SZFRQ v Minister for Immigration
[2006] FMCA 1685
•3 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFRQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1685 |
| MIGRATION – Application for review of Refugee Review Tribunal decision on the ground of jurisdictional error – reconstitution of Tribunal – applicant claims deficiencies in the interpretation services offered at the Tribunal hearing led to an erroneous interpretation of the applicant’s evidence – claim of jurisdictional error not accepted – application dismissed. |
| Migration Act 1958 (Cth), ss.422, 425, 427 |
| Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] 198 ALR 293 SZGWM v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 1161 Tobasi v Minister for Immigration & Multicultural Affairs[2002] FCA 1050 VWFY v Minister for Immigration & Multicultural Affairs [2005] FCA 1723 W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788 |
| Applicant: | SZFRQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 341 of 2005 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 3 November 2006 |
| Date of last submission: | 3 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr Free |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed 8 February 2005 be dismissed.
The Refugee Review Tribunal be joined as the second respondent.
The first respondent’s name be changed to the Minister for Immigration and Multicultural Affairs.
The applicant shall pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 341 of 2005
| SZFRQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
These reasons for decision are delivered orally. If written reasons are required a transcript will be ordered, grammatical errors corrected and minor amendments made to render these orally delivered reasons more amendable to being read.
This is an application filed 8 February 2005 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 12 January 2005.
Pursuant to directions made on 16 February 2005 the applicant has filed an amended application on 19 May 2005. Those directions also provided for any affidavit material and any transcript of the Tribunal hearing to be filed by 20 May 2005. No transcript was filed and for reasons which I will return to this presents significant difficulties for the applicant in successfully prosecuting his amended application.
The applicant in this matter has received advice pursuant to the legal advice scheme run to assist applicants in this jurisdiction. I have confirmed with the applicant this afternoon that the grounds contained in the amended application are the only grounds on which he relies, and those grounds are set out in a two-page document annexed to the amended application.
The amended application claims that the Tribunal's decision was not correct. Specifically the amended application claimed:
“I {NAME} claim that he decision made by Refugee Review Tribunal is not correct.
Refugee Tribunal while giving this decision is in breach of procedural fairness.
After lodging my application with the Refugee Review Tribunal I was called for a hearing in which I have oral evidence in front of the presiding member.
On 2 June 2004 the Refugee Review Tribunal member who had listened to my evidence retired.
It was very unusual and was against the system of Refugee Review Tribunal. In normal cases the in all the Tribunals where the Tribunal member us proposing to retire, that Tribunal member completes all outstanding cases before retiring.
My case was partly heard by one member and partly heard by another member when the Tribunal.
During my first hearing the interpreter did not interpret my claims properly and in fact suppressed me from speaking.
The interpreter scolded me and prohibited me to clarify certain matters before the presiding member.
The interpreter shortened the actual translation of many sentences by not fully completing what I had said.
This fact was brought into the notice of the Refugee Review Tribunal in writing by my migration agent.
Following the submissions by my migration agent the Refugee Review Tribunal wrote to me on 8 October 2004 inviting me to submit additional submissions before 9 November 2004. Up-till this stage the Refugee Review tribunal did not give any indication to conduct an additional hearing. This was very unusual.
On 17 December 2004, the Tribunal invited me for another hearing.
Refugee Review Tribunal arranged the same interpreter who had scolded me in the previous hearing and who had given wrong version of facts by mis-interpreting my replies to the Tribunal.
Since I had made a written submission regarding the conduct of the interpreter the Refugee Review Tribunal in dealing with me fairly should have arranged another interpreter.
By arranging the same interpreter the Refugee Review Tribunal made a procedural mistake in deciding my case.”
As confirmed with the applicant, the amended application contains two grounds which have been summarised in the outline of submissions filed by the respondent on 6 October 2006.
Essentially, those two grounds are:
1.That the Tribunal was reconstituted after the first hearing on 2 June 2004 and the original president member did not complete the determination of the application;
2.The interpreter provided to the applicant at the hearings was inadequate and the Tribunal in dealing with the applicant fairly should have arranged a different interpreter.
Given this, and having confirmed with the applicant this afternoon that those two grounds identified above represent the grounds contained in his amended application, I have approached consideration of this matter on that basis.
Background
The respondent has filed an outline of submissions and I accept that the background to this matter is set out accurately in paragraphs 1 to 10 of those submissions. I adopt those paragraphs for the purposes of these reasons:
“1.The applicant, a citizen of India, arrived on 17 January 2004. On 2 February 2004 the applicant lodged an application for a protection (class XA) visa with the Department.
2.On 4 March 2004 a delegate of the Minister refused the application for a protection visa. On 24 March 2004 the applicant applied to the Refugee Review Tribunal (“RRT”) for a review of that decision.
3.The applicant claimed to fear harm in India from the Muslim Student Association League and supporters/ members of the National Lok Dal (INLD) party of Haryana, as well as from police in the state of Haryana. The applicant claimed to be a member and supporter of the Congress Party.
4.On 2 June 2004 the RRT heard oral evidence from the applicant. On 13 July 2004, following the retirement of the member who had presided on 2 June 2004, the RRT was reconstituted under a different member. Pursuant to s.422 of the Migration Act 1958 (Cth) (“the Act”), the Tribunal as reconstituted continued with the determination of the review.
5.On 31 August 2004 the RRT sent a letter to the applicant informing him of reconstitution of the Tribunal and inviting him to comment on matters set out in the letter, including independent country information relating to the matters raised by the applicant’s claim. The applicant’s agent responded by letter of 16 September 2004. In that letter the applicant’s agent claimed that the Tribunal hearing on
2 June 2004 the applicant had experienced difficulties with the interpreter and requested a further hearing.
6.In response, the RRT wrote a letter to the applicant inviting him to present any additional claims or submissions, in light of the alleged difficulties with the translation. The applicant did not respond by the nominated date. Notwithstanding the applicant’s failure to respond, the RRT set the matter down for a further hearing on 17 December 2004.
7.Accordingly the RRT’s reasons for decision, at the further hearing on 17 December 2004 the applicant was asked whether there was anything further he wished to tell the Tribunal about his claims. The applicant provided information about a number of matters regarding his claim.
8.By a decision dated 20 December 2004 (handed down on
12 January 2005) the RRT affirmed the decision not to grant a protection visa.
9.On 8 February 2005 the applicant filed an application to the Federal Magistrates Court under s.475A of the Act and s.39B of the Judiciary Act 1903. On 18 May 2005 the applicant filed an amended application varying the ground on which he sought review of the RRT decision.
The RRT decision
10.The RRT accepted that the applicant had experienced trouble in Haryana but did not accept that the applicant had a well founded fear of suffering persecution within the meaning of the Act. The RRT found that there was no independent evidence to suggest that the Indian government condones or tolerates harm to ethnic Hindus or members/supporters of the Congress Party. The RRT found that India is a country with a functioning police force and an effective complaints mechanism such that the applicant could claim protection from any excesses by state agents and non-state agents in Haryana and India. The RRT also found that, if the applicant was at risk of persecution, he could relocate to other parts of India where the risk of harm could be avoided.”
Consideration of the amended application
The respondent has submitted that s.422B of the Act applies for the reasons set out in paragraphs 12 to 14 of the outline of submissions.
“To the extent that these grounds of review rely upon general common law principals of procedural fairness, the amended application is misconceived. Section 422B of the Act provides that Div 4 of Pt 7 of the Act is taken to be exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 422B applies to applications for review made to the RRT on or after 4 July 2002.
Following the introduction of s. 422B, it is no longer open to an applicant to argue that the RRT has breached requirements of procedural fairness (in respect of the hearing rule) by reference to extraneous principles derived from the common law. If an application is to succeed in establishing a breach of one of the statutory requirements in Div 4 of Pt 7: SZCIJ v Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 62, which adopts for the purposes of RRT matters the reasoning of the decision in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 (which concerns s.51A of the Act, the corresponding provision dealing with the requirements of procedural fairness owed by the Minister in dealing with visa applications from non-citizens.
In the present proceedings, the application for review to the RRT was made on 24 March 2004. Accordingly, s.422B applies and the applicant cannot succeed by appealing to extraneous common law principles of the natural justice hearing rule. If the applicant is to establish a breach of the natural justice hearing rule, he must do so by identifying a breach of one of the statutory duties imposed on the RRT by Div 4 of Pt 7 of the Act.”
Section 422B of the Act was introduced by the Migration Legislation Amendments (Procedural Fairness) Act 2002. By virtue of the transitional provisions it applies to an application for review made on or after 4 July 2002. Therefore, in this case the applicant needs to establish a breach of one of the statutory provisions in Div 4 of Part 7 of the Act. I have considered the grounds in the amended application in this context.
First ground
In relation to the first ground identified by the applicant in his amended application, that the Tribunal was reconstituted after the first hearing and the original presiding member did not complete the determination of the application in consideration of this ground, I have drawn to the applicant's attention this afternoon the provisions in s.422 of the Act which are as follows:
“Reconstitution of Refugee Review Tribunal--unavailability of member
(1) If the member who constitutes the Tribunal for the purposes of a particular review:
(a) stops being a member; or
(b) for any reason, is not available for the purpose of the review at the place where the review is being conducted;
the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.
(2) If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
(3) In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).”
The respondent's submissions in relation to this matter are set out at paragraphs 15 to 17 of the outline of submissions.
“As noted above, after the first hearing before the RRT on
2 June 2004, the presiding member retired. On 13 July 2004 the RRT was reconstituted under another member. That member proceeded to finish dealing with the application for review and, in the course of doing so, presided over a further hearing on 17 December 2004. The RRT as reconstituted also had regard to the record of the hearing conducted on 2 June 2004.
The Applicant asserts that this course of action was “very unusual.” However, the process of reconstitution of the Tribunal which occurred was entirely in keeping with the requirements of the Act, Section 422 of the Act provides:
1. If the member who constitutes the Tribunal for the purposes of a particular review:
(a) stop being a member; or
(b) for any reason, is not available for the purpose of the review at the place where the review is being conducted;
the Principal Member must direct another member to constitute the Tribunal for the purposes of finishing the review.
2. If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review as may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
3. In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).”
What the Tribunal did in re-constituting the Tribunal was entirely consistent with s.422 of the Act and accordingly I am unable to identify any jurisdictional error in the Tribunal's decision in that regard.
Second ground
The applicant's second ground, is, that the interpreter provided to the applicant at the hearings was inadequate and that the Tribunal in dealing with the applicant fairly should have arranged a different interpreter. The respondent in submissions notes that although not specifically mentioned, s.425 of the Act requires that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments in relation to their application. The respondent’s outline of submissions has noted the scope of this obligation in a number of Federal Court authorities.
The respondent referred to Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] 198 ALR 293, Tobasi v Minister for Immigration & Multicultural Affairs[2002] FCA 1050 and W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788 in support of its submission that a breach of s.425 of the Act will only arise where it can be established that:
a)there were defects in translation;
b)the errors in translation relate to matters critical to the presentation of the applicant’s case; and
c)the errors could be said to have influenced the Tribunal’s findings.
In SZGWM v Minister for Immigration & Anor. [2006] FMCA 1161, Lloyd-Jones FM at paragraph [18] said:
“For an applicant to establish that they have been denied a fair hearing because of interpretation problems, they must show one of the following:
(c)The standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence to the Tribunal; or
(d)Errors made in interpretation at the Tribunal hearing were material to the conclusion of the Tribunal and adverse to the applicant: P119/2002 at [17]; Singh v Minister for Immigration (2001) 115 FCR 1; Perera v Minister for Immigration [1999] FCA 507; Soltanyzand v Minister for Immigration [2001] FCA 1168.”
I have made it clear to the applicant this afternoon that the only evidence I have of what happened at the hearing is the Tribunal's reasons contained in its decision.
Unfortunately for the applicant there is no hearing tape or transcript in evidence and the Court is forced to rely on material in the decision record. I have considered the Tribunal's decision. I have read it very closely. At CB 105, the Tribunal's decision notes that the applicant claimed that interpreting difficulties had occurred at the Tribunal hearing and he sought an additional hearing.
The Tribunal's decision goes on at CB 105 and says the Tribunal gave the applicant the opportunity to present any additional claims or submissions to the Tribunal in light of the claimed interpreting difficulties on or before 5:00 pm on 9 November 2004. No further submissions or claims were made to the Tribunal.
At CB 106 the Tribunal's decision says:
“In the interests of fairness a further hearing was held by the Tribunal on 17 December 2004. The applicant was asked whether there was anything further he wished to tell the Tribunal about his claims. He stated that a lot of questions were asked about who the Muslims were who attacked him, and he fears them on his return. He had problems with the police. He then stated he does not wish to add anything further.”
The Tribunal’s decision records at CB 106 that when asked if there was anything further he wished to add he replied that there was not.
The Tribunal in its findings and reasons at CB 111 says that it had given the applicant the opportunity to present any further claims at an adjourned hearing. The decision then goes on to deal with the applicant’s claim (CB 111-117).
I have carefully scrutinised the Tribunal's findings and reasons and I am unable to identify any evidence of either a problem in interpretation, understanding or any indication that the applicant was prevented from giving his evidence to the Tribunal.
The respondent notes that the Tribunal’s reasons indicate that the applicant had raised concerns about the standard of translation after the first hearing and before the second hearing. The respondent submits that there is no evidence available to substantiate the allegation that there were relevant deficiencies in the translation. The respondent says there is insufficient information to conclude that there were substantial defects in the translation at the first hearing.
The respondent submits that the Tribunal “in the interests of fairness” afforded the applicant the opportunity for a second hearing and there is no evidence or indication of any defects in the translation provided by the interpreter at the second hearing. The respondent notes that the only objection raised by the applicant in relation to the second hearing is, as he has confirmed this afternoon, that the Tribunal should have given him another interpreter. However there is no evidence of any factual claims, submissions or explanations which were not made or were misconstrued. Indeed there is no evidence that the applicant was prevented from giving his evidence at the second hearing.
The applicant could not point to any statutory requirement or decision that required the Tribunal in the circumstances to get a different interpreter for the second hearing.
In any event, as the respondent sets out at paragraphs 31 and 32 of its submissions, there is no evidence to indicate that the Tribunal formed an adverse view of the applicant's credibility due inadequacies in the interpretation of the applicant's evidence. This point was raised with the applicant this afternoon.
“Turning to the second hearing, the applicant has not given any indication of what defects, if any, occurred in the translation provided by the interpreter. From the amended application it appears that the only objection being raised by the applicant about the second hearing is that he should not have been assigned the same interpreter because he alleges at the first hearing the interpreter had “scolded” him and mis-interpreted some of his replies. However, the applicant has not given any evidence about what defects, if any, occurred in the translation at the second hearing. The applicant has not identified any factual claims, submissions or explanations that he was precluded from making at the second hearing. Accordingly, there is no sound evidentiary basis to conclude that the RRT failed to fulfil its obligation under s. 425 to extend an invitation to the applicant to participate in the hearing and to ensure that the invitation remained open and genuine.
In any event, even if the applicant experienced problems with the translation (which is not conceded and in respect of which there is no satisfactory evidence), the nature of the RRT’s findings does not support the argument that there was a relevant breach of
s. 425. The RRT’s decision did not turn on problems of credibility or the factual details of the applicant’s claim. Rather, the RRT found on the basis of independent country information that the claims did not amount to persecution. Primarily because the applicant could avail himself of the protection of the state or, if necessary, relocate to another part of India. Given the nature of these findings, even if there were minor defects in the translation of the evidence at the hearings it does not follow that the defects were critical to the presentation of the applicant’s case and influence the RRT in its findings.”
I have carefully considered the Tribunal's decision. The decision did not turn on problems of credibility or problems with facts or the applicant’s claims. The Tribunal's decision notes that it was unable to be satisfied that the applicant suffered Convention-related harm in India, or that he would suffer Convention related harm on his return to India (CB 117). The Tribunal's decision in this matter gives no indication that any difficulties were experienced by the presiding member and the applicant in understanding each other.
As I have said earlier, on what is before me I am not satisfied that the applicant was prevented from giving his evidence. The Tribunal does have a statutory obligation under s.425 to ensure that the invitation to a hearing is made so that the applicant has an opportunity to appear, give evidence and present arguments in relation to his claim. Under s.427 the Tribunal is required to provide an interpreter where the applicant is unable to give evidence without one.
In a case such as this where the applicant claims problems with translation and on the basis of authorities such as VWFY v Minister for Immigration & Multicultural Affairs [2005] FCA 1723, and SZGWM (supra) and the authorities referred to by the respondent at paragraph [16] above for an applicant to establish that they have been denied a fair hearing because of interpretation problems they must show one of the following:
(a)the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence; or
(b)errors were made in interpretation at the Tribunal hearing and these were material to the conclusion of the Tribunal and adverse to the applicant.
For the reasons set out earlier, I am unable to be satisfied that the applicant has established either of those in this case.
In relation to the first hearing, I am unable to be satisfied that there were any deficiencies in translation. In relation to the second hearing there are no claims or evidence of any defects in translation.
In relation to both hearings I am unable to be satisfied that the respondent did not have an opportunity to attend to give evidence and present arguments in support of his application.
I have confirmed with the applicant there are no other grounds of jurisdictional error raised and I have been unable to identify any in the Tribunal's reasons.
I have been unable to identify any jurisdictional error in the Tribunal's reasons and accordingly will order that the application filed
8 February 2005 be dismissed.
The Minister has sought costs. The applicant does not wish to say anything in relation to the issue of costs. On that basis and given my findings in relation to the substantive application, I find it is appropriate to order that the applicant meet the costs of the first respondent, which I fix in the amount of $5,000.
Mr Free has properly sought an order that the name of the first respondent be amended to reflect the correct title and I will order accordingly. Mr Free has also properly sought an order that the Tribunal be joined as a second respondent and I will so order.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Associate: James Naughton
Date: 13 November 2006
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