SZIME v Minister for Immigration - [2006] FMCA 1195

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIME v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1195

MIGRATION – Review of decision by Refugee Review Tribunal – applicant alleges breach s.429 Migration Act 1958 (Cth) – alleged failure by the Refugee Review Tribunal to give applicant meaningful hearing under s.425 – deficiency of interpretation amounting to jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B; 424A; 425; 425(1); 429; 474; pt.7 div.4; pt.8 div.2

Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162
Antipova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 584
VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62

Applicant:

SZIME

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG716 of 2006

Judgment of:

Emmett FM

Hearing date:

2 August 2006

Date of last submission:

2 August 2006

Delivered at:

Sydney

Delivered on:

22 August 2006

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Applicant:

Mr N. McNally, Parish Patience Immigration Lawyers

Counsel for the Respondent:

Mr J. Potts

Solicitors for the Respondent:

Ms G. Broderick, Clayton Utz Lawyers

ORDERS

The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $9000 plus $724 disbursements.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG716 of 2006

SZIME

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(‘As Corrected’)

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 January 2006. The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 3 September 2005. The application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

Background

The applicant is a 36 year old male (“the Applicant”) who arrived in Australia from Nepal on 16 July 2005 travelling on a temporary business visa.
On 29 August 2005 he applied for a protection visa claiming that he was being targeted by the Nepali government for his involvement in the Maoist Party, Communist Party of Nepal (Maoist) (“the CPN (M)”). The Applicant stated that if he went back to Nepal he would be killed and or tortured. The Applicant alleged that the police and army were spying on him because he had refused to participate in a district monitoring committee nominated by the Royal government. He stated that his father had been kidnapped and killed by government security forces and that they would do the same to him.
Having been refused his protection visa by the First Respondent on

3 September 2005, the Applicant lodged a review application with the Tribunal on 28 November 2005.

Applicant’s claims before Tribunal

On 11 October 2005, the Applicant provided a statement to the Tribunal through his advisor. In that statement the Applicant said, relevantly, that following the King’s ascendency in Nepal on 8 April 1990 the Applicant took part in demonstrations in Chitwan against the King’s government. The Applicant alleged that in that demonstration the police attacked the demonstrators and one of his friends was killed and he was injured.
The Applicant claimed that he became District Secretary of his organisation in 1990 and District President in 1997.
The Applicant asserted that his student organisation was controlled by the CPN (M) and that the party granted him general membership in 1995 and organised membership in 1997. He stated that by 1996 the CPN (M) had announced war against the political, social, lingual cultural, religious and class inequalities. The Applicant claimed he was given responsibility for overseas student organisations and activities in the district until 2000.
Thereafter, rather than work underground in the political sector of the party, the Applicant chose to stay “overground” and work to raise people’s awareness through Non Government Organisations (“NGO”). The Applicant stated that in 1998 he was elected a member of the Chitwan NGO District Coordination Committee (“NGO-DCC”) and as such liaised directly with the Party District Committee receiving instructions from them.
The Applicant claimed to be the founding President of the Everest Youth Association, first registered in 1993/1994 and begun by the CPN (M) to recruit local youth to the causes of the CPN (M).
The Applicant claimed that he was elected Secretary in 2000 and President in 2003 of the NGO-DCC and has continued in the role of President.
The Applicant stated that the NGO-DCC was an umbrella organisation for all NGOs working in the district. The Applicant stated that the purpose of the NGO-DCC was to gather information for the best use of the CPN (M) and to make people aware of their rights. The NGO-DCC was used to educate people as Maoists, but without using the party’s name of CPN (M).
The Applicant claimed that when King Gynendra took control of the executive power of the country on 1 February 2005, he began to rule Nepal autocratically. The CPN (M) strongly denounced the King’s rule.
The Applicant claimed that in April 2005 the Royal Government formed District Monitoring Committees to oversee the performance of various government officers and employees, including the Applicant because he was a member of the NGO-DCC in Chitwan. The Applicant stated that NGO-DCC in Chitwan refused to cooperate with the District Monitoring Committee. The Applicant said that, following such refusal, the police began to monitor the activities of the Applicant’s NGO-DCC.
The Applicant claimed that on 17 April 2005 he was called by the police for interrogation and told to stop acting against the Royal Government. However he was released on the same day. The Applicant claimed that on 28 April 2005 he was again called for interrogation and on 10 May 2005 he was required to provide a detailed explanation regarding the activities of the Everest Youth Association and the NGO-DCC. The Applicant stated that he denied to the authorities any link between the CPN (M) and the Everest Youth Association and was released.
On 14 May 2005, the Applicant stated he was arrested and detained and his house searched, unsuccessfully, for evidence of his involvement with the CPN (M). The Applicant claimed that on this occasion he was detained for seven days and tortured by being hung upside down, beaten on the bottom of his feet and threatened with the destruction of his family, slapped and threatened with death if he did not cooperate. The Applicant stated that he repeatedly denied his involvement with the CPN (M). The Applicant stated that he was released on 23 May 2005 on condition that he would attend the police when called.
Following this incident, the Applicant stated that the CPN (M) asked him to go underground and continue to work for it to prevent further losses to the party. The Applicant stated that this request prompted him to decide to escape from Nepal to a safe country. The Applicant stated that the party accepted that decision and let him go ahead.
The Applicant claimed that, if he had stayed in Nepal, he would have been arrested and tortured by the Royal Government authorities and probably disappeared or killed.
The Applicant’s advisor provided copies of various documents and letters in support of the Applicant, including an identity card for the NGO-DCC in Chitwan, a letter from the Applicant’s lawyer, a letter purporting to appoint the Applicant to the NGO-DCC, letters from the district NGO-DCC and the Everest Youth Association, letters from universities and various photographs, medical records and a newspaper report dated 6 December 2005.

