Cotofan v Minister for Immigration & Multicultural Affairs [2000] FCA 1042

FEDERAL COURT OF AUSTRALIA

Cotofan v Minister for Immigration & Multicultural Affairs [2000] FCA 1042 CITIZENSHIP AND MIGRATION – protection visa – application for order of review of decision of Refugee Review Tribunal ("RRT") affirming decision by delegate refusing grant – whether procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision were observed – where error in translation of document provided by applicant – whether applicant given opportunity to present evidence and make submissions before RRT – whether applicant provided with adequate interpretation at RRT hearing – whether significant departure from appropriate standard of interpretation – whether incorrectly translated document critical to findings by RRT Migration Act 1958 (Cth) ss 425, 427, 430 & 476

Perera v Minister (1999) 92 FCR 6 applied FLORIN COTOFAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 244 OF 2000 EMMETT J 20 JULY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 244 OF 2000

BETWEEN: FLORIN COTOFAN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 20 JULY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 244 OF 2000

BETWEEN: FLORIN COTOFAN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 20 JULY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Romania. He apparently arrived in Australia during September 1999. On 27 October 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 30 November 1999 the delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa and on 2 December 1999 the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. 2 On 22 February 2000 the Tribunal affirmed the decision not to grant a protection visa. The applicant has now applied to this Court for an order of review of the decision of the Tribunal pursuant to section 476 of the Migration Act 1958 (Cth) ("the Act"). 3 The grounds relied on in the amended application filed today without objection are as follows: "That procedures that were required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision or not observed, namely the Applicant was not given a proper opportunity to appear and give evidence and make submissions in support of his claims (ss 425-427, 430)" Reference was made to sections 425 to 427 and section 430. In the course of argument counsel for the applicant indicated that the provisions specifically relied on are sections 425(1) and 427(7) which respectively provide as follows. "425 (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. ……………………… 427 (7) If a person appearing before the Tribunal to give evidence is not proficient in English the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter." 4 The particulars of the ground specified in the application are as follows: "The quality of the interpretation provided at the hearing was not of an adequate level to permit the Applicant to give proper evidence. In particular, there was an error of interpretation in relation to a matter of significance for the Applicant's claims, namely the date on which the applicant was required to attend court in response to the 'Citatie' (Summons) issued against him. It was interpreted during the hearing before the RRT as 25 October 2000 when it should have been interpreted as 25 January 2000. The Tribunal put the document aside on the basis that the date 25 October 2000 revealed that there was no vindictiveness involved in the commencement of legal proceedings against the Applicant as a person who attended (or who was thought to have attended) the miners' strike. If the date had been properly interpreted, then on the Tribunal's own reasoning, it could have suggested there was 'vindictiveness' and the Tribunal would have needed to address whether the legal proceedings could be seen as part of persecution for a Convention reason." In order to understand the ground it is necessary to say something more about the findings made by the Tribunal and the contentions that were advanced on behalf of the applicant before the Tribunal. 5 At the hearing the applicant was accompanied by an adviser and the Tribunal was assisted by an accredited interpreter in the Romanian language. The applicant said that he worked for the Jiu Valley Mining Company. He said he commenced employment there in the summer of 1997, approximately June or July. His job was to drive a coal truck. The applicant claims that he was one of many miners who assembled on the streets of Tirgu Jiu on 14 and 15 January 1999. The crowd intended to march to Bucharest and started off along the road. However, they were stopped by a police barricade at the town of Costesti. The police hit the protesters with batons, tear gas, and rubber bullets. The applicant said that he himself was beaten. He said that there were many arrests. He said that he had stayed about 2 days in Costesti volunteering the dates 19 and 20 January, 1999, and that he then ran back to Tirgu Jiu. 6 Back in Tirgu Jiu the applicant found his friends and they started handing out pamphlets. Then a month later he participated in another demonstration. The second demonstration was held at Stoenesti about 100 kilometres from where he was in Tirgu Jiu and about 160 kilometres from Bucharest. The police and other forces waited for the demonstrators, between 3,000 and 5,000 miners, on a bridge near Stoenesti. The applicant claimed that he and his friends were in the front line giving out pamphlets. He saw his friend hit with batons and kicked as he fell to the ground. The applicant tried to assist his friend but he himself was beaten and injured his right foot. 7 The applicant claimed that he stayed in the vicinity for a couple of days before he succeeded in running away back to Tirgu Jiu. He said he heard later from his friends that between 200 and 300 people were arrested at Stoenesti including the miners' leader Miron Cozma. The applicant continued to distribute pamphlets on a twice-weekly basis until June. The pamphlets were sent by his best friend in Bucharest for distribution. He said that he handed them out in Tirgu Jiu and Craiova. The pamphlets said things like "Down with the Government", "Down with Constantinescu" and"Down with the Communists". The pamphlets were also a call to gather people together to go to Bucharest. 8 The applicant claimed before the Tribunal that during this time he was caught twice by the police and beaten but managed to run away. He claimed that friends with whom he had shared the front row of the demonstration and other friends with whom he distributed pamphlets had been arrested and gaoled, and that to his knowledge his close friends had not been released from gaol by the time he left Romania. 9 The applicant claimed that he would also be arrested, as he had been chased by the police. The two demonstrations in which he had participated had been filmed and had also been attended by a number of informants. He said that when he phoned home, his mother informed him that the police had been to her house in February and March asking about him. 10 He said that he was told that they had also delivered summonses to his mother's house called "Invitatie". These documents were presented as evidence to the Tribunal. Each was identical, being a small slip of paper with writing which, as translated by the interpreter at the hearing, stated that the applicant had to present himself at the investigation room at the police station in his home town on a certain date with his identify card. If he did not appear there would be sanctions in the form of a fine for a certain amount. 11 The applicant says that he felt it was dangerous for him to stay in Romania and he made plans to leave. He had a valid passport. He had previously travelled to Italy and Turkey in 1995 and 1997 respectively, but he did not feel that he could use his passport because the police were looking for him. He claimed that he left Romania at the beginning of July and travelled across the Danube into Yugoslavia, through that country into Macedonia and then into Greece. He said he could speak a little Greek, having learnt from a girlfriend. He travelled in Greece for about a month before he arrived at Piraeus. He said that he met a man in a coffee shop and was told that he could be assisted to depart illegally for an overseas destination. He claimed that he was to return to the coffee shop within an hour with his luggage and some food for a voyage. 12 He did so, and was put into a container. He had food, bottled water and plastic bags for the disposal of waste. He was required to pay a fee. He remained in the container for something in the order of 30 days and, having survived the trip, finally emerged from the container when it was opened in Australia. The person who opened the container asked for further money and his passport. He was then taken from the container to a house. He slept there, subsequently woke up and set out to endeavour to find work in and around Sydney. He was subsequently detained by the Australian authorities. 13 He said that he has been able to establish contact with his mother in Romania and to have documentation sent to him. He said he has also received a letter from his brother, posted from Greece. He claimed that his brother left Romania after him, but the actual time of departure is not known nor his brother's reason for leaving Romania. The letter from the applicant's brother was not tendered to the Tribunal, but the envelope was used to bring to the hearing before the Tribunal three summonses addressed to the applicant and similar to the three "Invitatie" addressed to his mother. The applicant's three Invitatie are dated 1 March, 14 April and 16 May 1999. 14 The applicant also submitted to the Tribunal another summons that he claimed had been sent to him by his mother. That document is unlike the others. It is double sided, printed on each side on a page as wide as an A4 sheet but less than half as deep. Instead of being headed "Invitatie", as the other summonses are, it is headed "Citatie". It was sent, according to its terms, from the civil division of the Court or Tribunal office in the applicant's home town on 28 December 1999. The name and home address of the applicant are written by hand in spaces provided on the form. The form required attendance on a particular date. 15 There was a factual issue before me as to whether the date shown on the Citatie was correctly interpreted by the interpreter for the Tribunal. The Tribunal in its reasons said that, according to the interpreter, the applicant was instructed to appear "on 25 October 2000 for investigation regarding mine strikes as a participant". However, evidence was given before me by Mr Emile Keller, an accredited translator in the Romanian language. Mr Keller expressed the opinion that the document in question required attendance not on 10 October 2000, but on 10 January 2000. The question of what date is correct turns on the interpretation of handwriting in a printed document. 16 The document contains a blank space after the word "lunar" which clearly means month. The symbols and handwriting were interpreted by Mr Keller as "Ian" being the first three letters of the month January in Romanian. It is not clear how the interpreter before the Tribunal construed the words but it may well be that on a peremptory look the symbols could have been interpreted as "10th". However, the evidence before me indicates that that is not the way in which "10th" would be written in Romanian. I accept the evidence of Mr Keller that, on a fair reading of the document, it refers to the month of January rather than the month of October. I shall return to the significance of that in a moment. 17 The applicant's claim was that he was afraid to return to Romania because he would be on trial and then gaoled for his participation in the demonstrations. He claimed that the demonstrations were political against the government and the intention was to topple the government. He said that he had fulfilled all his national service obligations, that he had never been arrested or detained by the police or other authorities in Romania. 18 The Tribunal accepted that the applicant is a citizen of Romania, of the name that he has given and that he arrived in Australia after travelling from Piraeus in Greece hidden in a container on board a container ship. However, the Tribunal did not accept that the applicant left Romania for the reasons that he has claimed, that is, fear of arrest and gaol following participation in miners' demonstrations. The Tribunal outlined its reasons for that conclusion. 