SZAKF v Minister for Immigration

[2004] FMCA 318

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAKF v MINISTER FOR IMMIGRATION [2004] FMCA 318

MIGRATION – Application for review of Refugee Review Tribunal decision – Tribunal rejected credibility of applicant – unexplained inconsistencies in claims – whether claimed errors in English translation submitted by Applicant establish denial of natural justice.

Migration Act 1958

Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
N v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
NAEQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 482
Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
Singh v Minister for Immigration & Multicultural Affairs (2001) 115 FCR
Mahzar v Minister for Immigration & Multicultural Affairs (2000) 183 CLR 188
Ismail v Minister for Immigration & Multicultural Affairs (1999) 59 ALD 773
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168
Kopalapillai v Minister for Immigration (1998) 86 FCR 547

Applicant: SZAKF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ606 of 2003

Delivered on: 10 June 2004

Delivered at: Sydney

Hearing date: 2 April 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr JAC Potts

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ606 of 2003

SZAKF

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) handed down on 27 March 2003 affirming a decision of a delegate of the respondent made on 29 July 2000 refusing to grant the applicant a protection visa.

2. The applicant is Tamil speaking Muslim Sri Lankan citizen who came to Australia on 25 November 1997 on a visitors visa. He lodged his application for protection visa on 6 January 1998. Notwithstanding that the application referred to a statement, no statement was included with the application. The application was refused on 6 February 1998 on the ground that the applicant had not made any claims. The applicant sought review of that decision. On 12 August 1998 the Tribunal found that it had no jurisdiction as the application for review had been lodged outside the mandatory time limit. Various representations were made to the Minister in an effort to have him consider the matter under s48B of the Migration Act. He declined to consider exercising his power under that section.

3. The applicant lodged a second application for a protection visa on 28 June 2000 asserting that the first application was not a valid application. On 14 July 2000 the respondent wrote to the applicant indicating that the first application had been assessed as invalid as it contained no claims.  As a consequence the applicant was able to lodge the new protection visa application.  It was refused on 29 July 2000.  The applicant sought review by the Tribunal on 2 August 2000.  It is the subsequent Tribunal affirmation of the decision to refuse to grant the protection visa that is before the Court.

4. In a statement dated 25 December 1997 which was before the Tribunal the applicant claimed to fear persecution due to his association with certain Tamils suspected of being involved in the bombing of the Hotel Galadari in Colombo, Sri Lanka in October 1997, that he was wanted by the Sri Lankan army and that his life was also in danger from Tamil Tigers who had threatened to kill him and were likely to do so.

5. In the application of 28 June 2000 the applicant claimed that he feared persecution from the Liberation Tigers of Tamil Elan (LTTE) and from the Sri Lankan security forces because he was a Tamil-speaking Muslim and a suspected supporter of the LTTE.  In a written statement provided in connection with 2000 application the applicant, who is a Muslim from Kalutara, South Colombo on the west coast of Sri Lanka, claimed to fear harm from the LTTE and the Sri Lankan Security Forces because his older brother (who had Tamil friends, had married a Tamil woman, and rented rooms to Tamils) and his sister-in-law were known to be LTTE suspects.  He claimed that he feared persecution as a Tamil-speaking Muslim and a suspected supporter of the LTTE.  He said that the authorities perceived him to be an LTTE supporter because of his race and his relatives’ involvement in the LTTE. 

6. The Tribunal held a hearing on 14 January 2003 which the applicant attended.  The Tribunal reasons for decision record that it put a number of inconsistencies in the applicant’s evidence to him and the applicant responded with comments.  The Tribunal also put the substance of independent information in relation to the situation in Sri Lanka to the applicant and recorded the comments of the applicant in response.  The only evidence before the court of the conduct of the hearing is the account in the Tribunal reasons for decision. 

7. At the conclusion of the hearing the Tribunal foreshadowed that it would be writing to the applicant and his representative under s424A of the Migration Act 1958 inviting him to comment on internal inconsistencies in his evidence. On 20 January 2003 the Tribunal wrote to the applicant pursuant to s424A of the Migration Act 1958 notifying him of particulars of information that might form the reason or part of the reason for affirming the decision under review.

8. As discussed at the hearing on 14 January 2003 the information in question consisted of internal inconsistencies between the applicant’s original written statement in December 1997, his written statement dated 18 July 2000 and the oral evidence he gave at the Tribunal hearing.  The written statements in question were provided by the applicant to the Department in English.  In both written statements the applicant had said that on 15 October 1997, the day of a bomb blast at the Hotel Galadari, he had been staying at Kotahena as he had come to Colombo to meet Dr Mendis (the doctor treating him in connection with a soccer injury).  He had said that after the bomb blast his elder brother’s wife either went underground or went missing and that his brother had requested him over the phone to return to Kalutara immediately which he did.  The applicant had also said in these statements that all his older brother’s (Tamil) friends were missing from home and hence he tried to contact their friends at Kotahena but there was no reply.  However at the hearing the applicant did not mention having come to Colombo to meet Dr Mendis at all until he was prompted to do so.  He denied that he had returned to Kalutara after his brother had called him.  He said that his brother had been in Kalutara that day.  The applicant told the Tribunal that he had been at Gnani’s friends’ home in Kotahena when his brother had telephoned him at around 2.30pm in the afternoon.  (Gnani being a Tamil friend of his brother).  The Tribunal pointed out to the applicant that “obviously” if he was at Gnani’s friends’ home in Kotahena rather than at his own home in Kalutara he would not have needed to try to contact Gnani’s friends in Kotahena.

9. The Tribunal also drew the applicant’s attention to differences in his accounts of the timing and content of a conversation with a Dr Durairajah (a relative of Tamil friends of his brother).  It put to the applicant that in both written statements he had said that it had been after a seminar that Dr Durairajah had called him and had told him not to go to his home in Kalutara but to stay at his (Dr Durairajah’s) house.  At the hearing however, the applicant said that immediately after his brother had called him at Gnani’s friends’ house in Kotahena and had requested that he return to his home in Kalutara, he had telephoned Dr Durairajah who had told him not to go back to Kalutara but to come to the seminar instead.

10. A further discrepancy related to threats that the applicant said he had received at Dr Durairajah’s.  In his original 1997 statement the applicant had said that the following morning, after Dr Durairajah had told him that his brother had been arrested:

    I told him that I had to see my brother immediately.  Suddenly a Tamil youth who was seated close to us pointed a gun on my forehead and said, “Our life is in danger because of you.  You must go out of this world.”  He threatened to kill me in front of Dr Durairajah.  Only after this I realised that all these people were Tigers.

    Dr Durairajah protected me from the Tamil Tiger …

11. In the written statement dated 18 July 2000, however, the applicant said that, after he had stated that he wanted to see his brother:

    A young fellow, whom I thought all these days a Tamil, spoke in Singhala and pointed his revolver at me and ordered me to stop shouting.  Still pointing his gun at me he shouted that I was also helping the LTTE fellows along with my brother.  When I tuned [sic] back and said that it was not true he said that I should be killed.

12. In the 2000 statement the applicant continued that, after he had started crying, this person had “placed his revolved in his pocket” and had said, “because you were trusted by our doctor I won’t harm you”.  He said that Dr Durairajah “who was not there for a few minutes came back”.

13. At the hearing before the Tribunal the applicant initially repeated the second version of this incident.  However when the Member constituting the Tribunal put to him the version he had given in his original statement, the applicant said that both versions were true and that there had in fact been another incident as well (which he had not mentioned in either of his statements) in which someone had tried to kill him as he was coming out of Dr Durairajah’s house and Dr Durairajah had pulled him to safety.

14. The Tribunal advised the applicant that these inconsistencies in his evidence were relevant because they may lead the Tribunal to conclude that he was not telling the truth about the events which he said prompted him to leave Sri Lanka.  It sought his comments.

15. The applicant’s lawyers responded to the Tribunal by letter dated 20 February 2003 with an explanation said to have been provided by the applicant.  In essence the applicant claimed that what he had said at the hearing was true and that he was now able to recollect all his past traumatic experiences without any difficulty.  He submitted that he had not claimed at any time (including in his original Tamil statement) that he had gone back to Kalutara during the time of the Galadari bomb blast.  He explained that in his original Tamil statement he did not state that he had made a telephone call to Kotahena from Kalutura.  He conceded that in the English translation of his 2000 Tamil statement (which he had provided in connection with his application) it appeared this meaning was conveyed.  The applicant also claimed that he specifically mentioned in his original Tamil statement that on the day in question he was already in Colombo to meet Dr Mendis and that he had claimed that Dr Durairajah had called him closer to him personally while they were together at a conference held that day.  He had not been calling him on the phone when he advised him at the end of the conference not to go to Kalutara.  It was claimed that the correct version appeared in the applicant’s original Tamil statement (as distinct from the English translation of the statement provided to the Tribunal by the applicant).  Apart from these claims, no other evidence of mistranslation of the applicant’s statements by the interpreters employed by him was provided.

16. The applicant also claimed that, as he had stated at the hearing, there were some other incidents he had failed to mention because of his bad memory and that he had suddenly been reminded of one incident during the questioning.  It was submitted the applicant’s application should not be refused for lack of credibility.  Further information was provided to the Tribunal about events in Sri Lanka which it was said supported the applicant’s fears.  It was submitted that the applicant feared persecution on the ground of his race as a Tamil speaking Muslim from Sri Lanka and because of his imputed political opinion of a perceived involvement with the LTTE.

17. In its reasons for decision the Tribunal outlined the applicant’s claims and the inconsistencies and addressed the explanation from the applicant’s representative. It concluded that there were significant inconsistencies not resolved by the response to the s424A letter. In particular, at the hearing the applicant did not mention Dr Mendis until prompted (although in earlier statements he had said he had gone to Colombo to see Dr Mendis). Further, at the hearing he had denied returning to Kalutara despite saying he had done so (and that he had tried to contact Gnani’s friends in Kotahena by phone) in his written statements. This inconsistency was not explained satisfactorily by the submission that the applicant’s own translator had mistranslated his Tamil. The Tribunal had regard to the fact that the same meaning was conveyed in the 2000 statement prepared by the applicant’s representatives which bore an endorsement by the applicant indicating that it had been read back to him in Tamil.

18. The Tribunal also found that even if Dr Durairajah had called the applicant over at the seminar (rather than telephoning him) this still did not explain the inconsistent statements about whether the applicant had returned to Kalutara.  The Tribunal was not satisfied that the applicant’s claims that he had remembered a third incident involving a threat during the hearing and that living in Australia he was now able to recollect all his experiences explained the two inconsistent versions of the circumstances of the threats made to him at Dr Durairajah’s.  The first (given in 1997) involved a threat by a Tamil Tiger.  The second (given in 2000) suggested a threat by a young fellow speaking Singhalese who accused him of helping the LTTE.  These versions were mutually inconsistent. 

19. The Tribunal accepted that, as set out in a letter from a person from Tamil Nadu in India provided to the Tribunal, the applicant’s elder brother had died in India while the applicant was in Australia.  It did not accept that the vague references by the writer of that letter to having brought it on his head and made the applicant also a victim provided corroboration of the applicant’s claims, as the applicant himself had not suggested that the writer of the letter had brought any troubles on the applicant’s head but rather that his problems were because his elder brother’s Tamil friends were involved in the Hotel Galadari bomb blast.

20. The Tribunal concluded that, having regard to the inconsistencies in the applicant’s evidence and his inability to provide any cogent explanation for them, he was not telling the truth about his past experiences in Sri Lanka.  It did not accept that the applicant’s brother's Tamil friends were involved in the bomb blast at the Hotel Galadari nor that the applicant’s brother and his wife were arrested for harbouring terrorists as claimed.  Nor did it accept that the applicant’s claim that a friend in Kalutara told the applicant that the police or army were looking for him or that three weeks after the bomb blast the applicant’s name was announced over the radio as one of the suspects in connection with the bomb blast at the Hotel Galadari.  In light of independent information, which it put to the applicant, the Tribunal did not accept that the applicant would have been able to leave Sri Lanka travelling on a passport in his own name if he had in fact been wanted by the authorities and if his name had been announced over the radio identifying him as a national soccer player and asking the public for information as claimed. 

21. The Tribunal concluded that the applicant’s claims were a fabrication intended to provided a basis for him to apply for refugee status.  It did not accept that he was wanted by the Sri Lankan authorities at the time he left Sri Lanka and therefore did not accept that there was a real chance that he would be arrested and killed or otherwise persecuted by the Sri Lankan authorities if he returned to Sri Lanka then or in the reasonably foreseeable future.  Nor did it accept that there was a real chance that he would be persecuted by the LTTE if he returned to Sri Lanka. 

22. The Tribunal went on to consider whether, setting aside the claims of the applicant, he may nevertheless have a well-founded fear of being persecuted for a Convention reason if he returned to Sri Lanka.  It had regard to the fact that the applicant was a Tamil-speaking Muslim but did not accept, as submitted by his representatives, that he had a well-founded fear of being persecuted by reason of his race.  Independent information put to the applicant in the course of the hearing indicated that Sri Lankan Muslims, while speaking Tamil, have a quite separate ethnic and religious identity and that the Sri Lankan community was quite capable of distinguishing between Tamils and Muslims.  On the basis of further information (put to the applicant) the Tribunal did not accept that he was or would be perceived as an LTTE supporter by reason of his race or that there was a real chance that he would be so perceived if he returned to Sri Lanka.  It was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returned to Sri Lanka.

23. In his application for review filed on 22 April 2003 the applicant advanced three grounds of review which are not particularised.  He claimed that the Tribunal exceeded its jurisdiction, erred in law which went to its jurisdiction and exceeded its authority and failed to accord the applicant natural justice in making the decision.  The applicant filed written submissions which make generalised complaints about corruption, his inability to “seek fair justice” in Sri Lanka and alleged human rights abuses in Sri Lanka.  He submitted that the specific inconsistencies relied on by the Tribunal were the product of translation errors.  He also appeared to assert that he was unable to understand the Tribunal’s questions because of translation difficulties in the hearing.  He claimed that the Tribunal did not put to him the importance ascribed by it to the renewal of his Sri Lankan passport (in Australia) and submitted that the Tribunal prejudged the matter given its focus on the perceived inconsistencies. 

24. In oral submissions the applicant took issue with the merits of the Tribunal decision and with the accuracy of findings of fact (such as the Tribunal view in relation to the applicant’s ability to leave Sri Lanka on his own passport if he had in fact been wanted by the authorities.)  The applicant provided a further explanation of events.

25. Many of the matters raised by the applicant, particularly in his fresh account of the matters in relation to which the Tribunal had found there to be inconsistencies, express disagreement with the Tribunal’s factual findings and reassert his claim to fear persecution.  Merits review is not available in the Court.  Jurisdictional error does not comprehend errors of fact as to the merits of the case put to the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]).

26. The applicant’s claim that the Tribunal prejudged the matter given the focus on his perceived inconsistencies raises questions of good faith, bias and lack of procedural fairness.  The Tribunal findings were based largely on its conclusions about the credibility of the applicant.  Credibility is a matter for the Tribunal par excellence - Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407 and the findings that the Tribunal made were open to it on the material before it.

1. As Gleeson CJ and Gummow J stated in Minister for Immigration v Jia [2001] HCA 17 at [69], a party asserting actual bias on the part of the decision-maker carries a heavy onus and the allegation must be “distinctly made and clearly proved”. Bias in the form of prejudgment occurs where the decision-maker’s mind is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented (Jia at [71]-[72] and MIMIA v SBAN [2002] FCAFC 431 at [10] per Keifel J). Disbelief of the applicant based upon inconsistencies in his evidence does not establish either that the Tribunal was biased or that a reasonable bystander would believe that the Tribunal was biased against the applicant. Further, in accordance with the Tribunal procedures under the Migration Act 1958, it conducts a hearing only when it is not satisfied on the papers that a protection visa should be granted (see s425(2)(a)).  Such a lack of satisfaction does not of itself establish actual bias (SBAN at [11]) or apprehended bias.

2. An allegation of actual bias concerns the state of mind of the decision-maker.  The material before the Court (and the only evidence about the conduct of the hearing is contained in the Tribunal reasons for decision) does not establish that the decision-maker’s mind was not open to persuasion (see SCAA v MIMIA [2002] FCA 668 at [37] per von Doussa J). There is no evidence of pre-judgment. Indeed the Tribunal gave the applicant the opportunity, not only at the hearing but also subsequently by way of the invitation to respond to the s424A letter, to address the inconsistencies of concern to it. Such actions do not suggest actual bias or give rise to an apprehension of bias.

3. Nor does the material before the Court establish bad faith (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749). An allegation of bad faith involves personal fault on the part of the decision-maker and there is nothing in this case to justify such a finding.

4. The applicant complained specifically that the Tribunal did not put to him the importance ascribed by it to the renewal of his passport.  It appears that the applicant is referring to the renewal of his passport in Australia on 22 November 2000 and, from his oral submissions, to his subsequent application for Bridging B visa on 20 August 2002 to enable him to go to India.  However the Tribunal made no relevant findings in relation to any renewal of the applicant’s passport.  The relevant findings in relation to his passport related to his departure from Sri Lanka without being apprehended.  The Tribunal found, based on independent country information, that the names of passport holders were checked on departure from Sri Lanka against a list of wanted and expelled persons and did not accept that the applicant would have been able to leave Sri Lanka on his own passport had he in fact been wanted in connection with Hotel Galadari bomb blast.  According to the Tribunal reasons this matter was put to the applicant in the course of the hearing and his comments that an agent had made arrangements and he had not himself taken the passport through Immigration are referred to and addressed in the Tribunal reasons for decision.  There is no basis for the allegation that the Tribunal failed to accord the applicant natural justice or otherwise erred in a manner constituting jurisdictional error in relation to the treatment of his passport. 

5. The applicant also complained about the accuracy of interpretation.  In his oral submissions he clarified that the first aspect of this complaint was that the Tamil statement he had prepared in 1997 had been incorrectly translated into English by his own interpreter and that the same translation errors had been conveyed by the 2000 statement.  There is a reference to such a claimed inaccuracy in the submissions of the applicant’s lawyers of 20 February 2003.  However, as is observed in the Tribunal reasons for decision, the translations were prepared by accredited translators and the same meaning as conveyed in the 1997 statement was conveyed by the statement dated 18 July 2000 which the applicant’s representatives had prepared and which bore an endorsement by the applicant indicating that it was read back to him in Tamil.  In light of this the Tribunal rejected the applicant’s representative’s explanation for the discrepancies in his accounts in relation to whether he had ever said that he went to Kalutara after the Galadari bomb blast.  No error is apparent in the Tribunal treatment of this material.  The claim of mistranslation (albeit not supported by evidence of a correct translation by an accredited interpreter) was raised with the Tribunal by the applicant’s representatives and was addressed by the Tribunal.  There is no denial of procedural fairness by the Tribunal in circumstances where the mistranslation complained of is a mistranslation in documents prepared by and translated for the applicant particularly where, as in this case, the Tribunal has considered the claimed mistake.  The Tribunal also considered the applicant’s explanation for the discrepancies in relation to how and when Dr Durairajah advised him not to go home.  The adviser explained (and the applicant repeated in written submissions to the Court) that he had been called over at the seminar and not telephoned.  The Tribunal found that this explanation did not explain the inconsistency between the version of the events the applicant gave in his statements and that which he subsequently said was true.  The applicant now complains that this inconsistency was also the result of a mistranslation by his interpreter.  This does not establish a lack of procedural fairness or jurisdictional error on the part of the Tribunal.  Similarly, insofar as the complaints that the incident where he was threatened was mistranslated and complaints of the “translator’s callous attitude towards translating flaws” refer to any mistranslation by the applicant’s interpreter, no lack of procedural fairness or jurisdictional error on the part of the Tribunal is established.  This is not a case where the applicant was denied an opportunity to comment on critical issues and address inconsistencies.  (cf NAEQ v MIMIA [2003] FMCA 482 at [52] – [55]).

6. The applicant makes a broad complaint in relation to the standard of interpretation at the hearing.  He submitted “I was agasted (sic) even at the interview the interpreter had misinterpreted this scenario.  My lack of English Language Knowledge precluded correcting this misnomer.  My obfuscation and state of fear hindered the process of all this clarification.  Added to this befuddling precluded me to understand the incorrect interpretation of the Refugee Review Tribunal officer’s questions.”  With one exception, discussed below, the applicant does not identify what questions, if any, the interpreter was said to have incorrectly translated at the hearing.  No transcript of the hearing was before the Court.  In the course of the hearing I asked the applicant what his specific complaints were in relation to the hearing.  He complained generally that the Tribunal member had asked him questions and he had told him that he had to correct the interpretation and did make some corrections about the interpreter’s English but that the Tribunal member had told him to listen to what he said at the start of the hearing and the applicant did not go against these words, so that he had not explained to the member in English.  This explanation was itself internally inconsistent, but, more importantly, the applicant did not identify any specific instances of mistranslation in the Tribunal hearing other than that Dr Durairajah had contacted him (“called him”) by gesture in person and not by phone. 

7. As the applicant acknowledged, this explanation was put to the Tribunal in the response to the s424A letter. The Tribunal reasons for decision referred to this explanation and, indeed, proceeded to consider the claims on the basis that Dr Durairajah had called the applicant over at the seminar. However the Tribunal found that this did not explain the inconsistency between the version of events which the applicant gave in his statements and that which he said was true at the hearing. It did not explain the fact that in his statements he had said he returned to Kalutara after his elder brother telephoned him requesting him to do so, whereas in the hearing he said that after his elder brother telephoned him he rang Dr Durairajah who told him not to go to Kalutara but to come to the seminar. Hence if there was such a mistranslation in relation to how Dr Durairajah contacted him, it was not one which was material to a conclusion adverse to the applicant’s case such as to constitute a denial of procedural fairness.

8. The obligations of the Tribunal under s425 of the Act (or pursuant to the obligation to provide procedural fairness) in relation to providing adequate interpretation services in the conduct of the Tribunal hearing have been commented on by the Federal Court on a number of occasions (see, for example Singh v Minister for Immigration & Multicultural Affairs (2001) 115 FCR at 6 [27]; Mahzar v Minister for Immigration & Multicultural Affairs (2000) 183 CLR 188; Ismail v Minister for Immigration & Multicultural Affairs (1999) 59 ALD 773 at 782 25] Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 at 22 [38] to [41]; Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168 at [18]). Such obligations do not extend to verifying that the documents provided by the applicant in English are correct interpretations of the original documents. For the applicant to succeed in an argument that the Tribunal failed to comply with s245 of the Act by reason of inadequate translation services during the Tribunal hearing he would need to establish that there were such errors, to identify with some specificity exactly what mistranslations occurred and what the correct translations would have been, and to establish that the standard of interpretation was so inadequate that he was effectively prevented from giving evidence or that errors made by the interpreter at the hearing were material to conclusions of the Tribunal adverse to him. No such matters have been established. Furthermore the applicant had the opportunity after the hearing to address inconsistencies in the response to the s424A letter and no complaints were made about incorrect interpretation or efforts to correct what was said by the applicant at the hearing in the context of that letter.

9. The applicant also criticised the Tribunal for its emphasis on the fact that at no stage did he mention until prompted that he went to Kotahena to see his treating doctor, Dr Mendis. The applicant complained that he did not have the opportunity to give this information because he simply responded to the questions that the Tribunal asked. Even if this had been established, this specific issue was put to the applicant for comment in the s424A letter. Hence he had the opportunity to address this matter in the response provided by his representatives.

10. No lack of procedural fairness or breach of s425 is established in relation to the Tribunal’s conduct of the hearing. Nor is a denial of natural justice established in the Tribunal’s reliance on the inconsistencies in the applicant’s claims or in any other way. The Tribunal reasons disclose that the Tribunal put to the applicant at the hearing the various matters on which it ultimately relied and afforded him an opportunity to respond. It subsequently wrote the s424A letter to him to which I have referred. The applicant was afforded ample opportunity to put his case, to respond to all adverse matters and was apprised of critical issues and given the opportunity to respond to them. He was represented by a solicitor/migration agent at all relevant times and took the opportunity to respond to the Tribunal concerns. His responses were addressed by the Tribunal. There has been no denial of natural justice.

11. The applicant complained generally of error of law and that the Tribunal exceeded its jurisdiction.  No such error is apparent.  The Tribunal properly carried out its task.  It considered all the applicant’s claims and made findings on them.  The findings made by the Tribunal were open to it on the material before it.   Its rejection of the applicant’s credibility was based on material that was logically probative.  So long as the Tribunal’s credibility findings were open to it no error is demonstrated in such conclusions (Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558-559).

12. As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  10 June 2004