told me this there is no need to inform any court if you do we will know it first and this may result much worse results for you and he threatened me. At present now in Turkey, I have brothers sister and my mother. I couldn't put these in my initial application. Then later on my solicitor let me put it this way. Wife of a friend English was good and I asked her to call the solicitor and ask him if I mentioned this Turkish Consulate Turkey or will they be informed of these if I tell what I lived through in the past. I am telling now what was said to me through friend's wife. We went to the solicitor and he told me to mention these. I said if I mentioned they would be reported in Turkey. He said absolutely no, never. He said why are you not telling what you lived through really in the past. He said don't be scared when he said this to me I felt relaxed and I told everything from the beginning to the end. I have a family living in Turkey if I had bad intention I would write these at the beginning. I would have planned this before. There is no such thing absolutely but solicitors explanations of these made me feel relaxed.
10. I have bolded those parts of the transcript that are contentious.
11. The Applicant submits that his response was that the police threatened that things would be worse for him if he disclosed what had happened with the police and that was the reason that he made no mention of those events in his initial application or to his representative at that time. It was only after consulting with his wife's friend and his then-solicitor that he felt safe to then disclose the police conduct in his representative's letter of 9 April 2011. The Applicant submits that it was the interpreter's inadequate translation which resulted in the RRT not being informed that it was the allegations of adverse police conduct which were not raised in his application or the representative's supporting letter dated 25 February 2011, whereas reporting on the actions of other authorities "was not similarly restrained".
12. In support, Mr Killalea referred the Court to SZRMQ v Minister for Immigration [2013] FCAFC 142; (2013) 219 FCR 212, 219 and 229 per Alsop CJ and Flick and Robertson JJ ("SZRMQ"). However, SZRMQ did not concern a breach of s.425 of the Act, as it was judicial review of a decision of an Independent Merits Reviewer, who was not confined by Division 4 of Part 7 of the Act in relation to the conduct of its review. As Robertson J made clear at 230, the test to be applied in relation to the question of the adequacy of interpretation may be different under the general law, as opposed to the judicial review of the conduct of the review pursuant to Division 4 of Part 7 of the Act.
13. In considering a breach of s.425 of the Act in relation to an allegation of inadequate interpretation, the authorities make clear that the standard of interpretation at the RRT hearing must be so inadequate that the applicant was prevented from giving evidence to the RRT, or that in errors made in interpretation at the RRT hearing were material to the conclusion of the RRT and adverse to the applicant (see Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16]- [17]; Singh v Minister for Immigration [2001] FCA 1376; (2001) 115 FCR 1; Perera v Minister for Immigration [1999] FCA 507; (1999) 92 FCR 6; Soltanyzand v Minister for Immigration [2001] FCA 1168).
14. In SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 Jacobson J summarised the law on this issue as follows, at [29]-[32]:
    • "The seminal authority on the standard of interpretation is the decision of Kenny J, in Perera_. Although that case was decided before s 425 of the Act was amended, it has been accepted that what her Honour said in_ Perera is equally applicable to s 425 in its current form: Minister for Immigration v WACO [2003] FCAFC 171; (2003) 131 FCR 511 at [64].
    • The relevant principles may be stated briefly. The standard of interpretation is not one of perfection. It need not be at the very highest standard of a first-flight interpreter but it must express in one language, as accurately as the language and circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [26]-[29]; WACO at [66].
    • Importantly, not every departure from the standard of interpretation denies an applicant the opportunity to obtain a hearing under s 425 so as to give rise to jurisdictional error. The onus is on an applicant to demonstrate that the departure related to a matter of significance to his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal's decision: Perera at [38], [45]; Applicant P 119/2002 at [16]-[18]; WACO at [69]; see also SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [72]-[73] (Buchanan J).
    • Whether any inadequacy in translation has been such as to deprive an applicant of the opportunity to have a hearing in accordance with involves a qualitative assessment of the conduct of the hearing before the tribunal as a whole: SZHEW v Minister for Immigration and Citizenship
15. In the circumstances of this case, for the reasons below, I am not satisfied that the hearing was not 'real and meaningful' when considered as a whole (see Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16]).
16. Further, to the extent that the consideration of complementary protection is also under the general law, the principles referred to in SZRMQ (see Robertson J at 229) as to whether any mistranslation led to a material unfairness relating to a matter of significance or potential significance for the Applicant's case, do not assist the Applicant in this case as I am not satisfied that there was any mistranslation that led to a material unfairness for the reasons below.
17. The RRT found it to be critical that the applicants did not include any reference to the Applicant having been detained by Turkish police in the initial application lodged with the Department or in the supporting letter dated 25 February 2011. The RRT noted that it asked the Applicant why he had not included details of the two incidents involving the police in his initial application as the application form clearly requests that he provide all details of his claims. The RRT noted that, instead, the Applicant added these claims in April 2011. The RRT noted the Applicant's response that the Applicant was told that he should not disclose what happened with the authorities as it would cause harm to him and he still has family in Turkey.
18. The RRT noted that the Applicant had said he was fearful of speaking out against the authorities because he has family in Turkey, but that he had spoken out against authorities in regard to a number of other matters. The RRT also noted that the Applicant was legally advised. The Applicant submitted that the RRT had not been told it was the police that had threatened him.
19. The RRT did not accept that the Applicant would not include key elements of his claims and this lead to the ultimate finding that the incidents did not occur. There is nothing to suggest that in reaching that conclusion, the RRT drew any distinction as to whether the Applicant was threatened by authorities or the police. The issue for the RRT was the fact that the Applicant had failed to include claims that he considered to be critical to his claim to be owed protection obligations by Australia, and yet were not included at all when the application was initially lodged.
20. Further, the RRT referred to the fact that it had not found any country information about persons such as the Applicant being subjected to police ill-treatment.
21. I accept the submission of the first respondent that whilst this of itself did not lead the RRT necessarily to conclude that there never was such ill-treatment, the Applicant's failure to mention these incidents at the time of lodging his initial application and the absence of any country information to suggest police ill-treatment of persons such as the Applicant, led the RRT to reject the Applicant's claims that the police incidents had occurred.
22. As is clear from the summary above in these reasons of the RRT's decision, the RRT explored the Applicant's claims with him in some detail at the hearing and carefully considered all claims made by the applicants and made its findings in the context of accepting that the applicants would face some discrimination and ostracism by being Alevi Arabs. However, the RRT found that such conduct would not amount to serious harm as required by s.91R(1) of the Act.
23. Otherwise, the RRT's findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

1. A fair reading of the RRT's decision record makes clear that the RRT understood the claims being made by the applicants; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The RRT put to the Applicant matters of concern it had about his evidence and noted the Applicant's responses. The RRT identified independent country information to which it had regard. The RRT also explored with the Applicant independent country information before it and invited the Applicant to comment upon it. There is nothing to suggest that any errors in this translation were so inadequate as to deprive the Applicant of an opportunity to have a hearing in accordance with s.425 of the Act when viewing the conduct of the hearing before the RRT as a whole.
2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT's decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.
3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
4. The RRT's decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Emmett