NAIF v Minister for Immigration

[2003] FMCA 458

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAIF v MINISTER FOR IMMIGRATION [2003] FMCA 458

MIGRATION – Application for review of decision of Refugee Review Tribunal – Whether actual bias, lack of procedural fairness or other jurisdictional error – Standard and dialect of interpreter – No jurisdictional error.

Migration Act 1958

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2002) 195 ALR 502
NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52
NAOV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 70
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759
Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168
W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788
WADE v Minister for Immigration & Multicultural Affairs [2002] FCAFC 21
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
The Refugee Review Tribunal; Ex parte Aala(2000) 75 ALJR 52
Minister for Immigration & Multicultural & Indigenous Affairs v Jia Legeng [2001] HCA 17
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
VAAV v Minister for Immigration & Multicultural Affairs (2002) FCAFC 120
Abebe v The Commonwealth (1999) 197 CLR 510
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
Li v Minister for Immigration & Multicultural Affairs [2000] FCA 19
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Muralidharan v Minister for Immigration & Multicultural Affairs (1996) 62 FCR 402
Minister for Immigration & Multicultural Affairsv Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairsv Yusuf (2001) 206 CLR 323
Craig v South Australia (1995) 184 CLR 163
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

Applicant: NAIF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ469 of 2002

Delivered on: 22 October 2003

Delivered at: Brisbane via videolink to Sydney

Hearing Date: 6 February 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr J D Smith

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ469 of 2002

NAIF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 17 April 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of India.  He and his wife arrived in Australia on 4 March 1999 and lodged an application for protection visas on

   
   

   14 April 1999.  On 28 April 1999 a delegate of the respondent refused to grant them protection visas.  On 3 July 2001 the Tribunal affirmed the delegate’s decision.  The applicants sought review of the decision by the Federal Court and on 21 November 2001 the Court set aside the decision and remitted the matter to the Tribunal to be redetermined according to law. The Tribunal decision in issue is that redetermination which was handed down on 17 April 2002. 

3. Only the husband (the applicant) made specific claims under the Refugees Convention.  He indicated in his protection visa application that he spoke, read and wrote Tamil and English.  He was born in 1921 and had been a journalist in India since 1954, living in Madras since 1968.  The applicant claimed that he feared that he would be arrested, detained, physically harmed, tortured and killed if he returned to India and that his freedom of speech and expression in practising journalism would be taken away.  He claimed to fear the Central Police authorities and the All India Anna Dravida Munnetra Kalazham (AIADMK) political party and associates.  The applicant claimed that the Indian authorities would not provide him with protection because they had fabricated a false claim against him to curtail his journalism activities. 

4. He claimed that his problems dated from a time at which he had put an aide or auditor for Ms Jayalalitha (the Chief Minister of Tamil Nadu and leader of the AIADMK), in contact with leaders of DMK (another political party) to whom that person passed on sensitive information about Ms Jayalalitha.  He claimed that Ms Jayalalitha became aware of this, that her auditor was severely beaten, that he had informed that he had made the acquaintance of the DMK leaders through the applicant and from then on the applicant and his wife started receiving threatening calls.  He claimed that the AIADMK was also disposed against him because as an investigative political journalist he had investigated a few of their ‘malpractices’.  He had complained to the local police who, according to the applicant, took very little cognisance of his complaint and also to the Press Council.  He feared murder by hired assassins and came to Australia in 1996.  Ms Jayalalitha was later arrested and a new Mayor of Madras was appointed.  The applicant decided to return to India.  He returned in December 1996.  The Chief Minister and Mayor promised him security and he carried on his journalistic career.  He continued to investigate Ms Jayalalitha.  Subsequently Ms Jayalalitha rose to some prominence in national politics with the AIADMK party.  According to the applicant she had an undue influence on the Central Government and the judiciary.  In October 1998 her former auditor informed the applicant that he was again being harassed by Ms Jayalalitha and by the ‘hooligans’ of the party and cautioned him to take care of himself.  By November 1998 the applicant started to get threats from local AIADMK circles.  He had the support of the DMK and police protection was arranged for a while but he was advised by police officials that his personal and family antecedents were being investigated and that he was likely to be implicated in fabricated cases.  He claimed that in mid-December 1998 a senior police chief advised him that a warrant for his arrest was to be issued which would implicate him with the LTTE (an unlawful banned organisation in India) and that this subsequently occurred.  He feared arrest and ill-treatment in gaol.  With the assistance of associates he left India and came to Australia.  He claimed that in Sydney he had tried to get ‘anticipatory bail’ so that he could return to India but that such applications had failed.

The Tribunal Decision

1. In the course of the reconsideration of the application following the Federal Court proceedings the Tribunal invited the applicant to a hearing.  In the response to hearing invitation completed on 1 January 2002 the applicant indicated that he needed an interpreter and that the language was Tamil and ‘dialect Indian’.  On 5 February 2002 the Tribunal wrote to the applicant asking him to lodge with it originals of any arrest warrant or other legal proceedings brought against him in India as well as official translations.  The applicant replied on

   
   

   20 February 2002 indicating that he was obtaining an official translation and subsequently submitted a considerable amount of further material to the Tribunal including the requested translation of the arrest warrant.  The Tribunal held a hearing on 25 February 2002.  After the hearing the applicant sent the Tribunal further extensive written submissions providing additional information and said to be in clarification of some of the questions asked in the Tribunal hearing. 

2. The Tribunal found that the applicant was not a credible witness.  It found that some key aspects of his testimony and some of his claims were simply not plausible and that the alleged arrest warrant was not an authentic document.  It found it implausible that if the applicant had been receiving threats from September 1995 he would wait until March 1999 before fleeing India finally or that he would not relocate or go into hiding for his own safety and security.  The Tribunal also found it implausible that he would have been able to leave India legally without any difficulty in January 1996 if the AIADMK were seeking to harm him.  It did not accept that he was receiving threats from the AIADMK in 1995 as claimed.  The Tribunal also found it implausible that if he had received a second series of threats in November 1998 he would then wait until March 1999 before leaving India.  It had regard to matters such as the fact that a valid Indian passport had been issued to the applicant on 3 September 1997 and that he had been able to depart India legally in 1999 (despite his alleged interest to the authorities and the claimed issue of an arrest warrant for sedition punishable by life imprisonment).  The Tribunal found a number of major problems with the authenticity of the arrest warrant including, in particular, the late provision of the document to the Tribunal and the variation between the official and unofficial translations of the document.  The Tribunal found it implausible that the applicant would not have been arrested in the ten weeks after the issue of the alleged warrant before his departure from India.  Finally it referred to independent evidence stating that it was easy to obtain false documents in India and to the applicant’s own evidence of bribery and corruption in India.  As the Tribunal found most of the applicant’s claims were not credible it was not satisfied that he had a well-founded fear of persecution due to political opinion or for any other Convention reason.

3. However the Tribunal stated that if it had arrived at a wrong conclusion as to the credibility of the applicant and if it were to accept his claims, it still found that he did not have a well-founded fear of persecution in India for a Convention reason.  It found that the chance that the applicant would be persecuted now because of threats that occurred four years earlier (or seven years earlier) was remote and that on the basis of independent country information the Indian Government would provide the applicant with adequate protection outside Tamil Nadu. 

4. Furthermore the Tribunal found that it would be reasonable for the applicant to relocate to another part of India since all the problems he encountered were in Tamil Nadu and these problems were localised in nature.  The Tribunal had regard to the applicant’s education, to the fact that he spoke, read and wrote English, was a Hindu and had a long record of employment and to the fact that Ms Jayalalitha was in power only in Tamil Nadu, not in other States of India.  The Tribunal did not accept that the applicant’s freedom of speech and expression in practising journalism would be taken away if he were to return to India as he could publish articles under a pseudonym in Tamil Nadu or under his own name in another part of India.  The Tribunal found that it would be reasonable for him to relocate to another State in India where the problems he had with the AIADMK would not exist.  Further, given the independent information in relation to the situation in Sri Lanka the Tribunal found that the chance that the applicant would suffer harm due to any connection with Sri Lanka or the Tamil Tigers was remote.

5. Moreover, the most recent clashes with the AIADMK and the DMK in Tamil Nadu had been sporadic in nature and did not demonstrate a pattern of systematic harassment of opponents of the AIADMK within the meaning of section 91R(1)(c) of the Migration Act 1958.  Therefore the harm the applicant would experience in the foreseeable future because of his criticisms of the AIADMK did not constitute persecution within the meaning of the Act.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution due to political opinion or for any other Convention reason.  As no specific Convention claims were made by or on behalf of the applicant’s wife the fate of her application depended on the outcome of her husband’s application.

This application

1. In the application filed in the Federal Court on 14 May 2002 the applicant made claims based on ‘error of law’ and denial of natural justice.  He claimed that the decision-maker was not acting in good faith in making his decision because he was biased, took into account irrelevant considerations (in relation to the delay in provision of the arrest warrant and an English translation) and did not take into account submissions made after the hearing, that he “incorrectly interpreted and applied the meaning of persecution” and failed to observe procedures required by the Act.  These claims were said to relate to matters such as the interpreter, interpretation, forcing the applicant to use a language/dialect/colloquial expression with which he was not fully familiar in expressing his answers, using pressure tactics, giving warnings, and unnerving the applicant in the hearing. 

2. The claims made by the applicant were expressed in terms of the provisos identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498 at 616. Subsequently, after the first hearing date and before the continuation of the hearing, the High Court handed down the decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. The applicant was given time to make further written submissions. He did so. He claimed that there was a jurisdictional error in that the Tribunal had identified a wrong issue, asked itself a wrong question, ignored relevant material, relied on irrelevant material and made an erroneous finding or reached a mistaken conclusion. The applicant also claimed that there had been a denial of natural justice particularly in the manner in which the hearing was conducted.

