NAYD v Minister for Immigration - [2005] FMCA 739

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAYD v MINISTER FOR IMMIGRATION

[2005] FMCA 739

MIGRATION – Application to review decision of Refugee Review Tribunal – whether breach of s.425(1) of the Migration Act 1958 where no interpreter requested and none provided.

Migration Act 1958 (C’th), ss.425, 426A

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507
NALQ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 121
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293
M17 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
Applicant NAHF/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140
Minister for Immigration & Multicultural Affairs v Mohammed (2000) 101 FCR 434
M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86
Xiao v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1472
Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75

Applicant:

NAYD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1470 of 2004

Judgment of:

Barnes FM

Hearing date:

5 May 2005

Delivered at:

Sydney

Delivered on:

6 June 2005

REPRESENTATION

Counsel for the Applicant:

Mr J. Smith

Solicitors for the Applicant:

Clayton Utz

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Silva Solicitors

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1470 of 2004

NAYD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 5 November 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The sole issue before the court is whether the Tribunal breached s.425(1) of the Migration Act 1958 (C’th) and so made a jurisdictional error.
The applicant, who is a citizen of Pakistan, claimed to fear persecution because of his active membership of the MQM political party and participation in demonstrations as a member of MQM. In his protection visa application, which the applicant told the court he filled in himself and read and understood (albeit he had the assistance of a migration agent), he indicated that, in order of preference, he spoke, read and wrote Urdu and English. The protection visa application was not translated for him and the section for an interpreter’s declaration was not completed.
On 3 July 2002 a delegate of the respondent wrote to the applicant requesting his comment on information which may lead the delegate to reject his claim. It also informed him that he may submit documents as evidence of his claims. The information on which comment was sought included the fact that the applicant had made general claims about difficulties facing members of the MQM but had not raised claims of any specific and individual harassment, had not substantiated his claim with details of his membership role and activities for the MQM party, or provided information indicating that he had ever personally been mistreated by the Pakistani authorities.
On 25 July 2002 the applicant wrote to the delegate and advised that he was having difficulty obtaining some documents. He requested that he be given two to three months to provide those. He wrote again on

30 July 2002 and requested more time to make a submission as he was waiting to receive “related” information. No further documents or submissions were provided to the delegate. On 18 October 2002 the delegate rejected the application for a protection visa.
On 22 November 2002 the applicant sought review by the Refugee Review Tribunal. He told the court that he completed the application for review form (in which he stated that he would provide documentary evidence to support his claims). He read and understood this form and did not use an interpreter, although he had the assistance of a migration agent. In the review application form he indicated “yes” in response to the question “Do you need an interpreter?” and specified the Urdu language.
On 25 November 2002 the Tribunal wrote to the applicant acknowledging receipt of his review application, advising him of his opportunity to attend the hearing and why it was important. This letter also asked the applicant to send the Tribunal any documents, information or other evidence he wanted the Tribunal to consider “immediately”. No such evidence was provided.
On 15 September 2003 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone and inviting him to a Tribunal hearing. The letter advised him that the Tribunal member requested that he bring to the hearing certain identifying documents (if in his possession). It also asked him to complete a response to hearing invitation and to send any new documents or written arguments he wanted the Tribunal to consider. A copy of this correspondence (as with other correspondence) was also sent to the applicant’s migration agent.
On 1 October 2003 the Tribunal received a completed response to hearing invitation. The applicant gave evidence that he completed this response himself. He indicated that he wished to attend a hearing and in response to the question “Do you need an interpreter?” marked the box “No” and left blank the spaces for language and dialect if applicable. He also indicated that he had no special needs for the hearing.
The applicant attended a hearing with the Tribunal on 9 October 2003 which was conducted in the English language. I return to relevant details of the Tribunal hearing in considering the ground in the application for review of the Tribunal decision.
In its reasons for decision the Tribunal noted that although the applicant had stated to both the Department and the Tribunal that he would be providing documentation to support his claims of MQM membership, he told the Tribunal that he had encountered “problems” obtaining such documents and none had been provided. The Tribunal found that in light of the absence of any substantiating evidence of membership or of his claimed political activities “despite the numerous promises to provide such evidence” and “the applicant’s garbled, incoherent, vague and unconvincing account of his alleged minor political involvement with MQM” it was not satisfied that the applicant was ever a member of the MQM.
Nor was the Tribunal satisfied that the applicant had a genuine fear of suffering persecution in Pakistan by reason of his political opinion or for any other reason in light of factors such as the applicant’s acknowledgement that he had never suffered harm in Pakistan or ever been charged with any offences, arrested or gaoled; his numerous trips in and out of Pakistan to various countries since 1995; his two earlier visits to Australia (the first of which had lasted 18 months); the lack of a satisfactory explanation as to why he did not lodge a protection visa application during his previous visits to Australia or when visiting other countries such as the USA and the UK; and the absence of any convincing argument or proposition relating to recent changes in Pakistan which allegedly had made him “afraid” and fearful for his safety.
The Tribunal found that the applicant had never suffered persecution in Pakistan for a Convention-related reason and did not have a well-founded fear of so suffering in the reasonably foreseeable future.
The applicant sought review of the Tribunal decision by application filed in the Federal Court on 4 December 2003. The matter was transferred to this court. The applicant now relies on an amended application filed in court. The solicitor for the applicant indicated that he did not rely on ground one of the amended application and that the only ground relied upon is as follows:
That the Tribunal made jurisdictional error as it breached s425(1) as the applicant was not able to present evidence or arguments because of his language difficulties. The Tribunal being an inquisitive body should have noticed that difficulty and postponed the hearing so that it could be conducted with the presence of an interpreter.
Particulars
Though the Tribunal extended the invitation to appear and the applicant was physically before the Tribunal since the applicant was unable to give evidence and present argument the invitation becomes an empty gesture because the Tribunal was not particularly interested in ensuring that the applicant was able to give evidence and present argument in a coherent way.
The applicant also relied on a transcript of the Tribunal hearing. On

