FEDERAL COURT OF AUSTRALIA SZAKF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1719 MIGRATION – refugee claim – appellant claimed translation services during the Refugee Review Tribunal ('RRT') proceedings inadequate – no specificity or evidentiary basis for claim – appeal dismissed Federal Court of Australia Act 1976 (Cth) s 25(1A) Migration Act 1958 (Cth) s 414, 424A Perera v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 92 FCR 6 cited SAAK v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185 cited Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407 considered SZAKF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 318 affirmed SZAKF v MINISTER FOR IMMIGRATION & MULTICULTURAL& INDIGENOUS AFFAIRS NSD 999 OF 2004 HELY J 23 DECEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 999 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZAKF APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: HELY J DATE OF ORDER: 23 DECEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed with 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 NSD 999 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZAKF APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: HELY J DATE: 23 DECEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a decision of Barnes FM in which her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the RRT') handed down on 27 March 2003, in which the RRT affirmed a decision of a delegate of the first respondent not to grant the appellant a Protection Visa (see SZAKF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 318). By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the appeal is to be heard and determined before a single judge. Background 2 The history of the matter, and a summary of the RRT's findings, are recorded in the judgment of Barnes FM, and no useful purpose would be served by repeating all of that material again. It is sufficient for present purposes to record that the appellant is a Tamil-speaking Muslim Sri Lankan citizen. In very general terms, he claimed to fear persecution due to his association with certain Tamils suspected of being involved in the bombing of the Hotel Galathari in Colombo, Sri Lanka on 15 October 1997, that he was wanted by the Sri Lankan Army and that his life was also in danger from the Liberation Tigers of Tamil Eelam ('the LTTE'; better known as the Tamil Tigers) who had threatened to kill him and were likely to do so. He also claimed to fear persecution because he was a Tamil-speaking Muslim and a suspected supporter of the LTTE. 3 The RRT found that there were significant inconsistencies between the appellant's evidence given in written statements which he supplied to the Department of Immigration & Multicultural & Indigenous Affairs ('DIMIA') and the evidence which he gave at the hearing. Those inconsistencies, and the appellant's inability to provide any cogent explanation for them, led the RRT to conclude that he was not telling the truth about his past experiences in Sri Lanka. The RRT did not accept the appellant's claims which were the foundation for his alleged fear of persecution. The RRT also found that if the appellant were wanted by the authorities in connection with the bomb blast at the Hotel Galathari, as he claimed, he would not have been able to leave Sri Lanka travelling on a passport issued in his own name, yet he was able to do so. The RRT considered that the appellant's claims were a fabrication intended to provide a basis for him to apply for refugee status in this country. 4 The RRT went on to consider whether, apart altogether from the appellant's claims which it had rejected, he may nonetheless have a well-founded fear of persecution by reason of his race as a Tamil-speaking Muslim. The RRT rejected this claim because country information put to the appellant in the course of the hearing indicated that Sri Lankan Muslims, while speaking Tamil, have a quite separate ethnic and religious identity, and that the Sri Lankan community was quite capable of distinguishing between Tamils and Muslims. On the basis of further information (put to the appellant) the RRT did not accept that he was or would be perceived as an LTTE supporter by reason of his race or that there was a real chance that he would be so perceived if he returned to Sri Lanka. The application for judicial review 5 The appellant filed an application in the Federal Magistrates Court on 22 April 2003 seeking judicial review of the RRT's decision. The appellant advanced three grounds of review in that application, which were not particularised. They were as follows: (a) the RRT exceeded its jurisdiction in making its decision; (b) the RRT erred in law which went to its jurisdiction and exceeded its authority; and (c) the RRT failed to accord the applicant with natural justice in making its decision. 