SZABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 174 (16 February 2004)

Last Updated: 5 March 2004

FEDERAL COURT OF AUSTRALIA

SZABE v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 174

SZABE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1313 of 2003



MADGWICK J
16 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1313 of 2003

BETWEEN:	SZABE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	16 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The appeal be dismissed and the orders of the Federal Magistrate are affirmed.
2.	The appellant is to 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	N1313 of 2003

BETWEEN:	SZABE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	16 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1 This is an appeal from a judgment of Driver FM given on 25 July 2003. The learned Federal Magistrate was dealing with an application for a judicial review praying in aid of, among other things, s 39B of the Judiciary Act 1903 (Cth) and seeking to quash a decision adverse to the appellant made by the Refugee Review Tribunal (‘the Tribunal’).

2 The amended application before his Honour asserted that the decision of the Tribunal was infected by certain errors which amounted to a constructive failure to exercise jurisdiction. Various factual matters only were referred to; these included, however, the proposition that:

‘The Tribunal’s decision that the applicant was not a homosexual was made without evidence in support ...’

3 The appellant is Nigerian. He came to Australia on 11 December 1999. About a month later he lodged an application for a protection visa, claiming refugee status upon the basis that he feared persecution as a homosexual in his own country; in particular, he claimed that his partner had been killed by a mob in that country for being homosexual.

4 The Tribunal, as the learned Federal Magistrate said:

‘rejected the applicant’s claims on credibility grounds. The presiding member stated that he found the applicant to be a most unsatisfactory witness and that his claims were not believed. The RRT rejected the applicant’s claim that he was a homosexual, that he had experienced harm to his homosexual partner in Nigeria, or that he had a genuine fear that harm would come to him in Nigeria.’

5 When the matter proceeded before the learned Federal Magistrate, Mr Asuzu who had made an appearance in the matter as an interpreter before the Tribunal, appeared as counsel for the appellant. Mr Asuzu filed further written submissions which apparently raised some other possible legal questions which the learned Federal Magistrate felt able to tease from them. The first material matter was that the applicant was:

‘misled by statements made by [the Presiding Member] indicating agreement with evidence presented by an applicant into thinking that nothing further was required from the applicant in order to convince the tribunal as to the case being put.’

6 The learned Federal Magistrate said, among other things:

‘...it is clear both from the transcript of the hearing, and the decision and reasons of the RRT relating to the description of that hearing that the presiding member was not indicating agreement with or acceptance of the applicant’s evidence. On the contrary, the transcript is replete with statements by the presiding member that he had difficulty with the propositions being put by the applicant.’

7 The second legal ground that the learned Federal Magistrate managed to deduce from what was put to him was that an error had been made in the failure to identify homosexual men in Nigeria subjected to violence by vigilante or mob justice as a particular social group. His Honour said:

‘I accept that homosexuals can constitute a particular social group. I accept at least the possibility that subsets of homosexuals may also constitute a particular social group. However, that is irrelevant in the context of this case because the RRT decided that the applicant did not have a genuine fear of persecution. The RRT was in no doubt as to that finding. In the circumstances, it was unnecessary for the RRT to go on to consider whether the applicant was persecuted for a Convention reason.’

A like third ground was similarly dismissed. The fourth matter, a claim that the Tribunal’s decision of the applicant was not homosexual was made without evidence in support of it, was then considered. The Federal Magistrate said:

‘This appears, on its face, to be a no evidence ground although, as elaborated upon orally by Mr Asuzu, it could also be a ground that the RRT failed to take into account evidence which was contrary to the conclusion drawn by the RRT.

To the extent that this as a no evidence ground of review, it must be rejected because there was clearly probative evidence before the RRT which supported the adverse conclusions of credibility drawn by the RRT. That evidence was the substantial inconsistency between the applicant’s statements when he applied for a protection visa and those made by him at the RRT hearing on 6 September 2001.

Similarly, the decision of the RRT based on credibility was contrary to the evidence inasmuch as it was a rejection of the evidence presented by the applicant. However, the RRT was entitled to draw conclusions on credibility from that evidence. The RRT was entitled to reject evidence which it did not regard as credible. As I have already stated the RRT had material before which reasonably supported its findings on credibility.’

