FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGWN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1748 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizens of China claiming fear of persecution as Falun Gong practitioners – whether Tribunal failed to comply with Migration Act 1958 (Cth), s.425. |
| Migration Act 1958 (Cth), ss.91R, 91X, 422B, 425 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592; [2006] HCA 63 referred to SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 followed Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 referred to SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 referred to Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 referred to SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 referred to NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 referred to NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 referred to Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 followed. |
| First Applicant: | SZGWN |
| Second Applicant: | SZGWO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 275 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 October 2007 |
| Date of Last Submission: | 2 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kaur-Bains |
| Solicitors for the Applicant: | Simon Jeans & Associates |
| Counsel for the Respondents: | Ms Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs fixed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 275 of 2007
| SZGWN |
First Applicant
| SZGWO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicants, who are citizens of China, ask the court to set aside a decision of the Refugee Review Tribunal handed down on
21st December 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants protection visas.
The applicants also seek an order remitting their application to the Tribunal to be dealt with according to law.
The applicants claim that:
(1)The Tribunal was under an obligation to disclose, and failed to disclose, the following issues to them and/or was required to provide an opportunity to them to give evidence and make submissions:
i)The first applicant’s motivation in being involved in Falun Gong activities in Australia and whether it was for the purpose of strengthening his claims to be a refugee; and
ii)That there was a possibility that the Burwood study group was convened for the purpose of coaching visa applicants
(2)The standard of interpreting at the hearing was so inadequate that…
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- AGLC
- SZGWN v Minister for Immigration [2007] FMCA 1748
- Case
- [2007] FMCA 1748
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicants' right to a fair hearing, as guaranteed by section 425 of the Migration Act 1958, was breached due to the alleged inadequacies in interpreting services during the Tribunal hearings. The applicants submitted that the interpreting errors led to adverse conclusions being drawn against them. The Tribunal had to assess whether it had adequately addressed the deficiencies and whether the applicants' concerns were appropriately resolved by considering additional evidence, such as transcripts of the hearings.
The court found that the Tribunal had given due consideration to the applicants' concerns regarding the interpreting deficiencies. The Tribunal accepted the transcripts provided by the applicants and stated that it had addressed and removed any disadvantage that might have resulted from the initial interpreting errors. The Tribunal's confidence in having rectified the deficiencies was based on its review of the transcripts and its use of the translated evidence. The court noted that, in line with previous case law, any errors in interpreting could be rectified, and the Tribunal's actions aligned with this principle.
The court dismissed the application and ordered the applicants to pay the first respondent's costs, fixed at $5,800.00. This decision underscores the importance of interpreting services in ensuring fair hearings and highlights the tribunal's role in addressing and rectifying any deficiencies to uphold the applicants' rights.
Orders
Orders of the court
1.
The application is dismissed.
2.
The applicants are to pay the first respondent’s costs fixed in the sum of $5,800.00.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In his submission of 27th October 2006, the applicants’ adviser raised the issue of deficient interpreting at both Tribunal hearings:(SZGWN)[30] did not have a fair hearing before the first Tribunal, contrary to section 425 Migration Act 1958, because the quality of the interpreter was clearly deficient and the Tribunal drew adverse conclusions based on those mistakes.We submit that (SZGWN) did not have a fair hearing during the second Tribunal hearing, contrary to section 425 Migration Act 1958, again because of the deficiencies of the interpreter. The deficiencies of the interpreting created a negative impression, which we have sought to overcome by providing a transcript of the hearing.[31][30] Name deleted to comply with s 91X of the Migration Act[31] Court Book 238 The Tribunal considered both of those claims. As to the first Tribunal hearing, the Tribunal stated:However, the Applicant submitted a transcript of relevant parts of that hearing and the presently-constituted Tribunal has taken due account of the evidence in that transcript, accepting that it improves upon the consecutive interpretation provided at the hearing. The Tribunal is confident that it has addressed and removed the disadvantage the Applicant may have suffered from a decision-maker relying on the consecutive oral interpretation of the Applicant’s evidence about Falun Gong teaching, Falun Gong books and the issue of when he was charged after coming to Australia in relation to his 2002 activities involving the traffic signs.[32][32] Court Book 389 As to the second hearing, the Tribunal said:As discussed, in considering this claim the Tribunal is greatly assisted by a fresh, NAATI-accredited translation of the Applicant’s evidence given at the 11 October 2006 hearing, on which the Applicant and his adviser have relied in making the point about misunderstandings at this more recent hearing. The Applicant and his adviser have not asked for a third RRT hearing, and have said that the transcript helps to overcome deficiencies in the oral interpretation of the Applicant’s 11 October 2006 evidence.Guided by the concerns raised in the 27 October 2006 submission, the Tribunal is confident that it has sorted through instances where the Applicant misunderstood questions by the Tribunal that were misinterpreted or inadequately interpreted on 11 October 2006. The Tribunal has also relied, as the Applicant and adviser have indicated they would prefer it to rely, on the transcript’s written translation of the information provided by the Applicant at the 11 October hearing, rather than the oral interpretation, the occasional shortcomings of which are shown in the transcript for comparison with what the Applicant is shown to have actually said.[33][33] Court Book 389-390 Quite clearly, the Tribunal has given favourable consideration to the applicants’ submissions about the inadequacy of the interpreting and has taken appropriate steps to deal with the matters raised. The Tribunal appears to have done exactly what the applicants asked it to do. If errors in interpreting are made, then they can be rectified (see Perera v Minister for Immigration and Multicultural Affairs[34]).[34] (1999) 92 FCR 6 at [37] per Kenny J