6 The appellant relied on undated written submissions in support of this application. Those submissions made generalised complaints about corruption in Sri Lanka, the appellant's inability 'to seek fair justice' in Sri Lanka, and alleged human rights abuses in Sri Lanka. The submissions also alleged that three specific inconsistencies relied upon by the RRT were the product of translation errors, and appeared to assert that the appellant was unable to understand the RRT's questions because of translation difficulties. The appellant also alleged that: (a) the RRT did not put to him the importance ascribed by it to the renewal of his passport; and (b) the RRT prejudged this matter given the focus on his 'perceived inconsistencies'. 7 In a detailed and carefully reasoned judgment the Federal Magistrate considered these alleged errors, as well as the submissions made orally by the appellant. Her Honour concluded that many of the matters raised by the appellant were in reality complaints about the merits of the RRT's decision, and were incapable of constituting jurisdictional error. Her Honour rejected assertions of bad faith, bias and lack of procedural fairness, concluding that the RRT's findings were based largely on its conclusions as to the appellant's credibility, and that those findings were open to the RRT on the material before it. Her Honour rejected the complaint that the RRT had not put the appellant on notice of the importance of the renewal of his passport, as the RRT made no relevant finding in that regard. Her Honour also rejected the appellant's complaints about deficiencies in the accuracy of interpretation. Her Honour found that no jurisdictional error had been committed and dismissed the application. The appeal to this Court 8 The Notice of Appeal filed on 28 June 2004 contained the following grounds of appeal: '2. His Honour erred in failing to set aside the decision of the Refugee Review Tribunal on the basis that the Refugee Review Tribunal denied natural justice. 3. His Honour erred in failing to set aside the decision of the Refugee Review Tribunal on the basis that the Refugee Review Tribunal committed jurisdictional error of law.' 9 An Amended Notice of Appeal was filed on 12 August 2004. It specified the amended grounds of appeal in the attached sheet, which read as follows: '1. I am a Sri Lankan national of Muslim ethnicity and religion and seeking judicial review of a decision of the Refugee Review Tribunal. The Tribunal was constituted by Giles Short and the decision was handed down to me on 27 March 2003. 2. I am concerned with whether the Tribunal member has made its decision within the law. 3. On 4 February 2002 in a case called Plaintiff S 157 of 2002 v Minister for Immigration [2003] HCA 2 [(2003) 211 CLR 476], the High Court determined that decisions of the Refugee Review Tribunal could be set aside if there was a "jurisdictional error of law". It includes circumstances where the Tribunal misunderstood the law it was obliged to apply, where it took into account irrelevant considerations, failed to take into account considerations made relevant by the governing legislation, or if its decision was tainted by procedural unfairness or bias. 4. I find error of law in the Tribunal's treatment of my claims. My reasons for these conclusions follow. 5. In my case the Tribunal member did not indulge in a very thorough review of my evidence. The Tribunal also states that it did not put all of the inconsistencies orally or in writing. It did not put all of the relevant country information on Sri Lanka to me. 6. The Tribunal rejected my application that I would be implicated in the bombing of a hotel in Colombo because of my sister in law's alleged LTTE connections. It did so for two reasons. 7. First, the Tribunal said that there were various inconsistencies in my evidence. Some of these inconsistencies (e.g. the omission of the mention of Dr Mendis during part of my hearing until reminded to me by the Tribunal member). The inconsistencies as to my journey to Kalutara on 15 October 1997. Other inconsistencies, such as the identity and even ethnicity of the man who allegedly put a gun to me head. 8. I told the Tribunal that the translation of my original statement in Tamil was inaccurate, the Tribunal did not invite me to submit a correct translation from an accredited translator. In these circumstances the Tribunal was not legally justified in rejecting my Convention claims. 9. I was prepared to provide a correct translation from an accredited translator upon which the Tribunal could have made findings that it did not make and the Tribunal did not invite me to submit it, so legal error was involved. 