8 For those reasons the learned Federal Magistrate rejected each of the grounds of review as set out in the amended application and, as I understand it, the matters expanded upon by counsel in his submissions.

9 The grounds of appeal in the Notice of Appeal to this Court from the decision of the learned Federal Magistrate are as follows:

‘1. The counsel for the appellant failed to argue the Tribunal’s bias of matters raised at the hearing.
2. The Federal Magistrate failed to understand the illogicality of the Tribunal’s decision.
3. The Court also failed to understand the argument presented by counsel for the appellant on the issue of credibility of the appellant at the Tribunal hearing.
4. The [Court] also failed to understand the denial of natural justice when the appellant was not afforded the opportunity to respond to the materials relied upon by the Tribunal to refuse the appellant’s case.’

10 This matter has had a somewhat chequered history. The appellant required leave to appeal which I gave him, it appearing to me that one could not be satisfied that, despite the learned Federal Magistrate’s obvious endeavours to see whether there might be any legal problem with the Tribunal’s decision, the Magistrate had had adequate assistance, and the appellant was not long out of time to lodge an appeal which otherwise would have lain as of right.

11 The appellant is in prison in Western Australia for some years for drug offences; he is appealing the conviction but nevertheless that is his lot as matters stand. He has made a number of efforts to try to obtain other legal representation from agencies who might be able to help. Those efforts have come to nothing. The appellant represented himself by video link from gaol. That was further complicated by the non-appearance through illness today of a booked Ibo interpreter. Nevertheless, despite some minor difficulties and having regard to previous experience of the appellant at earlier directions hearings, I thought the matter could proceed adequately without the interpreter and again, despite some minor difficulties, I am satisfied that it did fairly so proceed.

12 The essence of the complaint made to me by the appellant is, as he put it, that the Tribunal Member made a number of mistakes in comprehending what the appellant had been trying to tell him, so that the Tribunal Member had not succeeded in understanding his case and thereby had not afforded him the kind of ‘review’ which the legislation intended. The appellant came well enough prepared to give, without hesitation, page references in the Tribunal Member’s lengthy decision to particular instances of what he, the appellant, says were misunderstandings.

13 It appears from the judgment of the learned Federal Magistrate that he had, without complaint by anyone, access to a document which he regarded as a transcript of the proceedings before the Tribunal. Mr Reilly of counsel who appears before me today did not appear before the learned Federal Magistrate and the appellant has no clear memory of what was and what was not before the Magistrate; nor has Mr Reilly’s instructing solicitor. I called for the file from the Federal Magistrates Court and it contains a document with a title page which reads:

‘Transcription of hearing tapes from the hearing of an application by [the appellant]. Hearing date 6 September 2001. The hearing was conducted by video conference from Perth Western Australia.’

14 On the last page there was an indication that it was transcribed from the hearing tapes by a typist and the common seal of ‘Conference Language Services ACN 006 272 760’ is affixed.

15 The Evidence Act 1995 (Cth) provides in s 183:

‘If a question arises about the application of a provision of this Act in relation to a document or thing the court may:

(a) examine the document or thing; and
(b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.’

16 I am satisfied that I have power to draw inferences from documents in the circumstances. I draw the inference that this is a transcript which was accepted by the parties before the learned Federal Magistrate as reliable.

17 The first example of an error, or an alleged error, pointed to by the appellant was that he had never worked as a male prostitute anywhere. The following questions from the Tribunal Member and answers by the appellant are recorded at page 18 of that document:

‘Member: ... Anyway you were attracted to the idea of working as a gay prostitute in Germany were you?

Applicant: At that time I was thinking as an adolescent or young person - I was only concerned with the money.

Member: Mm. But the idea attracted you did it?

Applicant: Yes I was interested in what he was saying at that time.

Member: Have you ever worked as a male prostitute?

Applicant: You mean in Nigeria or after that time?

Member: Anywhere?

Applicant: Yes. I was practising in South Africa."

18 If this is read as a way beneficial to the appellant’s present argument, it might be read as if the appellant were saying not that he had practised as a prostitute, but that he had practised as a homosexual in South Africa, and it is possible that the Tribunal member may have misunderstood that, if that is indeed what the appellant was trying to say.

19 The second example given was that the Tribunal Member said that the appellant had ‘travelled by road to Zimbabwe’ from Nigeria. The appellant put to me that he had never said such a thing and would not, because it would take months so to travel to South Africa from Nigeria. The following appears at page 37 of the transcript:

‘Member: ...how did you get to South Africa from Nigeria?

Applicant: I went by road – I went by road

Member: Through which country?

Applicant: I went to Zimbabwe then Swaziland then by road to South Africa.

Member: How did you get to Zimbabwe from Nigeria?

Applicant: I used a Ghana passport.

Member: Yes. How did you travel from Nigeria to Zimbabwe?

Applicant: I went by plane.’

20 The third matter is that the Tribunal Member said the appellant told the Tribunal that ‘he lived in the bush in Swaziland for a short while’. The following appears at page 40 of the transcript:

‘Member: All right so how long did you spend in Swaziland......no or perhaps you could tell me first how long did you spend in Zimbabwe?

Applicant: I was in Zimbabwe a few days.

Member: Ok and how long were you in Zimbabwe er no Swaziland?

Applicant: According to the person crossing us we were in Swaziland inside the bush so I don’t know whether it was actually Swaziland but the guy said in Swaziland we were inside the bush before we could catch the train that goes into Johannesburg.’

21 In relation to the last two quotations, again it is possible that there was some misapprehension of what the appellant was saying; however, regardless of the language that he used, there are very often, in tribunals and courts of all kinds, minor irrelevant misunderstandings, as there are in life generally.

22 I was nevertheless particularly concerned about the matter since the Tribunal rejected the appellant for credibility reasons. The Tribunal Member said:

‘The Applicant did not impress the Tribunal as a credible witness on all key aspects of his testimony and in respect of all core elements of his claim to need Australian Government protection the Tribunal is not satisfied that the Applicant left Nigeria in the circumstances he described. The Tribunal finds the Applicant was a most unsatisfactory witness and gave every indication of fabricating his claim to fear persecution. His demeanour was poor and he gave evidence haltingly and appeared to be making up his testimony with long pauses and was unable to provide explanations on simple matters and he failed to give either any answer or satisfactory answer to questions on issues upon which he should have had direct and accurate knowledge, such as the name of his homosexual partner, who was beaten into a coma and whose death was the alleged catalyst for his claimed flight from Nigeria.’

23 Other matters also were referred to. What is clear is that neither the route or the mode or modes of travel by which the appellant left his own country form part of the reasoning of the Tribunal for rejecting his credit. Neither did the question of whether or not he had worked anywhere as a male prostitute have anything to do with the Tribunal Member’s reasoning.

24 There are elements in the Tribunal Member’s reasoning which might, as a factual matter, possibly occasion concern if one were, which I am not, a fact finder (nor was the learned Federal Magistrate), such as reliance on the demeanour of a person observed only by video-link. Most judges now prefer not to base their decisions on demeanour, even when they have the benefit of seeing the person live and at close quarters. It is somewhat unpersuasive that a person from a different culture appearing by video-link may have seemed unimpressive in his demeanour. However, there were, as the learned Federal Magistrate pointed out, much stronger bases relied on by the Tribunal for finding difficulty in accepting the appellant.

25 The appellant had in court Mr Asuzu, who was at that stage present as an interpreter. The appellant says that Mr Asuzu’s version of the Ibo language was not on all fours with his own. However, as I have indicated, it appears that it was accepted by counsel that most of the evidence before the Tribunal was given in English. Even allowing for the appellant’s probably having improved his English in the two and a half years since the hearing before the Tribunal Member, it seems unlikely that, small misunderstandings aside, the Tribunal Member could not understand the material aspects of what the appellant was trying to say to him.

26 I am not satisfied that there was any failure of the review process because of misunderstandings, however arising. It follows that the appeal must be dismissed and the orders made by the learned Federal Magistrate are affirmed.

27 The appellant is to pay the respondent’s costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 2 March 2004

The applicant appeared in person.
Counsel for the Respondent:	Mr Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 February 2004
Date of Judgment:	16 February 2004