24 March 2004 he swore an affidavit (in English and not containing any certification by an interpreter) stating that an attached transcript was a “true” transcript of the Tribunal hearing. An agreed corrected version of the transcript was tendered in court. In an affidavit sworn on 2 May 2005 (again in English and not containing a certification by an interpreter) he stated that although he told the Tribunal that he did not need an interpreter, during the Tribunal hearing “I found that I could not express myself in English properly”. He claimed that he wanted to put his involvement with the MQM to the Tribunal clearly but could not do so because of the language problem he encountered and that he wanted to tell the Tribunal that the threat to him came from two areas: from the police because of his membership of the MQM and from the MQM itself in a manner which he described in the affidavit. He contended that because of the language difficulties he was not able to present his case properly to the Tribunal. In these proceedings the applicant was cross-examined (primarily in English) but he had the assistance of an Urdu interpreter when either he or his solicitor indicated that the interpreter was required to translate a question or an answer.
In cross-examination the applicant agreed that he had not required an interpreter prior to the Tribunal hearing because at that time he was confident of being able to express himself in English. This is consistent with his prior history. He agreed in cross-examination that he had undertaken study in Australia in 1996 – 1997 (and the Tribunal reasons for decision indicate that he claimed to have stayed in Australia about 1½ years on that occasion) and that he had obtained a certificate of competence for satisfactory completion of one year’s study in English in a merchant navy second officer course. He confirmed that he had also spent some 18 months in Australia from March 2002 (immediately before the Tribunal hearing) during which time he worked in the security industry. He used English in his work. He acknowledged that he had filled in his protection visa application form, that he had read and understood it and that the declaration that it was correct was completed by him. The only assistance he received was with some technical words which were explained to him. He also agreed that he wrote to the Department in English and completed his review application form without the assistance of an interpreter. This was consistent with his agreement that he had been able to express what he wanted to say in his application form and in letters to the Department. During a thorough cross-examination the applicant revealed a proficient grasp of English with occasional recourse to the interpreter. This was consistent with his acknowledgment that he understood the Tribunal member during the hearing. He did not remember whether he asked her to repeat anything but claimed that he became confused at times. He agreed that he did not tell the Tribunal member at any time that he was having trouble expressing himself in English. He claimed that this was because he was not sure if this would be “OK” as she may say that he had already said he did not need an interpreter so he was confused and a bit discouraged. He later claimed that he also thought that if he had an interpreter it would be someone from his community and he wanted to keep his matter confidential.
In cross-examination the applicant also complained that in the course of the Tribunal hearing the Tribunal interrupted him. He thought that this reflected difficulties the Tribunal member was having with his English. This claim is considered in detail below in conjunction with his more general claim.
In written submissions the solicitor for the applicant referred to authorities in relation to the provision of an inadequate standard of interpretation such as Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31] in which Goldberg J considered whether the interpretation at a Tribunal hearing was so incompetent that the applicant was prevented from giving evidence and whether any departure from the required standard of interpretation related to a matter of significance for the applicant’s claim or the Tribunal’s decision (also see Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [22] and [23]). In Mazhar Goldberg J suggested at [31] that where an applicant appeared at a hearing:
… but is not able through the conduct of the Tribunal to give evidence or present arguments, albeit that the applicant has been invited by the Tribunal to appear, then there will be a contravention of s425(1). I agree with the observations of Wilcox J in Xiao (par 30 above) that events subsequent to the invitation, which must remain open, are not necessarily immaterial. The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the Tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the Tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the Tribunal. If that situation arises the Tribunal will not have fulfilled its obligation under s425(1).