10. Secondly, the Tribunal after having examined country information, and particularly that which dealt with the situation of the Muslim community, it found that I did not have a well founded fear of persecution for reason of his race or religion. It did not bring into my attention all of the relevant country information on Sri Lanka before to me before making the finding of facts. 11. I said to the Tribunal that the translation of my original statement in Tamil was inaccurate, but I was not invited by the Tribunal to submit a correct translation from an accredited translator. In these circumstances the Tribunal was legally justified in rejecting my submissions. 12. I specifically mentioned in my original Tamil statement that on the day inquestion I was already in Colombo to meet Dr Mendis and Dr Durairajah had called me closer to him at the end of the conference not to go to Kalutara. I said to the Tribunal that the correct version appeared in my original Tamil statement distinct from the English Translation of the statement provided to the Tribunal by me. Please refer to paragraph 15 of Federal Magistrates Cour's decision. 13. In these circumstances I can see that the Tribunal did not approach its task in good faith, or denied me a fair hearing. It seems to me that the Tribunal did not take great care to ensure a fair hearing to me and its decision was tainted by procedural unfairness or bias.' (emphasis and mistakes in original) The inconsistencies 10 The RRT's conclusion that the appellant was not telling the truth about his past experiences in Sri Lanka was largely based on what the RRT found to be inconsistencies in the appellant's evidence and his inability to provide any cogent explanation for them. In the section of the RRT's decision headed 'Findings and Reasons for Decision' the RRT identified three inconsistencies as between the appellant's statements and the evidence which he gave at the RRT hearing, and as between the appellant's first and second statements. The RRT described these matters as 'significant inconsistencies' in the appellant's evidence. 11 The statements in question were translated from Tamil into English, and only the English translation was supplied to DIMIA. The first statement bears an endorsement that it was translated by Dr Kandeah on 25 December 1997, he having NAATI recognition as an interpreter and translator for English and Tamil. The second statement is dated 18 July 2000, and is endorsed with a declaration signed by the appellant that the statement had been read to him in Tamil and he understood its contents. 12 The inconsistencies identified by the RRT were: (a) In both the appellant's first and second statements, he asserted that on the day of the bomb blast at the Hotel Galathari on 15 October 1997, he had been staying at Kotahena (a suburb of Colombo) in order to see his doctor, Dr Mendis. At the hearing before the RRT the appellant gave a detailed account of how he had spent the day, but he did not mention Dr Mendis at all, until the RRT raised the matter with him, although the main reason he had come to Colombo had been to see Dr Mendis who was treating him for a soccer injury. (b) In his statements, the appellant said: (i) that after the bomb blast his brother requested him over the phone to return to Kalutara immediately, which he did; and (ii) all his brother's friends were missing from home (ie Kalutara), so he tried (from Kalutara) to contact their friends at Kotahena but there had been no reply. In his oral evidence, the appellant said: (i) that he did not return to Kalutara after his brother called him; and (ii) his brother telephoned him at about 2.30 pm in the afternoon when he was at Gnani's friend's house in Kotahena and asked him to return to Kalutara (Gnani was a Tamil friend of his brother). He telephoned Dr Durairajah (a relative of Tamil friends of his brother) who told him not to go back to Kalutara but to come to a seminar (a sports seminar in Kotahena) instead, which he did. (c) In his original statement, the appellant said that the following morning, after Dr Durairajah had told him about his brother's arrest: 'I told him that I had to see my brother immediately. Suddenly a Tamil youth who was seated close to us pointed a gun on my forehead and said, "Our life is in danger because of you. You must go out of this world." He threatened to kill me in front of Dr Durairajah. Only after this I realised that all these people were Tigers. Dr Durairajah protected me from the Tamil Tiger …' In his second statement, however, the appellant said that, after he stated that he wanted to see his brother. The RRT reproduced the relevant portion of the appellant's second statement: '[The appellant said that] "a young fellow, whom I thought all these days a Tamil, spoke in Singhala and pointed his revolver at me and ordered me to stop shouting. Still pointing his gun at me he shouted that I was also helping the LTTE fellows along with my brother. When I tuned [sic] back and said that it was not true he said that I should be killed". The [appellant] said that, after he had started crying, this person had "placed his revolver in his pocket" and had said, "because you were trusted by our doctor I won't harm you". He said that Dr Durairajah "who was not there for a few minutes came back".' At the hearing, the appellant initially repeated the second version of the incident. When the RRT put to the appellant the version he had given in his original statement he said that both versions were true, and that there had in fact been another incident as well which he had not mentioned in either of his statements in which someone had tried to kill him as he was coming out of Dr Durairajah's house and Dr Durairajah had pulled him to safety. 