SYSB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1259 (29 August 2005)

SYSB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD 84 of 2005

MANSFIELD J
29 AUGUST 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 84 OF 2005

BETWEEN:	SYSB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	29 AUGUST 2005
WHERE MADE:	ADELAIDE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 84 OF 2005

BETWEEN:	SYSB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	29 AUGUST 2005
PLACE:	ADELAIDE

1 The applicant seeks an order setting aside a decision of the Refugee Review Tribunal (the Tribunal) given on 15 September 2004. The Tribunal affirmed a decision of a delegate of the Minister of 21 May 2004 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act), shortly after his arrival in Australia. The applicant is a citizen of Iran. He was born in 1965. He has a mother and four siblings who still live in Iran. He was married but divorced in 1994 and for some years has not seen his former wife or the daughter of that marriage. Since 1995 the applicant has operated a business in Iran with his brother.

2 The applicant claimed a protection visa because he claimed to be a refugee under the Refugees Convention as amended by the Refugees Protocol (the Convention) and so to satisfy the criterion for the grant of a protection visa specified in s 36(2) of the Act. His fear arises from a relationship which he had with married woman in Iran, apparently from about late 2003 until she severed the relationship in about April 2004. He did not realise that she was married. She severed the relationship because her husband had discovered that she was having a relationship with the applicant. She managed to tell the applicant of her husband's discovery of the relationship by telephone. The applicant claims that he then went into hiding because he feared persecution by the Iranian authorities because of his adulterous conduct. After the Tribunal hearing, the applicant also claimed that he feared revenge from the husband of the woman with whom he had the relationship, but the Tribunal did not accept that because of the lateness of that claim. There has been no submission that the Tribunal erred in that regard.

3 The Tribunal did not accept that the applicant is entitled to a protection visa for two reasons. Firstly, even accepting the applicant's claims as to his fears, it did not consider that he had a well-founded fear of being persecuted for one of the Convention reasons of race, religion, nationality, membership of a particular social group or political opinion. Consequently, even if his fear was both genuine and well-founded, it was not for a Convention reason and he could not therefore qualify as a refugee under Art 1A(2) of the Convention. It is plain that to satisfy the criterion in s 36(2) of the Act for being granted a protection visa, the applicant needed to satisfy the Tribunal that he did have a well-founded fear of being persecuted for a Convention reason. Secondly, the Tribunal in any event did not accept the applicant’s claims as to why he feared returning to Iran. It found that he was not a credible or reliable witness, and it concluded that he fabricated his claim to have had a sexual relationship with a married woman because it would give him the profile of a refugee.

4 To succeed in setting aside the Tribunal's decision, it is necessary for the applicant to demonstrate jurisdictional error on the part of the Tribunal, see Plaintiff S157 of 2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476. The application before the Court does not elucidate or express clearly any ground of jurisdictional error. It refers to the former s 476(1)(a) of the Act, namely that procedures that were required by the Act or Regulations to be observed in connection with the making of the decision were not observed. That provision has been repealed. It was necessary, given that the applicant was self-represented, to endeavour to identify what (if any) jurisdictional error on the part of the Tribunal he asserted. In essence, despite not having raised it earlier, his contention related to the adequacy of the hearing before the Tribunal.

5 The Tribunal was required to give the applicant the opportunity to attend a hearing. It did so. The applicant attended a hearing before the Tribunal with the assistance of an interpreter. The applicant, in his oral submissions, complained that the hearing before the Tribunal miscarried because the interpreter did not properly interpret what he said. Consequently, he claimed, some issues were not properly understood and so the Tribunal's assessment of the applicant's credibility was inappropriately coloured by misconceptions on its part as to his evidence.

6 There may be circumstances in which the quality of interpretation provided at the Tribunal hearing is so inadequate that in reality the opportunity to attend a hearing so as to give evidence and make submissions is not given: see e.g. Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6.

7 To address the applicant's contention in this matter, I first carefully explored with him whether he claimed the Tribunal had misunderstood the nature of the fear which he claimed. I did so by putting to him the Tribunal's assessment of that fear. He agreed that the Tribunal had accurately understood his fear of what might happen to him if he were to return to Iran. Given that understanding, the Tribunal said:

8 In my judgment, that approval by the Tribunal does not involve any jurisdictional error on its part. It has correctly understood the applicable law and applied it. The applicant clearly did not assert that his fear of what might happen to him if he were to return to Iran is by reason of his race, his religion, his nationality or his political opinion.

9 In my judgment the Tribunal correctly determined that his fear was also not for reasons of his membership of a particular social group: see Applicant A v Minister for Immigration & Multicultural Affairs [1997] HCA 4; (1996) 190 CLR 225. McHugh J, in that case, at 263-264, explained that it is insufficient for persons to constitute a particular social group simply because that which they fear is the defining characteristic of the particular social group of which they claim membership. In this matter, it is simply the feared ‘persecutory’ acts which identify the applicant as the target of those acts, rather than some characteristic which he has and which he shares with some other members of the Iranian community. See also the discussion by Dawson J in that case at 242-243.

10 As that is an independent reason for the Tribunal's decision, and as it does not involve any misunderstanding of the applicant’s claim brought about by the conduct of the hearing nor any jurisdictional error on its part, in my view the application must fail.

11 I have given consideration to whether the application, nevertheless, should be adjourned to give the applicant the opportunity to make good his claim that the Tribunal, by reason of interpretation difficulties during the hearing, misunderstood his evidence so as to have affected or potentially to have affected its assessment of his credibility. I do not think it is necessary to do so for two reasons. Firstly, even if it were made out so that the Tribunal's assessment of his credibility were reached through an inadequate hearing and arguably then through jurisdictional error, the Tribunal's decision would still stand because it apprehended accurately the nature of the applicant's claimed fear if he were to return to Iran and why he had those fears, and it properly concluded that they did not give rise to a fear of persecution for a Convention reason. Secondly, having given the applicant the opportunity to identify, in the Tribunal's reasons, those things which he says the Tribunal misunderstood about his evidence, and therefore led to him not being given a proper hearing, the applicant did not, in my view, demonstrate any real basis for his assertions. That is, even accepting what the applicant now puts to the Court as to the matters the Tribunal had regard to and which (he claims) result from inadequate interpreting at the hearing, they would not demonstrate that the applicant did not have a proper hearing before the Tribunal. In essence, what the applicant has put to the Court about the Tribunal's several reasons for rejecting him as a witness of reliability amounts to no more than asserting that the inferences which the Tribunal drew from an accurate understanding of his claims were inferences with which he disagrees.

12 The Tribunal gave seven reasons for rejecting the applicant's claims on the ground of his lack of credibility. The applicant was asked to explain by reference to each of them what the Tribunal had recorded about his evidence which he had not said, or which what he had said was not accurately recorded.

13 The applicant addressed six of them. In each case what he said did not indicate that the Tribunal had misunderstood what he had said at the hearing. He indicated that he disagreed with what the Tribunal drew from what he had said. One or two illustrations will suffice to make the point.

14 The Tribunal's first reason for rejecting the applicant's evidence was that his account of his alleged involvement with the married woman was unconvincing. It said it was unconvincing because the applicant could not give much information about her or her circumstances, even though the relationship had been carried on for some months and the applicant intended to or wanted to marry her. The applicant did not contend that he had given the Tribunal more information about his or her circumstances than it noted. The applicant's comment today was that he did not have an opportunity to know much about her because he saw her in secret and for only one or two times each week. The Tribunal did not misunderstand that. It understood that he saw her only once or twice a week and in secret. It drew from that level of association an expectation that the applicant would have known much more about her than he was able to tell the Tribunal. In reality, the applicant disagrees with what the Tribunal drew from a proper understanding of his evidence. His point does not demonstrate that the Tribunal misunderstood his evidence, far less than any misunderstanding was a consequence of inadequate interpretation. For present purposes, I am assuming, in the applicant's favour that where he can point to some misunderstanding of his evidence, it was due to an interpretation error. The problem is that what the applicant has pointed to does not amount to any misunderstanding through potential interpretation errors, but to disputes about conclusions the Tribunal drew from an accurate understanding of the applicant's evidence.

15 The second reason the Tribunal did not believe the applicant was because the account of the exposure of his affair was also unpersuasive. The applicant asserted in argument today that it was persuasive because the woman telephoned him whilst her husband was reporting to the authorities the relationship which he had just discovered. The Tribunal did not misunderstand that. It regarded it as implausible that the woman's husband would have given her the opportunity to warn the applicant by leaving her alone whilst reporting to the authorities. Again, that is a matter of inference, not a matter of finding based upon a possibly inaccurate translation of the applicant's evidence at the hearing.

16 The applicant also complained about the Tribunal's reason for doubting his reliability that, because his brother was able to see the applicant whilst he was in hiding, the authorities should have also been able to do so. The applicant said that his brother had secretly visited him. He did not claim that the Tribunal had inaccurately recorded what he had said at the hearing about that. His claim again is simply that the Tribunal erred by inferring from the fact that his brother had been able to see him, that the authorities also should have been able to discover his whereabouts if they were actually seeking him.

17 Another illustration is the Tribunal's reference to some evidence concerning his departure from Iran. The Tribunal placed some weight upon the absence of stamps in his passport showing a departure from Iran into Turkey, or an entry into Turkey or a departure from Turkey. The applicant said, in submissions, that the Tribunal should not have placed weight on that circumstance because he could not control it. However, he did not contend that the Tribunal had inaccurately understood what he had said at the hearing. Again it was a complaint of use to which the Tribunal put certain evidence which it had accurately understood from his evidence at the Tribunal.

18 There is one particular matter upon which the applicant did indicate a potential interpretation error. It relates to a document which the applicant presented to the Tribunal, and which he claimed was a document seeking his arrest by the Iranian authorities. The Tribunal placed some weight upon what it recorded as a claim in that document that officials of the Islamic Revolutionary Court were looking for him because of his adultery. The Tribunal had regard to independent evidence which indicated that the Revolutionary Court does not deal with the crime of adultery, and it ultimately inferred that the document was not genuine.

19 That was a matter which the Tribunal discussed at some length in the course of the hearing. Its reasons record that there were apparently problems with the translation of that document. The applicant's then migration agent agreed to provide another translation, together with the original of that document, to the Tribunal. Subsequently, on 19 July 2004 following the hearing, the Tribunal received from the applicant's migration agent the original document and a new translation from Persian to English of the original document provided by a NAATI registered translator. It is that translation which the Tribunal used. It records that the document is headed: Justice Ministry, and then under that another line: Islamic Revolutionary Court. It also records under that a reference: Public Court Branch: 2nd for Execution of Orders.

20 The applicant asserted that there is, on the document, no reference to the Islamic Revolutionary Court and that the reference is to the Islamic Republic of Iran and to the public court. However, on the material before the Tribunal, that is simply not the case. The version of the document is not one which the Tribunal obtained at the hearing. It is one subsequently provided to the Tribunal after the hearing on behalf of the applicant. It is not, therefore, a document which affects the quality of the hearing itself which the Tribunal provided to the applicant. Indeed, as I have noted, the Tribunal recorded in its reasons a consciousness that the translation of that document available at the hearing did have some ‘apparent problems’.

21 That issue, even if I accept the particular translation error still asserted by the applicant notwithstanding the subsequent independent translated version, does not affect the quality of the hearing. In my judgment it cannot demonstrate jurisdictional error on the part of the Tribunal by failing to provide the applicant with a proper hearing. The translation error, if there is one, is in a document which the applicant himself provided to the Tribunal after the hearing through his migration agent. More over, as the Tribunal's reasons indicate, there are other problems with that document than its heading upon which the Tribunal placed weight in determining ultimately that it was not a genuine document.

22 In those circumstances, in my judgment, it is not necessary to adjourn the hearing of this matter to enable the applicant to establish the accuracy of what he asserts. In all but one respect, what he has asserted as problems with the interpretation at the hearing are no more than an attack on the conclusions which the Tribunal drew from evidence and documents available to it about which (with the one exception I have referred to) do not indicate any misunderstanding of the evidence which was in fact given. In that one respect, concerning the heading on the document, for the reasons I have given, it does not and could not demonstrate that the applicant was not given the hearing which (at least arguably) the Tribunal was obliged to accord him. On that alternative basis of attack on the Tribunal's reasons, in my judgment, no jurisdictional error is made out.

23 However, I repeat that principally, the Tribunal decision is not tainted with jurisdictional error in a way which affects its validity because, on the applicant's own claims as properly understood by the Tribunal, he did not have a well-founded fear of persecution if he were to return to Iran for a Convention reason, and his claim was therefore doomed to failure.

24 For those reasons I dismiss the application. The Refugee Review Tribunal was not joined as a party to this application but given the nature of the relief claimed it should be. I order that it be joined as a second respondent and that the Minister be named the first respondent. I order that the applicant pay to the first respondent, that is the Minister, costs of the application.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant:	The applicant appeared in person

Counsel for the Respondent:	Mr K Tredrea

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	29 August 2005

Date of Judgment:	29 August 2005

1.	The Refugee Review Tribunal be joined as the second respondent.
2.	The Minister for Immigration & Multicultural & Indigenous Affairs be re-named first respondent.
3.	The application is dismissed.
4.	The applicant to pay to the first respondent her costs of the application.

Federal Court of Australia

SYSB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1259 (29 August 2005)