Adam v Minister for Immigration and Multicultural Affairs

[1999] FCA 341

FEDERAL COURT OF AUSTRALIA

Adam v Minister for Immigration & Multicultural Affairs [1999] FCA 341

YOUSEF ADAM v MINISTER FOR IMMIGRATION and MULTICULTURAL AFFAIRS

N 35 OF 1999

WHITLAM J
19 MARCH 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 35 OF 1999

BETWEEN:	YOUSEF ADAM Applicant
AND:	MINISTER FOR IMMIGRATION and MULTICULTURAL AFFAIRS Respondent
JUDGE:	WHITLAM J
DATE OF ORDER:	19 MARCH 1999
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 35 OF 1999

BETWEEN:	YOUSEF ADAM Applicant
AND:	MINISTER FOR IMMIGRATION and MULTICULTURAL AFFAIRS Respondent

JUDGE:	WHITLAM J
DATE:	19 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE)

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 8 January 1999.  The applicant is a Turkoman from Iraq.  His application for an order of review was filed on 18 January 1999.  The application is in the English language.  However the applicant has told me today, through an Arabic interpreter, that he does not read English.  The grounds of the application reflect the language of s 476(1)(a) and (e) of the Migration Act (1958) (“the Act”). 

2. The Tribunal’s decision comprises some twenty-four pages and it sets out comprehensively the claims and evidence relied on by the applicant before the Tribunal, before dealing with what is described as independent country information and going on to set out the Tribunal's findings and reasons for its decision.  The Tribunal appears to have dealt with the claims made by the applicant comprehensively and without error of law.  It affirmed the decision of the Minister's delegate not to grant the applicant a protection visa.

3. In conducting his case today, the applicant labours under two handicaps: he does not speak the English language and he is unrepresented by a lawyer.  This alerts the Court to the necessity to ensure that the decision of the Tribunal has not been flawed in some way that might escape the eye of a layman.  While this places the Court in an invidious position, I have been assisted in this case by the very careful written submissions prepared by counsel for the respondent. 

4. When the matter was first before me on 4 February 1999, directions were given for the applicant to file any affidavits upon which he proposed to rely by 18 March.  Being a layman, the applicant may not have comprehended the meaning of the terms of that order and he commenced his case today by tendering a number of documents.  Counsel for the respondent did not object to my reading that material, but submitted that as it was not before the Tribunal, and in the absence of reliance on the ground available under s 476(1)(g), it would not be likely to be relevant to the case notified by the applicant. 

5. I read the material tendered by the applicant.  Two of the documents included in that material purported to be specific to the applicant's case, being prepared by officers of community organisations after the date of the Tribunal’s decision.  The other three documents were press releases sourced from overseas by community organisations of émigrés.  None of the statements in the documents raised any matter that was relevant to the judicial review of the Tribunal's decision.  The applicant had also prepared a three page statement in the Arabic language which he wished to have read to the Court.  This was translated to the Court by the interpreter.  Again, no part of that statement contained any submission which touched on the grounds available for judicial review of the decision, save perhaps in two respects. 

6. The first was some suggestion that there had been translation errors made in the hearing before the Tribunal.  The background to that is that the applicant is a Turkoman and whilst he understands Arabic he would prefer to have conducted his case today through a Turkmen interpreter.  This was a point that I raised with him at the outset of the hearing today, after the interpreter had been sworn, to see if he was content with the ability to communicate with the interpreter available in Court today.  In the event, whilst pressing his preference for a Turkmen interpreter, the applicant was content to proceed, and I must say that it is quite apparent to me that there was no difficulty in communication at all.  Indeed, the applicant had prepared his own statement in the Arabic language. 

7. Counsel for the respondent has drawn my attention to the places in earlier documents completed in support of the applicant's application for a protection visa and in his request for a hearing before the Tribunal where the applicant has consistently indicated that an interpreter should be available in the Arabic language.  I think it fair to observe that many of those forms were completed by advisers, including the application for review before the Tribunal.  It was only in the request for hearing before the Tribunal that a request was specifically added for an Arabic or Turkmen interpreter. 

8. What those forms do highlight, and it is worth remarking, is that the applicant had the assistance of the Legal Aid Commission in the conduct of his case before the Tribunal.  It would be naive to assume that there were no translation errors in the Tribunal.  Experience with interpreters in forensic settings teaches lawyers, judges and barristers that translation errors frequently occur.  Nonetheless, the applicant has not convinced me, and indeed there is no evidence before me that even suggests that any translation errors were made in this case such as to indicate that the procedure required by the Act for an interpreter to be available had, in substance, not been observed.  Again, I should say that there is no hint on the face of the Tribunal’s decision that any difficulties in communication, to use the language of the Act, impeded the Tribunal's inquiry. 

9. The second matter emerges in a shadowy way from the applicant’s statement, and was elaborated by the applicant in some oral submissions.  This was a slight suggestion of discrimination in the way in which the applicant’s case, as a Turkoman, had been regarded, having regard to the numbers of Iraqis who had been permitted to enter Australia and to their ethnic origins or religious affiliations by reference to their description as Arabs or Christians (although plainly those two groups frequently overlap).  The ground of actual bias was not articulated in the application, nor was that expression used by the applicant in his address.  However if that was what the applicant meant to say, then again there is no evidence before me that could possibly establish such a ground for review of the Tribunal's decision.

10. The statement that the applicant prepared has been marked for identification.  That will be placed with the papers along with the written submissions of the respondent, which I have read and accept in their entirety.  The application is dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             19 March 1999

Applicant appeared in person
Counsel for the respondent:	M J Leeming
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	19 March 1999
Date of judgment:	19 March 1999