13 The hearing took place on 14 January 2003. By letter dated 20 January 2003 the RRT notified the appellant of information that would, subject to any comments which the appellant might make, be a reason for deciding that the appellant is not entitled to a protection visa. The information in question was the inconsistencies referred to above. The appellant was invited to comment on this information. 14 The appellant's lawyers responded by letter dated 20 February 2003 with an explanation said to have been supplied by the appellant. The appellant's instructions were that he had not claimed at any time (including in his original Tamil statement) that he had gone back to Kalutara during the time of the Galathari bomb blast (see [12(b)(i)] above). He also explained that in his original Tamil statement he did not state that he had made a telephone call to Kotahena from Kalutara (see [12(b)(ii)] above). He conceded that in the English translation of his first statement it appeared that this meaning was conveyed. He conceded that the 'same meaning is conveyed in the second statement too'. The appellant also claimed that he had specifically mentioned in his original Tamil statement that on the day in question he was already in Colombo as he had to meet Dr Mendis (see [12(a)] above). 15 The 20 February 2003 letter also said that the appellant maintained that what he had mentioned at the hearing was true, and that 'he is now able to recollect all his past traumatic experiences without much difficulties'. In relation to the other incident when he was threatened, the appellant submitted that he had failed to mention that incident earlier because of his 'bad memory' following the threats. The appellant also claimed that during the RRT's questioning he was 'all of a sudden reminded' that someone had tried to kill him as he was coming out of Dr Durairajah's house, and that Dr Durairajah had pulled him to safety (see [12(c)] above). 16 The RRT concluded that these inconsistencies were not resolved by this letter from the appellant's lawyers. In particular: - there was no explanation of why the appellant did not mention Dr Mendis at the hearing until the RRT prompted him to do so; - the RRT rejected the submission that at no time had the appellant said that he went to Kalutara after the Galathari bomb blast. The English versions of the first and second statements contain an assertion to that effect, and the inconsistency was not explained to the RRT's satisfaction by the assertion that the appellant's own translator had mistranslated his Tamil. The same, inconsistent, meaning was conveyed by the second statement prepared by the appellant's representatives which bore an endorsement signed by the appellant to the effect that the statement had been read back to him in Tamil; and - there was no explanation of the mutually inconsistent versions of the threats made to him outside Dr Durairajah's house. In the first statement his life was threatened by a Tamil youth. In the second statement his life was threatened by a person who spoke to him in Singhalese (leading the RRT to infer that he was not a Tamil) who accused the appellant and his brother of helping the LTTE. 17 The Tamil version of the statement was not placed before the RRT, nor did the appellant provide the RRT with a translation of the statements which the appellant accepted as correct. The appellant's complaints particularised on the sheets referred to in [9] above 5. The RRT did not conduct a thorough review of the evidence 18 The only material placed before the Federal Magistrate as to the conduct of the hearing before the RRT was the RRT's reasons for decision, which record matters which the RRT raised with the appellant at the hearing, and the appellant's response as to those matters. As foreshadowed at the hearing, the RRT subsequently wrote to the appellant in accordance with s 424A of the Migration Act 1958 (Cth) ('the Migration Act'), identifying inconsistencies in the appellant's account of relevant events on which his comment was sought. The comments made by the appellant's advisers were discussed in the RRT's reasons for decision. 