MZWKN v Minister for Immigration
[2006] FMCA 413
•24 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWKN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 413 |
| MIGRATION – Protection visa – whether jurisdictional error – failure to provide Georgian interpreter – issue raised concerning political philosophy – essential integer of case – denial of procedural fairness – decision quashed. |
| VEAR v Minister for Immigration [2003] FMCA 28 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 NAOV v Minister for Immigration [2003] FMCA70 |
| Applicant: | MZWKN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 640 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 29 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms J.K. Macdonnell |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 21 April 2004.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 640 of 2004
| MZWKN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Georgia. He arrived in Australia on 27 June 1999 on a subclass 421 (sport) visa. On 14 September 2000 he lodged an application for a protection visa. That application was refused by a delegate of the first named respondent on 21 May 2002. An application was then made by the applicant to the Refugee Review Tribunal (the first Tribunal) for review of the delegate's decision.
The first Tribunal conducted a hearing on 15 May 2002. At that hearing the applicant gave evidence in the Georgian language through an interpreter and had the assistance of a migration agent. The first Tribunal affirmed the delegate's decision not to grant a protection visa in a decision dated 21 May 2002.
The applicant sought judicial review of the first Tribunal decision and that application was dismissed in the Federal Magistrates Court on 30 January 2003 (see VEAR v Minister for Immigration [2003] FMCA 28). The applicant then appealed against the decision of the Federal Magistrates Court to the Federal Court of Australia, and in that court Weinberg J allowed the appeal on 8 September 2003.
It would appear that the order made by the Federal Court on that occasion was not opposed, and it may be inferred, though not necessary to do so, that the order may well have been by consent. A sealed copy of the order obtained by this court does not indicate that the order was made by consent. However, it is understood that the order was made following an examination of the transcript of the hearing before the first Tribunal and upon a further transcript being provided at the request of the Federal Court by another interpreter, thus enabling a comparison to be made between the transcript provided by the first Tribunal and the transcript obtained at the direction of the Federal Court on appeal by an interpreter who presumably had access to the tape recordings of the hearing before the first Tribunal.
In any event, on 9 February 2004 a differently constituted Refugee Review Tribunal (the second Tribunal) conducted another hearing. The second Tribunal, in a decision dated 21 April 2004, affirmed the delegate's decision to refuse to grant a protection visa to the applicant.
In the application before this court, filed 31 May 2004, the applicant seeks judicial review of the second Tribunal decision.
The grounds of the application
The grounds of the application relied upon by the applicant, who is unrepresented, are:
·The Tribunal's decision was based on its finding that the applicant 'did not display any real awareness of the idea of a political party, he described its philosophy in very general terms and did not seem aware of the concept of the political spectrum'.
·The Tribunal was unable to organize a Georgian interpreter. For that reason the applicant was advised that a Russian interpreter would be provided. Even though the applicant is not fluent in Russian, he agreed.
· During the course of the hearing the applicant reiterated that his knowledge of Russian is not good enough to explain complex matters related to his political activities, party policies etc. The Tribunal seemed to accept the applicant's explanation.
· The Tribunal's decision is clearly at odds with its own remarks. During the hearing it accepted that the applicant was not fluent in Russian, yet it rejected the applicant's case on the basis that he was 'unable to describe the party philosophy etc.
· The very issue has already been resolved by the Full Federal Court on 4 September 2003 (see VEAR v MIMIA / V42 of 2003) which, given inability of the interpreter to make an accurate interpretation of the applicant's claims, referred the matter back to the Tribunal for further consideration.
Those grounds are claimed to support the submission that there has been jurisdictional error.
Jurisdictional error
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
The tribunal proceedings
During the Tribunal proceedings it is readily apparent from the second Tribunal's reasons that difficulties arose concerning the availability of an interpreter. So much is evident from the following paragraph which appears under the heading "Background" at court book p.140:
“The matter was remitted to the Tribunal on the basis of the inadequacy of the interpreting in the first Tribunal hearing. The current Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. The applicant had stated in his Protection Visa application that he speaks, reads and writes Georgian, speaks Russian and has some English. There is no accreditation for interpreters in Georgian in Australia and the Tribunal, in light of this, discussed with the applicant, through his adviser, before the hearing, the desirability of working through a professionally accredited Russian interpreter in preference to an unaccredited Georgian one. The applicant agreed and the hearing was conducted with the assistance of such an interpreter. The Tribunal notes that on two occasions the applicant seemed to have difficulty finding the Russian words of choice, however on both occasions considerable care was taken to go over the points so as to leave no room for misunderstandings. At the end of the hearing the Tribunal sought the applicant's assurance that he had been able to convey all the matters he wanted to convey through the interpreter; the applicant agreed that he did.”
Under the heading "Claims and Evidence" the following appears in the second Tribunal's decision:
“The Tribunal has before it the Department's file, which includes the protection visa application and the delegate's decision record as well as the first Tribunal's file. It also has had regard to the material referred to in these decisions, and other material available to it from a range of sources.
The applicant gave oral evidence to the Tribunal on Monday, 9 February 2004.
The applicant's claims can be summarised as follows:
He fears returning to Georgia because he believes he will be persecuted by law enforcement agencies because he was trying to establish a political party.
This activity relates to the period 1994-96. He claims he was called three times by the police, once he spent 24 hours in a cell, his house was searched, his children were frightened and he was beginning to think that a criminal case against him was being trumped up.
He had been in an army unit called the White Eagles and he and others were trying to form a party of the same name. They needed signatures from a quota of people to register this party and he tried to help by holding meetings in a garage and bring together about 55 people from his area. This was all done through the word of mouth and so was the fund raising. There was no formal hierarchical and they would have had elections for such after the party had been registered. The applicant stated that he was not concerned about obtaining a political post. The philosophy of the party was described as wanting to unite Georgia and stop the police taking matters into their own hands. The applicant did not know whether the party was a party of the left or of the right. He believes the registration papers for the party were lodged in 1996. In 1997 he was summoned to go to the Hashuri police for questioning. He has never been charged. He left Hashuri and went to Tbilisi in 1997 because the third time he was questioned he was asked to sign a sheet of paper whose contents were hidden from him and he was punched to force him to sign. He did not in the end, sign the paper.
