SZKLX v Minister for Immigration & Citizenship [2007] FCA 1414

FEDERAL COURT OF AUSTRALIA

SZKLX v Minister for Immigration & Citizenship [2007] FCA 1414

COMPLAINT OF INADEQUATE INTERPRETATION – inadequate interpretation may demonstrate jurisdictional error but close attention is needed to specific inadequacies alleged – no earlier complaint before Federal Magistrate – no jurisdictional error established Migration Act 1958 (Cth) s 474 M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 SZKLX v Minister for Immigration and Anor [2007] FMCA 1240 Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 SZKLX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1570 OF 2007

BUCHANAN J

11 SEPTEMBER 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1570 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKLX

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J DATE OF ORDER: 11 SEPTEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the costs of the first respondent as taxed if not agreed. 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 1570 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKLX

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE: 11 SEPTEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant in this appeal against a judgment of the Federal Magistrates Court of Australia (SZKLX v Minister for Immigration and Anor [2007] FMCA 1240) is being held in Villawood Immigration Detention Centre. He entered Australia on 4 January 2006 and departed again on 23 February 2006. He re-entered Australia on 29 June 2006 on a short stay visa permitting him to remain until 29 September 2006. On 13 November 2006, not having left Australia as required, he was located by immigration authorities. He was detained in Villawood Immigration Detention Centre. On 9 January 2007 he made an application for a Protection (Class XA) visa. 2 The appellant is a citizen of Singapore. The delegate of the first respondent ('the Minister') who, on 19 January 2007, declined his application for a visa recorded that he claimed protection in Australia because Singaporean authorities would interrogate him in relation to crimes he has committed in Australia and that if he co-operates with those authorities he will be targeted by criminal elements who will see him as an informer and the authorities will not be able to provide him with protection. The delegate assessed his claims in the following way: 'The applicant's claims are vague and general, without any specific Convention nexus. Regardless of the credibility of the applicant's claims, I am not satisfied that there is a real chance of a Convention related persecution of the applicant if he returns to Singapore. Taking his claims at face value, I am not satisfied that he would suffer persecution for a Convention reason if he returns to Singapore. His most serious claim is that because of the criminal activities he has committed in Australia he may be interrogated by the Singaporean authorities and if he co-operates with the Singaporean authorities then he may be targeted by the criminal elements.' and: 'The applicant gives no detail of this criminal group, its background, or any information why would they [sic] target him. In the absence of detailed information I have been unable to research this aspect of the applicant's claims, and without corroborating evidence I am not satisfied that the applicant would have an imputed political profile as claimed. I consider that threats and intimidation of this kind relate to criminal activity. There is no reason to suppose that this group which the applicant fears may pursue him would have any interest in him for a reason which is included in the Refugees Convention. I do not regard this claim as being of sufficient gravity to constitute persecution of the applicant. Consequently I do not accept that the authorities in Singapore would withhold protection from the applicant for a Convention reason, and I find that the harm feared by the applicant is not Convention related.' 3 The appellant applied on 23 January 2007 to the Refugee Review Tribunal ('the RRT') for a review of the delegate's decision. The RRT held an oral hearing on 1 March 2007. The appellant appeared at the hearing and was represented by a registered migration agent. The matters advanced to the RRT by the appellant are summarised in the RRT decision in the following way: 'He left Singapore for Malaysia in November or December 2002. Immediately before his departure he lived in a hotel room in Singapore, but before that he shared a house with is brother. He was not in a good financial situation and had applied for a government loan which had been rejected. So, over the years, he had borrowed between $20,000 to $30,000 from loan sharks and private lenders. He worked in a supermarket between 1998 and 2001, but left the job because he was not earning enough money to repay his debts. Subsequently, he was involved in selling pirated DVDs which led to his arrest, conviction and a three month jail sentence. After his release, he participated in selling ecstasy tablets, but fled Singapore before being apprehended. After leaving Singapore, he was told that the police had searched his hotel room and found drugs. He explained that he had 10 ecstasy tablets, 60-70 amphetamine tablets and a few grams of ketamine in the hotel room. In Malaysia, he looked after a friend's café and was not involved in dealing or trafficking drugs. In May 2005 he won $15,000 in lottery money and in December 2005 decided to come to Australia to have a good time. He returned to Malaysia in February 2006 and helped a friend set up a toy and clothing company. He was paid $5,000 for this work and returned to Australia in June 2006. After his arrival, he was contacted by a person introduced to him by a Malaysian associate, who