SZGFO v Minister for Immigration - [2006] FMCA 1515

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGFO v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1515

MIGRATION – RRT decision – non‑accredited Uzbek interpreter used – whether applicant denied sufficient opportunity to participate in hearing – no evidence of inadequate interpretation found – application dismissed.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.425, 474(1), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Appellant P119/2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCAFC 230
VWFY v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1723

Applicant:

SZGFO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1155 of 2005

Judgment of:

Smith FM

Hearing date:

28 September 2006

Delivered at:

Sydney

Delivered on:

28 September 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr G Kennett

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,500.
These orders shall not take effect until 31 October 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1155 of 2005

SZGFO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 5 May 2005 seeking orders under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 March 2005 and handed down on 30 March 2005. The Tribunal affirmed a decision of a delegate made on 9 September 2004, refusing to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and the Acts Interpretation Act 1901 (Cth), s.8). The Court’s powers under s.483A are limited under Part 8 of the Migration Act, so that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claim should be believed, nor whether he qualifies for a protection visa. I do not have power to order a further hearing by the Tribunal, unless I am satisfied that it failed to exercise its jurisdiction according to law.
The present applicant arrived in Australia in August 2004. According to the delegate’s statement of reasons, he arrived with a group of scientists sponsored by the CSIRO to attend an Australian Cotton Growers Conference. The business visa was supported by a government agency of the Republic of Uzbekistan. However, the group did not attend any of the conference sessions.
The applicant’s application for a protection visa was lodged on 27 August 2004 with the assistance of a migration agent at Bondi Junction called Ms Marta Chepurin. In the application, the applicant was identified as a national of Uzbekistan, and the application suggested that he could speak Russian as well as Uzbek and could be assisted at interview by a Russian interpreter.
The application gave his reasons for seeking protection in Australia briefly:
40Why did you leave that country?
I was a member of the opposition partie ERK.
Partie ERK is not official recognise by the Government.
As Uzbekistan heads towards a general election in December one thing is fairly certain, no opposition parties will be allowed to stand.
Harassment of activists is increasing.
I could not live any longer under such constant threat.
I feared for my life.
41What do you fear may happen to you if you go back to that country?
I fear for my life – that I will be physically harmed or even killed, by the Islam Karimov political partie.
42Who do you think may harm/mistreat you if you go back?
The are half a dozen political parties, loyal to President Islam Karimov and barely distinguishable from one another. Our partie ERK is in opposition.
43Why do you think this will happen to you if you go back?
Democratic reform appears distant for the Uzbek people, who are being given freedom in small doses.
Being in the opposition to the Government my fears of harm is strong and I am really terrified if having to return.
44Do you think the authorities of that country can and will protect you if you go back? If not, why not?
Uzbekistan severely lacks political pluralism and genuine political opposition. The strength of the political culture in Uzbekistan is controlled and manipulated by the authoritarian rule of former Communist party leader President Islam Karimov. The leader of the two main opposition parties in Uzbekistan ERK and BIRLIK have both been forced into exile abroad.
Accompanying the application was a statement in Russian, with an English translation, which said:
All of us in the group are members of the Uzbek pro‑democracy party “Erk”. But since Uzbekistan is not a democratic state, parties that are opposed to the president are not legal in our country, as the president is essentially a dictator. During the so‑called elections, our party was not even allowed to get close. As a result, the president won 99% of the vote and a second term in office. Furthermore, members of opposition parties were subjected to harassment and torture by the police and security services. The police made every effort to pressure members of the opposition into leaving the country, threatening to imprison their families if they do not comply. With elections coming, these threats have intensified as the president is running for a third term. Therefore, to avoid subjecting our relatives and loved ones to danger, we decided that we must travel to a country that does not have political relations with Uzbekistan, and to seek political asylum there. We have come to Australia because we feel safe here.
No specific details of the applicant’s involvement in politics were given, and no supporting evidence of the claims was provided to the Department, nor subsequently to the Tribunal.
The applicant, through his agent, was invited to attend a hearing by the Tribunal on 14 January 2005. The “Response to Hearing Invitation” form which is signed by the applicant requests an interpreter in the Uzbek language.
The evidence before me shows that the Tribunal endeavoured to find an accredited interpreter in that language, but the member constituting the Tribunal was informed that “this language is not tested at Interpreter Level” under NAATI standards. The Tribunal identified in Adelaide a person experienced in interpreting English into Uzbek, that being Ms ZS. I have before me an affidavit by Ms ZS, which gives her general background and experience in working as a translator professionally in many languages, including Russian, Uighur, Uzbek, Tatar and Kazakh. She has tertiary qualifications, and has completed an English course for interpreters. She says:
6.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.
7.Uzbek and Uighur both have Turkic roots but there are dialectic differences. Usually a lay Uzbek speaker and a 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.
8.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 received any complaints regarding these occasions or my translation during or afterwards.
On her qualifications and background, I am not satisfied that she lacked general qualifications to provide the Tribunal with sufficient skills to perform the function of interpreter at the applicant’s hearing.
According to the Tribunal’s record of the hearing, it lasted for two hours. In its statement of reasons, the Tribunal set out its questioning of the applicant over that period and his responses. Nowhere in its description is there any suggestion that the Tribunal observed or heard any difficulties in communication, nor that the applicant or the interpreter drew attention to any problems of interpretation or communication.
The Tribunal asked the applicant simple questions concerning his background in Uzbekistan, his employment, his involvement in political parties and his contacts with government authorities. On its account, he contradicted himself at many points on simple questions of fact.
Thus, he initially told the Tribunal that although he had a general dislike of the government, he had not been a member of any political party, and had not taken part in any political activities or demonstrations, and had not had any problems with the authorities. However, he gave different evidence after further questioning, when information was put to the applicant concerning the general country situation in Uzbekistan, and when the Tribunal put to him the statement which accompanied his original application where he claimed to have been a member of the political party “Erk”. The applicant then said that he had been a member of that party. He also stated things about the party which were inconsistent with the country information held by the Tribunal. The applicant also claimed that he had helped to organise demonstrations, but could not explain why he had earlier said that he had no problems.
According to the Tribunal, at the end of the hearing:
I asked the Applicant if there was anything he wanted to add before I closed the hearing. He repeated that he would probably be imprisoned or killed if he went back to Uzbekistan. He said that he would be viewed as a criminal in the eyes of the Government.
In its statement of reasons, the Tribunal briefly referred to background concerning the Erk party. Under the heading “Findings and Reasons”, it referred to judicial authorities suggesting that it was the Tribunal’s function to evaluate the testimony of a person who claimed to be a refugee. It said:
In the present case the Applicant was an unimpressive witness. He contradicted himself in relation to significant parts of his evidence at the hearing before me. He initially said that he had not been a member of any political party in Uzbekistan, then that he had been a member of Erk. He initially said that the party no longer existed, then that he remained a member until now but that it did not exist in Uzbekistan, and then that the party did exist in Uzbekistan. He initially said that he had not taken part in any political activities or demonstrations in Uzbekistan, then that he had helped to organise demonstrations in which they had demanded their human rights. The Applicant initially told me that he had not had any problems with the authorities in Uzbekistan but subsequently he said that in around 2002 the Uzbek authorities had warned him that they would imprison him if he kept on taking part in these sorts of activities. When I asked him why he had told me earlier that he had had no problems with the authorities in Uzbekistan he said that he had had many big difficulties but this had been a simple one so he had not regarded it as a difficulty at all.
The Applicant initially said that he had lived in [location] in the [district] of Uzbekistan until 1997 or 1998 after which he had travelled to and fro between there and Kyrgyzstan for six years but he subsequently said that it had been in the first six years after Kyrgyzstan had become independent, from 1991 until 1997 or 1998, that he had travelled backwards and forwards between Kyrgyzstan and his home in Shakhrikhan. The Applicant was unable to provide cogent explanations for any of the contradictions in his evidence and I do not regard him as a credible witness. I do not accept that he was ever a member of Erk, nor that he helped to organise demonstrations nor that the authorities warned him that he would be imprisoned if he kept on taking part in these activities. Having regard to the view I have formed of the Applicant’s credibility I do not accept that he genuinely wishes to express his opinion against the Government of Uzbekistan but is prevented from doing so by the lack of political freedom in Uzbekistan. I accept that the Applicant travelled backwards and forwards between his home in Uzbekistan and Kyrgyzstan at some time but given the contradictions in the Applicant’s evidence I am unable to determine when this was. I do not accept that the Applicant genuinely fears that he will be imprisoned or killed if he returns to Uzbekistan. There is nothing in the evidence before me to suggest that the Uzbek authorities know that the Applicant has applied for a protection visa in Australia nor that there is a real chance that they will find this out. I do not accept that there is a real chance that the Applicant will be persecuted for reasons of his real or imputed political opinion if he returns to Uzbekistan now or in the reasonably foreseeable future.
There is no evidence that, following the hearing, the applicant or his adviser made any complaints to the Tribunal about the quality of the interpretation provided at the hearing. The Tribunal’s case management notes indicate that there had been discussions with the applicant’s agent about the interpreter before the hearing, but that the agent had not herself attended.
The applicant’s application in this Court contains one ground:
The Tribunal was unable to reach a correct decision because neither the Tribunal not the applicant received any assistance of the qualified Uzbek language interpreter.
Instead of providing the applicant with the Uzbek‑English interpreter, as it was requested, the Tribunal provided the applicant with the Uigur language interpreter.
This resulted in impossibility to deliver Tribunal questions to the applicant properly as well as the applicant’s answers to the Tribunal.
Due to the above mentioned the applicant had no fair hearing and therefore the judgement was not correct.
The applicant has not filed any amended application or written submission or evidence in support of this ground.
On the Court’s file is a file note by the Registrar explaining the procedural history of the matter before the Registrar, and the difficulties facing the Court when arranging for an Uzbek interpreter to assist the applicant on those occasions. It is clear, however, that the applicant was given short minutes of orders made in June 2005 containing standard directions, allowing him an opportunity to file an amended application and affidavits and to have a referral for free legal advice. He was sent such advice in July 2005.
The applicant also tells me that he has been able to get assistance in understanding English using an Uzbek‑speaking friend, and Russian interpreters.
In August 2005, the Court confirmed the hearing date which was set down for today in a letter sent to the applicant in English and in Uzbek.
He attended the hearing very late, but I overlooked that. The hearing was conducted with the assistance of an Uzbek‑speaking interpreter by telephone from Adelaide, who was not the interpreter previously employed by the Tribunal. He explained to the Court that there still was no NAATI accreditation of Uzbek interpreters.
The applicant expressed his dissatisfaction with the interpreter provided by the Tribunal, but did not give any particulars of any point at which he particularly felt he was misrepresented to the Tribunal.

As I have indicated, he did not present an English transcript of the hearing to allow me to see whether anything was said in English which might reveal inadequacy of interpretation, nor did he present any evidence of an Uzbek interpreter or speaker deposing to having listened to the tapes and identified mistranslations.
The Full Court in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 considered principles by which the inability of an applicant to have an opportunity to participate in his own language at an oral hearing, to which he had been invited by the Tribunal under s.425 of the Migration Act, might give rise to a failure by the Tribunal to follow procedures required by that section.
Finkelstein J in VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 referred to other authorities, and discussed how proof might be given of a failure by the Tribunal “to appoint an interpreter with sufficient skills to fulfil the function”.

He pointed out that it is normally necessary to have a “correct” translation “that will provide the yardstick” (see [10]). But he also suggested that an English transcript could establish a sufficient failure of communication. His Honour was able to form such an opinion in the case before him, from a general impression from reading a transcript and listening to the tape. However, I have not been given that opportunity in the present case, and I am not satisfied that the applicant was not provided in this case with a sufficiently skilled interpreter.
I therefore do not accept the ground raised in the amended application.
No other ground of jurisdictional error has been raised by the applicant, and I have not been able to identify any jurisdictional error affecting the Tribunal’s decision.
The decision therefore was a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.
The reasons which I have given above were foreshadowed to the applicant using the interpreter, although I did not continue the telephone connection with the interpreter while dictating this judgment. However, I explained to the applicant the orders which I made, and the procedure which I intended to follow in relation to transmission to him of my transcribed reasons.
To allow him an opportunity to obtain advice upon those reasons after receiving them, I considered it appropriate in the special circumstances of this case to make an order that the orders dismissing the case should not take effect until 31 October 2006, by which time I am hopeful he will have received my revised reasons.
The applicant was also given an opportunity to make submissions in relation to the costs order, which I consider was appropriately made.

I certify that the preceding thirty‑one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 20 October 2006