In Tbilisi he had no trouble with the police; he was only worried that he did not have household registration and if he were stopped and checked he would get into trouble. He cited a case of another person who had been jailed on fabricated charges and he stated that the same thing happened to his brother and after they obtained a lawyer and after his brother spent nine months in jail, he was released (he provided a photocopy of a newspaper cutting in Georgian which he indicated showed that his brother had been jailed).
He also stated that in about April 2002 his son was assaulted and stabbed at home while people were searching for him [the applicant]. He provided a photo showing a young man with dressed wounds.”
In its findings and reasons the second Tribunal accepted the applicant was then a 48-year-old male citizen of Georgia. It accepted he was a national of Georgia and considered the applicant's claims against that country. The summary of the claims set out above in this judgment were referred by the Tribunal as representing "the totality of the claims as provided at the current Tribunal hearing". The Tribunal then noted the applicant's progress through different elements of the process of refugee determination had produced "a number of discrepancies in his claims over time". They related to occupation, number of times questioned, role in the fledgling party and other details, though ultimately the second Tribunal states the following:
“… The Tribunal is prepared to give the applicant the benefit of the doubt in relation to the discrepancies and take his last version of events as described to the Tribunal as the definitive one, as indeed the applicant presented it.” (Court book page 144)
It is appropriate, however, to set out an extract of the second Tribunal's findings which I regard as key adverse findings relevant to this application:
“The Tribunal accepts that the applicant was part of a group who was attempting to set up a political party but the Tribunal does not accept that the role he played in such an endeavour was either central or conducive to attracting the adverse attention of the authorities which he claims. The applicant did not display any real awareness of the idea of a political party, he described its philosophy in very general terms, he did not seem to know whether this party was of the right or the left or indeed did not seem aware of the concept of a political spectrum. He claimed only to have attended and perhaps organised the odd meeting of interested people; he does not claim to have undertaken any public activity which would indicate to the authorities or anyone else that the formation of this party was afoot; he does not know what happened to its registration, having claimed to have been one of the instigators of the project, this is even though he was in the country three years after the time when, according to him, the papers were lodged. In short his awareness and discussion of this party was not commensurate with someone actually involved in such an endeavour other than in a marginal manner.
His description of his being pursued by the authorities is not consistent with information regarding the generally liberal attitude displayed by the authorities in Georgia towards political parties and reported in the U.S. Department of State country reports, which reports, among other sources, were averted to by the adviser in his oral submission to the Tribunal.”
The Tribunal, after referring to extracts from various reports, then states the following:
“Given the above, the Tribunal finds that there is no evidence that the applicant engaged in any activity likely to attract the adverse attention of the authorities and thereby does not accept that he was detained, questioned or tortured, asked to sign a paper or had his house searched. It has no independent evidence to indicate, and the Tribunal is not satisfied, that the harm which was inflicted on his son, the problems his brother had or the example of the other person he gave, have any connection with the applicant's claims of persecution for his political opinion. The applicant is obviously concerned with the extrajudicial behaviour of the police is Georgia and the independent evidence indicates that indeed this is a problem in that country, however, for the reasons states above the Tribunal finds that the applicant's involvement in setting up a political party, such as it was, was minor and insufficient to entail the attentions of the authorities.
Despite the reasons given by the applicant for delaying his PV application, they being the lack of knowledge and poor advice, the Tribunal considers this delay significant and indicative of a lack of even a subjective fear of persecution when the applicant arrived in Australia.”
The Tribunal then proceeded to make a finding that the applicant did not face a real chance of persecution by reason of his political opinion or any other Convention reason and affirmed the delegate's decision to refuse to grant a protection visa.
To understand the findings of the Tribunal it is necessary to make reference to material set out in the supplementary court book, which was a transcript of the proceedings. The following extracts relate initially to the issue concerning the provision of an interpreter, where the following appears:
“MR GENTILE: Good morning everyone. Mr K, before we start, I’d just like to run through how we’re going to operate this morning. First of all, I would like to give you some explanation about the interpreter this morning, not this particular interpreter, but the interpreting this morning. As you are aware, the department withdrew from an appeal on your case because they established that the interpreter that you received last time was incompetent basically.
That interpreter was a Georgian interpreter, and I think your adviser would have you told you that we’ve tried our best to get a Georgian interpreter, but Georgian is very – a language of small demand in terms of interpreting, and the people are not qualified, and not only that, we couldn’t actually find anybody even to attempt to have a Georgian interpreter, and we went beyond our normal agencies that we use for interpreters.
So when I examined your file and I found that you went to college during certain years, I assumed that your education was mostly in the Russian language, and also that you had indicated that you spoke Russian on your form. This is why we are here this morning with a Russian interpreter. So I hope there is no issue there. Do you understand about all this? That’s why we’ve done, and I presume you’re happy with that, because we did get in touch with your adviser before we actually confirmed this morning.
INTERPRETER: I understand, although I would just like to point out that although I can speak Russian, there will be certain words where my vocabulary doesn’t extend, especially of the political sense. So there will be times when I won’t be able to express myself clearly, because I practically learnt Russian here conversing with Russian people over here.
MR GENTILE: If there is such an occasion, we will try and work through it to your satisfaction. At the same time, you understand that this is a Federal Court remittal, and we need to hear the case and get on with it basically.
MR K: Yes.”
After the Russian interpreter had been sworn, the Tribunal made the following statement:
“MR GENTILE: There’s a number of issues that have been covered – I mean, everything has been covered already, but there are a couple of issues that recur in these papers that I’m going to ask you about first. How did you come to come to this country on a sports visa? Can you tell me that?”
