SZJBD v Minister for Immigration - [2008] FMCA 1485

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBD v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1485

PRACTICE & PROCEDURE – Transfer of case to Federal Court where there is conflicting authority in Federal Court – whether court should appoint a court appointed interpreter – whether court can itself decide on interpreting disputes or whether a matter requiring expert evidence – costs of appointing interpreter – whether court should refer matter to pro bono solicitor – action taken by court to refer the matter to Legal Aid Commission – where applicant files amended application but does not resile from previous complaints about bias or interpretation.

Federal Magistrates Act 1999
Federal Magistrates Court Rules 2001

SZJBD v Minister for Immigration [2007] FMCA 1829
SZJBD v Minister for Immigration [2008] FCA 922
NAPS v Minister for Immigration [2003] FCA 1091
NAPS v Minister for Immigration [2004] FCA 159

Applicant:

SZJBD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1931 of 2006

Judgment of:

Raphael FM

Hearing dates:

14 August & 29 October 2008

Date of last submission:

29 October 2008

Delivered at:

Sydney

Delivered on:

29 October 2008

REPRESENTATION

For the Applicant:

In Person

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Matter transferred to Federal Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1931 of 2006

SZJBD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal made on 5 June 2006 and handed down on 27 June 2006. That was not the first time the matter had been before the Tribunal. A differently constituted Tribunal had affirmed the delegate’s decision on 12 February 2004. By consent that decision was set aside and the matter remitted to the Tribunal for further determination. The second application for review came before me on 17 October 2007. I dismissed the application for the reasons given at [2007] FMCA 1829. The applicant had alleged ostensible bias against the Tribunal. There were no particulars provided for what constituted the bias. The applicant had asked me to listen to the tape. Part of that request, which was directed at her criticism of some of the questions being asked by the Tribunal, was dealt with at paragraph 3 of my Reasons. Put shortly, I came to the conclusion that there was no necessity to listen to the tape because the questions that the applicant had complained of were all extracted in the Tribunal’s reasons for decision. Whilst I had some criticism of those questions I came to the conclusion that they did not constitute evidence of a closed mind.
The other reason why the applicant asked me to listen to the tape related to her complaints concerning the interpretation. I dealt with this matter at paragraph 12 of my Reasons:
“Finally, before me the applicant claimed that she was badly treated by the interpreter who, she said, was rude to her and treated her as if she was a prisoner. She does not tell the court that she made any complaint about the interpreter until today to anyone. She has not produced any independent evidence of this allegation. To the extent that the bullying might be manifested in the tape recording I would gain nothing from listening to that because I do not understand the Mandarin language and it would definitely require some expert opinion being provided from a person who does understand Mandarin and the nuances of interpretation. I am, therefore, unable to take this complaint of the applicant's any further although I note that it is unlikely to constitute the type of conduct that would allow a court to find that the provisions of s.425 of the Migration Act 1958 (the "Act") had not been complied with.”
My decision was appealed. The appeal was heard by Siopis J on 28 February 2008. His Honour’s judgment, SZJBD v Minister for Immigration [2008] FCA 922, was handed down on 20 June 2008 and the gravamen of his decision is contained at [25]:
“In my view, the Federal Magistrate erred, in the circumstances of this case, in failing to admit the tape of the hearing as evidence in support of an allegation of apprehended bias. This occurred because the Federal Magistrate failed to treat the complaint about the so called "misleading" questioning and oppressive behaviour by the interpreter as comprising incidents of a complaint of apprehended basis. It was not a sufficient answer to the appellant's real concern to point out, as did the Federal Magistrate, that the questions which the appellant could remember as being objectionable, were recorded in the Tribunal's reasons and that there was, therefore, no need to listen to the tape. This missed the point that the appellant was trying to make, namely, that the unreasonableness of some of the questions indicated a predisposition on the part of the Tribunal to find that the appellant was not a Falun Gong practitioner and the hearing was conducted in a way that reflected that attitude. Further, it was no answer for the Federal Magistrate to say that he would derive no assistance from the tape because he did not understand Mandarin. It may have been possible for the Federal Magistrate at the very least to discern from the tone of the interchanges whether there was substance to the appellant’s complaint. In any event, the Federal Magistrate could have used the services of an interpreter. In other words, the Federal Magistrate erred in determining, as he, in effect, determined, that the tape could not possibly be of any probative value in respect of the allegation of apprehended bias.”
When the matter came back to me for directions in relation to the application I discussed with counsel for the Minister his Honour’s views contained in the penultimate sentence that I could:
“At the very least discern from the tone of the interchanges whether there was substance to the applicant’s complaint.”