The applicant also relied on what was said by the Full Court of the Federal Court in NALQ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 121 at [30] – [36]. At [30] their Honours repeated what had been said by Goldberg J in Mazhar about the need for an invitation under s.425 to be “real and meaningful and not just an empty gesture”. In Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1376 the Full Court of the Federal Court accepted that the principles in Perera applied to the present form of s.425(1). It was submitted in this instance that although the invitation to appear was extended and the applicant was before the Tribunal, he was unable to give evidence and present argument and hence the invitation became an empty gesture.
Section 425(1) of the Migration Act is as follows:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Counsel for the respondent submitted that the obligation in s.425 requires no more than a genuine and continuing invitation to attend at a hearing and does not govern the content of the hearing once the invitation is accepted (see M17 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86 at [61] – [62] per Ryan J and NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121). In NALQ the Full Court of the Federal Court considered whether a Tribunal erred in proceeding to a hearing in the absence of an applicant who had requested an adjournment. The grounds of appeal alleged a failure to ensure procedural fairness and a breach of s.426A(1)(b) but in the course of the judgment the Full Court also considered whether the Tribunal failed to comply with procedural fairness and the requirement of s.425. It is not disputed that, as the court pointed out, the invitation under s.425 “must be real and meaningful and not just an empty gesture” (see [30] and see SCAR at [33] and Mazhar at [31]). Their Honours referred to what Hely J had suggested in Applicant NAHF/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 in holding that there had been a want of procedural fairness but not a breach of the obligation imposed by s.425. His Honour had followed views expressed in earlier cases (see in particular Branson J in Minister for Immigration & Multicultural Affairs v Mohammed (2000) 101 FCR 434 at [43]) that, having regard to a change in the wording of s.425 from an earlier version:
This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement.
On this view, as Wilcox J suggested in Xiao v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1472 at [29] and as was adopted by Hely J in NAHF at [37]:
If … s.425 imposes on the Tribunal only an obligation to issue an invitation, without any continuing obligation in relation to a reasonable obligation to appear, that is the end of the matter; at least so far as this court is concerned.
In NALQ the Full Court found it unnecessary to determine the construction of s.425 and whether it agreed with Hely J as nothing in the Tribunal’s approach in that case reflected a failure to provide a real opportunity to the applicant to be heard so there was nothing that was in breach of s.425 however construed.
In M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86 Ryan J referred to the decision of the Full Court in NALQ in accepting the submission of the respondent that s.425 “requires the Tribunal to issue a genuine invitation to the applicant to appear but does not bear on the procedures to be followed at or after the hearing which results from acceptance of the invitation” (at [61]). However, in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 a differently constituted Full Court of the Federal Court considered the operation of s.425 in finding that a failure to comply with the requirement of s.425 involves a jurisdictional error. It did so in the context of also considering the requirements of natural justice which, as the court pointed out, are to be determined in the relevant statutory context (see Kioa v West (1985) 159 CLR 550 at 584-5,611). The court found that s.425 indicated a legislative intention that the invitation must not be a hollow shell or empty gesture, but also that s.425 was not a code setting out all of the requirements for a fair hearing by the Tribunal. The court stated at [35]:
For example, s.425 is directed to the invitation, rather than the hearing itself – this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s.425. This does not mean that there is no such obligation – only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that Parliament has made compliance with s.425 of the Act a necessary condition and element of a fair hearing by the Tribunal.
It is clear that s.425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671; BC200007138.
On the other hand, it is also clear that s.425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s.425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140; BC200300681. The also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804; BC200203400. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; BC200204868; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788; BC200107846.