19 It is not clear that a submission in terms of par 5 was put to the Federal Magistrate. In any event, the appellant has not made out this submission. The RRT's decision, on the face of it, is a detailed review of the material before it, which sets out the RRT's reasons for making the findings and reaching the conclusions which it did. The appellant has not established that the RRT failed to conduct the review for which s 414 of the Migration Act provides. 5. The RRT 'states that it did not put all of the inconsistencies in orally or in writing' 20 In [36] of the Federal Magistrate's reasons for decision, her Honour said: 'No lack of procedural fairness or breach of s 425 is established in relation to the Tribunal's conduct of the hearing. Nor is a denial of natural justice established in the Tribunal's reliance on the inconsistencies in the applicant's claims or in any other way. The Tribunal reasons disclose that the Tribunal put to the applicant at the hearing the various matters on which it ultimately relied and afforded him an opportunity to respond. It subsequently wrote the s 424A letter to him to which I have referred. The applicant was afforded ample opportunity to put his case, to respond to all adverse matters and was apprised of critical issues and given the opportunity to respond to them. He was represented by a solicitor/migration agent at all relevant times and took the opportunity to respond to the Tribunal concerns. His responses were addressed by the Tribunal. There has been no denial of natural justice.' (emphasis added) 21 No error has been shown in these findings. 5. The RRT did not 'put all of the relevant country information on Sri Lanka to me' 22 The RRT's reasons for decision show that country information to the effect that Sri Lankan Muslims had a quite separate ethnic and religious identity was put to the appellant at the hearing, as was country information that neither the army nor the government believed that Muslims of Tamil heritage were siding with and spying for LTTE. Country information which suggested that there was no real chance of the appellant being threatened by the LTTE if he returned to Colombo was also put to him at the hearing. Whenever the RRT refers to country information in the section of its reasons styled 'Findings and Reasons for Decision' the reference is accompanied by a statement to the effect that the information in question was put to the appellant at the hearing. 23 The appellant did not place a transcript of the RRT proceedings before the Federal Magistrate, nor has he identified any specific country information which informed the RRT's decision, but which he alleges was not drawn to his attention. It has not been shown that her Honour's finding which I have emphasised in [19] above is in error in any way. 8, 9, 11, 12 Inaccuracy in translation of statements 24 The RRT invited the appellant to respond to the inconsistencies which the RRT identified in its s 424A letter. His lawyer's response to that invitation does not expressly assert that any of the identified inconsistencies was referable to an error in translation, subject to the possible qualification that the lawyer's response included the following: 'He has not mentioned at any time (including in his original Tamil statement) that he had gone to Kalutura during the time of the Galadari bomb blast. In his original Tamil statement he did not mention that he had given a telephone call to Kotahena from Kalutura. But in the English translation by Dr Kandiah it appears so. The same meaning is conveyed in the second statement too.' 25 No evidence was called before the Federal Magistrate to establish the fact of a translation error. If there was a translation error, it was made by a translator engaged by the appellant in material proffered by the appellant. If the appellant wanted to correct any error, he was at liberty to do so. There was no obligation on the RRT to invite the appellant to submit a correct translation, and no reviewable error arises from the RRT's failure to issue such an invitation. 13. Lack of good faith, denial of a fair hearing, procedural unfairness and bias 26 These matters were raised before the Federal Magistrate and rejected. The matters were substantially grounded in the RRT's focus on the inconsistencies between the appellant's accounts referred to above. The RRT's findings were based largely on its conclusions about the appellant's credibility, which were in turn largely based upon its findings in relation to the inconsistencies. In considering credibility and any inconsistencies in an applicant's account the RRT is bound to exercise care: SAAK v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185 at 190 and ff (North, Goldberg and Hely JJ). But a finding on credibility 'is the function of the primary decision-maker par