The Tribunal then pursued the issue of why the applicant left Georgia, and the following extract appears:
“MR GENTILE: Why did you leave Georgia? Are you trying to think of a word, are you in Russian?
INTERPRETER: Trying to think of a word.
MR GENTILE: Take your time.
INTERPRETER: I had extenuating circumstances. There was, how do you say, I guess put on me from a high authority – police and other authorities, and three times I was called into police, and one of the times that I was called into police, I spent 24 hours in a cell. They could come over to my house to perform a search and generally scare my children, and I was getting the impression that a criminal proceedings were being fabricated against me and it wouldn’t be long before I was out in gaol.
MR GENTILE: Why all this?
INTERPRETER: I think it relates to my activities from 94 to 96. We wanted to form a party, and I was the local head and when I was the head of it between 94 and 96, we tried to put together a party.
MR GENTILE: This is the White Eagles.”
The Tribunal then explored with the applicant further details concerning what is described as the 'White Eagles' and the following exchange occurred:
“MR GENTILE: Why did you choose White Eagles for a name for a new party or was it you that chose it or somebody else?
INTERPRETER: Because in 1996 there were already had 1 and a half thousand members in a party, but a thousand, maybe more than a thousand of those were the old White Eagles guys from the – they used to serve for the old White Eagles.
MR GENTILE: What is or was the political philosophy of this party? What was it supposed to stand for?
INTERPRETER: In that time there were many political parties emerging, and they’re (indistinct) who were concerned with the grabbing power or fighting for themselves. They didn’t really care about the people, and we would see people starving on the street or people robbing each other in the street, and it’s not something that you would ever want to see, and because the people of White Eagles, they were military people that knew how to hold a weapon and went through the entire war, we wanted to actually achieve something and help the people. So our reason was to unite Georgia to get back to our lost territory and also to stop police taking matters into their own hands, and restore order.
During the war, the police would hide, they wouldn’t even show themselves, but after the war finished, they would come out and they would start to terrorise people, they’d fabricate criminal proceedings against people just for the goal of trying to extort something out of them, be that money or something else, and it had just completely gotten out of hand, and we heard what would happen to the children if they went out onto the street. So we wanted to defend human rights. They said they were democrats, but they really weren’t, and they weren’t there to defend human rights.
MR GENTILE: So you said there were about 1600 members by 96.
MR K: That’s so.
ME GENTILE: And what role did you have in this particular party or this particular group?
INTERPRETER: I was managing Hashuri. The 1500 people were not just in Hashuri, but in other cities. We had about 55 people in Hashuri, and it was my role to manage them and to unite them, and we would maintain communication with all the other divisions in all the other cities. There were people in charge of lodging documents and legal stuff, but my role in particular was to organise the 55 people they had in Hashuri, and they would gather in my garage. I had a large garage, so they would gather. We’d sit and talk.”
The Tribunal then appears to explore the membership and finances of the party in the following exchange:
‘INTERPRETER: I wasn’t really concerned about any political post. We were doing this to achieve something, to create something. I wasn’t really think about a post. As soon as the party would have been created, I would have been a member of the party, and it’s not so much that I would have been given a post. I would have just been given a role or something to do to help, and I would have done it. It wasn’t a post that I was after.
MR GENTILE: I presume you weren’t getting paid for this work.
INTERPRETER: There were no finances to speak of. There was no-one that would have paid us. We all just wanted to create something.”
(Transcript p.11 lines 24 to 34)
Significantly, for the purposes of the present application, there then followed an exchange which in general terms may be regarded as a discussion concerning the philosophy of the party. It is appropriate to set out the following extracts:
“MR GENTILE: I presume you weren’t getting paid for this work.
INTERPRETER: There were no finances to speak of. There was no-one that would have paid us. We all just wanted to create something.
MR GENTILE: Where would you put this party on the political spectrum from left to right? Where did it sit? What kind of ideas did it have? Do you understand my question?
INTERPRETER: I don’t understand this. I’m not sure what left or right means.
MR GENTILE: I understand what you said to me before when I asked you what the philosophy of the party was. But that doesn’t tell me very much. I just wanted to know what ideas you had. Did you lean towards more communist ideas or more towards democratic – anyway, this is a rough way of describing the left and the right.
INTERPRETER: There was no communist at that time. There was a party present that supported the views of the old communist parties, but no-one really listened to it because the main ideas were trying to bring 10 years back.
MR GENTILE: If you probably ask 90 per cent of the parties, not just in Georgia, but anywhere else, they would say they want to help people, which is what you said before. I’m trying to understand why this group needed to exist? What was its point? Because you claim to having been persecuted because of that. So That’s why I need to know.
INTERPRETER: At that time in Georgia there were a number of political parties. I could probably list them. There was one called Round Table. There was one called Free Georgia. Another one was called Excitement or something along the lines of Excitement was the name of the party and all of them said nice words, how much they’d love to help the people and all that, but none of them ever did anything and none of them ever participated in the war. All their main goals were to get enough votes, to get into parliament, to get a nice cushy chair and get some power, and it’s still like this to today.
People are starving, and they would assault and rob and knife each other. No-one was worried about that. Because without any finances to support us, we managed to already gather 1500 followers of the party and this is prior to registration, and if we registered, managed to reach the people, and they would have understood that we were trying to do something for the people, actually achieve something, we could have been getting 15,000 members and that’s when I think we posed a significant threat to the power that was already there.
So when we lodged the papers for the registration, because amongst all the papers there was a list of all the names of the members, I think that’s when the prosecution started because they had all the names and they thought it wouldn’t serve them at all to have this party come that was against – that was trying to stop terrorism, that was standing up for human rights, and I think they just saw us as a threat.”
Towards the end of the hearing the Tribunal invited the applicant to make further comments and the following exchange occurred:
“MR. GENTILE: Is there anything else you want to say at this point?
INTERPRETER: Not at the moment. If you don’t have any questions, I don’t have anything else to add.
MR GENTILE: Okay.
INTERPRETER: I think you’ll let my agent speak so he can better explain all the information about Georgia.
MR GENTILE: Before I do that, I want to ask you whether there’s anything that you are not happy about having expressed because you had to do it in Russian. Is there anything that you’re not quite happy that you wanted to say in some other way?
INTERPRETER: I think may be if I misused the word – where I wasn’t about to quite express myself clearly through the words that I misused, there would have been a better, more clear way to explain it, otherwise no.
MR GENTILE: No, what I meant is are you unhappy – is there something that you described to me that you don’t think you actually were able to explain the way you wanted to explain it, not the individual words. I’m talking about, you know, more general things.
INTERPRETER: Just like in the last tribunal where I was asked questions and I answered what I thought was best, they had all the information. So I don’t know if there’s some question that you asked that I didn’t answer properly, but otherwise no.
MR GENTILE: No, it’s more about you rather than me. We’re doing this hearing in a language which is not your first language, and I am just concerned that you are at least happy to have been able to say what you wanted to say.
INTERPRETER: I’ve said so much. It’s hard to keep track. When you’re talking, you’re just talking, but I don’t think there’s anything I can add.
MR GENTILE: Mw Wilonsky, is there any particular issue that we haven’t covered?
MR WILONSKY: I think all the issues are covered.”
(Transcript lines 15 to 43, page 22, and lines 1 to 10, page 23)
It will be noted from that extract that the applicant's representative was then invited to make submissions, and did so in relation to the political situation in Georgia. That exchange culminated in a submission by the representative that the information of the applicant was consistent with the representative's knowledge of Georgia given that he was also Georgian and his father was Georgian and a military officer killed in the conflict in Georgia. The following exchange occurred between the agent and the Tribunal:
“MR WILONSKY: I don’t think you would have any doubts as to where the credibility is concerned.
MR GENTILE: This is the reason I asked the applicant the questions that I did at the end. My concern is that as far as I’m concerned, I got all the facts and I don’t have any issue about being confused about what he said, and I think that we are in the fortunate position that you yourself were here listening, and you can tell me whether there’s something extraordinarily sort of badly conveyed to me. I mean, that’s really what I’m after and we looked at every fact and I feel that I’m giving him ample opportunity to actually get the basics down. If it’s not expressed as well as he might have liked to express, this is really a second consideration, given the circumstances. Is that clear where I’m coming from?”
(Transcript p.24 line 34-44, p.25 lines 1-4)
Availability of Georgian interpreter for court proceedings
This court had difficulty arranging a Georgian interpreter. Accordingly the Court had great sympathy for the plight of the Tribunal which similarly experienced difficulty obtaining the services of a qualified Georgian interpreter. Ultimately a qualified Russian interpreter was available. At the commencement of the hearing the court expressed some concern, given the history of these proceedings, that a Georgian interpreter was not present. The following exchange occurred between the court and the applicant via the interpreter:
“INTERPRETER: I understand a little bit. Not too much but just a little bit.
HIS HONOUR: When the matter was before the Tribunal, that is the second Tribunal, you then had a Russian interpreter?
INTERPRETER: Yes.
HIS HONOUR: The Tribunal says that in your protection application you claimed that you speak, read and write Georgian.
INTERPRETER: Yes.
HIS HONOUR: And you speak Russian?
INTERPRETER: Yes, I do speak Russian but not to the perfect extent to be able to express myself fully.
HIS HONOUR: Yes, and you have some English?
INTERPRETER: I understand more than I am able to explain.
HIS HONOUR: So sometimes we can understand another language but not always speak it?
INTERPRETER: That's right.
HIS HONOUR: Is that what you mean?
INTERPRETER: That's exactly right.
HIS HONOUR: There's a difference between understand and speaking?
INTERPRETER: You are absolutely right. Sometimes I am able to answer a little bit not much.
HIS HONOUR: Well, unfortunately like the Tribunal, this court has not been able to arrange an interpreter in the Georgian language.
INTERPRETER: Yes.
HIS HONOUR: It looks like from the papers I have read that after the first Tribunal hearing or at the first Tribunal hearing there was a Georgian interpreter but the interpreter wasn't any good.
INTERPRETER: That's exactly right.
HIS HONOUR: I am troubled by that because it seems the court here has been unable to arrange an appropriate interpreter. I am told that an interpreting service - one service called On Call Interpreters used to have a Georgian interpreter but they no longer have one. It looks to me as if we're just doing the best we can today by having a Russian interpreter; no disrespect to the interpreter. I recognise the difficulty in that and I don't know whether the process is going to be a very clear one because if you don't fully understand Russian and you don't fully understand English there's little point me asking you whether or not everything has been explained well. No disrespect but how would you know?
INTERPRETER: Yes.”
(Transcript p.2 line 41 to p.4 line 10)
After a further discussion concerning the interpreting, the following exchange occurred:
“MS MACDONNELL: Well, your Honour, the respondent would submit that on the authorities, the appropriate way to approach the application is to look in light of those at what is the complaint that the applicant makes regarding the interpreting. The complaint can't be just that, "My first language isn't ‑ ‑ ‑
HIS HONOUR: No, but that's the problem, you see? He doesn't have, on the face of it, sufficient understanding of the language to formulate an assessment of the quality of the interpreting. How do you ask someone whose first language is not Russian to make an assessment of the quality of the Russian interpreter?
MS MACDONNELL: Well, your Honour, if it's looked at there is only one aspect of complaint that has been made and that is to do with understand of right and left in terms of politics.”