19 The applicant first formulated his claims in conjunction with his adviser in early November 1999, only a week or so after being detained by the Australian authorities while searching for work in a country town. He then claimed to have been involved in a major protest staged in late May or early June 1999 by striking miners in protest about their low salaries, their conditions of work and the demand that the union leader, Miron Cozma, be released from his 16 year prison sentence imposed after his arrest in March 1999. 20 The Tribunal found that that account of the demonstration was simply not supported by independent evidence. The Tribunal found that there were in fact two separate demonstrations by miners of the Jiu valley. The first in January 1999 was won convincingly. When the union leader accepted the settlement of claims the miners returned to the Jiu valley and work recommenced on 23 January 1999. The miners had been on strike since 4 January 1999 and had begun their march on Belgrade (sic; scilicet Bucharest) on 18 January 1999 from Petrosani. 21 The focus of events, once the marchers had left Petrosani, was an area to the east-south-east of Petrosani, the towns of Horezu, Costesti and Ramnicu Vilcea. Tirgu Jiu, due south of Petrosani and some 45 kilometres distant, was on the fringe of the action before the march. The Tribunal found that the miners did not assemble in Tirgu Jiu and march out as claimed by the applicant. The Tribunal found that some three weeks after returning to work the miners heard that the Supreme Court had overturned a light sentence imposed on Miron Cozma for his role in the violent events in September 1991 and instead sentenced him to an 18 year imprisonment. The hard core of his followers again set out to make their protest directly to Bucharest. This time they were in motorised transport and followed a different route from Petrosani on the main road through to Tirgu Jiu to Craiova and then on to Bucharest. However, the police were much better prepared on this occasion and set up an effective road block at the small town of Stoenesti outside Caracal 60 kilometres east of Craiova and in a bloody battle halted and dispersed the procession. Cozma was taken into custody on 17 February and sent to gaol to begin his sentence. 22 The Tribunal observed that it was not simply the dates of the demonstration that the applicant got wrong in his first set of written claims. It was the fact that there were two quite distinctive and separate events and the details associated with those demonstrations. The Tribunal observed that there was similarity between the applicant's recounting of the demonstrations at the hearing and the independent information as supplied by the applicant's adviser. That information was information to which the applicant had access before the hearing. 23 The applicant claimed that he was demonstrating because he felt the government was no different from the Communist regime. The Tribunal considered that although people have different ways of viewing politics, the applicant's view seemed at odds with the independent evidence available to it. The Tribunal was not satisfied that the applicant had participated in either of the two miners' demonstrations in January and February 1999. Given the publicity of the two demonstrations received and the support shown particularly for the first one in the mining district of Tirgu Jiu valley, it followed, so the Tribunal said, that the applicant was not in the Jiu valley during the time, that is, January to February 1999. The Tribunal considered that it was implausible that anyone associated with the mining industry in that district would be as unaware of the events as the applicant initially was. 24 The Tribunal considered that it was implausible that the applicant left Romania as he stated in early July 1999, crossing the Danube and travelling through Yugoslavia and Macedonia to Greece with no papers. The Tribunal also had concerns about the applicant's dealing with the man in the coffee shop in Piraeus. It considered that a chance conversation is hardly likely to lead to an offer of passage executed within the space of an hour. 25 The Tribunal accepted that the applicant did work as a truck driver in the Jiu Valley Mines for some period of time, that he was hired in the unorthodox way he described in the summer of 1997 but that he left his employment at some unknown date prior to January 1999. The Tribunal therefore did not accept that the applicant was a regular employee, nor that he was a member of the miners' union, at the relevant time. 26 The Tribunal was not satisfied, on the evidence before it, that the applicant was working as he claimed from mid-1997 until January 1999 in or around Tirgu Jiu and that he stayed in that district until July 1999. The Tribunal considered that it followed that, if the applicant was not there, he was not handing out pamphlets from February until June 1999 and attracting the adverse attention of the police. The Tribunal therefore concluded that the summonses headed "Invitatie" sent to the applicant and his mother are unrelated to the applicant's participation in the miners' demonstrations. In any event the Tribunal did not consider that they had any serious consequences. There are no claims nor does the evidence suggest that steps had been taken in relation to the applicant's failure to respond to any of the three Invitatie even though the forms themselves prescribe fines for failure to respond. 27 The Tribunal then dealt with the other document, the Citatie, in the following way: "The Tribunal gives no weight to the other document, the Citatie, as it has no way of knowing whether it is a genuine document or not. It is the only one of its kind. It is the only one that makes mention of participation in the mine strike and the only one where details have been written in by hand. In any case as the Tribunal put it to the applicant at the hearing, the authorities who may have sent this Citatie seem unhurried about their investigations requesting him to appear for questioning at a date ten months hence. This does not indicate that there is any serious vindictiveness associated with the end of their inquiry." 28 The Tribunal recorded in its reasons that it put to the applicant in the course of the hearing the proposition that the fact that the applicant was invited to attend investigations in October 2000 at a time some ten months distant from the issuance date and over 21 months from the time of the strike indicated to the Tribunal that the matter is not being pursued particularly seriously. The Tribunal noted that neither the applicant nor his adviser made any response to those concerns. 29 The applicant's contention before me is that, on the reasoning of the Tribunal, if it had known that the applicant was to be subject to court proceedings on 25 January 2000, it would follow that there may be an element of vindictiveness involved. In those circumstances the Tribunal would have had to consider whether the commencement of proceedings against the applicant could be characterised as persecution. The Tribunal did not consider whether the authorities thought that he was involved in the action even where the Tribunal found that he was not involved. 30 The question of whether or not the commencement of proceedings against the applicant could be characterised as persecution was accepted by the applicant as being a question of fact and degree for the Tribunal but a question that was never answered. It was contended that the Tribunal would have had to consider, in light of the evidence of vindictiveness on the part of the authorities, whether any persecution was being undertaken for a Convention reason. That question was also not answered by the Tribunal. 31 The Citatie document, in the translation made by Mr Keller, is a summons to attend a Tribunal described as a civil Tribunal in a law suit for the investigation in relation to miners' uprising or protest. I do not consider that it follows from the Tribunal's reasoning that, had the Tribunal understood that the document required attendance on 25 January 2000, there was a prospect of a finding of vindictiveness on the part of the authorities. The document was issued on 28 December 1999, some nine months after the incidents in question assuming they are intended to refer to the incidents in January and February 1999. 32 I do not read the Tribunal's observations set out in the passage that I have quoted above as meaning anything other than the fact that the applicant was not required to attend before October indicates that there is no vindictiveness. It does not follow from that, that a requirement to attend at an earlier time would indicate vindictiveness. Indeed, the fact that it was some nine months after the incidents that the summons was issued it indicates a degree or lack of concern at the speed with which the proceedings should have been commenced. 33 In any event, I am not persuaded that the error of interpretation would in any event be capable of constituting a ground within section 476(1)(a) of the Act. A failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground for review within section 476. If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with the person during his appearance receive an interpreter. If not proficient in English, the applicant is effectively unable to exercise his right to give evidence unless an interpreter assists him. The Tribunal is unable to give the applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter to assist. Thus if an applicant for refugee status is unable to give evidence in English, the effect of section 425(1) may well be to require the making of a direction pursuant to section 427(7) that communication proceed through an interpreter. 34 However, it is not every departure from an appropriate standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision: see generally Perera v Minister (1999) 92 FCR 6 at paragraphs 17, 20 and 45. The mistake that was made was not in the interpretation of the oral evidence of the applicant; the mistake was in the interpretation of a document. I do not consider that that mistake is sufficient to lead to the conclusion that the applicant was not given the opportunity to give evidence and present arguments. 35 No complaint is made of the standard of interpretation. There is no suggestion that there were any other mistakes made by the interpreter in the interpretation of the oral evidence given by the applicant. Accordingly, I do not consider that the ground has been made out. 36 In any event, I am not satisfied that the Citatie document is of such criticality that any relief would have been appropriate. The Tribunal observed that there was no information available to the Tribunal that the government has harmed, let alone persecuted, miners who were involved in the demonstrations. The Tribunal accepted that the miners' leader did finally receive a heavy goal sentence but that was after due process of law and in relation to serious actions in the past, including the bringing down of a government. 37 The Tribunal did not consider that the fate of Mr Cozma dictated the fate of other detainees. The government, so the Tribunal said, clearly regarded the union leader as a special case for his high profile role in politics since 1990. The Tribunal was satisfied that, if the applicant had breached the law in Romania, and if he had been arrested at the miners' demonstration, then the ensuing proceedings could rightly be seen as prosecution rather than persecution. Thus, even if there had been a finding that the applicant was being prosecuted with some degree of haste, that would not, on the finding of the Tribunal, amount to persecution. 38 There is nothing to suggest that the government of Romania was likely to prosecute someone who had not been involved in the miners' strike. The Tribunal based its conclusion on the basis that it was not satisfied, after considering all of the evidence, that the applicant had participated in the incidents in question and was not satisfied that the documents were genuine. It concluded that, even if they were, the prosecution disclosed in the documents did not amount to persecution. They are findings of fact that it is not open to review before this Court. I do not consider that there is any ground for interfering with the decision of the Tribunal and, accordingly, I consider that the application should be dismissed.