Section 425 would, on the authority of SCAR, be breached if the applicant was “effectively precluded” from taking part in the hearing because he could not speak English and a translator was not provided. The cases cited in SCAR (Tobasi and W284) both involved complaints of inadequate rather than no interpretation, but such authorities provide some guidance in determining whether in this instance the absence of an interpreter constituted a failure to provide a “real and meaningful” invitation. Further, the obligation on the Tribunal would exist whether or not the Tribunal was aware of or realised that the actual circumstances would defeat its obligation under s.425. Thus, if the applicant established to the satisfaction of the court that the lack of an interpreter effectively precluded him from taking part in a meaningful way in the hearing, a breach of s.425 would be shown despite any failure by the Tribunal to realise that this was the case. (See Perera at [37], NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1319 at [32] and Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230).
It is relevant to bear in mind that as the Full Court of the Federal Court stated in Singh at [28] in relation to the proficiency in English contemplated by s.427(7) (which provides that if a person giving evidence before the Tribunal is not “proficient in English” the Tribunal “may direct that communication with that person during his appearance proceed through an interpreter):
… the proficiency in English contemplated by s.427(7) is the proficiency necessary to enable an applicant to give evidence and present arguments in English in order to communicate the substance of his or her case and to respond to the issues raised. It does not require any greater expertise in English. If the applicant can comprehend and articulate English sufficiently well to enable him or her, in a real sense, to give evidence and present arguments in English to the Tribunal, the requirements of s.425(1) will have been satisfied. On the other hand, if an applicant does not have such proficiency, s.425(1) may well not be satisfied in the absence of a direction under s.427.
I note that the question of the construction of s.425 would have to take into account s.422B (which provides that the subdivision in which s.425 appears is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with) – a matter on which I was not addressed. I also note that the applicant’s solicitor did not seek to rely upon ground 1 in his amended application, which appeared from written submissions to allege a lack of procedural fairness and that the interaction between s.425 and principles of natural justice is not in issue in the same manner considered in SCAR. In any event, as the Full Court of the Federal Court found in NALQ, in this instance it is not unnecessary to determine the precise scope of s.425 as however it is construed, I am not persuaded on the material before me that it has been breached.
First, there is no suggestion that the “formalities” of the hearing invitation (see ss.425A and 426) were not met. The applicant had indicated in his protection visa application that he could read, speak and write English and there was no declaration by an interpreter. There was also no interpreter’s declaration completed on the application for review by the Tribunal although it is the case that in that document the applicant indicated that he needed an Urdu interpreter. However when asked in the response to hearing form whether he needed an interpreter for the hearing the applicant indicated that he did not need an interpreter. In these circumstances it cannot be said that prior to the hearing the Tribunal knew an interpreter was required. However while the Tribunal must decide in the first instance whether an interpreter is called for (see Perera at [37]), as indicated above its opinion on the matter is not conclusive and I have considered whether or not the Tribunal met the requirements of s.425 to give a “real and meaningful” invitation.
The applicant told the court, quite frankly, that prior to the Tribunal hearing he believed he was confident of his ability to communicate with the Tribunal in English in the hearing. He raised for the first time in cross-examination a possible second reason for not requiring an interpreter to do with the fact that any interpreter would come from his local community. There is nothing to suggest that any such concern was raised by him with the Tribunal. Nor was this claim made in his affidavit of 2 May 2005. In these circumstances I am not satisfied that such a concern was in fact a reason for the applicant not seeking an interpreter, but accept that he felt confident that he could express himself in English properly. Further, even if he had had held such a concern, that of itself does not establish a breach of s.425 of the Migration Act 1958. It is still necessary to consider whether it has been established that there was a failure by the Tribunal to provide a real opportunity to the applicant to give evidence and present arguments.
It is relevant to have regard to what occurred in the Tribunal hearing. After an introduction by the Tribunal member, she commenced by receiving the applicant’s passport and asked him if he had any other documents or submissions that he wished to give at that time (and I note that in the hearing invitation he had been requested to bring identity documents other than his passport to the hearing). He replied that he had nothing else at this time. When asked if there were no submissions he indicated “No, maybe later on” and when asked what he meant by “later on” the following exchange occurred::
Applicant: If you give me some time.
Tribunal: Pardon?
Applicant: If you give me some more time to …
Tribunal: No I won’t be giving you some more time. The question was, do you have any submissions or documents to give me now.
Applicant: No.
While the applicant contended that the Tribunal interruptions reflected difficulty the Tribunal was having with his English, this exchange indicates that the Tribunal understood that the applicant was seeking additional time, dealt with that request and repeated the request for any submissions or documents available at the time of the hearing. The Tribunal did ask the applicant in effect to repeat his answer, which he did, and while the applicant complained that he was interrupted it is clear that the Tribunal understood and dealt with his request for additional time.