also provided him with a false passport. This person asked him to open a bank account and set up a company under a false name. He was arrested soon after and pleaded guilty to the offices [sic] he was charged with. He served a jail sentence and was released into Villawood. Whilst in Villawood he was interviewed by the Australian Federal Police (AFP) in relation to the false passport. The Tribunal asked him why he was fearful of returning to Singapore. He said he did not want to go back to prison and waste his time. He is 39 and not married. He has a girlfriend in Vietnam whom she [sic] met through the internet. If he were to go back to Singapore he would be sent to prison because he sold drugs. Also, he would be beaten up by debt collectors because he had ran [sic] away with their money and was unable to pay it back. He was asked why he had said in his application for a protection visa that he would be punished for a crime he had not committed. He said this was a mistake as there was no interpreter present when he was communicating his claims to his agent. He had told his agent that he had committed a crime, but was not in Singapore when the crime was discovered. The police had found the drugs and his personal documents in his hotel room's safe box after he had left Singapore. The Tribunal asked him why he would be accused of being an informer. He said because he had provided information to the AFP regarding the false passport and the circumstances under which he had obtained it. It was put to him that the friend who had arranged the meeting and had sent him the false passport was in Malaysia. He said his friend was in Bangkok now, but he could pay someone in Singapore to harm him. He was asked if his friend waned [sic] to seek revenge from him for having provided information to the Australian authorities. He said yes. The Tribunal put to him that his fears do not appear to relate to any of the Convention reasons. He said he cannot go back to Singapore because he cannot stay in prison. He will also be assaulted by those he owes money to and others who could harm in relation to the false passport matter.' 4 The essence of those claims was accepted by the RRT which recorded: 'The applicant's case is essentially that he fears imprisonment in Singapore for having committed drug related offences. He also fears being harmed by loan sharks to whom he owes a large amount of money; and other criminals who consider him an informer for having disclosed adverse information relating to a fraudulent passport to the Australian authorities.' and: 'The Tribunal accepts that the applicant was a drug dealer in Singapore and that a relatively large quantity of drugs was uncovered by the police in his hotel room after he had escaped to Malaysia. The Tribunal accepts that the applicant, if found guilty, would be sentenced to a lengthy term of imprisonment and possibly caned.' 5 However the RRT concluded that none of the matters advanced by the appellant established that he has a well-founded fear of persecution for a Convention reason. It said: 'There is nothing in the applicant's evidence to suggest that the cause of his financial situation in Singapore was in any way Convention related. Nor was there anything in his evidence to suggest that the harm he fears by debt collectors is Convention related. His fears relate to his financial situation and his inability to repay his debt. Similarly, the applicant's fear of his now Bangkok based friend and his associates arise out of having disclosed incriminating information about the friend to the AFP. According to his oral evidence, he fears revenge and not anything even remotely related to a Convention reason. At the hearing, when the absence of a nexus between his claims and the Convention reasons was put to him, he was unable to provide a meaningful response. The Tribunal is not satisfied that the harm the applicant fears is essentially and significantly for reasons of his race, religion, nationality, political opinion, express or imputed, or membership of any possible particular social group which may be identified on the claims. The Tribunal finds that the applicant's fear of harm from debt collectors, criminals and their associates is not for a Convention reason. The evidence before the Tribunal does not suggest and the Tribunal is not satisfied that the authorities in Singapore would withhold protection from the applicant for a Convention reason.' 6 As a result the RRT, on 6 March 2007, affirmed the delegate's decision not to grant a Protection (Class XA) visa. The appellant then filed an application for judicial review in the Federal Magistrates Court of Australia on 3 April 2007. The grounds of the application were: '1. The tribunal has make a judicural error while handing down there decision. 2. There was an error in law. 3. He wasn't given proper legal advice as for whatever. I didn't understand and I wasn't informed in details.' (reproduced as filed) 7 In a judgment given on 20 July 2007 (from which the present appeal is brought) Smith FM dismissed the application. After setting out the grounds of the application to the Federal Magistrates Court, Smith FM said: '12. Although he was given an opportunity to file an amended application and written submissions after receiving the relevant documents and a referral for legal advice, the applicant has not filed any documents further explaining these grounds. In the course of today's hearing, he passed up a typed written submission. This does not provide any argument raising a jurisdictional error. 13. I am unable, myself, to find any argument coming within the general contentions made in the application of jurisdictional error and error of law. 14. I accept the submission made by the Minister in his written submission that there was no duty on the Tribunal to give the applicant "proper legal advice", if that is the contention made in ground 3. 