NBII v Minister for Immigration

[2005] FMCA 216

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBII v MINISTER FOR IMMIGRATION [2005] FMCA 216

MIGRATION – Application for review of Refugee Review Tribunal refusing to grant a protection visa – whether the Tribunal ignored the applicant’s evidence and therefore fell into jurisdictional error – whether the interpreter provided at the Tribunal hearing had ability to interpret – no jurisdictional error – application dismissed.

Migration Act 1958

Ngu v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCAFC 2
Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426
Re: Minister for Immigration Multicultural & Indigenous Affairs ex parte Durairajasingham [2000] HCA 1
Mazhar vMinister for Immigration Multicultural & Indigenous Affairs 183 ALR 188
SZAAJ vMinister for Immigration Multicultural & Indigenous Affairs [2004] FCA 312
WACO vMinister for Immigration Multicultural & Indigenous Affairs [2003] FCAFC 171
Perera vMinister for Immigration Multicultural & Indigenous Affairs [1999] FCA 507
Perera vMinister for Immigration Multicultural & Indigenous Affairs [1999] 92 FCR 6
Appellant P119 of 2002 v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCAFC 230

Applicant: NBII

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2398 of 2004

Delivered on: 7 March 2005

Delivered at: Sydney

Hearing date: 26 October 2004

Judgment of: Nicholls FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. M. Wigney

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

(1)The application is dismissed.

(2)The applicant to pay the respondent’s costs set in the amount of $5,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2398 of 2004

NBII

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1.This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 September 1999 affirming the decision of a delegate of the respondent Minister made on 31 October 1997 refusing the grant of a protection visa to the applicant. This application was filed in the Federal Court on 13 July 2004 and was transferred to this Court on 13 August 2004 by order of Gyles J.

2.On 24 September 2004 a Notice of Appearance was filed in this matter in this Court by solicitor Mr. B. Dennis indicating that he was appearing for the “applicant creditor”. The notice used the current pseudonym (namely NBII) and one of the names by which the applicant is known. On 19 October 2004, Mr Dennis filed, in the Federal Court, a Notice of Ceasing to Act for the applicant whom he described as the “applicant creditor” but again used the pseudonym and one of the names by which the applicant in the matter before me is known. There was no evidence before me to show that Mr Dennis had complied with Rule 9.03 of the Federal Magistrates Court Rules 2001 (“the Rules”). Following his appearance at the hearing before me, and in all the circumstances, leave was granted to withdraw pursuant to Rule 9.03(2) of the Rules.

3.On 26 July 2004 at the first Court date in this matter in the Federal Court the applicant signed short minutes of order, which subsequently became orders of the court that, amongst others, said :

“2. The applicant file and serve an amended application providing full particulars of the grounds relied upon and any affidavit material to be relied upon on or before 30 August 2004.”

This date was subsequently extended to 30 September 2004 following transfer of this matter to this Court. No amended application giving full particulars has been filed. Nor has any written submission been received as required by these orders. The applicant in this matter previously advised that he wished to participate in the Court’s Legal Advice Scheme and had been referred to a lawyer on the panel.

4.One preliminary matter is the applicant’s identity and nationality. I note that the delegate of the respondent Minister at Court Book 35 to 36, found that the applicant’s identity was that of the name that was on the passport which he used to travel to Australia. This was also the name under which he had previously been granted a visa to travel to and enter Australia. The delegate found that he was a citizen of India. However, in his application to the Tribunal the applicant used the name which he claimed was his real name [See CB 40] and which circumstance is explained by his representation, in a submission to the Tribunal dated 10 June 1999 [see CB 55], that his real identity was not that shown on his passport, but:

“that the need for the fake passport arose from his own passport being lost in Hong Kong.”

In any event the applicant claimed before the Tribunal to be an Indian national, of Muslim religion and has maintained this position before the Court.

5.The applicant arrived in Australia on 17 September 1997. He applied to the respondent Minister’s department for a protection visa on 25 September 1997. This was refused on 31 October 1997. On 25 November 1997 the applicant sought review of that decision by the Tribunal which affirmed the decision of the Minister’s delegate on 15 September 1999.

6.

The case of Ngu v MIMIA [2004] FCAFC 2, a Full Federal Court decision on 4 November 2004 upheld the judgment of Justice Nicholson who at first instance held that an appeal against a privative clause decision, lodged outside the time limit in s.477 of the Migration Act is in those circumstances incompetent unless a ground of review can be made out. In determining whether the Tribunal made a jurisdictional error regard must be had to s.474 of the Migration Act 1958 (Cth)

(“the Act”) in the way described by the High Court in Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426. If the Tribunal’s decision in the case before me is a privative clause decision pursuant to s.474 of the Act then the time limit provided in s.477(1A) of the Act would apply. Also pursuant to s.477(2) of the Act the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit, which is of course 28 days. The issue of whether the decision complained of is a privative clause decision or not requires an examination of the grounds of review.

7.The applicant was unrepresented at the hearing before me today. He was assisted by an interpreter in the Hindi language. In his application before this Court the applicant appears to recite some of the factual claims before the Tribunal. I explained to the applicant at the hearing before me the role and function of the Court and the different role of the Tribunal. The application is not properly particularised. However, I agree with Mr Wigney, Counsel for the respondent Minister, that to the extent possible two grounds may be drawn from the applicant’s statement:

1)The Tribunal “ignored” his evidence and thereby made an error.

2)The applicant had doubts about the interpreter’s ability to interpret during the hearing before the Tribunal.

8.As to the first ground, the applicant was unable at the hearing before me to provide any detail. The Tribunal did look at the applicant’s claims [See CB 148-149] and its record of decision shows that the Tribunal’s concerns with the applicant’s claims were put to him. The Tribunal found that the applicant was not a credible witness. It found his evidence “…confused, confusing, inconsistent and contradictory.” [see CB 151].

It was this that led the Tribunal to find that the applicant is not owed protection obligations under the Refugees Convention.

9.It is obvious that the applicant does not agree with the Tribunal’s findings and its conclusion, but this of course on its own, does not amount to establishing that the Tribunal failed to look at his claims. It appears that the real meaning of the applicant’s complaint is not that the Tribunal did not look at, in the sense of “consider”, his claims, but that it did not accept them. Findings of fact, including a finding on credibility is of course the function of the primary decision maker “par excellance”. (Re: MIMIA Ex parte Durairajasingham [2000] HCA 1 per McHugh J at paragraph [67] ). In the case before me the Tribunal found the applicant’s claims relating to who are his “enemies” to be “fabrications”. It based this on contradictions in the applicant’s evidence and that the applicant was not telling the truth. Further, it found there was effective State protection for Muslims in India. It was open to the Tribunal to make these finding on the material before it.

10.The second complaint can be read as an inability to present claims and evidence due to defective interpretation. In a typed note submitted to the Court the applicant says:

“During my RRT interview I have doubt about the interpreters ability to interpret during the hearing time. That’s why at one stage I had to stop the interpreter for his service. There is lots of misinterpretation of the interpreter during this hearing time.

I couldn’t explain to RRT about my all story why I don’t want to return to India.”

The issue then is whether the applicant was denied a fair hearing. It is, of course, a basic principle that a person should have a reasonable opportunity to present their case before the Tribunal. The applicant claimed at the hearing before me that the language used during the Tribunal hearing was Hindi and that he had a difficulty with the interpreter’s accent and grammar. He said that the interpreter could not understand his Hindi and could not explain or interpret properly. He claimed his hearing “went wrong” because the member could not properly understand what he was saying. The applicant stated that there was a tape of the hearing before the Tribunal and that I should listen to the tape. He did not tender any tape or transcript of the Tribunal hearing.

11.Mr Wigney, for the respondent, provided a copy of a transcript of the Tribunal hearing by way of an affidavit affirmed by his instructing solicitor which annexed the transcript. A copy was provided to the applicant. I gave the applicant, and subsequently the respondent, time to make further written submissions in relation to the transcript and the issue of the standard of interpreting.

12.A clear principle of law is that the Tribunal must give an applicant a fair hearing. It is basic that an applicant should have a reasonable opportunity to present his case and to meet the case against him. The Tribunal is under a statutory obligation to provide a competent interpreter who does in fact provide a competent interpretation. Section 425 of the Act (as it was) required the Tribunal to give applicants the opportunity to appear and to give evidence. The current form of s.425 substituted in 1998 provides that the Tribunal must invite the applicant to appear to give evidence and present arguments. Critically, for the case before me, s.427(7) specifically requires the Tribunal to consider giving a direction that communication be through an interpreter if the applicant is not proficient in English. The statutory requirement may be satisfied if the applicant can comprehend and articulate English sufficiently well to enable, in a real sense, the giving of evidence in English. The Tribunal will have breached its statutory obligation if it provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence. In Mazhar v MIMIA 183 ALR 188 Justice Goldberg, after looking at relevant authorities, said at [31]:

“These passages suggest that where the applicant appears, 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 s. 425(1). I agree with the observations of Wilcox J in Xiao above, at [30] 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 s. 425(1)”.

Similarly under the common law if an interpreter provided by the Tribunal has interpreted in an inadequate way there will be a breach of the common law hearing rule because the opportunity to put a case is illusory. For example, Justice Hall in SZAAJ v MIMIA [2004] FCA 312 at [40] said:

“I am unaware of any decision which has considered the question of translation in the context of whether a wrong translation of material before the Tribunal could constitute jurisdictional error. It can be accepted that it is a fundamental rule of a fair hearing that an applicant before the Tribunal be afforded the opportunity of putting his or her case. I do not need to consider whether there would be any obligation on he part of the Tribunal to provide to an applicant, unable to speak English, an interpreter. If an interpreter provided by the Tribunal translated in a totally inadequate way the apparent opportunity to put a case is illusionary. In the present case an interpreter was in any event provided (see Migration Act s.366C). The complaint is that the interpretation was so inadequate as to amount to a denial of procedural fairness.”

13.But not every error or problem with interpretation will amount to a denial of procedural fairness. For example, the Full Federal Court in WACO v MIMIA [2003] FCAFC 171, (in referring to Justice Kenny in Perera v MIMIA [1999] FCA 507 at [25] – [26] “interpretation is no mere mechanical exercise”) said at [66]:

“However the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.”

In Perera v MIMIA [1999] 92 FCR 6 at [45] the Court said:

“It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision.”

The lapse in interpretation needs to involve the vital interests of the applicant and not merely some collateral or extrinsic matters. In the case of Perera the Court held that the appropriate standard of interpretation before the Tribunal should include precision or accuracy, impartiality on the part of the interpreter and competency. Elements that go to incompetence such that the applicant is prevented from effectively giving evidence include the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made out and any evident confusion in exchanges between the Tribunal and the interpreter. Although other than the latter, these elements could also be reflections or consequences of the paucity of an applicant’s claims.

14.During the course of the hearing before me, Mr Wigney for the respondent submitted that the applicant would need to establish that he was either effectively prevented from giving evidence or that specific mistakes were relevant to the Tribunal’s decision. It is not enough that the applicant simply point to problems that may have occurred at the hearing. He also referred me to Appellant P119 of 2002 v MIMIA [2003] FCAFC 230, a Full Federal Court decision and in particular paragraph [17] of the joint judgement of Mansfield and Selway JJ where their Honours set out what an applicant would need to establish to demonstrate a jurisdictional error arising from inadequate translation. In that case their Honours said that that the applicant would need to establish:

“a) that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence at the Tribunal; or

b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.”

15.Towards the conclusion of the hearing before me, and after hearing the respondent’s submissions from Mr. Wigney, the applicant sought further time to make submissions to address the issue raised by the respondent. I gave the applicant further time and he provided subsequent written submissions. The applicant again asserted that the interpreter did not “present my statement to the Tribunal member properly” and did not explain “the Tribunal member statement clearly to me.” He claimed he was not able to “express my case properly to the Tribunal, which made them to decide to give a negative answer in my application.” The applicant points to ten instances in the transcript of the Tribunal hearing which he says support his claim. In response I have further written submissions from the respondent. I propose to deal with each of the points below, but first note the respondent’s general position that for the applicant to have proved these allegations it would have been necessary to provide evidence to support the claims made, for example, by calling someone who could interpret the Hindi language to give evidence that these errors had occurred as alleged.

16.The applicants specific concerns from the Tribunal decision record are:

a)Page 5 Paragraph 7

The applicant says that references by the interpreter to “a friend” should have been “lawyer”. That is, that a lawyer advised him to collect documents from India, not a friend.

The respondent says this alleged error is immaterial as nothing in the Tribunal’s reasons turned on this. I agree.

b)Page 7 Paragraph 10

The applicant says that the interpreter did not explain his statement that the majority of the people where he used to live in India were “Hindus”. The passage in the transcript refers to Muslim and Hindus at “the place where we live.”

The alleged failure to mention that the Hindus were in the majority does not appear to assist the applicant as the Tribunal would have been aware of this in any event. Firstly, the Tribunal referred to independent evidence at CB 149 to CB 151 where the majority status of Hindus in India vis a vis Muslims was clearly set out. Secondly, the applicant’s claims to the respondent’s Department and the Tribunal were submitted within the context of his fighting for the rights of the minority Muslims against the majority Hindus. At CB20 for example he describes Muslims as “like Sikhs have been slaves in India.”

c)Page 8 Paragraph 8

The applicant states that while explaining his statement [referring to his problem with the authorities] the interpreter stopped him and “explained unrelated things in her own way.”

The transcript, just following this paragraph, does show the interpreter addressing the Tribunal in the first person, but the transcript at the point indicated by the applicant does not support the allegation made. The applicant, in any event, stated later that he had no fear of the authorities. [see Transcript page 22.]

d)Page 8 Paragraph 15

The applicant says that the interpreter said “police military” instead of “military”.

The alleged error is immaterial in the context of what is being discussed. The essential issue is that the Tribunal clearly understood that the applicant was saying that he had been taken by the authorities. Whether “police”, “military” or “military police” is in that sense not relevant.

e)Page 9 Paragraph 19

The applicant alleges that the interpreter did not translate his words exactly.

The version that he now produces shows that in the context of what precedes it in the transcript the substance of the meaning of the disputed passage is almost the same as that advanced now by the applicant, namely that he was beaten and received treatment at the hospital. Nothing turns on the slight difference being whether he was taken to the hospital or went there on his own. In the circumstances the complaint is immaterial.

f)Page 10 Paragraph 5

The applicant complains that while he was “explaining properly” the interpreter said that she did not hear properly.

This is not quite what the interpreter is transcribed as saying. The interpreter says that the applicant was not speaking clearly. In any event the Tribunal appears to continue with the thread of the account that the applicant was giving which was his leaving for Madras and then leaving India.

g)Page 12 Paragraph 3

The applicant complains that the Tribunal was trying to “define” the Hindu/Muslim riots as general trouble in the community.

This is clearly not an alleged error in the interpretation of the hearing before the Tribunal. This appears to be an attempt now to connect two of his claims made before the Tribunal, the general fear of Hindus with his work for a Muslim leader.

h)(No page reference)

The applicant complains about the interpreter being under stress and did not translate properly.

This is a general claim not related to any specific part of the transcript. There is no evidence to support the claim of stress. From the transcript the interpreter appears to indicate some frustration with the applicant, but there is a lack of evidence to support the allegation that she is under stress.

i)Page 15 Paragraph 7

The applicant complains that the Tribunal wrongly referred to the name of a particular leader.

As the respondent submits the difference in spelling between what appears in the transcript and what the applicant claims, may be an error of transcription. However in looking at the applicant’s claims as a whole and the Tribunal’s reasons for its decision nothing turns on the different spelling of the name.

j)Page 18 Paragraph 12

The applicant says:

“The statement which has been communicated to me by Tribunal member did not explained by the interpreter.”

Although it is not entirely clear from the applicants written submission it appears that he is seeking to explain his difficulty in answering the Tribunal’s question in relation to his problems with the authorities by saying the interpreter did not translate this properly. If this is the case then the Tribunal, as the respondent submits, goes to great lengths (see Transcript pages 22-25) to confirm that the applicant had no fear or problem with the authorities.

17.In relation to the applicant’s complaint about the difficulties of interpretation and the inability therefore for him to properly present his claims:

a)The applicant’s claims, to the extent that they seek to rely on the specific instances pointed to above, or in the more general sense, are unsupported by any evidence. In this regard, I note the applicant attended the first Court date in this matter on 26 July 2004, where he was unrepresented, but assisted by an interpreter. On that date he signed short minutes of order which subsequently became orders of the Court. Order 2 required the applicant to file and serve an amended application providing full particulars of the grounds relied upon and any affidavit material to be relied upon, on or before 30 September 2004. I note that the applicant had the opportunity to access legal assistance when his matter was subsequently referred to a lawyer on the panel of the Court’s Legal Advice Scheme. This was done by letter from the Court Registry dated 13 September 2004.The applicant has not filed any amended application nor relevantly any material to support his claims before the Court.

b)In his application to the respondent’s Department for a protection visa the applicant indicated, see (CB12) that he could speak, read and write English.

c)At the time of the hearing before the Tribunal, the applicant was represented by a migration adviser who was present for part of the hearing (see Transcript page 2.4): the adviser is present at the beginning, appears to leave in the middle of the hearing (see Transcript page 16.8) and while it is not clear when he re-enters, he is certainly present before the end of the hearing (see Transcript page 28.6). The transcript ends at page 29.2.

At no time during the hearing does the adviser complain about the standard of interpretation at least concerning the time he was present at the hearing which on the indication of the transcribed pages was over half of the hearing. Further, the applicant does not appear to have taken advantage of his adviser’s return to tell him, or through him to the Tribunal, of his dissatisfaction with the level of interpretation. Also, the adviser is reported (at T page 28.5) as saying in response, to the Tribunal’s question if there was anything else to be raised:

“MR LLOYD (the adviser): “No, I think you have covered it very well. I am very impressed.”

d)The hearing before the Tribunal was held on 16 June 1999. The Tribunal decision was made on 15 September 1999, three months later. There is nothing in the material before me, nor has the applicant asserted to the contrary, that the applicant or his adviser subsequently put to the Tribunal any complaint about the level of interpretation at the hearing.

e)At the hearing before me on 26 October 2004, over five years later, the applicant put to me that for the first 15 minutes of the hearing, only 25% was interpreted correctly, and that after 20-25 minutes he had “problems and difficulties” because while  he could understand English, he could not express himself in English. He subsequently said that he could not exactly recall how long the interview then progressed in English but probably for about “15 or 20 minutes”, but could not recall what happened for the rest of the hearing in this regard. I note at CB 138 the hearing is recorded as starting at 10:00 am. or 10:10 am. and finishing at 11:42 am. In the Transcript at page 2, the start time is referred to as 10:10 am. The duration of the hearing is therefore a period of 1 hour and 32 minutes. Also, at the time of the hearing before me the applicant said he could not recall having anyone with him at the hearing other than his wife who waited outside. He could not remember having his adviser present.

In his written submission to this Court filed on 2 November 2004 the applicant, as outlined above, alleges errors on the part of the interpreter which contain a high degree of specificity. To the extent that the applicant has already put to the Court that he could not recall “exactly” what happened at the hearing and could not recall that the adviser was present, this must cast some doubt, that in relation to some very specific passages in the transcript of the hearing, the applicant is now able to assert the matters that he does with the degree of precision put in the written submissions. The applicant’s capacity to do this in the circumstances is unexplained.

f)Mr Wigney for the respondent also submitted at the hearing before me that the transcript itself shows:

1)At page 2 of the Transcript, there is no initial complaint by the applicant and in response to the question:

“Do you understand the interpreting?”

The answer is:

“Yes”

2)At page 4 of the Transcript, the applicant confirms he has some understanding of English.

3)At page 10 of the Transcript, the interpreter first raises her difficulty with the way the applicant was speaking.

4)At page 13 of the Transcript, the Tribunal asks the applicant whether he speaks several languages. For the first time in the transcript the applicant appears to answer in English, and amongst other language, confirms he speaks English. This, as the respondent’s Counsel submitted is not preceded by any specific complaint about the interpreting. It is also clear that while intermittently the applicant responds in English, and while his adviser is still present at the hearing (up to page 16 of the Transcript), there is still no complaint about the interpreter. In fact the only complaint is from the interpreter at page 14 of the Transcript that the length of the applicant’s replies means she cannot remember to interpret.

5)At page 17 of the Transcript is the first real indication of some difficulty between the applicant and the interpreter. The interpreter says:

“He [Here?] we go again, he is changing.”

The interpreter clearly indicates that she is having difficulty with the applicant. Nonetheless what follows appears to be in English between the Tribunal and the applicant and then the interpreter comes in again and the Tribunal says:

“I don’t accept that answer, (deleted). I asked you several times clearly and I am quite confident that the interpreter or indeed in the context of what I was saying to you indicated I was asking if you had any problems with the authorities, the government, the officials. You said no, you didn’t fear them.”

The interpreter is then recorded as saying:

“That’s what he said, that’s what I replied.”

The applicant, through the interpreter, appears to make a clear response leading to page 20 of the Transcript where the Tribunal says:

“[Applicant] I am forming the impression that you are being deliberately evasive and non-responsive in your answers to my questions.”

This continues with the Tribunal saying to the applicant around the end of Transcript page 20:

“[Applicant] I have told you several times now that it doesn’t assist me if you just give a general answer.”

This continues until about the middle of page 22 of the Transcript with the Tribunal saying that the applicant has told him at least three times that he has no fear or problem with the authorities.  And the interpreter says:

“You want me to say what he is saying?”

The response by the interpreter is to reply in the third person that the applicant said he had no problem.

6)At page 23 of the Transcript, there appears to be a real complaint about the interpreter. The transcript is not clear as to what is being said but the applicant clearly says to the interpreter:

“I can understand him better than you.”

The Tribunal then asks the applicant:

“[Applicant] are you having difficulty with the interpreting?”

The applicant replies in English:

“Yes.”

The Tribunal then asks the applicant:

“Can you tell me what this is please, what your difficulty is?”

The applicant responds:

“I want to say that I am not afraid of the person who me working for. Okay. The main thing who I am working for is to beat the other party people.”

Clearly the applicant does not answer as to why he is having difficulty with the interpretation.

g)Mr Wigney for the respondent Minister submitted that in looking at the flow of the hearing as a whole it is clear that there were some complaints by the applicant about the interpretation at the hearing. But that in the circumstances presented the Court should not be satisfied that these were genuine or bona fide complaints. The submission was that it was not the interpretation that was at fault, but rather it can be inferred that the applicant’s criticisms were a cynical attempt to blame the interpreter for the hopelessly confused and contradictory state his evidence had descended to.

h)This proposition has some strength when further looked at in the context of the matters outlined in the paragraphs above. But it is not necessary to reach a particular conclusion on this point. As against the test to be applied, while there is some doubt about the level of interpretation, and in particular here I note the times the interpreter departed from the need to translate exactly what is being said and engaged in third party discussion, it is also clear that the applicant has failed to show that he was prevented from putting his claims to the Tribunal or of understanding what the Tribunal was saying. Nor are any alleged errors of interpretation such that it can be said they were material to the adverse findings of the Tribunal. Even the applicants written submissions filed after the hearing before the Court, as lengthy as they are, can point to nothing of any significance that the applicant says he was prevented from understanding or putting to the Tribunal. The specific examples are either, immaterial, unsubstantiated, or trivial.

18.On all the material before me it is clear that the Tribunal found the applicant not to be a credible witness and it was satisfied he was not telling the truth. It is also clear that in great part this view was reached by the Tribunal by what it described as his “confused, confusing, inconsistent and contradictory” [CB 151.6] evidence. In part this was against a situation of the applicant contradicting at the hearing claims made in written submissions. The first of the two grounds the applicant now raises, that is that the Tribunal ignored evidence, can in the circumstances of this case he disposed of as the applicant asserting no more than that the Tribunal did not believe him. The second ground, that the standard of interpretation did not allow the applicant to understand what was put to him and to enable him to present his case, has not been made out for the reasons given above.

19.These grounds do not reveal an error amounting to jurisdictional error nor can I see anything else in the material before me to assist the applicant in this regard. This decision is a privative clause decision, and the application for judicial review has been filed well outside the time limit of 28 days provided in s.477 of the Act – namely over 4¾ years later. On this basis the respondent’s Notice of Objection to Competency is upheld and the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 4 March 2005