SZGFF v Minister for Immigration - [2006] FMCA 1683

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGFF v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1683

MIGRATION – Application for review of Refugee Review Tribunal decision on the ground of jurisdictional error – 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 Act1958 (Cth), ss.425, 427

VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723

Applicant:

SZGFF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1141 of 2005

Judgment of:

O’Sullivan FM

Hearing date:

2 November 2006

Date of last submission:

2 November 2006

Delivered at:

Sydney

Delivered on:

2 November 2006

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr Kennett

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application filed 3 May 2006 is dismissed.
The Tribunal be joined as a second respondent to the application.
The applicant shall pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1141 of 2005

SZGFF

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 and minor corrections made to render these orally delivered reasons amenable to being read.

The proceedings

This is an application filed on 3 May 2005 seeking orders under s.483A of the Migration Act 1958 (“the Act”) by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 30 March 2005.
The applicant filed an amended application on 17 August 2005 and confirmed again this afternoon that he relies only on that amended application which makes just one complaint. The applicant claims he did not receive a proper hearing before the Tribunal because of the absence of an Uzbek interpreter.
The applicant has filed two affidavits, dated 28 October 2005 and

6 October 2006. However, despite the applicant consenting to directions requiring the provision of a transcript, there is no transcript of the tribunal hearing. The respondent has filed an affidavit on 5 July 2006 sworn by Ms S on 4 July 2006. Ms S was the interpreter at the Tribunal hearing, the subject of this application.
The respondent has also filed an outline of submissions and a green court book (“CB”) which has been taken into evidence. That court book contains the decision of the Tribunal, the subject of this review application. The respondent has raised objections to some of the material contained in the affidavits filed by the applicant. Much of that material reflects the applicant's views rather than statements of fact and to the extent that the applicant in that affidavit material, attempts to give evidence as to the expertise or proficiency of the interpreter at the Tribunal hearing, I place little weight on those matters.
In any event, so far as the qualifications of the interpreter are concerned I prefer the evidence of the interpreter contained in the affidavit filed on 5 July 2006.
The applicant was assisted at today’s hearing by a Russian interpreter. At the commencement of the hearing I confirmed with the applicant that he could understand the interpreter.

Background

The applicant is a citizen of Uzbekistan. He arrived in Australia on a business visa in August 2004. He applied for a protection visa on

27 August 2004. His application was refused by a delegate of the First Respondent on 9 September 2004. On 12 October 2004 he applied for a review of that decision to the Tribunal . The Tribunal handed down its decision in relation to that application on 30 March 2005, following a hearing to which the applicant was invited CB 79 and at which he had an opportunity to give evidence (CB 95-99).
It is that decision which the applicant has sought this Court to review in the application filed on 3 May 2005. Section 483A of the Act has been repealed by the Migration Litigation Reform Act 2005. But that repeal does not affect the continuation of this proceeding. As I said to the applicant at the commencement of this afternoon's hearing, I do not have the power to send this matter back to the Tribunal unless I am satisfied the Tribunal's decision was affected by a jurisdictional error.

I do not have the power to order a further hearing unless I am satisfied that the Tribunal failed to exercise its jurisdiction according to law.

Consideration of the application

The applicant says that he did not understand properly the questions the Tribunal asked and his answers were not properly delivered. However, there is, despite directions being made in September 2005, no other evidence to support his claims. There is no transcript of the hearing before the Tribunal and no other evidence to show that the hearing in any way miscarried. The respondent submits that to accept that the interpreting at the hearing was inadequate in any relevant sense, it would be necessary for the Court to have evidence establishing that inadequacy.
The respondent submits that normally that would entail evidence as to the correct translation of what was said, although it would be possible in some cases to infer the existence of problems from an English transcript (see VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723). As I said earlier, there is no such evidence before the Court.
The affidavit of the interpreter details her background and experience in working as a translator in languages including Uzbek, Uighur, Tatar and Russian. The interpreter deposes in her affidavit as to her background, her native tongue being Uighur, that Uighur and Uzbek speakers mix freely and intermarry, and that Uzbek speakers and lay Uighur speakers can understand each other.
“I am a translator and interpreter working through Oncall Interpreters and Translators Agency Pty Ltd and Conferences Language Services. This work is on an on-call basis. I am fluent in oral and written Mandarin, Russian, Uighur, Uzbek, Tartar and Kazakh. I also work three days a week as a cataloguer and Librarian at the University of Adelaide.
I completed a diploma in Chinse as a second language at the Industrial University of Xinjiang (1986) and a diploma in Russian as a second language at the State University of Western Kazakhstan (1992). I also completed an English course for interpreters at the Adelaide institute of TAFE in 1996.

These courses qualify me to work as a Translator and Interpreter.
From 1996 to the present I have worked as a Translator and Interpreter for the Translating/Interpreting Services of the Office of Multicultural and International Affairs (a State Government service). Mt duties are to complete interpreting and translating assignments from English to Uighur, Tartar, Uzbek and Chinese and from those languages to English.
In 1993 I worked as a Diplomat and Translator and Interpreter at the Academy of Science of China, Xinjiang Branch, Xinjiang, China. I undertook translating and interpreting duties in Chinese and Russian language, general office administration and diplomatic and secretarial work.
I also hold a bachelor of Arts majoring in Library/Information Science from East China Normal University, Shanghai, China (1990) and a Master of Arts and International Studies from the University of South Australia (2004). Annexed hereto and marked ‘A” is a true and correct copy of my Curriculum Vitae.
Uighur is my native tongue. I grew up in Eastern Turkistan (Xinjiang) where there are both Uighur and Uzbek speakers.

The Uighur and Uzbek speakers mix freely and intermarry.
Uzbek and Uighur both have Turkic roots but there are dialectic differences. Usually a lay Uzbek speaker and an lay Uighur speaker can understand each other, except perhaps in discussing technical matters. The level of comprehension may also depend on their levels of education.
During 2006 I have interpreted for Uzbek speakers at Centrelink on more than ten occasions. I have not had any difficulties comprehending or understanding Uzbek speakers during this work. From the course of those occasions and my own observations, I verily believe that there has not been any difficulty on the part of the Uzbek speakers understanding or comprehending me on those occasions. I have not had received (sic) any complaints regarding these occasions or my translation during or afterwards.”
The applicant acknowledged this afternoon that Uighur and Uzbek speakers “could probably understand each other.” As was submitted on behalf of the respondent, in the absence of a transcript of the Tribunal's hearing the only evidence I have of what happened at the hearing is that contained in the Tribunal's decision.
I raised with the applicant this afternoon, the detailed overview and representation of the applicant's evidence before the Tribunal contained in the Tribunal's reasons at (CB 95 to 99). The applicant was unable to point me to any problem evident in those reasons regarding either the Tribunal understanding the applicant or the applicant's answers not being properly interpreted.
The detail in the Tribunal's reasons regarding the applicant's evidence runs to almost four pages. It is replete with references to exchanges between the applicant and the Tribunal member there is nothing to indicate any misunderstanding as to either the evidence given, responses provided or difficulties in understanding questions.

Indeed, the opposite is the case. The Tribunal's reasons at CB 95-99 show repeated questions and answers between the applicant and the Tribunal member.
Under s.427 of the Act the Tribunal is required to provide an interpreter where an applicant is unable to give evidence without one. The respondent has acknowledged that the Tribunal is under an obligation to ensure that it provides an interpreter of sufficient skill such that the applicant is not denied his rights to a fair hearing.
However, for an applicant to establish that they have been denied a fair hearing because of interpretation problems they must show that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence or that errors were made in the interpretation at the Tribunal hearing that were material to the conclusion of the Tribunal and adverse to the applicant (see VWFY) supra.
When a complaint in respect of an interpreter is raised, the Court should consider whether there is a correct translation of the proceedings or a document against which the interpreter's performance can be compared (see VWFY) supra. Save for the Tribunal's reasons there is no such document before the Court in these proceedings.

The Court must also consider whether the interpreter is qualified. However, the qualifications of the interpreter are not a conclusive factor. It is possible that if no one error was severe enough by itself, it is nonetheless possible that a combination of errors or deficiencies in interpreting can deprive the applicant of a fair hearing.
The difficulty for the applicant in this case is – as was made clear to him this afternoon – there is no evidence to support his claim.

The respondent has submitted that the evidence in this matter provides no basis for any adverse conclusion regarding the performance of the interpreter at the hearing. The Tribunal's decision gives no indication that any difficulty was experienced by the presiding member and the applicant in understanding each other (CB 95-99). On what is before me I am not satisfied that the applicant was prevented from giving his evidence On what is before me, I cannot see that the Tribunal made findings adverse to the applicant by reason of any erroneous interpretation of the applicant's evidence.
I am not able to find that the Tribunal formed any adverse view of the applicant's credibility by reason of any inadequacies in the interpretation of the applicant’s evidence. Moreover, I note that the applicant had the assistance of a migration agent throughout the hearing and there is no evidence of any complaint by that agent regarding the interpretation.

Conclusion

In summary therefore, I do not accept the ground contained in the amended application There are no other grounds of jurisdictional error raised by the applicant and I have not been able to identify any in the Tribunal's reasons.
For those reasons I propose to dismiss the application. I note that the respondent’s submissions sought an order that the Tribunal be joined as a second respondent and I would propose to make that order.

The respondent’s submissions also sought an order for costs. Before I considered that application I provided the applicant with an opportunity to say anything to the Court as to why it is that the court should not order that he pay the First Respondent's costs in this matter.
The applicant did not wish to say anything further with respect to this matter. Therefore there is nothing in my view to indicate that in the context of this case that I should depart from the usual practice that the successful applicant should be entitled to a costs order in their favour.
I will order that the applicant pay the costs of the first respondent in this matter and I fix those costs in the amount of $5,000.00 which I am satisfied, in the circumstances of this particular matter is appropriate.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM

Associate: Rachelle Lombardo

Date: 10 November 2006