I am in no doubt, given the instruction from his Honour, that it would be both appropriate and proper for me to hear the tape for the purposes of ascertaining the nature of the questioning of the applicant by the Tribunal. Indeed, I have been further assisted by the production by the applicant of a transcript. I am not so sanguine, however, about his Honour’s instructions concerning the interpreter. I expressed the view in my earlier decision that questions of interpretation are matters of expert evidence. It is not clear from his Honour’s judgment what he intended me to do. I am sure that he did not intend that I should ask the court interpreter to effectively give evidence about the nature of the communication between the interpreter at the Tribunal and the applicant. This is not the interpreter’s duty. If an interpreter did that she would be putting herself in the court as a witness and would not, to my mind, be able to continue her job as an interpreter. His Honour suggests in his decision that I could tell by the tone of the interchange between the Tribunal interpreter and the applicant whether or not there was substance to the applicant’s complaint. With the greatest respect to his Honour I do not think that an occidental who has no knowledge whatsoever of an oriental language should attempt to utilise occidental mores to judge the tone of an oriental discussion. I am reinforced in that view by the response to a question which I put to the interpreter at one of the directions hearing as to whether she thought that I would be able to understand anything by the tone of the conversation. She informed me that she felt I would not.
A problem that was very similar to the one before me came before Justice Allsop in NAPS v Minister for Immigration. His Honour gave two judgments in that matter [2003] FCA 1091 and [2004] FCA 159. As there is no reference to them in Siopis J’s decision I can assume that his Honour was not apprised of Allsop J’s views. In the first of Allsop J’s judgment his Honour said that there had been sent to his chambers two documents from the applicant:
“[3] The documents are not merely submissions, but contain assertions without any evidence as to an asserted failure of the interpreting service at the Tribunal hearing. When the matter was called on for hearing on 16 September 2003, I discussed with counsel for the respondent, Ms Allars, and the applicant, who appeared on that day, what steps should be taken in relation to this. I made plain to the applicant that these assertions of failure of the interpreter, as he claimed, were matters of evidence and not matters of submission. He simply could not assert them without their becoming evidence.
[4] Therefore, on 16 September 2003 I adjourned the hearing and made orders that by Tuesday 23 September 2003, the applicant file and serve an affidavit deposing to any matters of evidence that he wished to rely on in support of the submissions that he had filed. I indicated that to be included in that affidavit would be an exhaustive and complete list of all asserted interpretation errors in the tape recording of the Tribunal hearing. I also indicated that in the affidavit should be all references to material which it is said supports the submissions in pars 1 through 6 and par 8 of the submissions provided to the Court.
[5] I stood the matter over to 9.30 am today, that is, Friday 26 September 2003. I indicated that on that day I would consider making an order for a Court expert to examine and report on the interpretation at the Tribunal hearing. In support of that possibility, I directed the respondent to provide to the applicant by Friday 19 September 2003 a list of Singhalese interpreters the respondent, from his Department's inquiries, could assure the Court were proficient in Singhalese.”
In relation to the appointment of an interpreter his Honour said at [10]:
“[10] I raised with Ms Allars, who appears for the respondent again today, what the Minister suggested the course should be. It appeared to me that the Minister may wish evidence to be led as to the state of interpreting, or he may not. It was also a possibility, as I indicated on the last occasion, that a Court expert be appointed. However, if a Court expert were appointed under Order 34, the usual rule would be that the parties jointly share the cost and expense. In this case, I would not expose the interpreter appointed, if one were to be appointed, to any risk of non-payment from the self-represented applicant. Thus, if there were to be a Court expert appointed the cost would be borne either by the Court or the respondent Minister. Given the arrangements that are currently in place for the interpreting costs which are significantly borne by the Court, I see no reason why the Court should bear a further burden in this litigation. Ms Allars opposes any order for a Court expert, in particular on the basis that her client should not have to pay for it. I think that is a reasonable position.”
Finally, at paragraph 11 his Honour says:
“The Minister does not wish to lead any evidence about the interpreting. He proposes to deal with this application as currently framed on the basis that the applicant may wish to read this evidence. [I would assume that the word “read” should read “lead”.] If the applicant wishes to call expert evidence he may do so….”
In the second of his Honour’s decisions he had before him an affidavit from the applicant concerning the interpreting. At paragraph 42 his Honour said:
“[42] I turn now to the more detailed complaints concerning the interpreting. The significance of this issue goes not only to the complaint that the hearing before the Tribunal was so flawed by the interpreting as to not amount to a sufficient hearing for the purposes of the Act, but also goes to the question as to whether I should adjourn the further hearing of the matter and make an order for the appointment of an interpreter to act as an independent expert to comment on the quality of the interpreting. As I said in my earlier judgment, it may, at first sight, appear strange that these assessments are made without independent evidence. However, it is plain from the way the applicant has conducted the case, from what he has said and from what he said in his original application that he has sufficient familiarity with English to be able to identify such flaws as he perceives in the interpreting in order that a judgment can be made as to whether or not there is a sufficient doubt as to the interpreting, such that an independent expert should be appointed or that there can be sufficient criticism made of the interpreting to conclude that there has been a jurisdictional error or that there has not really been a hearing. Thus, the complaints of the applicant will be identified to see whether they should result in either the application succeeding or orders being made under the notice of motion.”
Having heard the evidence his Honour was able to come to the conclusion expressed in [78]:
