Applicant B83-2001 v MIMA

[2003] HCATrans 355

[2003] HCATrans 355

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B83 of 2001

B e t w e e n -

APPLICANT B83/2001

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 SEPTEMBER 2003, AT 1.27 PM

Copyright in the High Court of Australia

APPLICANT B83/2001 appeared in person. 

MR A.A.J. HORNEMAN‑WREN:   If it please the Court, I appear on behalf of the respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   Mr Horneman‑Wren, you appear for the Minister in this matter in Brisbane.  Is that correct?

MR HORNEMAN‑WREN:   I do, if it pleases the Court, your Honour.

KIRBY J:   Is the applicant known as B83 of 2001 present in Court?

MR HORNEMAN‑WREN:   He is, your Honour.  He is just approaching the Bar table.

KIRBY J:   You are the applicant known as B83 of 2001?

APPLICANT B83/2001:   Yes.

KIRBY J:   You realise that we do not mean any discourtesy to you by calling you in that way.  That is the result of legislation that has been enacted by the Australian Parliament in order to protect the identity of people who are claiming to be refugees.  You understand that, do you not?

APPLICANT B83/2001:   Yes.

KIRBY J:   Yes, very well, thank you.  Now, I understand that there is no interpreter available today, so that we will just have to proceed to do our best on the matters that are before us, including the papers.  Do you wish to say anything in support of the application in addition to the matter?

APPLICANT B83/2001:   Yes.

KIRBY J:   I think we have before us an affidavit.  It is an affidavit by Sukhdev Singh Malhi, which is sworn 11 September 2003.  That is correct?

APPLICANT B83/2001:   Yes.

KIRBY J:   That is an affidavit from yesterday.

APPLICANT B83/2001:   Yes.

KIRBY J:   Is that deponent present in the Court in Brisbane, or not?

APPLICANT B83/2001:   Yes.

KIRBY J:   Very well.  Now, Mr Horneman‑Wren, have you seen that affidavit?

MR HORNEMAN‑WREN:   I have, your Honour.  I was provided with a copy at about 9.20 this morning here at the Court.

KIRBY J:   What is your attitude to the Court’s receiving that affidavit?

MR HORNEMAN‑WREN:   I object to it, your Honour.

KIRBY J:   What is the basis for the objection?

MR HORNEMAN‑WREN:   Your Honour, it first seeks to introduce fresh evidence to this Court, on a special leave application.  Secondly, it seeks to raise matters which, even if it had been sought to be ventilated before the Full Federal Court on the appeal, pursuant to section 27 of the Federal Court Act, it would not have satisfied the usual tests in respect of introduction of fresh evidence on appeal, that is to say, that, first, they are not matters which quite plainly on their face are matters which could not have been – evidence which could have been adduced below with an exercise of diligence, nor, indeed, are they likely to affect the outcome.  Thirdly, your Honour, they depose to matters which appear to be at odds entirely with evidence which was before the primary judge in relation to the circumstances of the answers to the questions provided.

KIRBY J:   Yes.  I have to say to you, Applicant, that the objections which have been raised by counsel for the Minister appear to be good objections to the receipt by the Court of the affidavit.  Can I explain to you, because you may not understand it, that the law in this country is that this Court, in an appeal, cannot receive additional evidence over and above the evidence that was before the court below, and therefore, even if we received this affidavit in the application for special leave, it would not be able to be used in the appeal, and, on that basis alone, it would be futile for us to consider this matter.  Do you understand what I have said to you?

APPLICANT B83/2001:   Can I get the help of my brother‑in‑law?

KIRBY J:   Of course, you can, yes.  What is your name?

MR S.S. MALHI:   My name is Sukhdev Singh Malhi, 1 Barn Street, Woolgoolga, New South Wales, your Honour.

KIRBY J:   You are the deponent of the affidavit which you have provided to the Court Registry in support of the application?

MR MALHI:   Yes, that is correct.

KIRBY J:   We have looked at that affidavit, but I was explaining to the applicant that the law in this country is that this Court, being a Court that considers errors, is not entitled to receive evidence of new facts.  It has to consider the case on the basis of the facts that were before the Court below, and, therefore, the affidavit which you provide is not something which we would receive in the application, because it would be futile to receive it.  It could not be used in the appeal.  Do you understand what I have said to you?

MR MALHI:   Yes, basically, I understand what you have told me, your Honour, but July, a couple of months ago, three months ago, my brother‑in‑law told me that this is what has been happening to him.  I assumed that he was a resident of Australia and I will show ‑ ‑ ‑

KIRBY J:   I understand that, and I ‑ ‑ ‑

MR MALHI:   Well, I have misunderstood.  Three months ago, I showed up with him in court, and I listened to everything, and I was under the understanding that the last thing was said that only new evidence will be taken in on that issue only, on the interpreter, you know, he required ‑ ‑ ‑

KIRBY J:   No, I was present on the last occasion, and I have looked again at the transcript of the last hearing before the Court in Brisbane, and any suggestion of new evidence related only to the medical condition of the applicant, because that could be relevant as to whether we can proceed with the application.

MR MALHI:   Right.

KIRBY J:   But I would like you to explain to the applicant, so that there can be no doubt that he understands it, that there is a legal principle that we cannot receive fresh evidence, and that that makes it impossible for us to receive your late affidavit.  That is something that, if it was to be relevant, would have had to be given to the Tribunal, or maybe to the Federal Court, but we cannot receive it in the High Court of Australia.  Would you just have a talk with the applicant and explain that to him?

MR MALHI:   Yes, he says he understands that now more clearly, but he asks that could I still talk on behalf of him?

KIRBY J:   Yes, of course, you can.  The Court made it clear on the last occasion that he could be represented by a lawyer, but if he asks for you to speak for him, then you can do that.

MR MALHI:   He has tried that.  He went to a few solicitors, but he got nowhere with it.

KIRBY J:   Yes, I understand that, too.  The matter is now before us and it must proceed on the basis of the record.  You have seen the record of the application by the applicant, have you?

MR MALHI:   Actually, your Honour, the only thing I know about this is what happened three months ago.  I only showed up yesterday in Brisbane and I have not had a look at much.  I got the gist of it from him, what was it about, and I said, “Well, hang on here, I was the one that filled in the application and advised you on this and this.  I think that must mean something here”.  But I am sorry, your Honour, that I misunderstood that there was new evidence to come in here.

KIRBY J:   Yes.  The position is that the applicant’s case is before the highest Court of this country.  He is seeking special leave to appeal from the Federal Court of Australia, Full Court, and he has raised an issue concerning his suggested need for an interpreter in the Refugee Review Tribunal when he made his application to that Tribunal to review the decision of the Minister’s Delegate, and the issue is whether or not he has made a ground for special leave, which is exceptional, to have an appeal to this Court.  Now, do you wish to say anything on behalf of the applicant in support of that application?

MR MALHI:   Yes.  At the time of the interview, I think it was only two years while he was here.  The English – the thing about – from just two pieces of paper I have here that I have read, proficiency in English, that because he has done business, it means it was proficient in English.  Now I know my mother – she has been here since 1954 – she knows a few sentences in English, but she has still carried out business.  But she is not proficient in English.   Now, with [the applicant’s] case, he has told me, and I have seen it happen ‑ ‑ ‑

KIRBY J:   I do not think you should refer to his name.  Please do not refer to his name.

MR MALHI:   I am sorry.

KIRBY J:   I will direct that his name be deleted from the record.  Just call him “the applicant”.

MR MALHI:   The applicant, B83, the business that he run, he had help from Indian people around him and Hindus and Pakistans, to do, you know, to start a business.  Yes/no, surface meanings of English, and it was not like he was proficient in English to run a business.  Sometimes you can be not proficient in English to run a business, and one of the things is that because he run a business, so he was all right to do the interview.  And he done the interview and he was all right to understand.

For him, he thought he could just say “yes” and “no”, make it look like he understood what he was saying clearly, so it would greatly improve his – well, they would look at him and say, he is doing well, he is working, he is doing a business, yes, we will let him stay.  But he got himself into a mess.  If he had had an interpreter, things would have come out in a better way; he would have his best foot put forward.  As it was, he did not really gain that opportunity.

KIRBY J:   I understand that, but the Full Court of the Federal Court in responding to that type of argument said two things.  First of all, it said that when the applicant was asked “Do you need an interpreter?”, he said “No”, so that he himself at the Tribunal waived what otherwise would have been arranged, possibly to have an interpreter.

MR MALHI:    I think that was my fault.

KIRBY J:   Secondly, the Full Court of the Federal Court said that when they examined the transcript he appeared to give responsive answers to the questions that were asked of him, and therefore, whilst they understood the difference between social conversation and family conversation, where people can get by, they did not consider that the applicant lacked proficiency in English in this particular case.  Therefore it was within the decision of the Federal Court, single judge, to say that no error had been shown.  What is the answer to that?

MR MALHI:    In the Punjabi language, one word can mean three or four different meanings.

KIRBY J:   That is so in English, as well.

MR MALHI:    In English, as well.  And to be able to negotiate in English – what happens with me at the moment, I was born in Australia, the first five years my mother taught me my native language, and then English for the last 35 years.  What happens in my mind, or most people’s minds, when they are from another country, they translate back into their native tongue, then into English, then back again ‑ the two/three way process inside their head to make themselves clear and understood – and, at the same time, they are not really realising what they are saying.

KIRBY J:   The Federal Court said they understood that there was a difference and that there would be extra stresses in appearing before a tribunal or a court, but they said that, notwithstanding that, the applicant

answered the questions responsively and appeared to understand what was going on in the proceedings.  He did not indicate by his responses that he was not proficient in the language, at least, for the purpose of the proceedings before the Tribunal, which are much less formal than the proceedings before this Court.

MR MALHI:    Okay, your Honour, thank you.

KIRBY J:   So that is the basis of the record which we have before us and I would like you to understand that, so that either now or later you can explain that to the applicant if he does not understand it.

MR MALHI:    He said, “Yes, I understand it”, but he said the explanations that he can give – it was not 100 per cent, where if he had an interpreter it would have been more close to that figure and might have helped his case out more.

KIRBY J:   Yes, well, I think we understand the way he puts his case.  Is there anything else that he wants to say to us that is relevant to the application before us?  Just ask him that and then you can tell us anything additional that you want to say.

MR MALHI:    He virtually repeats what I have just said, that, at the time, if he had an interpreter it would have greatly helped him in answering those questions in greater detail.

KIRBY J:   Thank you for the help you have given to the Court today.  You can just sit down at the Bar table now.  Mr Horneman‑Wren, the Court does not need your assistance in this application.

This application was first listed by the Court in June 2002.  It was last before the Court in Brisbane on 25 June 2003.  The Court was then constituted by Justice McHugh and myself.  Today the Court is constituted by Justice Hayne and myself.  On the last occasion an interpreter was available by video link.  Through the interpreter, the applicant sought a further adjournment of the hearing.  Despite opposition by the Minister, the Court granted an adjournment to the next video link to Canberra from Brisbane.  That is how it comes before the Court today.

However, on that occasion Justice McHugh, for the Court, made it clear, for reasons which he then gave, that the application must be decided without further delay, as quickly as possible.  He added:

If the applicant, for one reason or another, does not arrange for legal representation, the Court will deal with his application on the papers, including any further written argument that he provides to the Court and to the respondent. 

The application is now before this Court again pursuant to those orders.  An interpreter was not available today.  However, the applicant has appeared today with a person who is completely proficient in the English language.  He spoke to the Court on his behalf and with him and he explained matters to the applicant so that he would understand the proceedings before the Court, if otherwise he had difficulty in doing so.

Today, for the first time, the applicant sought to adduce fresh evidence as to the circumstances of his indication before the Refugee Review Tribunal that he did not need an interpreter.  As explained to the applicant, such evidence could not be received on the hearing of an appeal to this Court:  see Eastman v The Queen (2000) 203 CLR 1. To receive it in this application would therefore be futile. The evidence was therefore rejected.

In any case, it must be noted that when the matter was before the Tribunal, the applicant answered “No” to the question, “Do you need an interpreter?”  He said, “I am going to try by myself”.  The Federal Court concluded from an examination of the transcript before the Tribunal that the applicant’s answers to questions were responsive, generally coherent, and consistent with the written claims contained in the application.

The applicant’s application, in effect for refugee status, was denied by the Minister’s delegate on 11 April 1997.  The Tribunal, in August 1998, affirmed that decision.  In December 2000 a judge of the Federal Court of Australia dismissed an application for review.  That order was affirmed by the Full Court of the Federal Court in September 2001.

The basis now advanced for the request for intervention by this Court is that the applicant was denied the benefit of an interpreter before the Tribunal.  In light of the circumstances explained in the Federal Court’s reasons, this complaint is without legal merit.  In our view, the Federal Court’s treatment of the applicant’s complaint was correct.  The Federal Court showed itself to be alive to the difference between a person’s proficiency in the English language for social purposes and for the purpose of proceedings in a formal setting of a tribunal such as the Refugee Review Tribunal, seeking an important decision affecting him.  We can see no factual or legal error on the part of the judges of the Federal Court.

It follows that special leave to appeal to this Court must be refused.  The applicant must pay the Minister’s costs.  Those costs must include the reserved costs.

The reasons which I have just given will be prepared in the transcript of the Court and a copy of that transcript will be sent to the applicant next week.  Adjourn the Court.

AT 1.47 PM THE MATTER WAS CONCLUDED