Importantly, after an introductory period during which time the applicant had responded coherently to the Tribunal questions, the Tribunal asked “Now, you don’t require an interpreter?” to which the applicant respondent “No, it’s okay”. The Tribunal responded “No fine okay” and went on to address the definition of a refugee. There is nothing to suggest that at this stage of the hearing the applicant was having difficulty communicating or the Tribunal having difficulty understanding the applicant. The applicant gave no indication that he required or needed an interpreter. Nor did he raise any concern about the possible identity of an interpreter as a member of his community or otherwise.
The Tribunal member then explained to the applicant what she described as the “difficult” definition of refugee. There is nothing in the transcript of the hearing to suggest that the applicant raised any concern about his ability to comprehend or communicate with the Tribunal about this explanation. Rather there was then an exchange of questions and answers from which it is apparent that each participant understood what the other was saying. The applicant was able to provide responsive and appropriate answers and indeed to correct misunderstandings of the Tribunal (based on the documents before it) in relation to his past travel details.
The applicant took issue with an exchange that occurred after the Tribunal asked him what he studied here in 1996. The transcript continues:
Applicant: I did second mate for merchant navy.
Tribunal: Pardon
Applicant: I did second mate here, one year course of second officer.
Tribunal: You didn’t study when you came here?
Applicant: Then I got a certificate.
Tribunal: You have to speak clearly and slowly. Are they your only passports?
However considered in the context of the whole of the hearing such an exchange, rather than showing a lack of understanding or ability to communicate because of the limited English language ability of the applicant, indicates that the Tribunal used its best endeavours to ensure that the applicant did not speak too quickly so that the member was able to understand him. The request that the applicant speak clearly and slowly in the context in which it occurred is not necessarily indicative of a failure to understand the applicant’s English (indeed this is not the complaint the applicant makes) but rather his diction and indeed it was apparent from his responses in cross-examination and in re-examination that the applicant sometimes spoke quickly, quietly and with an accent. The applicant shortly thereafter clarified to the Tribunal that he had a document in addition to his passport (a “CDC”) which he had used to join and leave the ship while he was in the merchant navy and showed the Tribunal what he described as “the certificate of competency that I got from Australia Maritime Safety Authority in 97” and which he explained was a certificate of competency to work as a 2^nd officer on a ship. It is clear from the Tribunal reasons that the Tribunal understood the applicant’s evidence in this respect. There is nothing to suggest that the applicant was unable to communicate effectively about his past history.
The Tribunal then asked the applicant if he filled in his protection visa application himself or if it was filled in by a migration agent. He stated that he filled it in himself, that everything in it was correct and (importantly) confirmed that he had nothing to add to it. This confirmation is important in light of the applicant’s claims that he was unable to present his case properly. He had an opportunity to expand on his claims. He neither took it nor indicated that any language difficulties inhibited such clarification. There is nothing in the transcript to suggest that he was confused about what was being asked. He does not suggest that he did not understand what the Tribunal said to him. The Tribunal member then addressed the basis for the applicant’s claimed fear of persecution, asking him if it was correct that he left his country “as he was afraid of being harmed on the basis of his membership of the MQM”. He confirmed that this was correct. Again, it is notable that the transcript shows no attempt by the applicant to suggest, as he now claims, any wider basis for his fear – or to suggest that he was unable to articulate a basis for his fear beyond that contained in his protection visa application.
The applicant complained of an interruption by the Tribunal in the following exchange. When asked what evidence he had of his claim that he left his country as he was afraid of being harmed on the basis of membership of the MQM, the applicant responded:
Applicant: Actually I joined MQM in ’91, no sorry ’89 or ’90 I think, so, one or two years after that I joined merchant navy ship …
Tribunal: Pardon me you have to speak slowly.
Again this exchange does not establish that the Tribunal did not understand the applicant’s English or that he was not able to communicate effectively, as is apparent from what occurred thereafter. The applicant then stated “When I joined …” and the Tribunal did interrupt to say “You joined in when” but clearly this is a clarification of a detail seen as relevant by the Tribunal. The applicant stated that he was not sure about the correct year, that it was ‘89 or early ‘90 and that after that he felt that because of joining the MQM he could be harmed by other people. A portion of the transcript is indecipherable but it is clear that the applicant then stated that “Its not good to join any political party in Pakistan then I tried to avoid MQM or tried to avoid the membership of MQM”. He also explained that he did not try to leave the MQM “because it is not possible if you are living in Karachi”. Again the applicant did not attempt to suggest any wider basis for his fear.
The applicant also complained that there was an interruption which indicated a lack of communication or understanding in the following exchange:
Tribunal: Have you ever been arrested or charged with any offence by the police?
Applicant: No. No, because my family members and other people they don’t like to …
Tribunal: So you have never been in jail?
Applicant: No.
While there was apparently an interruption by the Tribunal, there is nothing to suggest that it had anything to do with the quality of the English language spoken, but rather that the Tribunal was pursuing a line of questioning about the consequences that the applicant had experienced as a result of his claimed fears. There is nothing in this exchange to suggest that the Tribunal misunderstood or, in the context of the whole of the transcript of the Tribunal hearing, that the applicant did not have an opportunity to put his claims to the Tribunal because of his claimed language difficulties or the absence of an interpreter.
Subsequently, after an exchange in which the Tribunal asked the applicant about why he had not claimed refugee status in any of the countries he had visited before coming to Australia, he indicated that he felt there had been a change because of the situation in Karachi and Pakistan. He was asked what had changed in Pakistan. He responded “Well I’m feeling not secure whenever I go”. The Tribunal responded “Pardon?” and the applicant replied:
I am not feeling secure over there, with the political situation and that is getting bad and bad, bad and worst, if you see the situation, wherever, whatever you are from. Being a member of Mohajir …Motahiddah Qaumi Movement so its very, very dangerous. This is the only thing I can say, I could get the details of this and evidence but I told you that if I try to get the documents from there so I’ll be in trouble because if someone can just only hear the name that he is a member of or was a member of Motahhiddah so any time police and other peoples they took the persons from the home at night time, in day times and even they called by when there’s type of things to reveal the people and even if you pay bribe to him but they still harm you.
Tribunal: But you have never been harmed?
Applicant: No, but I not harmed from the other people but …
Tribunal: Do you have anything else to tell me?
Applicant: Sorry?
Tribunal: Have you got anything else to tell me?
Applicant: I think this is enough.
Tribunal: Okay.
This interruption brought the applicant back to the point to which the question related, rather than indicating anything relating to language difficulties.
There is nothing in this exchange to indicate a lack of comprehension or suggest that the ability of the applicant to communicate in English was such as to make the invitation to the hearing a “hollow shell” or not “meaningful”. The applicant did say that all he could say was that being a member of the MQM was very dangerous – but did not elaborate on why – rather stating that he would not get documents as he would be in trouble if people heard he is or was a member of the MQM. Again the Tribunal offered him an opportunity to expand on his evidence or claims. He did ask the Tribunal to repeat itself but his response that he thought “this is enough” revealed an understanding of the opportunity to tell the Tribunal more. He did not indicate that he was inhibited from responding by language difficulties – either actual or perceived. He then apparently changed his mind about saying more. The subsequent exchange is the only portion of the Tribunal hearing that raises a concern. It is as follows:
Applicant: After that, they’re using me so they are saying me to do some favour with “MQM” just not as a member but you can do favour means you go in other peoples and support MQM so that other peoples can see you because you are belonging to merchant navy and this and that. And so they will if other peoples see you to do favour to MQM so they will favour to MQM because of watching you, you are not living in Pakistan, you are doing good job and this and that. The peoples watching you so there [they’re] MQM’s, members of “Mutahiddah” they are telling me to do this thing and I know that I was doing favour of “MQM” but I know that the if anybody from other party or from government, they mark me, and now I think they have marked me that so its not good for me and for my family and being a merchant navy I always live outside the home so I think its not good for my family or other peoples that there lives.
Tribunal: That doesn’t make much sense to me.
Applicant: Sorry.
Tribunal: That doesn’t make such sense to me at all, you’ve been all over the world, you’ve been in and out of Pakistan, you’ve never been harmed, never been in jail and on the face of it I cannot see how you are a refugee. However, I will think about it a little bit more and I will let you have a decision in a few weeks time.
This exchange indicates that the Tribunal extended an opportunity to the applicant to expand upon or clarify his claims or earlier evidence or to make any further claims. Again it is notable that there was no indication by the applicant to the Tribunal of any difficulty in communicating. Initially the applicant indicated that he thought he had said enough and then he changed his mind and tried to explain his case. The applicant made the statement to which the Tribunal responded that it did not make much sense. It may well be that this part of the hearing contributed to the Tribunal view that the applicant provided what the Tribunal described in the decision as a “garbled, incoherent, vague and unconvincing account of his alleged minor political involvement with MQM”. What he says in this statement is clearly not well phrased and might well be described as vague. It appears that he was making a claim that he was told by MQM members to support or do favours for the MQM while he was in the merchant navy as this may encourage others to favour the MQM but that he risked harm from the other party or from the government. He has not suggested that he was making another claim in this part of the hearing.
Importantly the Tribunal went on to explain in a response that addressed the applicant’s claimed fear of the other party or government (or indeed any fear in Pakistan) that it did not make sense at all as the applicant had been all over the world, in and out of Pakistan and had never been harmed in any way so that the Tribunal could not see on the face of it how he was a refugee. Whatever lack of clarity there was in this statement by the applicant there is nothing to suggest that he made or wished to make some other claim or that the Tribunal misunderstood the fact that he had never been harmed in any way.
The Tribunal also indicated that it would think about it a little more and would let the applicant have the decision in a few weeks time. Thus, if the applicant had felt, as he now says, that he was hindered in any way in presenting his claims because of his lack of English, he in fact had an opportunity (because the Tribunal said that it would think about it a bit more and let him have the decision in a “few weeks time”) to put to the Tribunal (if needs be with the assistance of his migration agent) any further claims or clarification of his claims. He could have raised his concerns with the Tribunal in writing, a medium in which he acknowledges his ability to communicate in English (if he felt that his ability to communicate orally had been affected by English language difficulties). He did not do so, even when he received a notification dated 15 October 2003 that the decision would be handed down on

5 November 2003.

Further, until the concluding part of the applicant’s evidence before the Tribunal, there was nothing of significance to indicate to the Tribunal that the lack of an interpreter prevented or hindered the applicant from giving evidence or present arguments adequately to the Tribunal. While his English was clearly not perfect, it is apparent that he understood the questions and that the Tribunal understood his answers. Moreover the Tribunal member took steps to ensure that she asked him to repeat answers and to slow down. There is no evidence that the Tribunal member did not understand what he was saying, with the possible exception of the concluding exchange. Nor did the applicant indicate that his lack of proficiency in English caused him concern in responding to the specific Tribunal questions. The fact that his answers were at times tangential does not establish or even necessarily indicate a lack of understanding or sufficient English language ability. Further, it is clear that where the Tribunal sought a direct response instead of a more discursive answer, it interrupted and clarified the issue in question and that the applicant responded appropriately. No issue was taken by the applicant with the accuracy of the account in the Tribunal reasons for decision of what he said in the hearing.
The Tribunal extended an opportunity to the applicant to say anything else at the conclusion of the hearing and it is at that point that his response was undoubtedly somewhat incoherent and rambling in addressing the claim made in his protection visa application. However the critical fact, as pointed out by the Tribunal, was that there was no evidence of past harm or substantiation of his claims. The Tribunal finding that he gave a vague and unconvincing account of an alleged minor political involvement with MQM was consistent not only with the limited details provided in the Tribunal hearing but also with the information in his protection visa application. Moreover there was evidence before and taken into account by the Tribunal (not dependent on the applicant’s English language ability) including the applicant’s acknowledgement that he had never suffered harm in Pakistan or been charged with any offences or arrested or gaoled, his travel history and time in Australia and the absence of an explanation for his failure to apply for a protection visa on previous visits to Australia or in other countries such as the USA and the UK. There was also no “convincing” explanation relating to the recent changes in Pakistan which allegedly made him afraid and fearful for his safety in Pakistan. The Tribunal relied on these factors in finding that the applicant did not have a genuine fear of suffering persecution in Pakistan because of his political opinions or for any other reason.
The solicitor for the applicant contended that, having heard the applicant give evidence in response to cross-examination and re-examination, the court could see whether he was competent in the sense in which he could advance his case to the Tribunal. He asked the court, based on the evidence before it, to find that the applicant did not have sufficient knowledge of English at a level to advance his case before the Tribunal. However it has not been so established that the applicant did not have sufficient English to advance his case before the Tribunal. In particular I am not persuaded that I should draw an inference, based on the applicant’s performance in cross-examination in these proceedings, that he did not have a knowledge of English at a level to advance his case before the Tribunal. On the contrary. His evidence in cross-examination revealed that he had a considerable ability in English, that he was able to follow the questions asked in cross-examination on almost all occasions, and to provide coherent and responsive, if sometimes ungrammatical, answers. It is the case that questions and answers were translated into Urdu for him when he or his solicitor requested, but the different context and circumstances in which the cross-examination occurred (in relation to an affidavit in which he claimed that he had found during the Tribunal hearing that he could not present his case properly to the Tribunal because of language difficulties) are relevant when considering what weight if any is to be given to the applicant’s present English language ability as it appeared in cross-examination before this court. I find more helpful, and more relevant, the transcript of the Tribunal hearing and a consideration of all of the circumstances of the application for a protection visa and review, bearing in mind that the only issue for determination by the court is whether the applicant has established that there was a failure by the Tribunal to comply with s425 of the Migration Act 1958.
The applicant understood the written invitation and elected not to have an interpreter. He acknowledges that he thought his English would be sufficient. That is not to say that there could not be a breach of s.425 if, contrary to his expectation, his English proved to be inadequate in the hearing. However in all the circumstances this has not been established. The applicant’s complaint is about his ability to communicate or express his claims and present his case. He does not contend that he failed to understand the Tribunal. However at no point either during or after the hearing did the applicant (or his migration agent) raise with the Tribunal the concerns he now expresses. I accept that he may have felt inhibited from doing so during the hearing, but it is relevant that he took no steps to address this concern after the hearing, despite having the assistance of a migration agent and an indication from the Tribunal that the decision would not be made for a few weeks. Moreover the transcript of the hearing gives no indication that the applicant felt constrained by his claimed lack of English. The requests by the Tribunal that the applicant repeat himself or slow down and the “interruptions” do not reveal a lack of understanding on the part of the Tribunal consistent with the claims of the applicant. He has not established, nor is it apparent from the transcript of the hearing that he was not given or able to take up the opportunity to present his case. He suggested that he was not able to explain his claims to the Tribunal because of his inability to express them clearly in English, but the only part of the transcript that gives any support at all to this claim is his statement at the very end of the hearing – as well as the Tribunal’s description of his account as “garbled”. However, when read as a whole, the transcript of the hearing does not reveal language difficulties such as to establish that the applicant lacked the proficiency in English such as to enable him in a real sense to give evidence or present arguments or that language difficulties prevented him from expressing his claims. There is no indication from the transcript that he “lacked confidence in his ability to participate in the Tribunal hearing by use of English” (see Singh at [25] – [28]). His oral evidence to the Tribunal was consistent with the written claims made in his protection visa application. His answers were generally responsive (if tangential at times). It is apparent from the reasons for decision and from the Tribunal’s explanation of why the applicant’s last statement did not make sense that the Tribunal understood what the applicant was saying.
When the Tribunal reasons are read as a whole and in light of what occurred in the hearing, the assessment of his account as “garbled” concerns the illogicality of thought exposed by the applicant’s answers to its questions rather than linguistics – in particular his answer to the question about why he had not applied for refugee status in the past.