The Tribunal’s decision

The Tribunal accepted that the Applicant was a national of Nepal and that he worked in some capacity with a UNICEF/NGO funded District Development Committee in the Chitwan area. The Tribunal accepted that the Applicant had some very broad socialist leanings which were manifested in his work for community welfare.
However the Tribunal found that the Applicant had fabricated the importance of politics in his life. This finding was based on the lack of knowledge demonstrated by the Applicant in the Maoist struggle and his inability to speak about politics with any level of sophistication. The Tribunal found that the Applicant was vague and unconvincing in his evidence and the Tribunal did not accept that the Applicant was a Maoist.
Moreover, the Tribunal gave no weight to the Applicant’s supporting documents on the basis that the letters of support were of “dubious, late provenance and they are contradictory”. The Tribunal did not accept the Applicant’s story as how he came to be able to present Maoist letters to the Tribunal and found there was no plausible reliable explanation for the Maoists writing to him in the circumstances. The Tribunal gave no weight to Kathmandu newspaper article because the text disclosed the Applicant’s family as its sole source. The Tribunal accepted that the Applicant had suffered injuries sighted in the medical report but did not accept that they were inflicted by the authorities let alone for the reasons claimed.
The Tribunal did not accept that the Applicant was detained by the Nepalese authorities, let alone because he was a Maoist.
Further the Tribunal found that the CPN (M) was an illegal reportedly brutal military style rebellion that claimed responsibility for killing civilian targets in Nepal and that, if the Applicant had been arrested and detained as a suspected Maoist, it was not for any Convention related reason.
The Tribunal concluded that it did not accept that the Applicant faced Convention related persecution even if the Tribunal were to accept that the Applicant was a Maoist.

The proceeding before this Court

The Applicant was represented by Counsel before this Court and relied on an amended application filed on 2 August 2006 (“the Amended Application”). The Applicant did not press grounds 2(b), 4, 5, 6 or 7 of the Amended Application. The grounds relied upon are in the following terms:
“1. The Tribunal breached the terms of s429 of the Migration Act by retaining an interpreter, and requiring her to remain in the hearing room, after her professional services had been terminated.
2. The Tribunal breached s 425(1) Migration Act.
Particulars
(a) The Tribunal made adverse findings as to the applicant’s credit because the applicant failed to provide information that was not requested by the Tribunal as to,
(i) why he could not reside in an area of Nepal where the Maoists have dominance or control, and
(ii) his degree of immersion in communist discourse
(c) The Tribunal relied upon evidence obtained through inaccurate interpretation.
3. The Tribunal breached the rules of natural justice.
Particulars
(a) The Tribunal made adverse findings as to the applicant’s credit in that the applicant failed to provide information that was not requested by the Tribunal as to,
(i) why he could not reside in an area of Nepal where the Maoists have dominance or control, and
(ii) his degree of immersion in communist discourse.”