(Transcript p.7 lines 21 to 34)
Before this court the applicant relied upon an outline of submissions filed 7 December 2004 and a further document entitled "Applicant's Oral Submissions" dated 18 August 2005. The court was able to establish that those documents had been prepared by the applicant with the assistance of an agent, and it is noted both documents were typed and in English. The applicant informed the Court that the agent assisted the applicant to write the statement initially in Russian and it was then translated into English by an accredited Russian translator. The Russian interpreter before the court indicated that she had seen both the English and Russian version and compared the two, and indicated to the court that the submissions relied upon by the applicant had been translated accurately. So much was clear from the following exchange:
“HIS HONOUR: Have you had an opportunity to compare the two and satisfy yourself that what I am now looking at is an accurate translation?
INTERPRETER: I believe it is. Quite accurate actually.
HIS HONOUR: The reason I am doing that is I want to be satisfied that I will look at this - and the reason I asked all those questions is I want to make sure that what I am looking at accurately records what you want to say to the court.
INTERPRETER: Yes.”
(Transcript p.11 lines 7 to 16)
The applicant’s submissions
In the written submissions the applicant argued that the second Tribunal's decision was indistinguishable from the first Tribunal's decision and that before the second Tribunal, although the applicant agreed to use a Russian interpreter, he asked to take into account the fact that his knowledge of Russian was certainly not good enough to explain complex matters related to his political activities, party policies et cetera.
It was further submitted in written submissions by the applicant dated 18 August 2005, by way of response to the respondent's contentions of fact and law dated 15 March 2005, that the Tribunal's adverse findings were "clearly related to my inability to express myself". The applicant further submitted the following:
“… The Tribunal ignored the fact that I am a Georgian and was able to communicate in Russian in general terms only (which was the case). Under no circumstances a person who just 'speaks' Russian but not read and write (as it was noted in the respondent's submissions at 14.1) would be capable of describing the 'party's philosophies and ideas in a way that would be 'commensurate with someone actually involved in such an endeavour'.”
It is clear from that extract that the applicant in the written submissions, originally prepared in Russian and translated, was able to address succinctly, in my view, significant issues agitated before this court. He referred to extracts from the supplementary court book that is, the transcript of the second hearing, already set out in this judgment and specifically emphasised that extract where he stated to the second Tribunal:
“Although I can speak Russian, there will be certain words where my vocabulary does not extend, especially of the political sense.”
The applicant submitted the following:
“Given the facts that the Tribunal forced me to speak a foreign language (instead of my native Georgian language) and made its decision based on my inability to describe matters which require extended vocabulary, I am of the view that I was denied procedural fairness because I was not given the opportunity to express my views in Georgian language and because namely my inability to express myself in Russian language was the key reason to refuse my application.”
When dealing with the difficulty of explaining matters, the applicant submitted the following:
“Furthermore, during the course of the hearing the Tribunal did not indicate that it was not satisfied with my answers. I was of the view that the Tribunal gave weight to my incapability of explaining matters related to 'political issues'.”
The applicant further submitted the following:
“It appeared, however, the Tribunal was not satisfied with my answers. Having regard to my accounts, it did not accept my claims and affirmed the delegate's decision. Subject to s.424(A) of the Act, the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review: and ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and invite the applicant to comment on it.”
The applicant then submitted:
“If the Tribunal was not satisfied with the way the information was provided, it ought to give me the opportunity to comment upon its concerns. If the Tribunal gave me such an opportunity I would be able to provide the Tribunal with a detailed statement (written in Georgian and translated into English).
It follows, that the Tribunal failed to comply with its obligations under section 424A(1) of the Act.”
Before this court, counsel for the first respondent was invited to make submissions after the applicant indicated that he had nothing further to add beyond what appeared in his written submissions, referred to earlier in this judgment.
After the first respondent's submissions, however, and upon a further adjourned hearing of the application, the applicant made further submissions through the interpreter. The application was adjourned due to the fact that the interpreter was not available after 4.30 p.m. An advantage of the adjournment was to at least provide the applicant with an opportunity to consider the respondent’s written submissions and cases relied upon. In any event the applicant took advantage of the adjournment time and then made reference to the cases and sought to distinguish them from his case. He made reference to a decision in the matter of NAOV v Minister for Immigration [2003] FMCA70 and it is relevant to set out the following extract from the transcript where the Applicant on the adjourned hearing date made the following submission:
“In this case they are talking about the fact that the interpreter did not interpret in the right way and I don't think that this particular case relates to mine in any way because I did not speak well on my native - just a minute, I'll just verify - because I was not expressing myself well in my second language, not in my native language, first language. As far as I understand, this person was questioned and they understood that he was never part of the Jehovah movement. But in my case, I was rejected on the grounds that I was not able to express myself in the philosophical language and I could not explain well about the politics. In my case there is stated that I was not communicating in my first language. I was not able to express myself in the philosophical terms. That's all for - in the matter under paragraph 2 in the book, labelled under 2.”
(Transcript p.67 lines 2 to 11)
The Applicant then made reference to another case referred to by the respondent namely Re Minister for Immigration & Multicultural & Indigenous Affairs Ex Parte Lam (2003) 214 CLR 1. In relation to that case he stated:-
“Then we have the case number 3. In this case this person had his visa withdrawn because he was a criminal or involved in a criminal activity, and whether there was correct interpreting or not correct interpreting, I don't think that that matter relates to my case in any way whatsoever. If the applicant was involved in a criminal activity, then whether the interpreter was interpreting correctly or not interpreting correctly has not relevance to my matter at all.”
(Transcript p.67 lines 14-19)
Brief reference was made to a significant decision of the Federal Court in Perera v Minster for Immigration & Multicultural Affairs (1999) 92 FCR 6 (Perera) which referred to the transcript being obtained from the first Tribunal hearing and as I understood it did not wish to go over that material which was already before the Court.
