Applicant NAOR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1074

FEDERAL COURT OF AUSTRALIA

Applicant NAOR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1074

MIGRATION – protection visa – appeal from a Federal Magistrate – whether the translation before the Refugee Review Tribunal was so faulty as to result in a jurisdictional error.

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 424A, 474

Craig v State of South Australia (1995) 184 CLR 163 – referred to

APPLICANT NAOR OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N333 OF 2003

HILL J
12 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N333 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT NAOR 0F 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	12 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent Minister’s costs of the appeal.

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	N333 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT NAOR 0F 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	12 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of a Federal Magistrate dismissing his application, brought under s 39B of the Judiciary Act 1903 (Cth), made applicable to applications for review of the decision of the Refugee Review Tribunal by the provisions of s 476 of the Migration Act 1958 (Cth).

2. The appellant claims to be a person to whom Australia owed protection obligations. Those claims are briefly summarised in the reasons for decision of the learned Magistrate and I do not therefore repeat them here.  The Tribunal had rejected the application to it for review of a decision of the respondent minister.  The Tribunal did so for two reasons.

3. Firstly, the Tribunal was not satisfied that the appellant had a well founded fear of being persecuted in Cyprus, that being the place of last residence of the appellant before he and his family arrived in Australia.  Having so concluded, it was not necessary, as the Tribunal itself said, for it to determine whether the harm which was claimed by the appellant to result should he be returned to Cyprus, or perhaps Turkey, would arise for a Convention reason.

4. The Tribunal also considered whether it would be possible and reasonable for the appellant to return to live in Turkey, of which country he was a citizen.  The Tribunal concluded that while the appellant might face practical difficulties resettling in Turkey, that option was realistically open to him and reasonable in all the circumstances.  As the Tribunal noted, the appellant had grown up and been educated in Turkey, and had not left there until 1985.  His wife was Turkish by ethnicity and both he and his wife had family in Turkey. 

5. The Tribunal did not accept the appellant’s claim that he, like Kurds generally in Turkey, would face persecution there.  The Tribunal was not satisfied it said that the appellant had a well founded fear of being persecuted for a Convention reason in Turkey.  The Tribunal was also not satisfied that the appellant could not live in Turkey permanently without fear of harm should he decide not to live in Cyprus.

6. The appellant was not represented before the learned Magistrate who considered a number of general claims that the appellant made.  It is unnecessary here for me to detail the matters dealt with in the reasons of the learned Magistrate save to note that the appellant had made a submission to the effect that there had been a problem with the Turkish interpreter who had acted as a translator in the course of the hearing.  The appellant had not sought to put before the learned Magistrate any specific evidence dealing with any inadequacy of the translation.

7. The appellant was also not represented before me on the appeal.  He did, however, have the assistance of Mr Gencer, who is, it would seem, a very well qualified interpreter of the Turkish language and well qualified to interpret the appellant's submissions to me.  The appellant sought to tender a document prepared by Mr Gencer which as well as setting out his qualifications to interpret, dealt with errors in interpretation discovered from the tape of the proceedings before the Tribunal. 

8. The appellant also produced to the Court a document which would seem to be a written transcript prepared from the tapes.  I took the appellant to be wishing to tender in the appeal, fresh evidence going to the question of inadequacy of the interpretation.  There are limited occasions when a Court on appeal may accept a tender of fresh evidence.  One important requirement is that that evidence be cogent of some matter on which the appeal depends.

9. I did not take any point at the stage of the tender on the material being unsworn since this could be corrected by having Mr Gencer give appropriate evidence on oath before me.  Likewise it would no doubt be not difficult for the written transcript to be checked against the tape recording of the proceedings.  For present purposes I am prepared to accept that a jurisdictional error of the kind contemplated by cases such as Craig v State of South Australia (1995) 184 CLR 163 could arise where the translation before the Tribunal was so inaccurate that it could be said that the appellant was not really able to put his case to the Tribunal. It's not necessary to determine whether the proper basis of jurisdictional error would be a denial of natural justice or some other ground.

10. It is clear when one looks at the errors that many of them are totally inconsequential.  Two in particular were relied upon as being of particular significance, although it was said that it was the cumulative effect of all the errors which I should take into account.  The first of the two matters was a mistranslation of the word “Orgut” which literally means “organisation” but which had gained the connotation of “illegal organisation”.  The Tribunal member asked whether the appellant was a member of an “organisation”.  The translator used the Turkish word “Orgut” thereby possibly leading the appellant to answer in the negative that he did not belong to an illegal organisation. 

11. It is perhaps possible that had the question been asked differently, the appellant might have suggested that he was the member of a legal organisation.  It is difficult, however, to regard this translation fault as of such significance as to cause the proceedings before the Tribunal to miscarry.  Firstly, nowhere does it appear that the appellant based his case upon belonging to any organisation and it cannot be said that the appellant was not given the opportunity of putting his case before the Tribunal if it did depend on membership of some illegal organisation.

12. A second matter was a mistranslation of a Turkish word translated as “fanatic” but which properly translated meant “nationalist”.  However, nothing really seems to have turned upon the mistranslation.  The appellant claimed to fear persecution from this group which was supported by the Turkish police and state.  The claim itself was clearly enough understood by the Tribunal as appeared from its reasons, even if the particular characteristic of the group had been mistranslated.

13. There is nothing in the material sought to be tendered which is of such significance as would provide foundation for a submission that the Tribunal's proceedings miscarried because of the translation.  I would accordingly reject the tender of the material.  I note also that the question of the accuracy of the transcript was raised at the time the appeal book index was settled and I am told the appellant was advised that he should prepare and file appropriate affidavit evidence before the appeal hearing to enable the point to be dealt with.  He did not do so.  However I do not rely on this failure of itself because I am conscious of the fact that the appellant was not represented, even if it be the case that he was referred to a legal practitioner in accordance with the court scheme.

14. The appellant did not seek to put to me any submissions going to error on the part of the learned Magistrate.  This is perhaps not surprising because he was not represented by a lawyer.  He made it clear to me that his real desire was to have the matter remitted to the Tribunal so that he could properly communicate his case to the Tribunal.  He made reference to the particular psychological pressure under which he laboured when the proceedings were before the Tribunal.  He has not, however, sought to adduce any evidence to suggest that he was unfit to give evidence before the Tribunal.  Such that for this reason the Tribunal's proceedings carried the Court has no power to remit the matter to the Tribunal unless satisfied that the learned Magistrate erred in some way. 

15. I have read the learned Magistrate's decision with some care in the knowledge that the appellant was not represented before me.  I can detect no error in the decision.  In the circumstances I have no alternative but to dismiss the appeal and order the appellant to pay the Minister's costs of it.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             3 October 2003

Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondent:	M Allars
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	12 September 2003
Date of Judgment:	12 September 2003