Ground 1 – Alleged breach of s.429

Counsel for the Applicant contended that the Tribunal breached s.429 of the Act by allowing the interpreter who had interpreted for the first half of the hearing to remain after her interpreting services were no longer required and she was replaced by another Nepalese interpreter.
Section 429 is in the following terms:
“The hearing of an application for review by the Tribunal must be in private.”
Counsel for both parties agreed that in s.429 of the Act, the words “in private” meant not open to the public. (See Moore and Weinberg JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154 at [12], [13] and [18] (“SZAYW”)). Kiefel J in SZAYW, at [4], in considering the meaning of “private” in s.429 of the Act referred to in the principles enunciated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, held:
“The meaning of the word ‘private’ in s429 to describe the hearing conducted by the Tribunal is to be ascertained by reference to the Act as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] (‘Project Blue Sky’). The process of construction must always begin by examining the context of the provision being construed. The context, general purpose and policy of a provision are important guides to its meaning: Project Blue Sky at [69].”
Counsel for the Applicant contended that a breach of s.429 of the Act is a statutory breach of the Tribunal’s obligations of natural justice or procedural fairness and is therefore a jurisdictional error. (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (“SAAP”)). In SZAYW, Weinberg J observed, obiter, that a breach of s.429 was similar to a breach of s.424A where the High Court in SAAP had held that such a breach invalidated a decision of the Tribunal where s.424A contains “an inviolable procedural right”. Kiefel J also observed, obiter, at [25]:
“To deprive a person of an opportunity to present their case is a denial of procedural fairness: Aala at 89[4]. As I have said earlier, it seems that s 429 recognises the need for privacy in a hearing to achieve this end and overcome the possible consequences for an applicant if details of their evidence to the Tribunal were published, especially in their homeland. The need for confidentiality is underlined by other provisions, such as s 440. In my view s 429 is concerned to afford procedural fairness.”
Counsel for the First Respondent contended that, although s.429 of the Act as part of Part 7 Division 4 of the Act which s.422B expresses to be an exhaustive statement of natural justice as it applies to the conduct of reviews, a breach of s.429 of the Act is not necessarily a breach of procedural fairness. Rather, it is a requirement pertaining to the maintenance of confidentiality of the proceeding.
Whilst this Court may not be bound by the obiter comments of Kiefel and Weinberg JJ as to whether a breach of s.429 of the Act is a denial of procedural fairness amounting to jurisdictional error, it is certainly persuasive authority. However, unless I find that there was a breach of s.429 of the Act, it is not necessary for me to make a conclusive finding determining that issue.
The Applicant read the affidavit of Bhabani Prasad Oli, affirmed 24 July 2006, annexing a transcript of the hearing before the Tribunal identifying the misinterpretations upon which the Applicant relies. Mr Oli was the Applicant’s migration agent and was born in Nepal, spending the first 28 years of his life in that country. I accept that Mr Oli speaks, reads and writes Nepali fluently.
Mr Oli identified twenty misinterpretations in the interpretation of the first interpreter.
On two occasions Mr Oli interrupted and on each of those occasions the correct question was then interpreted to the Applicant and the corrected answer interpreted.
Following the second interruption the interpreter and the Tribunal member had the following exchange:
“INTERPRETER
Actually I’m not feeling well. I think I won’t be able to - - -
TRIBUNAL MEMBER
That’s okay, that’s cool. You probably need a break.
INTERPRETER
.....
TRIBUNAL MEMBER
That’s okay, that’s okay. Just have a deep breath and we can adjourn the hearing. That’s okay, that’s fine. I certainly don’t want you to feel intimidated by what was raised at this hearing, that’s just a normal part of, like a court proceeding.
INTERPRETER
Actually I’m new and I’m not – I don’t have much experience .....
TRIBUNAL MEMBER
Hello, we just need a hearing officer in the room, please, in room 12. Don’t feel bad about that though, it’s a new jurisdiction and you’ll get a lot of technical stuff and it’s, how can I say, it’s very commendable practice if you’re worried about some of the language being used or the terminologies and if you’re finding yourself struggling a little bit. But if you feel that you don’t want to continue with this hearing or if you just want to have a break to rest and then come back in, I retain confidence in you at this point. Okay. I’m still confident. Do you want to take a break or do you want to - - -
INTERPRETER
No, sir. Actually I think I’m not, I think I might not be able to interpret very well because he might need someone much better.
TRIBUNAL MEMBER
Ah hmm. Okay.
INTERPRETER
So can I just - - -
TRIBUNAL MEMBER
Well, that having been said, well, we’ll look at whether we can resume this and what the issues are. Can we just take a five-minute adjournment. I’ll just look at this. I might need you to come back in five minutes at least so we can look at the way forward. Thanks, I’d just like to have a little adjournment. At this stage I’d like to give the interpreter a break to leave the room, but I’ll just look at what we can do about adjourning or whether we have another interpreter available.
HEARING OFFICER
The hearing has now been adjourned. The member has left the room, the applicant is in the room.
HEARING ADJOURNED”
The First Respondent read the affidavit of Renee Quinn affirmed 31 July 2006 annexing a transcript of the hearing interpreted by the second interpreter. Following the adjournment prompted by the above exchange with the first interpreter, the following exchange took place between the Tribunal member and the new interpreter:
“TRIBUNAL MEMBER
Would you please swear in Madam Interpreter.
INTERPRETER AFFIRMED
TRIBUNAL MEMBER
Thank you. What I’ve chosen to do is this. Thank you very much, hearing officer, you can leave now. I’ve chosen to retain the original interpreter for training purposes and just for her educational benefit until the end, at least until the end of her appointment today, and we’ve engaged another interpreter. Thank you very much for coming in at short notice.
INTERPRETER
You’re welcome.
TRIBUNAL MEMBER
And I put on the record I thank the original interpreter very much for raising her concerns with the tribunal about her confidence in continuing. I certainly at this stage, taking full account of your concerns, Mr Oli, I see no reason not to have confidence in the interpretation of proceedings up to this point and that’s my position at this stage.”
At the conclusion of the hearing, the Tribunal member stated:
“Thank you for letting the other interpreter stay, it will enhance her familiarity with this jurisdiction. Thank you.”
Mr Oli, the Applicant’s advisor, responded:
“That’s fine and I have two ..... submission if you would go through the ..... my client can go to India and things.”
Before concluding the hearing, the Tribunal member asked the advisor if there was anything else he wished to say and the advisor’s response in no way raised any concern about the earlier interpretation. Neither was there any request by the advisor for the matters canvassed by the first interpreter to be recanvassed by the second interpreter.
In its decision, the Tribunal noted the following:
“During the RRT hearing, the adviser expressed concern about some of the terms translated by the initial interpreter. The Tribunal considered the adviser’s concerns but found no reason to lack confidence in the interpreter. However, later in the hearing, the interpreter herself said she was feeling ill and asked to be released from the matter. The Tribunal was able to engage another interpreter quite expeditiously and the Applicant continued to give evidence, assisted by the second interpreter. The questions about the letters and the Applicant’s reporting duties were asked after the second interpreter commenced.
As the first interpreter was new to working in this particular the jurisdiction, and since she was already sworn to confidentiality, the Tribunal invited her to continue attending the hearing as an observer, to help her familiarise with RRT proceedings. The first interpreter stayed for a period. The Tribunal received no post-hearing analysis of any significant problems arising from interpretation at the hearing. The adviser’s objections during the hearing were few and relatively minor and, in any event, they were attended to by the Tribunal during the hearing.”

In the concluding paragraphs of its decision, the Tribunal stated the following:
“There is no evidence before the Tribunal to support a concern to the effect that its ultimate view of the Applicant as an unreliable witness in the present matter has been coloured or influenced by any issues relating to interpretation in the earlier stages of the hearing.”
Counsel for the Applicant contended that a proper construction of s.429 of the Act would not permit a witness to remain after the giving of their evidence and that once the interpreter was dismissed from her role she was in the same position as a member of the public and therefore had no entitlement to be in attendance at the hearing.
Counsel for the Applicant contended that once the interpreter’s services had been terminated, there was no advantage for the Applicant in having her stay in the room and there was at least a potential prejudice that the interpreter may mention the Applicant’s claims outside the confines of the hearing. However, this submission ignores the Tribunal member’s observation made in the course of having the interpreter remain, that the interpreter had sworn an oath of confidentiality.
Nor did Counsel for the Applicant take the Court to any authority in support of his submission that the test in remaining is whether or not there is any advantage to the Applicant in having a person remain at the hearing. In any event, I reject that submission. Section 429 of the Act does not retain to the Tribunal a discretion not to conduct its review in private.
The only question here is whether or not the review was conducted in private as required by s.429 of the Act
As stated above in these Reasons, the Tribunal member, in referring to the first interpreter remaining after she had finished interpreting, noted that the first interpreter was already sworn as to confidentiality and it was plainly on this basis that the Tribunal invited her to continue attending the hearing. Certainly no member of the public has taken an oath of confidentiality.
To the extent that the failure of the Applicant or his advisor to object at the time to the Tribunal’s decision to allow the first interpreter remain, Counsel for the Applicant contended that there could be no question of waiver because the Tribunal had made clear its intention to allow the interpreter to remain and any objection would have been futile. However, the notion of waiver may be misconceived in that s.429 of the Act makes clear that the review is to be conducted in private.
In any event, in circumstances where the Applicant’s advisor had felt sufficiently comfortable to interrupt the hearing to identify misinterpretations, I do not accept that, had the Applicant or his advisor felt that for the first interpreter to remain was inappropriate, the advisor would have sat silent and done nothing.
The Tribunal also noted that it did not receive from the Applicant or his advisor any post-hearing analysis of any significant problems arising from interpretation at the hearing.
Further, there is no evidence before me to suggest that there was ever a complaint made to the Tribunal that, by allowing the first interpreter to remain at the hearing, the Tribunal was breaching s.429 of the Act.
Moreover, there was no formal excusing of the interpreter from her position until the end of the day in accordance with the words of the Tribunal member at the time it informed those present at the hearing it had chosen to retain the interpreter for training purposes and her educational benefit until at the end at least the end of her appointment on the hearing day.
In the circumstances, the interpreter did not remain present at the hearing in the same way that a witness may remain after the giving of their evidence. Plainly, to allow a witness to remain after giving their evidence would be a breach of s.429 (Kiefel J in SZAYW at [12]). Kiefel J acknowledged that a migration advisor falls into a different category from a witness who remained after the giving of their evidence because the migration advisor is a representative of the applicant and therefore “concerned in the case”.
It is difficult to see how an interpreter who had been appointed by the Tribunal to provide that service at the hearing and is directed by the Tribunal member to remain, for training purposes, following a second interpreter taking up the interpreting role, is a person in the same position as a witness who has given evidence been excused and chosen to remain after the giving of their evidence. This is particularly so, where the Tribunal noted that, in requiring the first interpreter to remain after she was replaced, she was still bound by her oath of confidentiality. In those circumstances, it cannot be said that the first interpreter was not “concerned in the case”, to use the words of Kiefel J.
In the circumstances, I do not regard the presence of the interpreter as rendering the hearing to be conducted not in private.
Accordingly, there was no breach by the Tribunal of its obligations under s.429 to ensure that the hearing is conducted in private. Ground 1 is therefore not made out.

Ground 2 – Alleged breach of s.425 of the Act

Counsel for the Applicant relied on 2 sets of particulars in support of the contention that the Tribunal failed to comply with s.425 of the Act, set out as follows:
i)The Tribunal’s use of evidence before it; and
ii)The Tribunal’s acceptance of substandard interpretation. Each is dealt with below.

Ground 2(i) Tribunal’s use of evidence

Counsel for the Applicant contended that in making adverse findings as to the Applicants credit based on the 2 particulars, identified below as (a) and (b), the Tribunal failed to give the Applicant a meaningful hearing as intended under s.425 of the Act. Counsel for the Applicant contended that in conducting the hearing in that manner the invitation to attend the hearing is nothing more than a hollow shell or an empty gesture. Those particulars are as follows:
a)evidence not given by the Applicant, as to why the Applicant could not reside in an area of Nepal where the Maoists have dominance or control;
b)the Tribunal’s use of evidence in making adverse findings as to the Applicant’s immersion in communist discourse.
The Applicant referred to Gray J in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 584 (“Antipova”)where he stated at [82]:
“If the Tribunal has conducted what purports to be a hearing, but has not in truth allowed an applicant to give evidence and present arguments relating to those issues, it has not complied with this statutory obligation.”
Gray J’s comments in Antipova were obiter. However, Counsel for the First Respondent submitted that, even in the terms expressed by Gray J in Antipova, the Tribunal did not breach s.425, in that it did nothing to prevent the Applicant giving evidence and presenting arguments on any matter the Applicant wished, including those matters about which the Tribunal commented, namely particulars (a) and (b) above.
Counsel for the First Respondent referred to the Tribunal’s decision where it said the following:
“The Applicant showed no sign of any ongoing, detailed interest, since arrival in Australia, in the fortunes of the Maoist rebellion in Nepal, or in the country’s political debate at all.
The Applicant never explained to the Tribunal why a Maoist like himself, struggling for Maoist dominance in Nepal, could not reside in an area of Nepal, whether it was Chitwan or some other area, where Maoists have dominance and/or control, the better to continue the struggle, or where they still have a job to do securing the region. He never explained why, amongst all the other Maoists in Nepal, all of whom must be offside with the police and the government, he specifically had to seek asylum abroad instead of participating in the revolution to which the Maoist are reportedly committed.
The Applicant claimed to the Tribunal that his whole family supported the Maoists. In making this claim, the Applicant implied a life of family immersion in communist discourse but had nothing to show for it in his response to questions at the hearing.”
The Tribunal made these observations in the “Claims and Evidence” section of its decision. In the “Findings and Reasons” section of its decision, the Tribunal found that the Applicant was unable to convey even a remote impression of having had a political education or an ability to grapple with Maoists issues, including that the Applicant’s inability to speak with any “sophistication” about politics, aims, strategies and closely observed achievements in the “people’s war”, left the Tribunal confident that the Applicant had fabricated the importance of politics in his life.
It is apparent from the transcript that the Tribunal explored with the Applicant in detail his alleged Maoists background and put to the Applicant that in his answers, he stated that he did not believe in armed insurgency and this evidence was were at odds with the information before the Tribunal that no Maoists groups were opposed to insurgency or armed struggle.
Moreover the Tribunal put in detail its concerns about the answers given by the Applicant in relation to his claim of being a Maoist and that question and answer is set out below:
“Q102 TRIBUNAL MEMBER; Can I just give you an impression of the case so far. A lot of your information about being a Maoist, looking at the world from inside the Maoist movement, seems either vague or contradictory. A lot of your information seems to be the opposite of Maoist policy. Now, I’ll concede one thing here. A true Maoist would probably say what you said to me before in relation to the kidnappings from school. I’m sure if I confronted a Maoist and said, Why do you kidnap kids from school?, they’d probably say, Oh, no, they all come willingly, they want to join our glorious movement. So your answers to those questions I can imagine are not far off what I would expect a real Maoist to provide, however, the bit where you said, We let them go that afternoon to the school or to their parents, that’s quite far off what I would imagine a Maoist would say because there’s so much Maoist propaganda about the children who’ve stayed in their forces, in their ranks. And there are so many reports of kids not going home. But anyway, as I said, when I asked you what you had to say about the kids being forced into these things, you said what I imagine a Maoist would say, which is, They’re not forced, it’s voluntary. But other things you’ve said today give me great concern. Your support for co-operation with UNICEF through the established governmental structures seems totally opposed to Maoist policy. Your opposition to armed struggle is inconsistent with Maoist policy, and yet it is central to Maoist operations. Now, just being a social worker doesn’t explain it all, because you’re still signing on to a group whose main occupation is armed revolution. People’s War was declared in February 1996. Now, your description of the party structure is up to this point quite vague and I’m going to give you a chance to come back to that in a minute and hear what you have to say because it might not be vague after I’ve told you that I think it’s vague. Social workers, I would imagine, have a particular propaganda role in the Maoist movement, if they exist in the Maoist structure. My understanding is that you’re a social worker because the NGO made you a social worker and the NGO is not a CPN Maoist. You’re a social worker because the DDC and the VDC and UNICEF and the NGO all want you to be a social worker. It’s not a position created in the Maoist brigade. So being a social worker doesn’t let you off the hook for being unaware or unable to speak in detail about the Maoist operation. Being a social worker is your cover in society. Underneath it all you are a Maoist and you’re either in the Maoist movement with Maoist points of view or you’re not. Or if there’s some plausible in-between I’m yet to be convinced. Now, your case is not just composed of what you’re telling me today, it’s composed of a number of documents that you’ve sent me. I wonder if I can give those documents weight given my concerns about the reliability of the information you’ve given me today. You’ve told me that your family has retained no copies of any independently-published information about your father’s kidnapping and were unable to produce a newspaper until after the last time – after that request two months ago. When it appeared it’s very clearly an article published at their request. It’s dated after the time you’ve asked for them to obtain articles for you. It’s published in another town, another city. It seems odd that people at Kathmandu would be asked to try and provide information about a kidnapping that occurred in Chitwan. I wonder what weight I can give that article at the moment, I’m not sure that I can give it much. So I’m disclosing all these things to you to let you know what may be at stake in your case. If I can’t give weight to your information today and if I can’t give weight to this newspaper article, it may follow that I can’t give weight to the other items, the other documents which are photocopied to your file. The so-called letters from the police, the government, the alleged letters from Maoists asking you to give them reports. Anyway I’ve put that to you. What do you want to say at the moment?
APPLICANT (THROUGH INTERPRETER); I am a Maoist worker, I would like to say that first. And it’s party decision, they don’t want all the members or all the workers to be underground, it doesn’t operate like that. And we, as social workers, we tell, we inform the public and we are there as social workers working in the public. And before in my student life I have performed many activities, I have done a lot of work in direction of the party. And there were many of my friends who were doing the activities in underground manner, they were all underground, but I wasn’t underground I was doing things openly in different ways because I feel that we have to understand the people’s view also and share your views so I was working as a social worker, mixing around with the public. And I will still be, I was able to work, understanding the public, talking to public, and still work under the direction of my party. I was in contact with them too. In that relation also once – I have to, interpreter have to ask that word – District Development Committee, in the monitoring committee they have selected me in that committee too. But then there was a decision that no, I should not be in that so I didn’t take that position. And the framework of the party is ..... there’s ordinary member, then there’s organised member, organisational member.”
I note that the question and answer above were given at a time when the second interpreter was interpreting at the hearing. There was no objection by the Applicant’s advisor, Mr Oli, as to the interpretation provided by that second interpreter. Moreover, in evidence before this Court, Mr Oli confirmed in cross examination that he had no difficulty with the interpretation of the second interpreter.
The transcript also reveals that the Tribunal member had difficulty extracting from the Applicant what it was that happened at the Maoist meetings which the Applicant said he was responsible for conducting. The Applicant answered:
“A     But in those meetings when they go to attend them they explain that Maoists are doing fighting for your people’s cause, for the people’s cause. You do this and they explain in the meeting.
Q149     Well, give me some specifics - - -
A And then they - - -
Q149     - - - about how they’re fighting for the cause. What are they [sic] programs?
A - - - promise them the shelter, food and everything.”
The Tribunal put to the Applicant he had failed to give the Tribunal “an authentic sounding account of the programs that these important Maoist leaders announced to the people for their benefit.”
The Applicant responded:
“Basically first of all they are making the people aware and they are making them united and they are trying to get them together and say that we are fighting for the oneness of people.”
The Tribunal again put to the Applicant that “…no matter how many times I ask you to give details of the way they deliver these programs, you’ve either digressed or backtracked or retreated.”
The Applicant responded:
“They tell them that if our party comes to power and if we hold the power ..... then we will give ..... we’ll give everybody the right to live, eat, food, shelter and clothing.”
Further, the Tribunal put to the Applicant that it was not convinced that he was a Maoist or had any insights into the Maoist movement. It also observed to the Applicant that the Applicant had given opinions that were opposed to Maoist policy throughout the hearing. The Tribunal went on to put to the Applicant that the Applicant’s point of view came across very much as “a non-Maoist point of view.”
In relation to ground (a), the Tribunal specifically asked the Applicant:
“Q46 Is Chitwan under Maoist control?
A I think I have to say yes, Chitwan is in control.
Q47 So why can’t you live in Chitwan amongst your Maoist comrades where they control the area? Why did you have to leave?
A The Maoist group usually work during the night-time and Chitwan is a sort of remote place. Even when we operate with caution at night-time by hiding.”
The Tribunal then went on to express to the Applicant it’s scepticism about whether in fact Chitwan was controlled by the Maoists.
On a fair reading of its decision in relation to the words used in particular (a) above, the Tribunal is doing no more than summarising the evidence that was given by the Applicant and drawing conclusions from the failure by the Applicant to properly explain or give fulsome answers to questions asked by the Tribunal. The Applicant was given every opportunity to explain to the Tribunal why he was not able to remain in Nepal with other Maoists. The Tribunal then used its characterisation of the Applicant’s evidence in concluding that it was not satisfied that the Applicant was a Maoist.
Similarly in relation to particular (b) above, the Tribunal does no more than characterise the Applicant’s evidence about his early family life and his family’s involvement with Maoists. The Tribunal found that the Applicant’s evidence implied a life of family immersion in communist discourse, but then found that the evidence, as it progressed, revealed that the Applicant was not able to substantiate that implication. The Tribunal then found, based on that characterisation of the Applicant’s evidence, that the Tribunal was confident that the Applicant had fabricated the importance of politics in his life.
Both particulars (a) and (b) above are characterisations of the Applicant’s evidence that were open to the Tribunal on evidence before it and which were used by the Tribunal in concluding that the Applicant was not a Maoist and had fabricated the importance of politics in his life. Those were findings open to the Tribunal on the evidence before it.
Accordingly, there is no breach of s.425 by the Tribunal because it made adverse findings against the Applicant arising out of the characterisations of its evidence contained in (a) and (b).

Ground 2(ii) Standard of interpretation

In his written submissions the Applicant also contended that the standard of interpretation during the first part of the hearing was such that the Tribunal had failed to comply with s.425(1). In support of this contention the Applicant relied on the affidavit of Mr Oli who identified particular misinterpretations that occurred during the interpretation with the first interpreter who was ultimately replaced.
The Applicant identified twenty such misinterpretations. Counsel for the Applicant submitted that it was not any one of the misinterpretations by themselves that would lead to a conclusion that the misinterpretation was of such a serious nature that the Tribunal had not offered the Applicant a hearing in terms of s.425 as contemplated by the Act. Rather, it was the number of misinterpretations identified and the general impression to be implied that the hearing was so significantly affected by the misinterpretations that it did not amount to the type of hearing contemplated by the legislation.

During the hearing before this Court, Mr Karp addressed every one of the twenty misinterpretations that were identified by Mr Oli in the transcript. The First Respondent contended that none of the misinterpretations identified by the Applicant is a material error in translation. Counsel for the First Respondent addressed each of the twenty misinterpretations in his written submissions. Ms Quinn’s affidavit contained a transcript that had regard to the misinterpretations identified by Mr Oli. I particularly note the objection to the interpretation referred to by Mr Oli in his affidavit in respect of question 22 where both Ms Quinn and Mr Oli agree that the questions and answers were as follows:
“Q22     Just a moment, no, just a moment. I’ve got my ear to the ground here, I’ll be fine, thank you.
A      What happened is I was in the Maoist group as a social worker. I help public - - -
(The applicant said in Nepali: “I helped the Maoists as a social worker not in their army. I never raised arms for the Maoist army”)
ADVISER
Awareness.
A      I helped in public awareness but I never weapons.”
The First Respondent observed in her written submissions that the misinterpretation identified by Mr Oli does not in fact appear to take account of the answer “Awareness”, as given by the advisor in finishing the Applicant’s answer to the question.
In any event, the advisor, Mr Oli, had no hesitation in objecting to any misinterpretations that caused him concern. Indeed, shortly after the advisor identified the first two misinterpretations to the Tribunal and they had a discussion about them, the Tribunal member noted the advisor’s concern and said “Okay. I don’t think, I don’t think we need to abort the hearing - - -”, to which Mr Oli replied “No, that’s fine, that’s fine”.
The Tribunal member went on to point out that Mr Oli had not identified any misinterpretations of the Applicant’s evidence and that in any event it was open to the Applicant and his advisor to review the tapes.
The Tribunal member also noted that whilst the advisor had expressed his frustration about some of the interpretation that in fact the Tribunal had come back and asked the same questions in different ways where it had concerns but noted that answers from the Applicant continued to be roughly the same.
The Tribunal member also acknowledged the right of the Applicant and his advisor to raise any objection to the misinterpretation.
The second occasion on which the advisor interrupted the Tribunal in respect of a misinterpretation, the same question was then re-put and there was no further objection by Mr Oli to the interpretation of the question as re-put.
The interpreter then expressed that she was not feeling well that she was new and didn’t have much experience. The Tribunal member then adjourned the hearing and arranged for the second interpreter to continue the interpretation of the hearing.
At the commencement of the second interpreters’ role the Tribunal member thanked the original interpreter for raising her concerns with the Tribunal about her confidence in continuing.
The Tribunal member also observed “I certainly at this stage, taking full account of your concerns, Mr Oli, I see no reason not to have confidence in the interpretation of proceedings up to this point and that’s my position at this stage.” That statement was plainly directed at Mr Oli and the transcript reveals there was no response from Mr Oli at all.
Further, as the Tribunal noted in its decision, no post hearing submission was received from Mr Oli about any misinterpretation in respect of the first interpreter despite the Tribunal pointing out to Mr Oli that the tapes were available for review by him.
Nor did Mr Oli suggest to the Tribunal that any of the questions that he was of the view were misinterpreted should be re-put to the Applicant through the second interpreter.
In order to amount to jurisdictional error, the deficiency of interpretation must be of such poor quality that an Applicant is effectively deprived of his right to appear. (Finkelstein J in VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723). Finkelstein J at [27] said as follows:
“My general impression is that no one error or deficiency is so severe as to show that the interpreter or the interpretation was of such poor quality that the appellant was effectively deprived of his right to appear. But, when one steps back and looks at the hearing as a whole and asks whether the appellant received a fair hearing, I think the answer is that he did not. The combination of insufficient and incomplete translations, as well as the clear factual errors on the part of the interpreter, which the appellant was fortunately able to correct in some instances, suggests that the appellant had no real opportunity to express himself and fully answer questions put to him by the tribunal. This fails to achieve the tribunal’s objective of providing a fair and just hearing.”
Counsel for the Applicant submitted that, by accepting an interpretation that was inaccurate, the Tribunal failed to provide a fair hearing at least in part. I reject that contention. There was no inaccuracy identified by the Applicant that to my mind resulted in any unfairness to the Applicant that he did not have an opportunity to address.
The Applicant was represented at the hearing by Mr Oli who, as stated earlier, had no hesitation in making clear to the Tribunal concerns he had about misinterpretation.
It is also plain that the Tribunal:
i)gave Mr Oli every opportunity to express any concerns and acknowledged Mr Oli’s right to do so;
ii)re-put questions that Mr Oli expressed concern about;
iii)noted that Mr Oli made no complaint about the interpretation of the questions when re-put;
iv)noted that no request was made by Mr Oli, when the second interpreter commenced, that any of the questions or answers that Mr Oli had claimed had been misinterpreted before needed to be revisited; and
v)noted that Mr Oli made no post hearing submission.
In the circumstances I am satisfied that the hearing offered and conducted by the Tribunal was in accordance with s.425 of the Act and the Applicant was given a meaningful opportunity to attend a hearing present arguments and give oral evidence.
Accordingly ground 2 is rejected.

Ground 3

The Applicant relies on the same particulars (a) and (b) as referred to in ground 2(i) in support of his contention that the Tribunal denied the Applicant procedural fairness in failing to put the substance of those particulars to the Applicant.
The First Respondent submits that it is not open to the Applicant to suggest that a failure by the Tribunal to put the matters identified to the Applicant and then make adverse findings was a breach of procedural fairness because.422B states that Part 7 Division 4 is an exhaustive statement of the rules of natural justice.
Counsel for the Applicant concedes that the First Respondent’s submission is in accordance with the interpretation of s.422B of the Act recently confirmed by the Full Court of the Federal Court in SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 and that this Court is bound by that determination.
In any event, my reasons in relation to particulars (a) and (b) of ground 2 make it clear that such matters were explored with the Applicant and the findings made by the Tribunal on those matters were open to the Tribunal on the evidence before it. Moreover, there was no procedural unfairness because the matters complained of are merely characterisations of the Applicant’s evidence that was open to the Tribunal on the evidence before it.
Accordingly, ground 3 is not made out.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 21 August 2006

Correction

In the first sentence of paragraph [36] of the reasons for judgment delivered by Federal Magistrate Emmett on 22 August 2006, the words “First Respondent” should be replaced with the word “Applicant”.