I am not satisfied that the verbal exchange between the applicant and the Tribunal “was disjointed to such an extent that communication could be said to have been compromised” (Singh at [24]). As in Singh it is apparent from the transcript of this Tribunal hearing that while the applicant’s English “was at time broken and disjointed” it was sufficient to enable him “in a real sense” to give evidence and present arguments relating to the issues arising in relation to the decision under review. (Also see Ram v Minister for Immigration & Multicultural Affairs [2002] FCA 1572 at [35]).
I recognise that a case could arise in which an applicant understood English sufficiently to provide short, responsive answers, but was unable to express more complex matters in English. I also recognise that the fact that a person speaks English sufficiently “to perform mundane or social tasks or even business obligations at the person’s own pace” (Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 77 – 78 per Kirby J and see Perera at [34] – [35] per Branson J and Singh at [23]) does not necessarily mean that he or she is able to cope with the stresses or sufficiently proficient to give evidence before the Tribunal in support of an application “vital to his or her future prospects” (ibid). However it has not been established that this is such a case. It is not apparent that the final statement by the applicant (or any other part of his answers) reflected language difficulties and a lack of sufficient English ability rather than a lack of logic and vagueness about very general claims he had never expanded on despite numerous opportunities and invitations from the time of his protection visa application. Moreover, while the applicant claims that he wished to raise more extensive claims than those made in connection with the protection visa application, the fact that he made no attempt to do so (either through his migration agent or in written English in which he conceded he could express himself) is relevant in assessing his present claim that the reason he did not do so was his language difficulties in the hearing. His failure to do so does not support his claim in this respect. It may, in retrospect, be considered by the applicant that he should have requested an interpreter. However such a present belief does not establish that the Tribunal failed to comply with s.425 as contended.
The applicant also claimed that the Tribunal should have noticed his language difficulties and postponed the hearing so that it could be conducted with an interpreter. This is not established. Clearly the Tribunal was aware that English was not the applicant’s first language. It confirmed (after an initial exchange which would have afforded the applicant an opportunity to indicate if he felt language difficulties meant that he could not advance his case) that the applicant did not require an interpreter. It ensured answers were repeated or clarified and tried to direct the applicant’s attention to the critical issues. The applicant’s answers are not such that the Tribunal should have noticed, for itself, that a language difficulty was preventing the applicant from presenting evidence or arguments – particularly as he declined an interpreter and gave evidence of two lengthy periods living and studying in Australia. The last response of the applicant was not sufficient to alert the Tribunal as contended given the conduct of the hearing as a whole. Further, no interpreter or adjournment was sought and the question of language difficulties was not raised with the Tribunal. Nor is it established that the Tribunal was “not particularly interested in ensuring that the applicant was able to give evidence and present argument in a coherent way”. On the contrary, the transcript reveals that the Tribunal sought to focus the applicant’s attention on relevant matters and sought clarification where necessary. It gave the applicant an opportunity to elaborate on his claims on more than one occasion.
Further, in considering whether the invitation to a hearing was an empty gesture or real and meaningful and in assessing the applicant’s present claims about his language difficulties, it is relevant to note that since April 2001 he had on a number of occasions, filled in forms (which he understood) that required him to give complete and correct details of his claims. The absence of details in his claims was brought to his attention by the delegate – he was given more time but neither provided documents or the further claims he now makes (which could have been raised without supporting documentation). Nor did he provide written claims or information in response to the Tribunal’s written requests. In all the circumstances I infer that, contrary to the assertion in his affidavit of 2 May 2005, that was because he had nothing further to give. Hence it cannot be said that his inability to express himself in English meant that he was not able, in the broad sense, to present his case to the Tribunal. He had that opportunity, he was aware of it and did not take it because there was nothing further to present.
In short then it is apparent at a factual level that the applicant clearly understands English and expresses himself well enough in English so that it has not been established that he needed an interpreter to put his claims clearly to the Tribunal. He has lived here for some time, studied (successfully) in English, worked in English, filled out complex forms and written letters in English, answered questions under cross-examination in English, told the Department that he spoke, read and wrote English and told the Tribunal (both in the hearing response form and in the hearing) that he did not need an interpreter. At no time did he inform the Tribunal that he had changed his mind about the need for an interpreter. In these circumstances the factual basis for his claim is not established.
Nor as a matter of law has it been established that there was no real and meaningful invitation given under s.425. The application must fail.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 6 June 2005