[78] I am not satisfied that the Tribunal hearing miscarried in any way by reference to the asserted interpreting errors. I refer, in particular, to the decision of Kenny J in Perera v Minister for Immigration and Multicultural Affairs[1999] FCA 507 and to the decision of Goldberg J in Mazhar v Minister for Immigration and Multicultural Affairs[2000] FCA 1759. It is unnecessary for me to discuss the nature and content of the obligation on the Tribunal to provide a hearing or to discuss the level or quality of interpreting being required for any hearing. It is sufficient to say in this case that I am not satisfied that there was any substantive defect whatsoever in any of the interpretation.”
What I take from Allsop J’s judgment is a confirmation that evidence as to the status of interpretation is a matter for an expert witness. I also take from that judgment that the court can accept evidence from the applicant which might assist it in deciding whether or not the matter is so serious that it warrants the appointment of a court expert but that there are inherent problems concerning costs in taking that final course of action. In his Honour’s case the applicant’s knowledge of English was sufficient to enable him to take the first step. That is not the case before me. I have an applicant who appears to speak hardly any English at all.
Like Justice Allsop I attempted to do what I could to bring the proceedings to a justiciable state. I asked the Minister’s counsel whether the Minister would be prepared to fund an expert interpreting witness. Not unreasonably, the Minister declined. I then considered the possibility of referring the applicant to the court’s pro bono scheme. I came to the view, which I expressed to the Minister and to the applicant through the interpreter, that I could not in all conscience do this because it would mean that the pro bono legal practitioner would be required to put his or her hand into his or her own pocket to fund an expert interpreter when that expert may well advise that the applicant’s claims could not sufficiently be made out. Legal practitioners who appear pro bono are respected and thanked for the giving of their own time to the better administration of justice. Time is one thing but money is another. The only other alternative that appeared available to me was to use what influence this court might have to persuade the Legal Aid Commission of New South Wales to look sympathetically upon the applicant. The Registrar of this court kindly wrote on behalf of the applicant to the Legal Aid Commission requesting that they consider providing her with legal aid to conduct these proceedings, that request has been declined.
This case has now been adjourned on several occasions. On 13 October 2008 the applicant filed an Amended Application. The grounds of the Application are set out below:
“[1] The Tribunal failed to consider the fact that I have been practicing Falun Gong in Australia, and my activities here may cause further persecution to me on my return to China.
[2] The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason. The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision and was required to explain why the information is relevant and provide the applicant with an opportunity to comment upon it. The above mentioned had to be provided in writing (SAAP v Minister for Immigration and Multicultural and Industrial and Ethnic Affairs (2005) HCA 24 (18 May 2001)).”
It will be seen that this Amended Application, which was clearly not written by the applicant, who cannot write English, makes no mention of the complaints raised before me and before Siopis J. Whilst it would be easy for me to say that the Amended Application supersedes the original application and the complaint made orally about the interpretation and then decide the matter on the merits without further investigation of those complaints, I would only do so if the applicant specifically resiled from them. I asked the applicant today whether she did that and she told me that she did not.
The issues raised here are novel and difficult. I am faced with what I believe is conflicting authority from the Federal Court on what steps I should take. If I took the wrong step the matter would come back into this court yet again. Luckily, there is provision in the Rules of this court to transfer matters to the Federal Court on the court’s own motion (Rule 8.02(1)). Before I make such a transfer I am obliged to consider the matters referred to in sub-section 39(3) and (4) of the Federal Magistrates Act 1999:
“[39] Discretionary transfer of proceedings to the Federal Court or the Family Court
(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Magistrates Court must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(4) In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Magistrates Court must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(4); and
(b) whether proceedings in respect of an associated matter are pending in the Family Court; and
(c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.”
Only sub-section 39(3) is relevant. I note the requirement to have regard to the Rules of Court. I note that there are no proceedings in respect of an associated matter pending in the Federal Court. I have considerable doubts as to whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceedings if the proper course of action is to appoint at the court’s expense an expert interpreter witness. I am informed that the court is currently running at a deficit. I believe it is in the interests of the administration of justice that this matter be transferred on the basis as set out in Part 8 Rule 8.02(4) of the Federal Magistrates Court Rules 2001 that the proceeding is likely to involve a question of general importance such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue. I believe that this ground carries more weight in the circumstances of this case than the fact that the application might be heard more speedily in this court. I am certainly of the view that if it was heard by the Federal Court a decision would be not only one of more convenience to the parties but to the migration jurisdiction in general. So far as the applicant understands what is going on I am satisfied that there is no objection to this course of action being taken. The respondent neither consents nor objects.

For the reasons given above I propose to transfer this case into the Federal Court.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: