SBBV v Refugee Review Tribunal

[2002] FCA 548

FEDERAL COURT OF AUSTRALIA

SBBV v Refugee Review Tribunal [2002] FCA 548

MIGRATION – application for review of RRT decision – whether RRT erred – whether applicant’s interpreter failed to communicate the applicant’s submissions to the RRT

Migration Act1958 (Cth) s 474
King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

APPLICANT SBBV OF 2002 v REFUGEE REVIEW TRIBUNAL
S43 OF 2002

TAMBERLIN J
ADELAIDE
22 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S43 OF 2002

BETWEEN:	SBBV OF 2002 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL RESPONDENTS
JUDGE:	TAMBERLIN J
DATE OF ORDER:	22 APRIL 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S43 OF 2002

BETWEEN:	SBBV OF 2002 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL RESPONDENTS

JUDGE:	TAMBERLIN J
DATE:	22 APRIL 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. In this matter, the applicant, a citizen of Iran, arrived in Australia on 20 August 2001.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”) on 6 September 2001.  On 8 November the Minister for Immigration and Multicultural Affairs (“the Minister”), by a delegate, refused the application for a protection visa and on 19 November the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.  The matter was duly heard and on 17 January 2002, the Tribunal made a decision affirming the decision by the delegate not to grant a protection visa. 

2. Shortly before the Tribunal gave its decision, the applicant, after the hearing, wrote to the Tribunal indicating that he had difficulties with the interpreter during the hearing before the Tribunal.  He said that despite efforts from the interpreter during the hearing before the Tribunal, he could not establish better communication between himself and the Tribunal member.  He said he hoped this had been brought to the attention of the Tribunal during the hearing and explained that the interpreter was not able to pass his communication in a proper way during the hearing to the member of the Tribunal and this caused the applicant to lose confidence in the interpreter.

3. The application for judicial review was filed in this Court on 25 January 2002, but no specific particulars were provided as to the case which the applicant wished to make.  When the matter came on for hearing before me this afternoon, the applicant indicated that the substantive complaint which he had in relation to the decision of the Tribunal was that the interpreter had not properly performed the translation and the impression was given to the applicant that the interpreter had health problems and did not act in a balanced manner.  He also pointed out that there were some odd mannerisms by the interpreter during the course of the hearing before the Tribunal. 

4. In addition, the applicant stated that the interpreter was angry and did not properly put to the Tribunal the material relating to his Christianity.  He says that he was unable to communicate the fact to the Tribunal that his case was that he had converted to Christianity.  This in substance is the essence of the complaint which is made on the appeal. 

5. I have considered carefully the reasons for decision which were given by the Tribunal member in this matter, and I am satisfied that the matter was approached on the basis that the applicant was claiming to be a Christian, and therefore any error in interpretation in relation to this point did not cause any substantive misunderstanding on the part of the Tribunal.  There was a matter drawn to the attention of the Tribunal member during the course of the hearing in relation to an earlier incident with an interpreter at the interview prior to the hearing by the ministerial delegate.  But this incident had nothing to do in substance with the present application before me. 

6. In the course of the reasons for the decision of the Tribunal, reference was made to the fact that the applicant had claimed that he came from a monarchist family and was being discriminated against or persecuted on this basis, or would be in danger of such persecution if returned to Iran.  The Tribunal member found that the applicant had not been subjected to persecution because of his father's past links with the Shah's regime. 

7. There was considerable discussion of the applicant’s links with Christianity in the decision of the Tribunal.  The Tribunal member, after looking at a number of factors which were considered to be relevant, concluded that he was able to depart Iran in his own name because he was not wanted for arrest by the authorities, and the Tribunal member accepted that he had studied the Christian faith while in an immigration detention centre in Australia and that while he is not a baptised Christian, he has taken an initial step towards baptism.  The Tribunal member, however, was not satisfied that he had done this for any other reason than to create a profile of a Christian convert in Australia in order to strengthen his claim to be a refugee. 

8. In my view even assuming that there was an error in interpretation of the kind which the applicant has stated to have existed and in respect of which the applicant complained, I am not satisfied that such an error in interpretation would amount, in the present case, or did amount, having regard to the reasons of the decision-maker, to a failure to exercise jurisdiction or to indicate that the Tribunal fell into any reviewable error of law principle or fact.

9. Furthermore, I am satisfied that the alleged error which is under consideration, in the light of the substantive decision and reasons of the Tribunal, does not amount to the type of error which would bring the decision within the exceptions to the principle laid down in King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 decided by the High Court and which has been embodied in s 474 of the Migration Act1958 (Cth), as a consequence of recent amendments.

10. Accordingly the conclusion which I have reached is that the application must be dismissed and I can see no reason why the costs should not follow the event.  I dismiss the application with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             2 May 2002

Date of Hearing:	22 April 2002
Date of Judgment:	22 April 2002