15. It appears to me that the Tribunal squarely raised with the applicant the central difficulty facing the applicant, which was that the harms he feared were not covered by the Refugees Convention, and that the issues were properly addressed by the Tribunal. 16. The applicant's submissions to me, both orally and in writing, repeated his concerns that he would be severely sentenced if he returned to Singapore, and that he would face economic and other hardships there. However, these are matters to which the Court cannot give recognition by way of any relief in these proceedings. 17. For the above reasons, I am not satisfied that the Tribunal's decision was affected by jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.' 8 The appellant's written submission to Smith FM was as follows: '1. They didn't look into my case, because had made errors while making their decision. 2. The real fact to why I will be in danger if I sent back to my country. 3. Legal errors as far as my case are concern was made when the decision handed. 4. My real fear of not going back is, because of my race, religions, poetical view. The preoccupation & will face. 5. My life will be in danger if I am sent back to Singapore. 6. I don't have any family member to go too. 7. I don't have a place to go, I don't have any one to go too and I don't have a house to stay. 8. I don't have any job and how I going to survive. 9. I will be prosecuted for fleeing the country. 10. The punishment will be very sever or if not death. 11. I would like to put all this behind me and start a new life here. 12. Please I wish the court can provide a lawyer for me to fight for my case. I don't have the money to afford to get the lawyer. 13. I have been stay in the detention for a very long time. 14. May I ask to apply for the Ministers intervention under 417 Act?' (reproduced as handed up) 9 The submission does not raise any issue of a jurisdictional kind and, with respect, Smith FM was correct to so conclude. 10 The grounds of appeal to this Court are as follows: '1. Leagel error was made. 2. I did not understand the leagel terms of the interpreter. 3. I was not given the chance to express my concern with the interpreter.' (reproduced as filed) 11 It is unclear from the grounds of appeal themselves whether these allegations relate to the judgment of Smith FM under appeal or to the decision of the RRT. However, at the hearing of the appeal in this Court, in response to my question, the appellant said the difficulty occurred before the RRT. He did not elaborate. There is no indication in the judgment of Smith FM that any complaint was made in the proceedings before him to the effect that the appellant was disadvantaged in the RRT because of any problems of interpretation. The appellant's written submission did not make any such suggestion. 12 The reason the appellant failed before the RRT was that his claims did not, on any view of them, raise a case that he had a well-found fear of persecution for a Convention reason and was therefore a refugee. The reason his application for judicial review failed before the Federal Magistrates Court was that no jurisdictional error appeared in the decision of the RRT. Although inadequacies of interpretation before the RRT (as appears now, and for the first time, to be suggested) may indicate jurisdictional defects in RRT proceedings, with the result that a decision of the RRT is liable to be set aside as not effectively made (see, for example, Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 ('Perera') and M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212 ('M175')) much more is required to demonstrate such a defect than a mere unparticularised allegation of inadequate interpretation. As both Perera and M175 demonstrate there needs to be close attention to the specific manner in which an interpretation is said to be inadequate together with a sufficient connection to the decision of the RRT which establishes that jurisdictional error has occurred. Absence of such a connection will defeat an allegation of jurisdictional error on this ground (see Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [63] – [69]). No case has been made that there was any jurisdictional defect in the proceedings before the RRT which calls into question the decision which it made. 13 Moreover, the suggested difficulty concerns lack of understanding of legal terms. In the present case, the matters which were of significance to the RRT were factual matters. There is no basis for thinking that any difficulty with legal terms (as is alleged in the Notice of Appeal to this Court) contributed to a misunderstanding by the RRT of the factual foundation for the appellant's claims to be a refugee. 14 Unlike at the hearing before the Federal Magistrates Court, the appellant advanced no submissions in writing. At the hearing of the appeal, to my invitation to make any oral submission that he wished, the appellant said that if he 'goes back' he will be 'punished harshly' and that 'there are no human rights over there'. He added that if he goes back, when released he will have no job and no place to live and asked the Court for 'another opportunity to be a new person'. This Court has no power to adjudicate on matters of this kind, which do not raise any question of jurisdictional error. 15 No error in the decision of Smith FM has been identified, or suggested. Moreover, no jurisdictional error in the decision of the RRT or jurisdictional defect in its proceedings has been established. It follows that the decision of the RRT is protected from judicial review (Migration Act 1958 (Cth) s 474) and the appeal from the decision of Smith FM must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.