The Applicant then referred to another decision in the respondent’s list of authorities namely SZAAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 312 (SZAAJ). The Applicant referred to that decision which involved the manner in which the interpreter performed the task where the Applicant was speaking in his own first language and was not informed of the type of questions the Tribunal was going to ask. Further reference was made to criticisms of the interpreter not using the correct dialect and therefore not understanding all the issues correctly. After making reference to those background facts the Applicant then submitted to this Court the following:-
“Also, I was speaking with reasonable knowledge of the Russian, but I am not able to find the required words and particularly the interpreter himself had some questions that he could not understand. It seems to me that my application was rejected because I was not able to express myself. I was not able to use my native language to discuss the most complicated political issues.”
(Transcript 67 line 41 to p.68 line 1)
The Applicant then proceeded to make brief submissions concerning another authority referred to by the first respondent namely NAUV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1319 (NAUV). He said that it was important that in that case the Court found an error of translation which directly affected the decision of the Tribunal and as I understand it claimed it was similar to the decision of the Court in Perera.
Though not strictly relevant to the present application the Applicant then made a general submission that in this case “the Respondent has ignored my winning application”. By that he meant the decision of Weinberg J referred to earlier in this judgment.
The Applicant further made the following submission:
“I understand the negative decision of the Tribunal was connected or was based on my ability to clearly express myself precisely and exactly. The Tribunal has ignored the fact that I am a Georgian and I don't understand everything in Russian. My major thoughts or ideas, I'm sorry, in this case, the person who speaks Russian, the person is not able to express himself in writing or expressing himself in speaking terms quite precisely. In my case, I was refused because of my poor knowledge of Russian language.”
(Transcript p.68 line41 to p.69 line 4)
He significantly makes the following submission:-
“A number of times we were returning to the issue of my poor knowledge of Russian language, particularly in understanding and expressing of political issues, views, expressions, words. If we take into consideration that the Tribunal forced me to speak a foreign language and explained that they will take into consideration my poor speaking language skills and my poor knowledge of Russian and the Tribunal did make their decision basing on my inability to express the circumstances of the case that require wide knowledge of a language, I think that I was treated dishonestly. They practically they did not give me any opportunity to express my opinion in Georgian. I do understand that there is no Georgian interpreter available but they should have in some way pulled out of me all of the information - for example, have rephrased the questions, put them to me in a different way, put them in the way that would have facilitated me understanding the interpreter as well and to offer me an adequate translation or interpretation so that I could understand what is being said.”
(Transcript p.69 lines 5-19)
At this point I should add that although there is a reference to the Applicant being “treated dishonestly” I do not take this application to raise a question of bias and it is clear in any event that the Tribunal itself has endeavoured to consider the matter notwithstanding the difficulty yet again of interpretation. The Applicant did not provide any particulars of dishonesty and I do not take his submissions to be squarely raising that suggestion but rather supporting the submission that he did not receive a fair hearing as a result of the interpretation difficulties. Again, it is useful to set out further submissions made on the adjourned hearing date by the Applicant:-
“Particularly, the Tribunal did not state that it was not satisfied with my issues or questions and also I would like to repeat that according to the act 424A, the Tribunal is obliged to offer to the applicant detailed and global information which the Tribunal considers to have been a reason or a part of a reason of their making decision. In the issue that is being considered they had to be convinced that the applicant understands why it is relevant and significant for consideration of that matter and to invite the applicant to comment on that. From all this we conclude that the Tribunal did not act in accordance to its responsibilities according to the article 424A(1).
Also, in relation to me being asked the question whether that was the right‑wing or left-wing I did not understand that question because the interpreter himself did not understand the question and he could not get the point to me. If this question were explained to me in some other way I would be able to have answered that where I come from this is not called left or right wing but there is a different name to it. We don't call it a wing, we call it a movement and yes, we do have left and right movement. If they did want to hear my understanding or my concept of answering to that question they could have asked the question to me so that I would have an opportunity to explain to them. When the second sitting of the Tribunal started Mr Gentile told me that he would give me some questions and I will reply to those and if he were going to ask any more questions then he was going to give me those questions. I don't think that I am in a position to teach him how to put questions to me to enable me to express some of my views and concepts, but some of the questions that they were asking me were not quite satisfactory.
There is one point that I do not understand. If they do write and find that I was a participant in that party and at the same time, they're saying that I was not a participant or the centre of the party, why particularly I was stopped or I was come across by the - why was I stopped by the authority that looks after the human rights, let's say, or people's rights and twice they came to my house, beat and scared my children - I was beaten up and my children were frightened.”
(Transcript p.69 line 21 to p.70 line 9)
It is not necessary to set out in further detail the submissions made by the Applicant, however at this point it is appropriate to make a number of observations concerning the submissions. The first and most obvious observation in my view is that the Court is entitled to conclude that despite the inadequacy of interpreting before this Court the Applicant through the assistance of others who understand the Georgian language has been able to provide to the Court both written and oral submissions which clearly are directed to the relevant issues before this Court. Indeed the Applicant appears to have taken full advantage of the adjournment and upon the adjourned hearing has made what could only be described as clear and relevant submissions arising out of the authorities which had been provided by the First Respondent.
First respondent’s submissions
A substantial submission made for and on behalf of the First Respondent was that any alleged error by the Tribunal concerning the Applicant not displaying any real awareness of the idea of a political party and describing its philosophy in general terms and in particular not knowing whether the party was of the right or left or being aware of the concept of political spectrum were not determinative of his application. It was argued that the Tribunal had regard to the Applicant’s description of his role in the party which it found was “minor and insufficient to entail the attention of the authorities”. It further had regard to country information regarding what is described as the generally liberal attitude of authorities in Georgia to political parties. That country information it was submitted could not be affected by any difficulty the Applicant may have had in expressing himself in relation to the political philosophy of the party (see NAOV at 44).
It was further submitted that apart from those findings leading the Tribunal to conclude the Applicant did not face a real chance of persecution, the Tribunal’s apparent conclusion that the Applicant did not have a subjective fear of persecution precluded him from having a well-founded fear and accordingly a decision in the Applicant’s favour was not open.
It was argued that the practical content of the requirement of procedural fairness varies according to the context (see Lam at [37]). In the present case it was argued the Tribunal afforded the Applicant a fair hearing and reference was made to the extracts set out earlier in this judgment where reference is made to attempts by the Tribunal to obtain the services of a Georgian interpreter.
It was specifically submitted that the Applicant did not express any unwillingness to proceed with the hearing with the insistence of an interpreter in Russian.
It was submitted that even if the findings of which the Applicant complained regarding his political party were determinative of the application to the Tribunal then the transcript of the hearing does not support any contention that the Applicant was deprived of an opportunity to explain the philosophy of the political party. Detailed reference was made to the transcript most of which has been referred to earlier in this judgment. It was argued that the Applicant was simply unable to expand on his response that the group of former members of White Eagles “wanted to actually achieve something and help the people” and to “unite Georgia to get back our lost territory and also to stop police taking matters into their own hand and restore order”.
It was further submitted that any denial of procedural fairness did not give rise to any practical injustice as the Applicant was not deprived of the opportunity to put his claim. It was noted the Tribunal accepted the Applicant was part of a group which was attempting to set up a political party and the Tribunal’s findings concerning the Applicant’s role was neither “central of conducive to attracting the adverse attention of the authorities” was a finding open to the Tribunal on the Applicant’s evidence. That evidence it was argued included the following key matters:-
·“There were people in charge of lodging documents and legal stuff” (SCB 10 lines 11-12)
·“(His) role in particular was to organise the 55 people in Hashuri and they would gather in (his) garage” (SCB 10 lines 13-14)
·He wasn’t sure of the minimal number to have a party registered (SCB 10 lines 33-36)
·Shevardnadze “put the most effort into it and he was the one that did all the business of registration and all those things” (SCB 11 lines 13-15)
·He “would have just given a role or something to do to help” if the party had been registered (SCB 11 lines 28-29)
·Country information.
Detailed oral submissions were made to the Court concerning the assistance received by the Applicant from the time he lodged his application for a protection visa. It was noted that an agent assisted the Applicant and was present and involved in the second hearing of the Tribunal. Further reference was made to the attempts by the Tribunal to obtain the services of a Georgian interpreter and notification of the failure to obtain a Georgian interpreter given to the Applicant. It was argued that at all stages throughout the first and second Tribunal hearings the Applicant was assisted by an agent. At one point it was suggested by the First Respondent that the agent had identified himself as a Georgian and that there was a distinct possibility that he “speaks Georgian”. However, the Court then pointed out an extract from the Court Book (p.126) being the transcript of the first Tribunal hearing where the agent states, “I don’t speak Georgian”.
In any event it was submitted that it has never been suggested that the Applicant had any difficulty in giving an account to his agent. When that submission was made the Court raised with Counsel the problem which arises in determining whether that in fact is true given that the agent did not speak Georgian and the Applicant does not speak Russian properly. The First Respondent submitted that in any event the decision does not turn on any translation of difficult political concepts. Reference was then made in detail to transcript and the Tribunal’s decision part of which is referred to earlier in this judgment.
The Court was taken through the various cases relied upon by the First Respondent which I shall refer to in my reasoning and which in part have already been referred to in the summary of the Applicant’s submissions.
Specifically relying upon the decision in Perera it was submitted that the test is whether the Applicant was effectively prevented from giving his evidence and it was argued in this case the Applicant was able to give his evidence.
Reasoning
In my view the most helpful authority in relation to interpreters is found in Perera and in particular under the heading “The Role of the Interpreter” the following passages appear in the Court’s judgments which I apply to the present application:-
“26 Perfect interpretation may, moreover, be impossible. As Ludmilla Robinson observed in Handbook for Legal Interpreters (Law Book Co Ltd, 1994) at 98 "[v]ery rarely is there an exact lexical correspondence between the two languages being used." Schulman writes at 46 Vand L. Rev. 177:
No matter how accurate the interpretation is, the words are not the defendant's nor is the style, the syntax, or the emotion. Furthermore, some words are culturally specific and, therefore, are incapable of being translated. Perfect interpretations do not exist, as no interpretation will convey precisely the same meaning as the original testimony. [citations omitted]
Nonetheless, some interpretations will be better than others, and a particular interpretation may well be less than perfect yet acceptable for the Tribunal's purposes. How bad must an interpretation be to render reliance on it reviewable error? By what criteria is the quality of an interpretation to be assessed?”
When considering the issue of the standard of interpretation the Court in Perera relevantly states:
“29 The need for precision or, as I think it is better put, accuracy is clear enough. As Menzies J said in Gaio (1960) 104 CLR 419 at 433:
What is important is what the parties to the [interpreted] conversation say to one another and the only importance of the interpreter is to serve as an accurate means of communication between them. [Emphasis added.]
As noted earlier, there is rarely an exact lexical correspondence but, even so, some interpretations are better than others. Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language. …”
There is no dispute in the present case that the Applicant at all material times has needed an interpreter. It seems common ground that the preferred interpreter would be in the Georgian language. In this Court that difficulty has continued though as indicated by the detailed extracts both from written and oral submissions with the aid of an interpreter and/or agent I am satisfied the Applicant has presented his submissions clearly in support of the application for judicial review.
It does not necessarily follow that the absence of a Georgian interpreter on an application for judicial review automatically means that the absence of an interpreter at the Tribunal hearing would have resulted in procedural unfairness. The Tribunal clearly had to deal with political issues including philosophy. That then leads to consideration of the question of whether there was a relevant departure from the standard of interpretation. In this case that must in my view at least involve consideration of the nature of the evidence sought to be adduced and the conclusions reached by the Tribunal in relation to what I regard as a critical integer of the Applicant’s case, that is the applicant’s political involvement in the fledgling party which was the subject of extensive questioning by the Tribunal.
In Perera the Court has helpfully set out and I apply when considering the question of whether there was a departure from the relevant standard of interpretation the following:-
“41 What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter: cf Gonzales v Zurbrick 45 F.2d 934 at 936-37; United States v Urena 27 F.3d 1487 at 1492 (10th Cir 1994); Acewicz v US Immigration and Naturalization Service 984 F.2d 1056 at 1062.”
Again, from Perera it is helpful to set out the Court’s view when considering whether there was a relevant departure from the standard of interpretation noting that not only should there be a departure but a “relevant” departure. In considering that issue the Court states:-
“45 It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision: cf Yi Gui Stone v Minister for Immigration and Ethnic Affairs (unreported, Hill J, 28 June 1996). Similarly, in Tran, the Court held, at 991, that in order to succeed, the accused had to show that:
the lapse in interpretation which occurred was in respect of the proceedings themselves, thereby involving the vital interests of the accused, and was not merely in respect of some collateral or extrinsic matter, such as an administrative issue relating to scheduling.
(It was, so the Court held, unnecessary to establish any further prejudice caused by a relevant departure from the standard: [1994] 2 SCR at 994.)”
In this case I am satisfied that there has been a departure of the relevant standard of interpretation which related to matters which I regard as significant to the Applicant’s case before the Tribunal.
The detailed extracts from the transcript of the Tribunal hearing set out earlier in this judgment reveal a questioning process clearly directed to an essential integer of the case leading to a conclusion by the Tribunal that the Applicant did not display “any real awareness of the idea of a political party”. Further, the Tribunal has drawn what I regard to be significant adverse findings against the Applicant who it found “did not seem to know whether this party was of the right or the left or indeed did not seem aware of the concept of a political spectrum”. It is difficult to extricate those findings from the other adverse findings of the Tribunal and to that extent I do not accept the submissions made for and on behalf of the First Respondent that even if there was an error that there were not determinative of the application.
In my view the findings by the Tribunal in relation to the activities of the Applicant in the political party clearly relate to its further rejection that the Applicant’s role was central or conducive to attracting adverse attention of the authorities. If an Applicant is not actively involved in a political party and if the extent and nature of the activity is predicated on what can only be described as a very superficial analysis of the political philosophy of the party relying in part as it does on a concept of “political spectrum” or whether the party is to the “left or right” does not entitle the Tribunal to then overlook the difficulties in interpretation and then reach what I regard as a significant adverse finding against the Applicant referred to earlier in this judgment that he does not display any “real awareness of the idea of a political party”. Clearly the Tribunal criticised the Applicant for describing the philosophy in very general terms. That criticism seems to hinge on the Applicant not knowing whether the party was of the right or the left or a failure to understand the concept of political spectrum.
I note in passing as set out in the extract earlier in this judgment in response to the Tribunal’s question what is the party “supposed to stand for?” that the Applicant indeed sets out very specific criticisms of the prevailing culture of the police and clearly asserts that the party was amongst other things wanting to defend “human rights”. Whether one needs to then identify the party as being part of a political spectrum either left or right on one view seems marginally relevant and on another perhaps totally irrelevant in the context of politics in Georgia. In any event, to make significant adverse findings against the Applicant in the circumstance of this case having regarding to the difficulties of interpretation is sufficient in my view to constitute jurisdictional error as it constitutes a denial of procedural fairness.
I note further that the Applicant quite specifically when confronted with the issue of the political spectrum told the Tribunal in clear terms, “I don’t understand this I am not sure what left or right means”.
I do not accept the submissions made for and on behalf of the First Respondent that this error can be cured by the fact that the Applicant continued with the proceeding or did not object to proceeding. It was only after the decision was given in circumstances where the Applicant had already succeeded in the Federal Court that he was confronted with adverse findings which appeared in part to place great reliance upon the Applicant’s perceived lack of understanding of political party or the concept of political spectrum. Had those matters been investigated further by the Tribunal at the time or had it indicated that this was a significant answer which would be used against the Applicant, then perhaps a further albeit difficult process could have continued despite the inadequacy of the interpreter then available.
I have considerable sympathy for the Tribunal in dealing with this application. It seems to me that on one view the Tribunal has done the best it can with the available material but has fallen into error in the manner described not in any dishonest or wilful way but simply as a consequence of the lack of understanding.
I do not accept that the mere presence of an agent who may speak Russian overcomes the difficulties the Applicant faced when seeking to provide further material if it be required concerning the philosophy of the fledgling party which he supported. That evidence in my view is crucial and may well be regarded as a foundation stone to the other material which I accept may in other circumstances amount to findings which may stand independent of the finding by the Tribunal regarding the Applicant’s level of understanding of ‘political party’ or ‘philosophy’.
On a proper reading of the material I am satisfied that the Applicant’s involvement in the political party, his understanding of that party and its philosophy could properly be required as a foundation stone for his application and hence I am satisfied that the extracts from the Tribunal transcript demonstrate as submitted by the Applicant that it has indeed denied the Applicant procedural fairness by failing to provide a relevant standard of interpretation which has in turn led to the difficulties confronted by the Applicant in explaining the political party and its philosophy in further detail which may have been acceptable to the Tribunal. Describing political philosophy in English may be difficult enough but describing it in the Russian language when the first language of the Applicant is Georgian makes the process all the more difficult. Unfortunately in this application it has led to what I am satisfied is a denial of procedural fairness of a kind which constitutes jurisdictional error.
Whilst it is true that the Applicant was assisted by an agent throughout proceedings both before the first and second Tribunal hearing, it is clear that there is no evidence to suggest that this Court could conclude there was a satisfactory interpretation from the Georgian language to the English language in relation to the critical question of the party philosophy. Whilst I am satisfied that in relation to the issues before this Court the Applicant’s views have been made known, it does not follow that when dealing with the fundamental issue of political philosophy that the same understanding would be gained by a Tribunal using the same inadequate interpreting service.
It follows for the reasons given that the decision of the Tribunal should be quashed and the matter remitted for further hearing. I shall make formal orders accordingly.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 24 March 2006
18
0