excellence' (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] (McHugh J). It was a matter for the RRT to assess whether the inconsistencies which it identified were significant, and satisfactorily explained. It was open to the RRT to reach the conclusion which it did. The fact, if it be a fact, that other decision-makers may not have reached the same conclusion does not mean that the RRT's decision in this respect was infected by jurisdictional error. It is true, as the appellant submits, that inconsistencies may be due in some cases to mistakes, but that is not the view which the RRT took of the inconsistencies in the present case. 27 The Federal Magistrate correctly identified the legal principles relevant to the resolution of charges of bias, bad faith and denial of procedural fairness, and no error has been shown in her Honour's application of those principles to the facts of the present case. 28 Thus all of the complaints made by the appellant in his Amended Notice of Appeal fail. There are, however, some other matters to which I should refer, which were touched on by the appellant in his oral submissions. Translational problems at the RRT hearing 29 The appellant submits that there was a miscarriage of justice at the RRT hearing because there was a difference in dialect between standard Tamil (spoken by the interpreter) and that spoken by a Muslim. Some of the words are different, and the interpreter could not understand the appellant, so that some pieces of his evidence were not translated properly. The appellant said that his protests in this respect were ignored by the RRT. 30 This is not a matter which was raised by the appellant's lawyers in response to the s 424A letter, or, so far as the evidence goes, at all. Nor was any evidence placed before the Federal Magistrate to establish the fact of mistranslations; or of any protest by the appellant to the RRT on this issue. Nevertheless, her Honour addressed the appellant's 'broad complaint' (see [2004] FMCA 318 at [32]) in relation to the standard of interpreting at the hearing, even though, with one immaterial qualification, the appellant did not identify any specific instances of mistranslation. 31 Her Honour correctly recognised that cases such as Perera v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 92 FCR 6 at [22] (Kenny J) establish that: 'For the applicant to succeed in an argument that the Tribunal failed to comply with s 245 of the Act by reason of inadequate translation services during the Tribunal hearing he would need to establish that there were such errors, to identify with some specificity exactly what mistranslations occurred and what the correct translations would have been, and to establish that the standard of interpretation was so inadequate that he was effectively prevented from giving evidence or that errors made by the interpreter at the hearing were material to conclusions of the Tribunal adverse to him.' Her Honour found that those matters had not been established, and no error has been shown in her Honour's finding in that respect. The passport issue 32 The RRT attached significance to the fact that the appellant left Sri Lanka lawfully travelling on a passport issued in his own name. Country information (disclosed to the appellant at the hearing) indicated that he would not have been allowed to leave if he was wanted by the authorities as he claimed. 33 The appellant submitted before me that many Sri Lankans who have been persecuted for a Convention reason have come to Australia travelling on their own passports. Whether this be so or not (and there is no evidence as to whether it is the fact) the issue was a factual one for the RRT to determine, and the conclusion which the RRT reached was open on the material before it. Unfair hearing 34 Finally, the appellant submitted that he was the prisoner of the RRT's questions, and was denied the opportunity of advancing his own case at the hearing. He complains that the RRT did not question him properly. He also points out that his brother called him by phone in Kotahena at 2.30 pm; and he attended the seminar in Kotahena between 3.30 pm and 5 pm. The travelling time between Kotahena and Kolutara is 1½ hours, hence it was impossible for him to have gone to Kolatara on the day of the bomb blast. 35 However, this is not a matter which was put to the RRT, hence the appellant cannot complain of any unfairness on the part of the RRT in failing to take it into consideration. I note, finally, that in any event no evidence as to any of these matters was placed before her Honour or me. Conclusion 36 The appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 23 December 2004 The appellant appeared in person Counsel for the Respondent: J A C Potts Solicitor for the Respondent: Clayton Utz Date of Hearing: 30 November, 8 December 2004 Date of Judgment: 23 December 2004