3. In the course of these proceedings the applicant filed four extensive written submissions, a bundle of papers entitled Evidence Papers (some of which were received in evidence) and a written transcript of the Tribunal proceedings prepared at the request of the applicant by an accredited translator who also provided a statutory declaration, gave oral evidence and was cross-examined by Counsel for the respondent.  The applicant’s son made lengthy oral submissions on his behalf. 

4. The applicant’s main submission concerned the manner in which the Tribunal hearing was conducted.  It is convenient to address this first. 

5. The essence of the applicant’s claim is that there was a denial of procedural fairness in the manner in which the hearing was conducted.  The complaint of the applicant in this regard stems largely (though not entirely) from the undisputed fact that the applicant requested a Tamil interpreter, dialect ‘Indian’ in the response to hearing form but the interpreter provided was a Sri Lankan Tamil interpreter.  The applicant submitted that because of this he partly misunderstood questions and that this was compounded by the fact that he was aged 81 and had hearing and health problems.  It was submitted that the replies given to the interpreter to be relayed back to the Tribunal were also truncated such that the true spirit and meaning of the conversation was not conveyed to the Tribunal.  It was claimed that the quality of interpretation disadvantaged the applicant, that various mistakes were made by the interpreter and that the Tribunal’s insistence on the applicant speaking in Tamil with the assistance of the interpreter forced him to use a language/dialect/colloquial expression with which he was not fully familiar thereby creating a “mental block and flow of free speech” (sic).  It was claimed that, as the applicant explained to the Tribunal, his Tamil dialect involved a mixture of Tamil and English.  The applicant’s complaints in relation to the hearing are detailed in much of his first 276 page written submission as well as in the three subsequent written submissions and also in the oral submissions that he made to the Court.  He relied on the transcript.  In addition the hearing tapes were tendered to the Court.  Significant aspects of the hearing are discussed below. 

6. I have considered all of the applicant’s claims in relation to the conduct of the hearing and his general and specific complaints about the standard of interpreting and provision of a Sri Lankan rather than Indian Tamil interpreter.  The more significant specific complaints are discussed below – I have also considered the transcript in its entirety and the hearing tapes as well as all the other material before me in determining whether any jurisdictional error is apparent. 

The hearing

1. In order to consider the grounds raised by the applicant it is necessary to address in some detail his more significant specific complaints and the conduct of the hearing generally.  The applicant filed a transcript of the hearing held by the Tribunal on 25 February 2002 which had been prepared by an accredited “para-profession translator” of Tamil and English.  After cross-examination of the translator, Counsel for the respondent conceded that the written transcript should be accepted as an accurate transcription of Tamil into English and vice versa and I have considered the record of the hearing on that basis.  However I have also had the opportunity to listen to the hearing tapes and compare them with the transcript.  The ‘transcript’ submitted by the applicant is deficient in a number of respects in so far as it purports to be a record of what was said in English during the hearing.  In particular, the ‘transcript’ does not include explanations of hearing procedures which, in the context of the complaints of the applicant, are of some importance.  In addition, the transcription of English is, not infrequently, incorrect or incomplete particularly in relation to what is said by the Tribunal member in English.  While I make no criticism of the omission from the ‘transcript’ obtained by a self-represented applicant of what he may have regarded as merely an explanation of the procedures of the hearing, in the context of complaints of problems with the interpreter and a lack of procedural fairness it is important that the exchanges between the Tribunal member and the applicant in relation to the manner in which the hearing would be conducted and the use of the interpreter are taken into account.

2. The applicant complains that the Tribunal insisted that he speak Tamil and proceed with the assistance of the interpreter.  However, I am satisfied, having read the transcript and listened to the hearing tapes in their entirety, that the Tribunal member’s concerns in relation to the applicant's attempts to address him directly rather than through the interpreter reflected a proper concern that the Tribunal should understand, as far as possible, what the applicant was trying to submit.  Thus, initially, the Tribunal member suggested that the applicant would be helped if he let the interpreter do his job.  This was in response to an attempt by the applicant to address the Tribunal directly in English rather than in Tamil.  The Tribunal concern is understandable in the context of an applicant who had requested a Tamil interpreter.  It does not demonstrate bias.  Further, at the start of the hearing (page 2 of the transcript) the Tribunal acknowledged the applicant’s hearing difficulties and a request that he speak loudly and slowly.  It is apparent from the hearing tapes that the Tribunal complied with this request.  The Tribunal member reminded the applicant that he had elected to have an interpreter and explained the role of the interpreter (this explanation does not appear in the transcript).  The Tribunal member then explained the procedures of the Tribunal and asked the applicant if there was anything that he did not understand (this does not appear in the written transcript at page 2) before continuing at page 3: “If there is something that you don't understand please draw that to my attention and I will do my very best to make the matter  understandable to you.”  (This appears in the transcript as: “At any stage if you do not understand Please bring to my attention and I will try very best to repeat (sic).”)  It is notable in this respect that what appears in the transcript on page 3 as the “correct Tamil translation” of this explanation by the Tribunal member is presumably a translation of the incorrect transcription of the English spoken by the Tribunal member.  This is not the only instance of such an apparent “correction” which reflects a translation of something other than what was said by the Tribunal member in English.  The Tribunal member then told the applicant: “At the end I will give you an opportunity to make any final remarks that you wish to make” (page 3 – not fully transcribed in transcript). 

1. The Tribunal member further explained the role of the interpreter as part of his continued explanation of the procedures of the hearing (not set out in the transcript).  He also indicated that if the applicant wanted a break at any time he should ask and the member would consider his request.  The member repeated that he would appreciate it if the applicant listened to his questions and responded to his questions.  The member then asked the applicant if he had any difficulty in listening to the interpreter (page 4 transcript).  (This part of the hearing is indistinct on the hearing tapes.  At page 4 of the transcript it is transcribed as “First of all Mr ….., do you have any difficulty in listening interpreter?” (sic)).  The applicant complains about the Tribunal confining its question to whether the applicant had any difficulty in ‘listening’ to the interpreter as opposed to using or understanding the interpreter.  However this question should be seen in the context of all of the explanations and the opportunities given to the applicant to raise any concerns.  The Tribunal had already told the applicant to draw to his attention anything that he did not understand.  While not appearing in the transcript, the member also asked the applicant to speak fairly slowly and clearly using short phrases and to wait for the interpreter to do his job because the member needed to take notes of what was he was being told and everything needed to be recorded.  The applicant acknowledged this request.  Such an exchange indicates that the member was, properly, concerned to ensure that he understood the evidence of the applicant.  Importantly, before proceeding the member then asked if the applicant had any questions ‘or problems’ – (not fully transcribed) at this stage of the hearing (page 5 of the transcript).  Had the applicant had any concerns or problems with the interpreter, either because of his dialect or otherwise, this provided an opportunity after the fairly lengthy introduction and explanation of procedures for the applicant to draw any such difficulties to the attention of the Tribunal.  The applicant did not do so.  He indicated that he was prepared to answer whatever the Tribunal wanted as far as he could remember because of his age. 

2. The member then again indicated that he would appreciate that since the applicant had elected to use an interpreter he should speak in Tamil, it being in the interests of the applicant and in the interests of a fair hearing.  The member stated that he would appreciate it if they could have some consistency in that regard.  (page 5 of the transcript).

3. The applicant criticises the Tribunal for asking him to speak in Tamil but I am satisfied from the manner in which the Tribunal member made the requests that he was attempting, quite properly, to ensure that he could understand what was being said by the applicant who used a mixture of Tamil and English.  The applicant’s son was also present in the hearing throughout this preliminary discussion and explanation.  He did not raise any concerns about the accuracy of nature of the interpreter or the interpretation or about the member's request that the applicant speak in Tamil.  Nor is there anything before the court to suggest that such concerns were raised with the Tribunal in the written submissions which were made after the hearing.  Rather, it was suggested in the letter dated 27 February 2002 that the doubts raised by the Tribunal in relation to people leaving India without being noticed by airport authorities had not been understood by the applicant during the hearing “due to his age of 81 years and audibility problems”.  No suggestion was made in such written submissions that the interpreter was inadequate or that difficulty arose from the use of an interpreter of Sri Lankan rather than Indian background despite the fact that the applicant had the opportunity to raise such concerns.

4. After these preliminary procedures the Tribunal asked the applicant’s son (who later gave evidence) to wait outside the hearing room and indicated to the applicant that he would be asked some questions.  The applicant said to the Tribunal member in English:

   “A small request to you.  If you can (transcribed as ‘kindly’) make your questions small and understand it (sic) because my understanding of your dialect is a little different.  I can't follow it up.  So let the interpreter understand your questions and then give it to me.” (page 6 of the transcript)

   Critically, the applicant does not suggest at this point that he has any difficulty with the dialect of the interpreter but rather with the dialect of the Tribunal member.  Again, the applicant had an opportunity to draw any difficulty that he might have had with the interpreter to the attention of the Tribunal member.  He did not do so, yet it is clear that he felt comfortable enough to draw to the attention of the Tribunal the difficulty that he had with the ‘dialect’ of the Tribunal member.

5. After this exchange in English the member again took the opportunity to address the question of the use of the interpreter suggesting that it was in the applicant's interests and in the interests of the Tribunal that “we proceed to speak in your own language” (page 6).  The Tribunal member then asked the applicant a specific question about his claims and those of his wife.  This question was translated by the interpreter.  The applicant commenced to answer in Tamil and concluded with an extensive part of his answer in English.  The Tribunal member then asked the applicant to listen to him very carefully as he wanted him to understand.  He continued: “You have been speaking repeatedly in English.  At this stage I understand perhaps that there is a reason for that.  It is in your own interest and my interest, and in the interests of justice that this hearing proceed in your own mother tongue.  Do you understand that?” (the transcript states: “you proceed”).  The applicant answered immediately in English “All right.  Thank you”.  Thereafter the interpreter translated into Tamil what the Tribunal member had said (page 7 transcript).  The applicant then answered in Tamil: “Thanks for making matters clear to me and I will speak in Tamil”.  The Tribunal member acknowledged this by stating that he was glad (not transcribed) and went on to ask further questions (page 7).

6. Thus, in the first part of the hearing, the Tribunal member has, on a number of occasions, expressed his concern that it was in the interests of the applicant that he speak in Tamil as the applicant had stated that Tamil was his mother tongue and that he required an interpreter.  It is clear from listening to the tapes that the Tribunal member was endeavouring to ensure that he understood the applicant. The applicant does not at any point in the proceedings indicate that he does not understand the interpreter or that it is not his own language that is being spoken by the interpreter or that it is a dialect which he does not understand or with which he is unfamiliar.  The manner and tone in which the Tribunal member made these comments does not (contrary to the suggestion of the applicant) suggest that he was being overbearing, harsh or contradictory or was forcing the applicant to speak in someone else's language or in a dialect that he could not understand.  Rather, it is clear that the Tribunal was attempting to ensure that the hearing was conducted as fairly as possible in what the Tribunal member understood was the applicant's mother tongue.  I am satisfied that the Tribunal member was trying to establish a fair hearing and, in order to avoid confusion, to let the interpreter carry out his role rather than have a mixture of the interpretation and English.  There is no rudeness or pre-emptory interruption by the Tribunal as claimed.  The applicant now complains that his native tongue is a mixture of Tamil and English.  However it is notable that in the introductory part of the Tribunal hearing the applicant primarily addressed the Tribunal in English except in his answer on page 7 which commenced in Tamil and continued in English.  In this context the Tribunal's suggestion that the applicant use Tamil rather than English is not a suggestion that the applicant use Tamil rather than the combined Tamil and English which he now claims constitutes his native tongue.  In other respects in this early part of the proceedings where the applicant used mixed Tamil and English what he said was translated into English by the interpreter.

7. At page 7 of the transcript the Tribunal member commenced to address the substance of the application.  The applicant submits that there was not a precise translation of the Tribunal member's general statement that documents and information submitted to the department and the earlier Tribunal hearing would be considered by the then current Tribunal review but the English version of the Tamil makes it clear that the interpreter correctly conveyed the substance of what was said in indicating that such material would be used as evidence.

8. Thereafter there occur some passages complained of by the applicant.  It was necessary to listen to the hearing tapes to understand the interplay between the participants.  It is apparent from so doing that on a number of occasions what may appear on the face of the transcript to be an interruption of the applicant by the Tribunal member as submitted by the applicant, is in fact a situation in which the Tribunal member himself was interrupted by the applicant in the course of breaking a question up into a number of passages so that it could be translated in full by the interpreter.  It is also apparent from the hearing tapes that on numerous occasions, as the interpreter started to provide an English translation of what was said by the applicant, the applicant interrupted.  On a number of occasions when the opening words used by the interpreter were not a literal translation of what the applicant had said, the applicant interrupted before the interpreter had completed translating the passage. In other words the applicant prevented the interpreter from providing an interpretation of the spirit and intent of his evidence on occasion.  While the applicant cannot be criticised in this regard neither can the Tribunal.  Such interruptions explain to a large extent the disjointed manner in which the hearing proceeded. 

9. On one occasion the interpreter incorrectly translated the date of issue of the applicant’s passport as 3 September 1996 instead of 3 September 1997 as stated by the Tribunal (pages 8-9 transcript) but it is clear from the whole of the transcript that this was clarified (at page 10).  There is nothing to suggest that such error misled either the applicant or the Tribunal. 

10. Subsequently when the applicant again commenced to answer in Tamil and then continued in English, the Tribunal member again asked the applicant (at page 12) to please speak in Tamil and whether he understood.  It was at that point that the applicant explained (in English) that his Tamil Indian was coupled with English so that he could not speak in “full Tamil” outright.  The member acknowledged this.  It is apparent from the hearing tapes that (although it was not included in the transcript) the member then said: “Please proceed on that basis” (that is, in combined Tamil and English).  At that point the interpreter, despite the interruption, continued to interpret what had previously been said by the applicant.  This exchange between the applicant and the Tribunal does not establish that the applicant was dissatisfied with or did not understand the interpreter but rather that he could not speak in full Tamil as he perceived was wanted.  The hearing tapes make it clear that the member acknowledged this and requested him politely to proceed on that basis.

11. The applicant does not complain that he did not understand the interpreter or specific Tamil translations or what the Tribunal member was saying.  As the interpreter spoke both Tamil and English there is nothing to suggest that the combination of Tamil and English of itself created any difficulty for the interpreter in informing the Tribunal of what the applicant was saying. 

12. It was submitted by the applicant that the Tribunal showed some discourtesy to him in referring to his age.  However it is appropriate for the Tribunal to put relevant issues to the applicant and it was necessary in the course of consideration of whether the applicant had a well-founded fear of persecution for the Tribunal to consider the future.  Accordingly it was appropriate to raise with the applicant the question of his age and the probability that he was at retirement age.  Again in this respect the transcript provided by the applicant is not entirely consistent with the hearing tapes.  At page 12 of the transcript the member is recorded as having noted that the applicant was aged 80 and stating: “It seems to me that it is now the time for retirement age” (whereas the hearing tapes suggest that the Tribunal member stated that: “it seemed you are probably now at retirement age”).  Again this indicates that the Tribunal member approached relevant issues in a courteous and sensitive manner.  It may be that there is a cultural sensitivity on the part of the applicant in relation to questions of age, but the fact that the Tribunal asked questions in that respect does not establish that there was any bias against the applicant either because of his age or for any other reason.  It was necessary for the Tribunal to consider whether the applicant would be persecuted for reason of his political opinion as expressed in his journalism and hence relevant for the Tribunal to ask whether he would in fact be working.

13. The Tribunal then raised with the applicant his claims in relation to his actions in 1995.  Again the transcript is inaccurate in that the Tribunal member did not refer to September 1995 at this point but rather stated that the applicant had claimed that: “sometime” in 1995: “one of Mrs Jayalalitha’s aides, an auditor, was detained and beaten by persons acting on her behalf” and asked the applicant: “in which month and year that took place?”.  (Page 14 of the transcript).  The applicant takes issue with the interpreter's translation (according to the transcript) to Tamil of this question as: “In 1995 one speaker who is working against Jayalalitha was attacked on the instigation of Jayalalitha.  On which date all these (sic) happened.”  Particular issue is taken with the use of the word ‘speaker’.  However it is clear from the next few exchanges that the applicant understood that the question was about Mrs Jayalalitha’s aide or auditor and that he addressed that issue.  Indeed the interpreter is recorded as translating ‘auditor’ in part of the applicant’s response (page 14).  It is the case that the applicant did not initially answer the question asked but commenced to discuss generally his claims.  At that point the member repeated that the purpose of the hearing was not for the applicant to restate what he had previously said but for him to clarify matters and answer the Tribunal's questions (page 14).  The applicant acknowledged this comment immediately in English and the interpreter again translated what the Tribunal member had said in Tamil for the benefit of the applicant.  This exchange and the difference between the words used by the Tribunal and the interpreter (for example a reference to date rather than month and year) does not demonstrate any unfairness or bias on the part of the member or any significant inadequacy in the interpretation.  Rather it reveals that the Tribunal, properly, sought to focus the mind of the applicant on the task of answering questions put to him in the hearing and that the applicant understood what was being asked.  Furthermore for the Tribunal to then put to the applicant that if the events in question had occurred seven years ago it would seem that the chance of persecution was remote was not inappropriate as suggested (page 15).  On the contrary.  The Tribunal was putting something adverse to the applicant and giving him an opportunity to comment.  The applicant takes issue with the interpreter's use of the words ‘aide’ and ‘assault’ (at page 16) rather than ‘auditor’ and ‘giving trouble’ but it is clear that the applicant and the Tribunal are talking about the same event.

14. At page 17 of the transcript the Tribunal incorrectly referred to the applicant waiting until June 1996 (rather than January 1996) before finally leaving India.  However it is clear from the subsequent question in relation to the same issue on page 19 of the transcript that the Tribunal clarified that the applicant left India in January 1996 and that the applicant was not misled.  Again it is proper for the Tribunal to put to the applicant concerns about the plausibility of his claims.  It is also apparent from the Tribunal reasons for decision that the member understood and addressed the applicant’s claims in this respect.

15. At page 19 of the transcript, in translating an answer of the applicant the interpreter referred to: “assault by the criminal elements who are instigated by a certain group”.  At this point the applicant said: “by Jayalalitha” (page 20).  This may have been a correction or a clarification but in any event it makes it clear that the applicant was following and understood what was being said in English.  Indeed it appears from what has been provided as the correct English translation that the applicant was adding to what was said rather than correcting it.  This interruption meant that the interpreter was not given the opportunity to complete his translation of what the applicant had said on this occasion. 

16. The applicant submits that on page 19 the interpreter's apologies “sorry, sorry, sorry” in the midst of a translation indicate that he was losing his way and was not sure of what he was doing.  However (although not recorded in the transcript) the member had in fact interrupted the interpreter and asked him if he could please slow down.  It is in response to that request that the interpreter apologised.  Furthermore, when the applicant then interrupted it is not clear that he was correcting the interpreter rather than clarifying or expanding his answer.

17. The applicant submits that at the bottom of page 22 of the transcript the applicant stated in Tamil words that were not translated into English meaning ‘please tell after you finish’ and that the Tribunal moved onto a different topic and did not give the applicant the opportunity to answer fully.  It is the case that these words were not translated but it is not apparent from the hearing tapes that the applicant was deprived of the opportunity to complete an answer.  Further, if this was the case I am not satisfied that any difficulty or possible prejudice constituting unfairness to the applicant resulted.  At the end of the hearing the Tribunal member gave the applicant an opportunity to tell him anything else that he wished to say in relation to his claims and the applicant took the opportunity to make subsequent written submissions addressing issues arising from the hearing.

18. There are mistranslations by the interpreter at the bottom of pages 20 and 21 of the transcript.  The first translation is of the Tribunal question about why the applicant waited until March 1999 to leave India if he began receiving unspecified threats ‘in November 1998 after you returned to India.’  This is translated as the Tribunal stating that the applicant ‘had returned to India in November 1998.  The applicant responded by referring to events in 1990 and 1995 –1996 and the member repeated his question stating: “After your return to India in 1997 … you began receiving threats in November 1998” and put that it seemed ‘implausible’ (not ‘impossible’ as transcribed) that he would have “waited until March 1999 before finally leaving India if [he] had a fear of persecution in November 1998.”’  This was translated as “You left for India from Australia in 1997.  If as you say, you were threatened after you reached India in November 1998.  But you left the country in March 1999.  Based on this, how can I accept that you were threatened?”  However despite the mistranslation or ambiguity (of which the Tribunal was not aware) it is clear from the subsequent exchange in relation to the events of 1998 and thereafter that the applicant was aware that the issue was why he had waited until March 1999 before finally leaving India and was not misled.  Any misunderstanding there may have been was clarified by the applicant who pointed out that he went back to India after the DMK came to power.  Further on page 22 of the transcript the Tribunal member clarified that he was referring to a claim that threats were received in November 1998 after police protection expired.  In this part of the transcript (at page 21) the Tribunal also mistakenly referred to the applicant returning to India in 1997 when in fact he returned in December 1996.  On balance, particularly having considered the Tribunal reasons for decision, I do not consider that this slip indicates that the Tribunal misunderstood the applicant’s claims in any significant way.  The correct dates appear in the Tribunal reasons for decision.  Nor does this material suggest that the applicant did not understand the issues that were being addressed or that he was misled by these errors of the interpreter and/or Tribunal member.  The applicant explained that he returned to India because the DMK was in power and correctly addressed the issue of relocation raised by the Tribunal.  There is nothing in the reasons for decision to suggest that the Tribunal had mistaken the facts or the claims made by the applicant.

1. Throughout the rest of the hearing some further interruptions by the applicant of the interpreter's translation occur which interrupt the flow of the translation.  It is apparent from these passages that the applicant understood very well what was going on, as evidenced by corrections such as substitution of ‘first’ for ‘original’ (page 24).  This correction occurred in a passage in which the applicant continually interrupted the interpreter's attempt to translate what he had said.  For example the interpreter had correctly referred to the Press Trust of India but used the incorrect abbreviation of ‘PTC’ which the applicant in English corrected to PTI (page 24). 

2. On page 25 of the transcript the appears a further passage which the transcript describes as a correct English translation of the Tamil of the applicant in response to a question in which the Tribunal invited comments on his doubts about the applicant’s claims about the AIADMK’s influence on the judiciary.  It was not suggested that the question was mistranslated or that the applicant did not understand (page 24) – but that the answer was mistranslated (page 25).  The interpreter said (in English):

   “I have documented and handed over materials which conclusively prove that Mrs Jayalalitha was fully involved… responsible for subverting the judicial segments’ (the last word may be a mistranscription of ‘sector’).”

   However the ‘correct English’ of the answer is:

   “This lady, Mrs Jayalalitha has ill treated all reporters.  She has tortured reporters.  She has got them assaulted and thrashed. I have already filed reports regarding these including how she has ill treated, what she has done to them, how they have been persecuted.  I have already supplied details.”

   Immediately after the interpreter provided his translation the applicant said (in English): “I am sorry I want to repeat.”  The Tribunal member told him to please wait until the question was put to him. 

3. First it is clear that as recorded in the transcript there is a mistranslation.  Secondly the applicant’s actual answer is unresponsive as it related to reporters not the judiciary.  It may be that the applicant was expanding on his answer to the immediately preceding question about targeting of journalists by AIADMK supporters rather than answering the question posed.  In any event, as considered more generally below, I am satisfied that any possible misconception or confusion caused by the mistranslation was overcome by the applicant’s subsequent written submission of 27 February 2002 in which the applicant sought to clarify matters raised by the Tribunal questions.  Among other things, this letter specifically addressed the Tribunal concern that there was no evidence that the AIADMK influenced the judiciary in India – hence the applicant had the opportunity to put evidence before the Tribunal and address the Tribunal concerns in this regard.  The mistranslation was not, in these circumstances, material.  The Tribunal did not rely on the mistranslated response or indeed the absence of a responsive comment in its reasons for decision.

4. At page 25 of the transcript the Tribunal put to the applicant for his comment the Departmental view that there was no evidence that Indian authorities would condone or be implicitly involved in any violence against him.  The applicant submits that his response was interpreted incorrectly. The answer of the interpreter is less expansive but is nonetheless an accurate version of what was said (page 26).  The interpreter said (in English): “I have provided documentary proof for … I have documented the fact that journalists were not only subjected to assault but had even been killed”, whereas the ‘correct’ English is said to be: “It is only in paper.  But in reality, she has persecuted all journalists who so ever had been writing against her.  She has attacked one and all.  I have given lots of documentary proof as to how journalists are being attacked.  They have been assaulted.  Some have been killed.  Regarding those I have provided enough details … How Journalists have been ill treated by her.”

5. Thereafter the Tribunal member asked about the ‘implausibility’ (not the ‘impossibility’ as the transcript states) of the claim that the applicant would have waited until a few days before the hearing to furnish the Tribunal with an arrest warrant issued in 1999.  (At page 26).  There is then an exchange in Tamil which is not translated where the applicant is said to be asking ‘what’ and stating that he cannot understand in response to the interpreter asking him if he cannot understand.  The interpreter has then repeated the question that was put by the Tribunal which the applicant then answered responsively (page 27).  The exchange between the applicant and interpreter does not, in the context of what followed, support the claim that the applicant could not understand Tribunal questions as interpreted or that the Tribunal member was restraining the applicant from completing an answer (as opposed to restraining him from volunteering comments in the middle of a question).  The applicant takes issue with the correctness of the English translation of his eventual response, however, it is notable that the interpreter was repeatedly interrupted (pages 27-28) for example to correct ‘section 124A’ instead of ‘section 124D’ (which again indicates that the applicant understood English and ensured that the Tribunal had the correct information before it) and to expand (for example by inserting IPC which the interpreter explained was the Indian Penal Code and then to correct ‘FIR’ (not ‘FAR’) which he explained was a First Information Report) (page 28).  Contrary to the applicant’s submission I am not satisfied that the interpreter mistranslated the gist of what was said by the applicant in relation to the LTTE but rather that the applicant clarified what he had said.  The interpreter stated that the first information report had been filed because of suspicion of the applicant’s wife's involvement with the LTTE (at 28).  This was clarified by the applicant.  The interpreter’s statement was in fact in accordance with what the transcript records as the correct English translation of the applicant’s Tamil (at 27).  Hence what is presented to the Court as a mistranslation can be seen to be the applicant correcting what he himself had said. 

6. The Tribunal’s failure to react to the exchange between the applicant and the interpreter (in which the interpreter started to answer ‘LTT’ – which was corrected by the applicant as ‘LTTE’ at which point the interpreter stated that he came from an LTTE country) (page 28) does not support the claim that the Tribunal was demonstrating or could reasonably be seen to be demonstrating any bias against the applicant.  Nor does this exchange suggest that the interpreter was mistaking important pieces of information or information critical to the applicant’s claim as submitted, but rather that the applicant knew English well enough and was confident enough to use English in the context of the hearing to interrupt or clarify whenever he saw it as necessary and before the interpreter had finished translating.  While this was not necessarily inappropriate conduct on the part of the applicant, it does not suggest that the Tribunal was in any way acting improperly, denying him a fair hearing or showing any lack of good faith or bias in the manner in which it was conducting the hearing.

7. There was then an exchange between the interpreter and the applicant which the member attempted to interrupt (not transcribed).  The applicant said: “I cannot understand what you are asking, please be specific” but this was not translated.  However, on page 30 the applicant asked the member in English: “What is your specific question?  I will answer it”.  It is clear that he was able and did communicate with the Tribunal when he required clarification of what was being asked and that the Tribunal responded appropriately. 

8. A translation of the applicant’s response in relation to why it would not be reasonable for him to relocate (on page 30), while not accurate word for word, does, contrary to the applicant’s submissions convey the sense of what he said.  The ‘correct’ English of which the applicant said (at 31) is: “I have been here and working in the same Madras for 20 – 30 years.  I have been located by my office only here.  Hence I am gathering news and disseminating from here.  If I relocate myself to another place, I cannot develop contacts”, which the interpreter translated as: “I have been living in Madras for 20 to 30 years.  My office is located in Madras and my news contacts are also in Madras.  I cannot therefore relocate to another part of India and develop new contacts”. 

9. The Tribunal then asked the applicant exactly when he obtained the arrest warrant (page 31).  The interpreter started to translate his answer.  The interpreter referred to the ‘Federal Court’ and was interrupted by the applicant (although this does not appear on the transcript) who said it was not the Federal Court and then that it was the Federal Court.  These comments by the applicant interrupted the translation and the applicant’s complete answer was not translated.  However the question was repeated by the Tribunal member (at the bottom of page 32) so that the issue of the incomplete translation of all that was responded by the applicant is not significant because the question was asked again (and answered).  As the interpreter attempted to translate the applicant’s second answer the applicant again interrupted.  After the interpreter stated: “I was not sure that it had to be filed with the Federal Court” the applicant added: “I was not aware that I had to file it” (page 33) – another clarification that ensured that the Tribunal understood the applicant’s comments.

10. The applicant takes issue with the Tribunal member’s statement to the applicant that it seemed implausible that he would not have lodged such a crucial document (the arrest warrant) with the Tribunal until the week before the hearing given that he was an educated man who had been a journalist and knew the importance of crucial facts to support his ‘story’, this being his story before the Tribunal (page 33).  The applicant suggested that the sarcasm and tone in this statement was inappropriate.  However there is no hint on the hearing tapes of sarcasm or levity or indication of any bias in the Tribunal’s manner of use of the word ‘story’.  Thereafter when the interpreter had translated part of the Tribunal’s question, the applicant interrupted.  The member interrupted him in turn to say that he had not yet finished the question (page 34).  In the course of explaining the question the Tribunal continued: “I note that you very clearly understand and read and speak English” (page 34).  The applicant did not disagree with this statement.  The Tribunal then continued, pausing to allow the interpreter to translate.  No sarcasm or inappropriate tone is apparent.

11. The applicant takes issue with the length of questions put by the Tribunal but it was clearly appropriate for the Tribunal to put to the applicant for his comment the whole of the context which raised concerns about the plausibility of the manner in which the applicant had produced the arrest warrant. 

12. Issue is taken with the interpretation of the next part of the hearing but it is clear that the applicant commenced a response in Tamil, continued in English, that the interpreter started to translate and the applicant then interrupted at a point at which it appeared that the translation of the Tamil part of the answer had been completed.  The member then went on to ask a further question.  It is clear that the applicant was making a minor correction to clarify his answer, indicating that he had not meant that there were only three Tamil/English translators in Australia but that he had been told that this was the case (page 35).  Further at the bottom of page 36 the applicant corrected the interpreter’s translation of ‘I needed it here’ to ‘the Court insisted on it’ which makes it clear that he understood English and was in fact able to ensure that the Tribunal had before it the correct English version of what he was saying.  Further he clarified the involvement of his lawyer in obtaining a copy of the arrest warrant (page 36–37). 

13. The applicant criticises an incomplete translation of his answer to a question as to why he failed to include on the unofficial translation of the arrest warrant a statement that the office copy should not be removed from the book at any time (at page 38).  This must be seen in context.  The applicant interrupted and expanded on what he had said in his answer before the interpreter completed his translation.  The member again asked the applicant to please let the interpreter do his job.  In instances such as these where the interpreter commenced to translate a reasonably lengthy passage and was then interrupted by the applicant expanding upon what he had said, it was in fact the applicant who was preventing the interpreter from providing an accurate, uninterrupted translation.  Such passages also confirm the applicant’s understanding of and ability to express himself in English. 

14. It is also clear from an exchange on page 39 that the member endeavoured to obtain clarification from the interpreter when he was concerned about what was being said and that the applicant himself conveyed his answers to the Tribunal in English in such a way as to overcome any claimed difficulty arising from provision of the Sri Lankan dialect interpreter or any inadequacies in his interpretation.  Thus, after a relatively lengthy response by the applicant which was not all translated by the interpreter (who told the applicant that his answer was not clear) the member then said (although it does not appear in the transcript): “Could you please tell me what he said?”.  The interpreter indicated that the applicant had said he found it very confusing and the Tribunal then said: “I understand it may be confusing but please just tell me what he said”.  The applicant then attempted to interrupt.  The member told him that he was waiting for the interpreter who translated the essence of what the applicant had said (page 39) but did not repeat what the applicant had said in English at the end of his answer – indicating his confusion.  Such confusion (and the applicant’s failure to respond clearly) cannot be attributed to the Tribunal or to any inadequacy of the interpreter.  The question and answer (page 38) were translated adequately.  On page 40 the applicant is again recorded as stating that he did not understand (although it is not clear whether he did not understand the interpreter or the member).  This appears to be clarified by the interpreter.  Subsequently the applicant asks if he can talk (again not translated) and the member proceeds to ask a further question.  There is no suggestion of an incorrect translation of the question.  It may be that the applicant wished to clarify or expand on an answer or, indeed, to seek clarification from the Tribunal.  If this is the case it is clear that he had the opportunity to do so at the end of the hearing and also to clarify or expand on his answers in subsequent submissions. 

15. Again there is a criticism of a translation on page 41 but it contained the essence of the answer which was, moreover, clarified by the applicant in English on page 42 of the transcript.  Hence even if the translation was not as extensive as the Tamil, the applicant himself provided the Tribunal with an English clarification.  On page 42 when the interpreter was in the midst of translating an answer and paused, the applicant interrupted to insert the next phrase in what he had said.  The interpreter continued to complete the translation of what had, in any event, been largely said by the applicant in English.  As on other occasions the idea or concept of what the applicant said was effectively communicated to the Tribunal.

16. The Tribunal member informed the applicant that he doubted the truthfulness of his claims after having discussed a number of issues.  It asked him for comment (page 42).  The applicant indicated that he was not clear as the question was not specific.  The interpreter told the applicant that he was just interpreting what the Tribunal member said and the Tribunal member said (although it is not recorded in the transcript): “I’ll make it more clear to you” (page 43) and then proceeded to repeat specific issues which led him to doubt that the applicant’s claims were true.  Hence any potential confusion was clarified.  Thereafter, after the applicant asked if he could talk which again was not translated (and in relation to which see my comments above), the Tribunal asked a question which the applicant immediately started to answer in Tamil whereupon the member asked him to wait for the interpreter who repeated the question in Tamil.  The applicant then answered, commencing in Tamil and completing largely in English (page 43-45).  There is nothing to suggest that the applicant was prevented from completing his answer.

17. There is then an exchange between the member and the interpreter (which is not transcribed at page 45) but appears to involve the member seeking clarification or a repetition of what the interpreter had said in translating a response of the applicant.  The applicant corrected the interpreter in one respect and the interpreter admitted that he had his doubts about the last bit of what he had said.  The applicant then offered, if the member permitted, to explain it fully in English.  The member told him to go ahead (page 45).  Thereafter the applicant continued in English in an exchange with the Tribunal (page 46).  It is clear from this passage that the Tribunal member was concerned to get the correct evidence of the applicant and was willing to listen to him in English even though he was concerned because the applicant had asked for an interpreter and (as he had previously indicated) that it may be fairer if he used the interpreter.  The exchange also reveals that the applicant was not only willing but also able to respond to questions in English and to understand the English and also the interpretation of his answer from Tamil into English.  The Tribunal member is criticised for his tone at one point in this exchange and there is perhaps some exasperation in response to the applicant’s failure to answer the question that had been put, but this does not, as discussed below, establish bias.  At page 46 - 47 the interpreter translated a lengthy question into Tamil and the applicant asked if he could say the details in English.  The hearing continued on that basis with the interpreter translating into Tamil and the applicant answering in English as he asked if he could do.  This shows that the Tribunal member accommodated the wishes of the applicant and the manner in which he sought to communicate.  Indeed it is clear from the hearing tape that not only was the applicant speaking clearly in English but that he was able to pause appropriately as would be expected if one were allowing time for the Tribunal member to write down what was being said. 

18. The Tribunal member then heard evidence from the applicant’s son who indicated that he did not need an interpreter.  Following that evidence he returned to the applicant and asked him if there was anything else that he would like to tell him relating to his claims (page 50).  This gave the applicant the opportunity to expand or clarify on his responses had he felt them to be inadequate or misunderstood or to add material he felt he had not had the opportunity to put before the Tribunal.  The applicant offered to provide further documents if needed if sufficient time was given (page 51).  This offer was declined by the Tribunal.  It is complained that the interpreter told the applicant that the Tribunal member had said that the Tribunal would conduct its own inquiry and gather required information whereas the Tribunal actually said that the Tribunal had adequate information that had been supplied by the applicant and also through its own investigations (page 51).  However, it cannot be said that this mistranslation materially misled the applicant to his detriment.  It is clear that after the Tribunal hearing the applicant took the opportunity on more than one occasion to provide further written submissions to the Tribunal.  It is not apparent what the applicant would have done (that he did not do) had he known (if he did not) that no inquiry or information-gathering was intended beyond what the Tribunal actually stated.  The applicant provided considerable further information in post-hearing submissions addressing the significant matters canvassed in the hearing.  This is not a case where it can be said that the applicant’s possible erroneous understanding that the Tribunal had said it would take further steps led the applicant to refrain from taking further action or providing further information.

1. Finally at the end of the hearing the applicant asked for a copy of the transcript and was told that he would get a copy of the tapes.  This was not transcribed.  Had he had concerns about the accuracy of the interpreter he could have made submissions in that respect with the benefit of access to the hearing tapes. 

Procedural Fairness

1. The applicant’s criticisms of the conduct of the hearing are extensive.  First it is said that the failure to provide an Indian Tamil interpreter meant that the applicant could not fully understand the interpreter and that the interpreter’s replies were truncated.  However, as detailed above, neither the instances in the transcript pointed to by the applicant or any other parts of the transcript or hearing tapes support the conclusion that the provision of a Tamil interpreter of Sri Lankan rather than Indian dialect caused any material error to occur in the interpretation of the Tribunal’s or the applicant’s statements or in the applicant’s understanding of what was said.  The applicant, who had said in his visa application that he spoke and read English, was provided with a Tamil interpreter, had the use of the interpreter explained to him and, importantly, at the start of the hearing was asked to draw anything he did not understand to the attention of the Tribunal.  He was asked if he had any difficulty in listening to the interpreter as well as being asked generally if he had any questions or problems.  No difficulties were indicated to the Tribunal by the applicant (or by his son who was present at the time) either at this stage or at the end of or after the hearing except in relation to the applicant’s wish to speak a combination of English and Tamil and to have the Tribunal member’s English translated by the interpreter.  In particular, no complaint was made about the ‘dialect’ of the interpreter although the applicant further clarified his answers with additional submissions. 

2. It is the case that the Tribunal member asked the applicant to speak in Tamil on a number of occasions.  In the context of the applicant’s request for a Tamil interpreter this does not indicate bias or a lack of procedural fairness particularly as, when the applicant indicated that he could only speak a mixture of English and Tamil, the Tribunal invited him to proceed on that basis.  Further when the interpreter admitted to doubt about what the applicant said at one point the applicant offered, and did provide, a full and comprehensible answer in English.  His English language ability is also apparent from his interruption and clarification of answers in mid-translation.

3. In this case I am not satisfied that there was a denial of procedural fairness resulting from the provision of a Tamil interpreter of Sri Lankan rather than Indian dialect.  It is clear from the protection visa application and from the tape and transcript that the applicant made it clear that he understood and spoke English and was capable of responding in English and indeed understanding the interpretation by the interpreter such as to make corrections or clarifications.  He was forthright in speaking in English, giving his evidence in English and correcting the interpreter in English not in Tamil.  He did not suggest that he misunderstood particular expressions or questions because of the interpreter’s dialect.  The essence of his complaint is that he was required to speak in ‘full’ Tamil.  In the hearing he clarified to the Tribunal member that his Tamil would involve a combination of English and Tamil and the interpreter continued to translate thereafter.  Prior to that time I am satisfied that he communicated effectively.  The applicant was asked whether he understood the interpreter and he did not suggest to the Tribunal that he did not understand what the interpreter said because of the difference in dialect at any stage during the hearing or thereafter.  His statements (in Tamil) that he found things confusing or did not understand do not, in context, establish such a lack of understanding.  More importantly the transcript and hearing tapes do not establish that the provision of a Sri Lankan Tamil interpreter prevented the applicant from giving his evidence effectively.  Further, the material before the Court does not support the claim that the Tribunal chose to use either a Sri Lankan interpreter or an inadequate interpreter because he had pre-determined the matter and was biased against the applicant. 

4. The applicant complains about the quality of the interpretation as well as the dialect of the interpreter.  In this respect I have had regard to the well-established principles in relation to the standard of interpretation required in the context of a Tribunal hearing.  As Kenny J stated in Perera v MIMA [1999] FCA 507 at [29]:

   “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.”

5. In this case the question is whether the standard of interpretation by the particular interpreter (including both the dialect and accuracy of the interpretation) was such that the applicant was prevented from giving his evidence effectively.

6. The applicant has pointed to a number of places in the transcript where the interpretation of the interpreter was incorrect.  However, the instances of claimed mistranslation (the more significant of which are outlined above) were not, in the context of the whole of the hearing and the proceedings of the Tribunal, critical to the presentation of the applicant’s case.  Nor am I satisfied that any mistranslations or errors by the Tribunal (in particular as to names and dates) misled the applicant or influenced the Tribunal in its reasoning and the findings it made.  It is clear from the Tribunal reasons for decision (compared to what the applicant provides as the ‘correct’ translation in the transcript and from the hearing tapes) that the Tribunal correctly understood the applicant’s claims and was not influenced by any inaccuracies or infelicities of translation (or, indeed, that the applicant’s frequent interruptions and clarifications did other than ensure that the Tribunal had a proper understanding of his claims and responses).  The applicant has not established that he was misled in any significant respect by any mistranslation.  This is not a case where the applicant believed certain things as a result of the hearing and hence failed to take any particular action (cf Muin v Refugee Review Tribunal (2002) 190 ALR 601). It has not been shown that he relied to his disadvantage on any matter arising out of incomplete translation or mistranslation (cf Re MIMA; Ex parte Lam (2002) 195 ALR 502).

7. I have considered the quality of the interpretation as well as the applicant’s other claims more generally in assessing whether there was any lack of procedural fairness.  In this respect I have had regard to the observation of Lindgren and Stone JJ in NAFF of 2002 v MIMIA [2003] FCAFC 52 that it is necessary to determine the scope and content of the requirements of natural justice in the particular factual circumstances of the case (at [31]) and that as Gleeson CJ stated in Re MIMA; Ex parte Lam (2002) 195 ALR 502 at [37] the concern of the law is to avoid ‘practical injustice’. Procedural fairness in the present context requires that the applicant be given a reasonable opportunity to present his case to the Tribunal and to answer any information in the possession of the Tribunal (see NAOV v MIMIA [2003] FMCA 70 at [32]).

8. Here the applicant was invited to and attended a hearing (cf MIMA v Bhardwaj [2002] HCA 11). It cannot be said that the invitation was a ‘hollow shell’ or ‘empty gesture’ (Mazhar v MIMA [2000] FCA 1759 at [31]). Despite the fact that the interpreter was not of Indian background, this factor and the infelicities or inaccuracies in translation identified in the applicant’s submissions were not such that the applicant was “unable adequately to give evidence and present argument to the Tribunal” (Mazhar at [31]). This is not a case where the interpreting was so incompetent that the applicant’s right to give evidence was compromised or where departures from the appropriate standard of interpreting involved any matter of significance in relation to the Tribunal reasons for decision (cf W284 v MIMA [2001] FCA 1788). No breach of section 425 is apparent.

9. As Kenny J accepted in Perera at [26] “perfect interpretation may … be impossible”.  A particular interpretation may be less than perfect yet still be such as to avoid practical injustice.  It is sufficient if the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.  In this case I have had regard to the criteria suggested in Perera:  continuity, precision (or accuracy), competency and contemporaneity.  Further, in considering the adequacy of the standard of interpretation I have taken into account factors such as the responsiveness and coherence of translated answers, the consistency of one answer with the other and with the rest of the applicant’s case and any evident confusion in exchanges between the Tribunal and the interpreter.

10. The transcript was accepted by both parties to be an accurate transcription of Tamil into English and English into Tamil but, as submitted by the respondent, the hearing tapes reveal deficiencies in the extent and accuracy of the transcript as a rendition of English spoken in the hearing.  I have discussed some of the more significant omissions and inaccuracies in that respect above but I have had regard to the transcript as a record of translation by the interpreter.  On balance having considered all the evidence before me I am satisfied that while the continuity of translation was, at times, interrupted by the applicant, such interruptions served to confirm his understanding of and fluency in English and do not indicate significant inadequacy on the part of the interpreter.  Indeed, on occasion the interpreter was effectively prevented from providing a continuous accurate translation but this did not have the effect of depriving the applicant of the opportunity to put his claims and address the concerns of the Tribunal.  The translation was not always literal, however interpretation is not merely a mechanical exercise and, as the translator who prepared the transcript conceded in cross-examination, contemporaneous interpretation in a hearing differs from translation at leisure.  While the idea or concept should be conveyed correctly this may be done other than by direct translation.  Many of the complaints of the applicant are complaints that the interpreter did not provide exactly the same translation as that provided by the translator (not interpreter) who prepared the transcript.  However I am satisfied that (subject to what is said below) the ideas or concepts being translated were communicated. 

11. Further, as set out above, while some undoubted inaccuracies or differences did occur (for example the interpreter referred to 1996 when the Tribunal member referred to 1997), to a ‘speaker’ or ‘aide’ (rather than an ‘auditor’) and mistranslated a response to question about the judiciary) it has not been established that any such matters either alone or in combination were such that the applicant was unable adequately to present his case and address concerns raised by the Tribunal.  This is apparent from the clarifications (in English) by the applicant, the provision of post-hearing submissions and the absence of confusion or mistake about the applicant’s claims or reliance on mistranslated responses of significance in the reasons for decision.  Where answers were truncated it was sometimes because they were interrupted.  At other times, while not word for word, the gist of the applicant’s claims and relevant responses in relation to matters of significance for the applicant’s case was conveyed sufficiently by the interpreter and the applicant – this is particularly so given that I am satisfied that the applicant understood and spoke English well as acknowledged by the Tribunal.  While the fact that the applicant spoke and understood English does not mean that there was no need for an adequate interpreter I am satisfied on the material before me that the interpretation was not such as to constitute a denial of procedural fairness.  The claimed departures from the requisite standard of interpretation were not critical to the presentation of the applicant’s case.  The Tribunal did not rely on answers shown to be affected by translation inadequacies and it cannot be said that the matters complained of by the applicant influenced the Tribunal in its reasoning (see NAFF at [23] and NAOV at [44]). The Tribunal conclusions were based primarily on its views as to the implausibility of certain claims which were properly understood by the Tribunal. In this respect I am not satisfied that any inadequacies of interpretation prevented the applicant from addressing the Tribunal concerns in this respect. As in WADE v MIMA [2002] FCAFC 21 at [22] in relation to a series of complaints about alleged misunderstandings or misinterpretations:

    “Whether considered individually or cumulatively, even if it be assumed that the complaints have substance, the matters complained of are not of a character which would deprive the hearing before the Tribunal of the character of a hearing, or which would mean that the Tribunal failed to give consideration to the claims advanced by the [applicant] or otherwise to direct itself to the task required or it by the Act.”

12. The Tribunal also rejected the authenticity of the arrest warrant submitted by the applicant.  Again this conclusion is not shown to have been affected by any interpretation difficulties in the hearing.  The Tribunal’s conclusions as to the credibility of the applicant’s claims were not based on inadequacies in the conduct of the hearing or in the interpretation.  Such findings were open to the Tribunal on the material before it for the reasons it gave.  Furthermore, (and contrary to any suggestion of bias in the Tribunal reasons) the Tribunal went on to consider the application on the basis that the claims were accepted.  Again there is nothing material in this part of the Tribunal reasons which appears to have been influenced by any claimed departure from the requisite standard of interpretation.

13. Even taking the claims of the applicant in relation to the alleged deficiencies in interpretation at their highest, the interpretation was not incompetent in significant respects such that there was material error or a miscarriage in the decision-making process (see Soltanyzand v MIMA [2001] FCA 1168 at [17]-[19]). There is nothing to support a conclusion that the Tribunal would have come to a different decision in the absence of such errors or viewed the plausibility or credibility of the applicant’s claims differently (cf W284 v MIMA [2001] FCA 1788). No breach of section 425 is apparent. No practical injustice has occurred. No lack of procedural fairness or denial of natural justice in the conduct of the hearing or in any other respect has been established.

Bias

1. In his original submissions the applicant contended that the decision-maker was biased in twenty five ways – in the conduct of the hearing and in other respects relating to the Tribunal procedures and decision.  One of the incidents of the duty of procedural fairness is in the absence of the actuality or the appearance of disqualifying bias (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [367] per Deane J and see The Refugee Review Tribunal; Ex parte Aala(2000) 75 ALJR 52)). I have considered whether either actual or apprehended bias is established.

2. As Gleeson CJ and Gummow J stated in MIMIA v Jia [2001] HCA 17 a party asserting actual bias on the part of a decision-maker carries a heavy onus. The allegation must be “distinctly made and clearly proved” Gleeson CJ and Gummow J at [69] and Kirby J at [127]). Bias in the form of pre-judgment occurs where the decision-maker’s mind is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented (Jia at [71]-[72] and Keifel J in MIMIA v SBAN [2002] FCAFC 431 at [10]). However in the context of Tribunal procedures section 425(2)(a) of the Migration Act 1958 means that the Tribunal only conducts a hearing when it is not satisfied on the papers that a protection visa should be granted.

   “Therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT.  It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion.  The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of a hearing, does not of itself suggest actual bias in the relevant sense”. (SBAN at [11])

   An allegation of actual bias concerns the state of mind of the decision-maker.  As von Doussa J observed in SCAA v MIMIA [2002] FCA 668 at [37] a finding of actual bias is a grave finding and cannot be made lightly. The question is whether the decision-maker’s mind is open to persuasion. While it will be a rare and exceptional case where actual bias can be demonstrated from the published reasons for decision:

   “where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision-maker antithetical to that party’s interest such as a hostile attitude throughout the hearing, or a failure to inquire into and to obtain readily available and important information relating to central matters for determination an inference of actual bias by pre-judgment might then be more readily drawn”. (see SCAA per von Doussa at [37]-[38])

3. In this case there is not such evidence of actual bias by pre-judgment.  First there is no demonstrable error in the Tribunal reasons for decision such as to support such a claim.  The reasons for decision do not reveal that the Tribunal misunderstood the applicant’s claims or that the decision resulted from such a faulty understanding.  Any reference to wrong dates in the hearing did not prevent the applicant from putting his claims and is not reflected in error in the reasons for decision.  The decision does not show any ‘mixing up’ of issues by the Tribunal as alleged.  The claims of the applicant in relation to 1995 and 1998-1999 were understood by the Tribunal.  The applicant takes issue with the Tribunal treatment of such claims but the Tribunal conclusions were open to it on the evidence before it.  The fact that the applicant disagrees with the Tribunal findings does not establish error or bias.  Nor are the Tribunal findings so unreasonable or ‘absurd’ as the applicant submits that they support the claim of bias.  It is the case that the applicant provided extensive information to the Tribunal.  It was not, however, necessary for the Tribunal to assist the applicant make out his case (Muin v RRT (2002) 76 ALJR 966 at [265]-[266] per Hayne J) or to put to the applicant its reasoning processes or potential factual conclusions (VAAV v MIMA (2002) FCAFC 120 at [13]). There is no obligation on the Tribunal to inform an applicant that aspects of his claim may not be believed (Abebe v The Commonwealth (1999) 197 CLR 510 at [87] per Gummow and Hayne JJ). The Tribunal must give an applicant an opportunity to appear before it and give evidence. If an applicant seeks to give evidence the Tribunal is:

   “under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them”. WACO v MIMIA [2003] FCAFC 171 at [33] and see cases cited therein.

   Here the Tribunal properly provided such opportunity as part of its duty to afford procedural fairness. 

1. The Tribunal put its concerns to the applicant in the hearing.  He responded in the hearing and also made written submissions after the hearing.  Such compliance with the requirements of procedural fairness does not show bias.  Further, it is not necessary for the Tribunal to refer specifically to all items of evidence submitted by the applicant as discussed below.  Nor was it necessary for the Tribunal to refer expressly to all of the written and oral submissions of the applicant.

2. I am not satisfied that the Tribunal member demonstrated a hostile attitude to the applicant throughout the hearing.  The decision-maker did not express views adverse to the applicant’s case in a way that indicated such views were incapable of being changed.  On the contrary, having listened to the hearing tapes I am satisfied that the Tribunal member sought, appropriately, to provide a fair hearing.  It was proper to put issues of concern to the applicant.  The tone of the Tribunal questioning is inoffensive.  While the Tribunal member did show some exasperation with the applicant this must be seen in the context of the applicant’s responses and interruptions as outlined above.  It does not establish hostility or bias.  (see Drummond J in Li v MIMA [2000] FCA 19).

3. The criticism of the Tribunal for challenging the applicant’s credibility, the plausibility of his claims and for putting matters of concern to him “misunderstands the proper role of the Tribunal and ignores the legislative framework within which the Tribunal must operate” (Li at [44]). The Tribunal properly exercised its inquisitorial role by questioning the applicant in relation to issues of relevance to whether he was entitled to a protection visa. By such questioning the Tribunal gave the applicant the requisite opportunity to address its concerns. This does not suggest a closed mind. Actual bias has not been established.

4. Nor on the material before the Court am I satisfied that there was any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to resolution of the application (see MIMA v Jia [2001] HCA 17). As Gleeson CJ, Gaudron and Gummow JJ stated in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [5] the principles of apprehended bias when applied outside the judicial system (as here) must take account of the different nature of a Tribunal and different character of the proceedings (also see Jia at [100], [187]) consistently with the approach of Mason J in Kioa v West (1985) 159 CLR 550 at 585). The Tribunal is of a non-curial nature and has an inquisitorial role. The credibility of the applicant was clearly in issue. The decision-maker in such circumstances has necessarily to test the applicant’s evidence and confront him with adverse matters and inconsistencies as the Tribunal did. I am not satisfied that the manner in which the Tribunal conducted the hearing could reasonably be seen as hostile or intimidating or that it indicated a possibility of a lack of impartiality. The Tribunal did not use the language of pre-judgment. This is not a case where the claimed deficiencies in interpretation or the applicant’s preference for speaking in a mixture of Tamil and English is such that the manner in which the hearing proceeded suggests any prejudgment or bias. The Tribunal sought to ensure that the applicant used the interpreter as he had requested an interpreter. The applicant did not tell the Tribunal in the hearing that he could not understand the interpreter as a Tamil speaker of Sri Lankan background. Indeed it is apparent that he spoke and understood English. I am satisfied that he was not materially disadvantaged. The failure to provide an Indian dialect rather than Sri Lankan dialect Tamil interpreter is not such as to give rise to a reasonable apprehension of bias. Nor do any of the other complaints of the applicant, taken individually or in combination, meet the test of apprehended bias based, as it is, on an objective inquiry into the question of a real and not remote possibility.

Other grounds

1. A number of other overlapping grounds were also raised by the applicant.  It was submitted that the Tribunal did not take into account the written submissions with extra updated information sent to it by the applicant immediately after the hearing.  The applicant submitted that the Tribunal took into account only part of the independent evidence in relation to document fraud in India and also material contained in a US Department of State 2000 Country Report on human rights practices in India as well as some aspects of media reports but not other aspects of documents provided by the applicant or available to the Tribunal.  However, the Tribunal is not obliged to deal specifically with every item of evidence in its reasons (Muralidharan v MIMA (1996) 62 FCR 402 at 414 per Sackville ; MIMA v Guo (1997) 191 CLR 559 at 593 per Kirby J; MIMA v Yusuf (2001) 206 CLR 323 at [67]-[68] and WACO v MIMA [2003] FCAFC 171 at [15]). It does not follow that because the Tribunal has not mentioned all of the independent evidence in its reasons that it has failed to consider it: Steed v MIMA (1981) 37 ALR 620 at 621 per Fox J; WACO v MIMIA [2003] FCAFC 171 at [15].

2. It has not been established that the Tribunal failed to consider all the integers of the applicant’s claims in a manner constituting a jurisdictional error in the sense considered in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. As McHugh, Gummow and Hayne JJ stated in Yusuf at [74]:

   “What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law.  They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”

3. Further, as Mason J indicated in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 34 at [39] the ground of failure to take into account relevant considerations can only be made out if the decision-maker fails to take into account a consideration he is bound to take into account in making that decision. The applicant’s claims in this respect relate to the Tribunal treatment of particular items of evidence. However, as Allsop J pointed out in Htun v MIMA [2001] FCA 1802 (and in Paul v MIMA [2001] FCA 1196 at [79] there is a distinction between a failure to deal with part of the competing body of evidence or a finding of a relevant fact and a failure “to address and deal with how the claim was put” (Htun at [42]).

4. In this case the Tribunal took into account and considered the component integers of the applicant’s claim in the sense of the considerations made mandatorily relevant by the Migration Act as discussed in Peko-Wallsend and Yusuf.  The applicant’s submission takes issue essentially with the weight the Tribunal attached to particular independent information.  Such weight is a matter for the Tribunal to determine and does not establish a jurisdictional error.

5. The applicant claimed that the Tribunal ignored relevant material.  The claim in essence is that the Tribunal did not address in its reasons for decision all of the oral and written submissions made by the applicant including all of the material provided by the applicant.  It is not necessary for the Tribunal reasons to address all material submitted by an applicant provided it addresses the integers of his claim. 

6. The applicant also takes issue with the Tribunal’s failure to accept that the applicant had a well-founded fear of persecution and could not relocate in India.  This is a disagreement with the conclusions of the Tribunal and seeks merits review which is not open in these proceedings.  Furthermore it is not necessary for the Tribunal to refute each and every piece of evidence put forward by the applicant.  A failure to do so does not constitute failing to take into account relevant material.

7. Nor has it been established that the Tribunal took into account irrelevant considerations in the Craig and Yusuf sense in a manner constituting a jurisdictional error.  Again this is essentially a complaint about the weight given by the Tribunal to particular evidence.  This is a matter for the Tribunal and no error is demonstrated in this respect.  For example it is complained that the Tribunal took into account the fact that the applicant did not provide a copy of the arrest warrant to the Tribunal until 21 February 2002.  The applicant makes much of the delay in his receipt of the letter from the Tribunal requesting such arrest warrant which was sent to him on 5 February 2002 but not received by him until 20 February 2002 and in effect blames the Tribunal for the late provision of the arrest warrant.  However relevant delay from the Tribunal perspective was the delay from the time of the Federal Court proceedings in August 2001 when the arrest warrant was available to the applicant to February 2002 when he provided it to the Tribunal, rather than simply the delay between its letter of 5 February 2002 and the provision of the arrest warrant on 21 February 2002.  The Tribunal did not accept that in those circumstances the applicant would wait until February 2002 to provide the document and then only provide it after the Tribunal had requested it on a number of occasions.

8. The applicant complains that the Tribunal erred in basing its decision largely on the delay in providing the Tribunal arrest warrant and on the differences in the translation between the official and unofficial version and that this was an irrelevant consideration.  However the arrest warrant was something put forward by the applicant to support his claim.  The Tribunal was obliged to consider such material.  Insofar as the Tribunal rejected it, it was not taking into account an irrelevant consideration or, as Mason J in Peko-Wallsend said, something which the legislation prohibits from consideration, but rather it was carrying out the inquiry that it was required to carry out under the Migration Act to consider whether it could reach the state of satisfaction required under section 65 of the Act. Similarly the delay in providing the official translation of the warrant was relevant. At the hearing and subsequently the applicant had the opportunity to make submissions in relation to that delay. It was a matter properly addressed by the Tribunal. The applicant’s further arguments in relation to his disagreement with the Tribunal in relation to the lack of authenticity of the arrest warrant take issue with the factual conclusions of the Tribunal and do not establish jurisdictional error.

9. The applicant also submitted that the Tribunal identified a wrong issue in the sense considered in Yusuf.  To a large extent these claims rely on what the applicant describes as mistranslations by the interpreter.  In particular, the applicant complained that in the hearing the Tribunal after discussing September 1995 events the Tribunal member had continued (page 17 of the transcript prepared by the applicant’s translator):

   “It seems to me impossible that you would wait until June 1996 before finally leaving India.”

10. First, it is clear from the tapes of the Tribunal hearing that the Tribunal member in fact suggested that it was ‘implausible’, not ‘impossible’, and that the date referred to was January 1996 not June 1996.  Moreover, it is also clear from the Tribunal reasons for decision that although the transcript refers to ‘finally leaving India’ the Tribunal member understood that from January to December 1996 the applicant was in Australia and then finally left India in March 1999.  In the context of asking questions about the events of September 1995 the question in the hearing about finally leaving India in January 1996 does not establish a misunderstanding of the elements of the applicant’s claim.  Nor does the Tribunal question in the hearing about the applicant’s role in converting AIADMK supporters to DMK indicate that he misunderstood the claims of the applicant.  No misunderstanding in this respect is apparent in the reasons for decision.  The applicant’s general concern with the Tribunal’s characterisation of certain actions of the applicant as implausible does not establish jurisdictional error.  It was proper for the Tribunal to put its concerns to the applicant for comment.  Credibility is a matter for the Tribunal par excellence: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham (2000) 168 ALR 407. The Tribunal’s findings in this respect were open to it for the reasons it gave on the material before it.

11. The applicant also relied on some infelicities of expression and mistranslations in the hearing as indicating that the Tribunal had misunderstood the applicant’s claims.  For example, a question which started “After your return to India in 1997, …” when in fact the applicant returned to India in December 1996 was said to show identification of the wrong issue.  However, it is clear that the substance of this question was addressing threats in November 1998 and the applicant’s failure to leave the country thereafter until March of 1999.  From a consideration of the Tribunal reasons it is clear that the applicant’s claims were understood by the Tribunal.  The errors in dates and mistranslation from English to Tamil by the interpreter in relation to when the applicant returned to India after the first relevant visit to Australia do not establish that the Tribunal misunderstood the applicant’s claims or identified a wrong issue.  It is notable that thereafter the applicant indicated that he returned to India after the DMK came to power.  This was the relevant aspect of this part of his claim and from the Tribunal reasons for decision it is apparent that it was understood.

12. It was argued further that there was a confusion in the mind of the Tribunal member as to the applicant’s visits to Australia in 1996 and his return to Australia in 1999.  Again it is apparent from the summary of the claims and evidence in the Tribunal reasons for decision that the Tribunal understood the distinction between the applicant’s two departures from India.  The reasons for decision properly refer to 1996 physical threats and the claimed legal threat in 1999.  The applicant also took issue with the Tribunal conclusions in relation to the applicant’s ability to obtain a passport in 1997.  This does not establish that the Tribunal identified a wrong issue, merely that the applicant disagreed with the factual conclusion in relation to that issue.  Were such a factual error established it would not constitute jurisdictional error in this case.  It is apparent from the Tribunal reasons for decision that the claims made by the applicant were identified, understood and considered in the determination of whether the applicant met the criteria for a protection visa. 

13. Contrary to the applicant’s contentions it has not been established that the Tribunal asked itself the wrong question in failing to consider the elements of the concept of persecution.  Again the applicant’s submission takes issue with the Tribunal’s findings of fact (for example, that Jayalalitha’s attacks on her opponents were only sporadic and not systematic) but such matters are matters for the Tribunal.  The court cannot review the merits of the Tribunal decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at [272]. The Tribunal did not identify a wrong issue or ask itself a wrong question in this respect or in its consideration of the reasonably foreseeable future. The Tribunal reasons for decision do not establish that the Tribunal did not understand the claims of the applicant particularly in relation to the distinction between his 1996 and 1999 departures or that on that basis it came to a wrong conclusion in the context of persecution. Rather the Tribunal considered each of the alleged claims. Its conclusion that there was no legal threat (a point of distinction made by the applicant between 1996 and 1999) is to be seen in the context of the conclusion that the arrest warrant submitted by the applicant was not an authentic document. It is also notable that the Tribunal did go on to consider the possibility of relocation within India on the basis that if it arrived at the wrong conclusion in relation to credibility of the applicant it should consider whether it was reasonable for the applicant to relocate. Information submitted by the applicant in relation to the position in Sri Lanka after the Tribunal decision is not of relevance in determining whether the Tribunal erred at the time of its decision.

14. The applicant also submitted that the Tribunal made an erroneous finding or reached a mistaken conclusion.  In this respect the applicant takes further issue with the Tribunal findings of fact and its conclusions in relation to the applicant’s credibility.  This does not establish any jurisdictional error.

15. The applicant claimed that the Tribunal incorrectly interpreted the legal meaning of persecution and that it applied that incorrect interpretation to the facts.  However the Tribunal correctly stated and applied the test of persecution within the Refugees Convention (see Chan v MIEA (1989) 169 CLR 379). This claim also amounts to a disagreement with the merits of the Tribunal decision. Insofar as this is a claim that the Tribunal did not take into account all of the evidence submitted by the applicant to the Tribunal (for example in relation to treatment of opponents of Mrs Jayalalitha), as stated above, the Tribunal is not bound to refer to every item of material relied on by the applicant (see Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J) and the weight to be given to particular material is a matter for the Tribunal.

16. The complaint of the applicant is, in essence, that the Tribunal should have found that the applicant had a well-founded fear of persecution but did not do so.  That is a question of fact for the Tribunal.

17. I have had regard to the twenty-five bases for complaint outlined in the applicant’s lengthy written submissions and the matters raised in all his subsequent written and oral submissions as well as all the material before the Court.  However I am not satisfied that any jurisdictional error or lack of procedural fairness (constituted by bias or otherwise) is established.  Accordingly the application must be dismissed.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: