SZLPN v Minister for Immigration

[2008] FMCA 1434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLPN v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1434

MIGRATION – RRT decision – difficulty finding interpreter for applicant’s Indian dialect – hearing adjourned to next day – applicant failed to attend – whether reasonable excuse for absence – notice of adjournment unreasonable in circumstances – matter remitted.

Federal Court Rules (Cth), O.62
Federal Magistrates Court Rules 2001 (Cth), r.21.02(2)(c)
Migration Act 1958 (Cth), ss.425, 425(1), 425A , 426A, 426A(1), 427

Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189
SZFIH v Minister for Immigration & Anor [2005] FMCA 1847, (2005) 196 FLR 126
SZGYM v Minister for Immigration & Citizenship [2007] FCA 1923
SZKJM v Minister for Immigration & Anor [2008] FMCA 23
Taylor v Taylor (1979) 143 CLR 1
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723

Applicant: SZLPN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3444 of 2007

Judgment of: Smith FM

Hearing dates: 13 June, 22 August, 5 September 2008

Delivered at: Sydney

Delivered on: 28 October 2008

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Kah Lawyers

Counsel for the First Respondent: Mr J Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 30 October 2007 in matter 071473442.  

2. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 9 May 2007. 

3. The first respondent pay the applicant’s costs as agreed or taxed under r.21.02(2)(c) and O.62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3444 of 2007

SZLPN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant comes from an ‘untouchable’ caste family living in a village in Haryana State in India.  His spoken language is Haryanvi, an undeveloped dialect which is widely used in the applicant’s region, but which is not used in any schools or official life.  The applicant received a little education given in other Indian languages, but did not learn another language, although he says he can understand Punjabi and Hindi “a little bit”, and can communicate adequately for most purposes to fellow Indians using words from those languages “mixed with Haryanvi”. 

2. His present application presents the difficulties faced by Australian institutions when such a person comes to Australia and wishes to make his claims for refugee protection in his own language.  The difficulty is acute, since it is common ground between the parties, as well as the experience of the Court itself, that no agency in Australia can provide interpreting services for Haryanvi.  This fact resulted in substantial additional costs in the present application, due to the need for adjournment of the hearing, and the engagement of a suitably qualified academic at the University of Delhi over the telephone for several hours to translate the applicant’s oral evidence.  The applicant is impecunious, and these costs were met by the Commonwealth from the budget of the Court. 

3. The providing of sufficiently competent interpreting services to applicants before the Refugee Review Tribunal is a daily experience for that body, and the Court should be slow to dictate the procedures which it must follow, and the expense which it must incur when doing so.  However, a body of judicial authority establishes that there is a duty on the Tribunal to provide a “competent interpreter”, who in fact provides “a reasonably accurate interpretation” of what the applicant wishes to convey to the Tribunal and of what the Tribunal wishes to convey to the applicant, when he or she attends a hearing (cf. SZGYM v Minister for Immigration & Citizenship [2007] FCA 1923 at [23] and [27], also Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 and other cases discussed in M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 and VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723).

4. These authorities have identified the source of the duty within s.425(1) of the Migration Act 1958 (Cth), which requires the Tribunal to afford an applicant an opportunity to appear at a hearing “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. As developed in the ‘interpreter’ cases and other cases relating to procedural fairness, s.425(1) includes obligations on the Tribunal to follow procedures which enable the opportunity to be enjoyed ‘meaningfully’ by an applicant. If a ‘meaningful’ opportunity to participate in a hearing is denied in the course of the Tribunal’s procedures, the ultimate decision of the Tribunal is affected by jurisdictional error, even if the Tribunal was not responsible for the defect in its hearing or was unaware of it (cf. Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33], Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230, and SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 at [30]‑[35], [48]‑[53]).

5. Of course, administrative practicality needs to be taken into account when considering how difficulties of providing interpreter services should be addressed by the Tribunal.  Kenny J’s description of the required standard of interpreting in Perera (supra) at [29] seems to acknowledge this. Some imperfections in translation may be tolerated, particularly if they are noticed by the Tribunal in the course of the hearing, and if the Tribunal reasonably endeavours to work around them (cf. SZKJM v Minister for Immigration & Anor [2008] FMCA 23 at [15]‑[16]). The Act must be allowed to operate to allow refugee decisions to be completed by an Australian tribunal in relation to people who speak only obscure dialects. If there is no fully satisfactory solution to the absence of a qualified independent interpreter, then the Tribunal may be allowed to follow ‘second best’ procedures, including by exploring the assistance to be given by the local friends and helpers of the refugee claimant. Each difficult situation needs to be considered in its particular circumstances, both at the Tribunal level, and in the course of any judicial review challenge.

6. In the present case, I have concluded that a jurisdictional defect in the Tribunal’s procedures did occur arising out of the difficulty of finding a satisfactory interpreter for the applicant.  It concerns the scheduling of an adjourned hearing which was not, in fact, attended by the applicant.  It remains hypothetical how the Tribunal might have addressed the interpreting difficulties if the applicant had attended the adjourned hearing.  Difficulties of interpreting may again face the Tribunal as a result of my remitting the matter for further consideration.  However, I consider it inappropriate for me to give any specific directions or suggestions on how the Tribunal should proceed in the matter in the future.  This will depend upon the circumstances as they then unfold before the Tribunal. 

7. The above principles relating to the Tribunal’s duty to provide interpreting services were not put in issue in the present case. Nor was there any dispute as to the principles concerning the adjourning of the Tribunal’s hearing. Both counsel accepted that, while the statutory requirements as to formal notice of a s.425(1) invitation did not apply to the giving of notice of an adjourned hearing, there was a requirement that the applicant be given notice of an adjourned hearing which was ‘reasonable’ in the circumstances.

8. This was explained by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572 at [82]:

   It is implicit in the statutory scheme that the Tribunal’s invitation to a person to appear, where it has been accepted, cannot be compromised by rescheduling the appointed hearing to another date on unreasonably short notice.  However it is not suggested that that occurred here.  It is open to the Tribunal in the conduct of a hearing to adjourn it from time to time.  If express authority were necessary it would be provided by s 427.  In any event there is an implied incidental power for the Tribunal to do so in order to give practical effect to its obligation to provide a hearing.  The power of the Tribunal to reschedule a hearing of which notice has been given is of the same character.  Provided the notice of the rescheduling is reasonable there is no requirement, applicable to that procedure, for the application of the minimum prescribed period applicable to the notice required by s 425A. 

9. Counsel for the Minister also did not contest that circumstances which might make the appointment of an adjourned hearing ‘unreasonable’, could include matters personal to an applicant of which the Tribunal was unaware. This concession appears appropriate, in the light of recent authorities on s.425(1), including those cited above. They have found jurisdictional obligations which appear to be, at least, comparable to many natural justice obligations implied in normal court and administrative tribunal procedures concerning the affording of a fair hearing. There are several authorities which illustrate that denials of procedural fairness, including the absence of reasonable notice of a hearing, can occur as a result of circumstances not known to a tribunal or beyond its control (cf. Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [30]‑[35], Taylor v Taylor (1979) 143 CLR 1 at 4, 16 and 22, Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [22], and Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [14], [40], [87], [147]).

10. The issues in the present case turn upon my findings about the circumstances surrounding the applicant’s participation in a hearing of the Tribunal held on 31 July 2007, the Tribunal’s adjourning of the hearing to the following day, the applicant’s failure to attend on that day, and the Tribunal’s decision to proceed to make a decision on 30 October 2007 without taking any further steps to invite the applicant to attend a further hearing.  I shall address these issues, after narrating the relevant evidence. 

11. The applicant was given a visa to visit Australia upon the basis that he would be representing a New Delhi trading company “Adams International” at a trade fair in Melbourne.  At least one letter in support of the visa application is written in English, and purportedly is signed by the applicant as “director marketing”. 

12. He arrived in Australia in March 2007, and he lodged an application for a protection visa within a few days.  Insertions in the application form were handwritten in English.  The form said that the applicant would need an interpreter in Punjabi, if he was called for interview.  The applicant claimed that he feared that he would be attacked in India because he was “a dalit (untouchable) leader”. 

13. A statement later given to the Department gave more details of his claim.  The applicant claimed that he was a “manpower supplier” in his village in Haryana, controlling 2,500 manpower for “the cleaning jobs, building jobs, farming jobs, road constructions jobs, shepherd jobs, cleaning of ponds, removing of dead animals, etc”.He also worked as a social worker for his community, and supported a party representing the ‘scheduled’ castes.  In these activities he was targeted in 2004 by other political parties, receiving threatening letters, and having a bottle thrown at him.  In September 2005, he took part in protests against an incident in which ‘untouchables’ had been attacked, and was later beaten up by policemen.  He received further threats and his contracts were cancelled.  He was again attacked after reporting another incident in September 2006, and received “severe injuries”.  He moved his family to a town, but felt that he was being watched, so he came to Australia. 

14. A delegate refused the application on 9 May 2007.  The delegate accepted that the applicant was a Dalit, and that the Dalits continue to face discrimination and violence especially in rural areas, despite special laws to protect them.  However, he said that there was no evidence that the authorities would refuse the applicant protection, and found that his fear of persecution in India was not well founded. 

15. The applicant’s application to the Tribunal did not appoint an agent, and asked that the Tribunal provide an interpreter in Punjabi.  Such an interpreter was provided at a hearing held on 31 July 2007, which the applicant attended. 

16. According to the Tribunal’s statement of reasons, the Tribunal was able to elicit some information about how the visa application and statement had been prepared by the applicant with the assistance of two friends, and about where he had been living in India.  However, after “approximately 30 minutes”, the Tribunal said: 

    At this point in the hearing it became evident that the Applicant’s replies were not fully responsive to the questions which were being put to him.  The Applicant indicated that he was having trouble understanding the interpreter.  He stated that, despite having indicated in his review application that he wished to have the services of an interpreter in the Punjabi language, he did not in fact speak Punjabi very well and instead spoke Haryanvi.  I told him that in view of this problem the hearing would be adjourned and he would be advised of a date and time for a resumed hearing with a different interpreter.  As noted above, despite having indicated that he would attend the resumed hearing the Applicant did not do so. 

17. A partial transcript is in evidence before me, containing the relevant exchanges between the Tribunal, the interpreter and the applicant.  It was the interpreter who drew the Tribunal’s attention to the problem.  He pointed out that the applicant had been addressing him in Haryanvi, not Punjabi, and the applicant said that this was because “I can understand Punjabi but while I am speaking I cannot speak it properly”.  This exchange led the Tribunal to decide to adjourn the hearing.  The transcript shows how the Tribunal tried to communicate this to the applicant:  

    Interpreter:       … he is not at all strong in Punjabi (indistinct as Applicant is speaking at the same time as the interpreter). 

    Member:Thanks Mr [Applicant].  If I could just ask you Mr Interpreter.  Um, based on what he is saying in Punjabi are you satisfied that he is, ah, let’s ask on a scale of one to ten how … 

    Interpreter

    (English):Maybe 2. 

    Member:Oh, that’s no good.  We’re gonna have to end the hearing.  Can you just explain to Mr [Applicant] that I am going to call the hearing officer to come in. 

    Interpreter:       (Foreign language) 

    Applicant:(Foreign language) 

    Member:Yes, if can you send somebody in, we’ve come to the end of the hearing.  Thank you.  Bye. 

    Member:Mr [Applicant], umm, part of this problem is caused by two things.  One of them that when you were applying for a, when you were seeking review by this Tribunal, um let me just confirm this, ah, when you were seeking review of your case by the Tribunal you were asked a question, and the question was, “do you need an interpreter”. 

    Interpreter:       (Foreign language) 

    Applicant:(Foreign language) 

    Member:Wait a minute Mr [Applicant].  You ticked that box “yes”. 

    Interpreter:       (Foreign language) 

    Member:And then in the box beside it where it’s asked what language you wrote simply “Punjabi”. 

    Interpreter:       (Foreign language) 

    Member:So, so when you were invited to come to this hearing you were meant to reply on the form that was provided. 

    Interpreter:       (Foreign language) 

    Member:But you didn’t reply on that form.  The Tribunal has never received a reply to the invitation to the hearing. 

    Interpreter:       (Foreign language) 

    Member:And so up until your arrival here the Tribunal … 

    Applicant:(Foreign language) 

    Member:Mr [Applicant], Mr [Applicant], one moment please.  Up until the moment you arrived here this morning the Tribunal believed that you weren’t coming. 

    Interpreter:       (Foreign language) 

    Member:And the point about this is that, um, the response to the hearing, that form which you were asked to return to the Tribunal would have given you a further opportunity to indicate which language you needed an interpretation in. 

    Interpreter:       (Foreign language) 

    Member:So the result of that is that an opportunity for you to indicate that it was a language other than Punjabi was lost. 

    Interpreter:       (Foreign language) 

    Member:So the only, the only option available to me now is to adjourn the hearing, ahh, until the point where we can obtain an interpreter in Haryanvi. 

    Interpreter:       (Foreign language) 

    Member:So I am going to ask you if possible if you can remain in the waiting room.  It may be possible for us to find somebody during the course of this morning or possibly in the early afternoon, but if you can just remain until somebody tells you what’s happening. 

    Interpreter:       (Foreign language) 

    Applicant:(Foreign language) 

    Interpreter:       I will try to, ahh, continue with you. 

    Member:Well no, I am afraid that I can’t accept that Mr [Applicant] because I’ve had professional advice from our interpreter that your ability to convey you information and thoughts in Punjabi is simply insufficient. 

    Interpreter:       (Foreign language) 

    Member:But we’ll try to obtain an interpreter in Haryanvi … could you, Mr Interpreter, could you write down the name of the language so that I am certain that I’ve got it right.  And if you could just confirm with the Applicant that that is the language that he is able to speak in. 

    Interpreter:       Haryanvi. 

    Interpreter:       Haryanvi … (Foreign language) 

    Applicant:(Foreign language) … Hindi. 

    Interpreter:       Yes I do … 

    Member:Did, did he say Hindi as well? 

    Interpreter:       But he said I (indistinct) speak Hindi. 

    Member:Oh, for heavens sake.  Mr [Applicant] I asked you before how many languages you spoke and you said that it was only Haryanvi and Punjabi.  Now you are telling me that you can speak Hindi. 

    Interpreter:       (Foreign language) 

    Applicant:(Foreign language) 

    Interpreter:       According to my professional advice I understand that he will not be able to speak Hindi at all because ah, I did understand what he was saying but I sure that he is unable to speak Hindi too. 

    Member:OK … 

    Interpreter:       You need a particular slang of the language … 

    Member:Yes. 

    Interpreter:       … he never used Punjabi at all, only in the beginning he used, he used a few sentences.  So … 

    Member:Thank you.  Just can I ask you again also … 

    Interpreter:       … who is fluent in this land will be able to understand properly.  Even an Hindi interpreter will be at  loss. 

    Member:Yes. 

    Interpreter:       … to understand. 

    Member:Yes, all right.  Can I just ask again your professional advice Mr Interpreter?  Haryanvi, is that a variant of Punjabi? 

    Interpreter:       Member, it is just at the border of Punjab, so since he has been living among those people that is why he has the ability to understand Punjabi.  He is there, he can understand what I am saying but he is not fluent at all in Punjabi so he needs someone who is particularly fluent.  Even an Hindi interpreter will be unable to understand him. 

    Member:And the two languages, Haryanvi and Punjabi, are quite separate languages. 

    Interpreter:       Quite separate languages. 

    Member:Yes. 

    Interpreter:       Haryanvi is little bit similar to Hindi.  Ah, that is why I was able to understand what he was saying because I am fluent in Hindi too. 

    Member:All right.  OK, thanks Mr Interpreter.  We seem to have wasted rather a large amount of time in this hearing.  Um, um, if as I said Mr [Applicant], you could wait outside until we can get some advice to you about the possible date for the resumed hearing. 

1. In his affidavit (sworn with the assistance of an imperfect interpreter), the applicant said that he had been accompanied to the hearing by a friend called Krishan, who appears to have communicated with the applicant in a mixture of Hindi and Haryanvi with some English (see transcript 22.08.08 at p.25).  He described the period when he was waiting outside the Tribunal’s hearing room, and what happened the following day: 

   11.I tried my best but after about an hour the Member stopped the hearing and had a conversation in English with the interpreter.  After that the interpreter said words which I understood as meaning, “Go outside and sit and wait.”  I went outside and sat with Krishan.  I saw the interpreter pick up his bag and leave the Tribunal. 

   12.I sat there from about 10:00 am until about 12:00 pm.  This was upsetting for me because I was just sitting there and no‑one was telling me what was happening and I did not know how long I had to sit there. 

   13.At about 12:00 pm a lady came out and spoke to me.  Krishan can speak good English and Haryanvi so he translated for me, to the following effect: 

   “The Tribunal can not find an interpreter for you today and we can not go ahead with the hearing today.  You have to come back to the Tribunal at 12:30 pm the tomorrow, on 1 August 2007.  The Tribunal will try to find a proper interpreter for you for the new hearing, but if we cannot find a good interpreter than a Punjabi interpreter will be here again.” 

   14.The Tribunal lady then handed me a piece of paper and said, “Can you sign this” or words to that effect. 

   15.I said, through Krishan interpreting for me, “I can not come tomorrow.  Can I have another time?”  She said words to the effect, “You must come tomorrow and you must sign this paper.” 

   16.She also said, through Krishan, “I don’t know if there will be a Haryanvi interpreter.” 

   17.I signed the form where she told me to because I felt that I had no choice. 

   18.As I left the Tribunal I was frustrated and upset at what had happened, and because I was worried that the same problems might happen again the next day. 

   Second Oral Hearing:  1 August 2007 

   19.The next morning Krishan was at my place and I was very upset and worried and frustrated.  I was upset because there was no one here to translate for me and so no one could understand my story and what had happened to me. 

   20.Krishan was not able to come with me to the Tribunal on the second day so I could not buy a ticket or even find my way to the hearing because I could not speak any English at all and I did not know the way. 

   21.I asked Krishan to call the Tribunal and say that I could not come.  But the lady said that I had to come that day. 

   22.My friend, Krishan now lives in Perth, in Western Australia. 

2. In his oral evidence to the Court, the applicant claimed that he did not know how to travel from his home in Harris Park to the Tribunal premises in the city of Sydney, and had been “guided” by his friend.  The next day, “he was not there, so I could not come”. 

3. The applicant was questioned about how he had managed to travel around in Melbourne and Sydney previously, and claimed always to have had assistance.  He also maintained that he only spoke Haryanvi and understood Hindi and Punjabi only “a little bit”.  He claimed that he had tried to contact at least one friend to help him to get to the Tribunal on the adjourned day, saying: 

   INTERPRETER:         I got a friend of mine on the day before, but then he had left me, he did not cooperate, so I – I’ve been trying seriously to get – find my way to the [Tribunal]. 

   MR SMITH

   (Counsel)                  What did you do? 

   INTERPRETER:         I try to contact my friends to help me in getting to the [Tribunal] next day, but then I tried – everybody was busy with their own world and nobody had time, and when I saw that situation, I really got bothered and, you know, the situation was that I was going out of my mind and there was no way of – well, for getting to the [Tribunal] next day, and then I, you know, got nervous and start thinking that what has happened to me, and then I thought, “Fine, I will go next week” and go to that [Tribunal], that is why I did not come and this happened because when I came I got – I got extremely confused because Courts even can’t understand Haryanvi.  I was asked to wait outside for two hours, and then I was told that I would be going in later, and things happened like this and, you know, that really bothered me and had no way of getting to the [Tribunal]. 

   …

   INTERPRETER:         I wanted to come, I even told the lady who come to give me the form that I could come after two days, because there was no nobody to come with me in the next day, and that is why I could not come, but how to convince these people, I do not understand. 

4. He gave his account of what had happened at the hearing he attended: 

   INTERPRETER:         My friend Krishna only had told me what that lady from the [Tribunal] office was telling.  He had come with me and he had waited for two hours outside the office, and he only told me that we should go back. 

   MR SMITH

   (Counsel):Did he say to you that if the Tribunal couldn’t get a Haryanvi interpreter, was there any other language that they could use? 

   INTERPRETER:         He told me, but I understand – since I do not understand other languages, Haryanvi interpreter should be provided. 

   MR SMITH:Didn’t you say to him that you understand Hindi or Punjabi, and that interpreters in those could be used? 

   INTERPRETER:         I do not understand Indian Punjabi really well.  I insisted that Haryanvi interpreters be provided because if I had got a Punjabi interpreter and he had spoken many words, and I only understood a few, that it would have been impossible for me to communicate and put my words across, so I insisted on Haryanvi interpreter. 

   MR SMITH:Well, that day, do you remember how long the hearing went on for before it stopped? 

   INTERPRETER:         It must have gone on for 30 to 45 minutes. 

   MR SMITH:Wasn’t it more like an hour? 

   INTERPRETER:         For some time I’ve been waiting inside before the hearing could begin, but actual hearing was taking 15‑20 to 25 minutes, and then I was asked to wait for – wait outside where I waited for one and a half hours too. 

   MR SMITH:Well, during that hearing you never complained about the interpreter, did you? 

   INTERPRETER:         No, if it was Punjabi, and I was not understanding exactly what he was saying, and neither he was saying what I was trying to communicate, and when it was said, both of us had to wait outside. 

5. The Minister presented evidence from Ms Hajaj, an “assistant team leader” at the Tribunal.  She had been asked by the Tribunal member to give a notice to the applicant which appointed a rescheduled hearing for the next day.  According to her affidavit: 

   9.I spoke to an RRT officer in the “hearings team” which is responsible for booking interpreters to assist at hearings.  After that conversation I understood that there were no listings for accredited Haryanvi interpreters in Australia with any of the interpreter agencies used by the RRT. 

   10.I prepared and signed the letter inviting the applicant to a hearing on 1 August 2007.  As had occurred with the first invitation to hearing letter, the information relating to the applicant’s name, address and preferred language was automatically merged into the letter from the information in CaseMate, which still recorded the applicant’s preferred language as Punjabi.  I also downloaded a form, Response to Hearing Invitation. 

   11.I then attended the RRT reception area to meet the applicant.  I met a person who I now know to be the applicant in the proceedings.  I also noted that another person had accompanied the applicant.  I then began to speak to the applicant.  The applicant said a word in English, which I believed was the word “talk” and pointed to his friend.  I understood that the applicant could not speak to me in English and he wanted me to speak to him through his friend.  I had a conversation with that person and, after that conversation, I understood he was the applicant’s friend and that his name was “Krish” and he confirmed that the applicant could not speak to me in English.  From then on, each time I conversed with the applicant I heard the applicant and his friend speak to each other in a non English language and then his friend spoke to me in English.  I understood that his friend was interpreting our conversation into a language the applicant understood. 

   12.I had a conversation with the applicant, through his friend, in which I said the following words or words to the effect: 

   “The hearing is tomorrow because we could not finish it today.  Arrangements are being made to find a Haryanvi interpreter but at the moment, we have information to suggest that none are available.” 

   13.He said: 

   “I don’t want a hearing tomorrow because it’s too soon.” 

   14.I said: 

   “The Tribunal’s scheduled the hearing for tomorrow.” 

   15.I then explained the Tribunal’s procedures which were also set out in the invitation to hearing letter.  I said the following words or words to the effect: 

   “If you don’t come to the hearing the Tribunal can make a decision on the information before it.  If you can’t come you will need [to] give a reason why you want it postponed.” 

   16.He said: 

   “If I attend tomorrow will there be an Haryanvi interpreter?” 

   17.I said: 

   “We are looking to see if we can find one.  Do you know of any community organisations or groups that might have contacts that we could contact?  If there’s someone we can contact they may be able to lead us to an accredited Haryanvi interpreter or tell us if one is available.” 

   18.He said: 

   “No, I don’t know of any organisation or anyone you can contact.  I don’t know very many Haryanvi people.” 

   19.I then asked Krish whether he knew anyone.  Krish said the following words or words to the following effect: 

   “I don’t know anyone either.” 

   21.[sic]Krish then said: 

   “I don’t speak Haryanvi.  I’m speaking to him in Hindi.” 

   22.I then gave the applicant the invitation to hearing letter and the blank Response to Hearing Invitation form.  I told the applicant if he completed the form now then I could place it on file.  I saw the applicant fill in his name and copy his address from a piece of paper.  He then tried to give me the form but I did not take it because it was not complete.  I said the following words to the effect: 

   “You haven’t said whether you want to come to the hearing and you haven’t signed the form.” 

   23.Krish said: 

   “I’ll help him complete the form.” 

   24.I heard the applicant’s friend speak to the applicant.  While he was talking I saw him pointing to the form.  The applicant then asked for some time to discuss the form with his friend.  I allowed them some time alone and I left the reception area. 

   25.When I returned after about 10 minutes the applicant gave me the form which I read.  I noticed that the box “No” under the question “Do you want to come to a hearing” was ticked. 

   26.I said the following words or words to the effect: 

   “You do understand that if you don’t come to the hearing the Tribunal can make a decision on the information before it.”  

   27.I then repeated what I had previously told the applicant about the Tribunal procedures if he did not attend the hearing.  The applicant then asked for more time to speak to his friend.  I allowed them more time alone and left the room, leaving the Response to Hearing Invitation form with the applicant. 

   28.When I returned after about 10 minutes, I checked the Response to Hearing Invitation Form and noted that the tick in the box marked “No” in answer to the question “Do you want to attend a hearing” was now scribbled over and the box marked “Yes” was ticked. 

   29.I also noted that the form was now signed.  I said the following words or words to the effect: 

   “You haven’t nominated an interpreter language.” 

   30.Krish said: 

   “He can’t write English.” 

   31.I said: 

   “If you tell me what you want I can help you to write it.  If we can’t get a Haryanvi interpreter is there any other language we could use?” 

   32.He said: 

   “I can understand Hindi or Punjabi and we can try those.” 

   33.I then said: 

   “O.K.  I’ll note that down but I’ll also note that Haryanvi is your first preference.” 

   34.I then requested that the “hearings team” arrange for an interpreter who could speak both Hindi and Punjabi if a Haryanvi interpreter was not available as these were the two languages that the applicant said he understood and because Krish had said that he was speaking to the applicant in Hindi.  I was advised by the “hearings team” that the interpreter we had used today spoke both Hindi and Punjabi.  I then arranged for the interpreter who had attended the adjourned hearing to be booked for the rescheduled hearing. 

   Ms Hajaj maintained this account under cross‑examination, and it was not significantly disputed by the applicant. 

6. Ms Hajaj’s account of what happened the following day was recorded in her contemporaneous file note: 

   The applicant’s friend rang (Krish) to advise that he was busy and would not attend today’s hearing.  I advised Krish that I could not discuss this matter with him, but he should get the applicant to call me himself.  I explained that I would get a Hindi interpreter to translate or alternatively, if he was more comfortable, I could call his friend (Krish) on three way and he could interpret for him. 

7. In fact, there was no further communication with the Tribunal from the applicant or any friend or other person about his attendance on 1 August 2007.  On the evidence before me, I am not able to make a finding whether or not the applicant was aware of the telephone call from “Krish”, and the request that the applicant should discuss his attendance on the telephone with Ms Hajaj.  The implication from his evidence is that he was not able to do this, since “Krish” was somewhere else. 

8. The Tribunal subsequently sent the applicant a letter dated 6 August 2007, which invited his written comments on various pieces of information which might cast doubt on the truth of his refugee claims.  These included information taken from the visitor’s visa application in India, and a statement he was said to have made at the Tribunal hearing on 31 July 2007. 

9. The Tribunal received a written response on 4 October 2007.  This was typed in English and signed by the applicant.  It briefly responded to the matters raised, and maintained:  

   I do believe that whatever I told to the Tribunal member during hearing time are correct.  Because of my high profile in our Dalit Jaati people, I am target for the higher caste people and I have real chance of fear and persecution.  If I am compelled to go back to my country I would face persecution and there is no genuine state protection. 

10. No ground of review is raised in the present application concerning this correspondence. Nor does the Minister submit that it overcame any deficiencies in the Tribunal’s affording of a hearing to the applicant pursuant to s.425 of the Migration Act, or otherwise gives rise to a discretionary reason for refusing relief based on any deficiency.

11. The Tribunal handed down a decision on 30 October 2007, which affirmed the delegate’s decision.  It is unnecessary for me to describe, or analyse, its reasons for doing this. 

12. In its statement of reasons, the Tribunal noted that the applicant “did not appear before the Tribunal for the resumed hearing on the day and at the time and place at which he was scheduled to appear.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it”. 

13. Section 426A(1) authorises the Tribunal to proceed in this manner if an applicant “(a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear”.  In SZFML (supra), the Full Court held that this provision did not govern the powers of the Tribunal in a situation such as the present, where an applicant did appear at a hearing in response to an invitation, but did not appear at an adjourned or rescheduled hearing. Their Honours thereby settled some differences of opinion in this Court as to the situation where a rescheduled hearing was not notified in accordance with s.425A, as also occurred in the present case (see SZFIH v Minister for Immigration & Anor [2005] FMCA 1847, (2005) 196 FLR 126).

14. The Tribunal’s opinion that it was authorised by s.426A(1) not to take any steps to afford the applicant a further opportunity to appear at a hearing was therefore incorrect, regardless of the adequacy of the interpreting services provided at the hearing held on 31 July 2007.  However, as I have noted above, it was common ground between counsel that, on the interpretation of the Act taken in SZFML, the Tribunal was bound to hold any rescheduled hearing at such time, and with such notice, as was reasonable in all the circumstances.  The parties were at issue in the present case, whether the appointment of 1 August 2007 was reasonably made and notified to the applicant in the circumstances I have narrated above. 

15. The Minister also disputed whether the applicant had been denied the opportunity required by s.425 at the hearing which was attended by the applicant on 31 July 2007. He submitted that, in fact, an adequate interpreting service in Punjabi was provided on that day, and that the Tribunal was therefore under no obligation to appoint a rescheduled hearing. It therefore did not matter whether the applicant was given a reasonable opportunity to attend an adjourned hearing.

16. These submissions were based upon some scattered evidence in the documentary evidence, which suggests that the applicant might be able sufficiently to communicate in English or Punjabi.  Counsel also sought to elicit admissions in cross‑examination to this effect from the applicant.  I was invited to infer from the fact that the applicant has come to Australia and wishes to settle here, and from the manifest fact that he has been able to live satisfactorily in the Australian community for eighteen months, that in fact he must be able to communicate adequately in languages commonly spoken in Australia. 

17. However, I would not make these findings on the evidence before me.  I consider it likely that there was an element of exaggeration in the applicant’s evidence about his inability to communicate in any language other than Haryanvi, at least in ordinary situations.  However, I was not persuaded to disbelieve the applicant’s evidence that, although he attempted to communicate with the Tribunal using mixed languages, his experience at the 31 July hearing led him genuinely to believe that he needed the assistance of a Haryanvi interpreter at the adjourned hearing. 

18. Moreover, the points made for the Minister did not overcome the opinion formed by the Tribunal itself, apparently shared by the Punjabi interpreter, that the hearing on 31 July 2007 was “wasted” time, due to the inability of the Punjabi interpreter adequately to communicate the Tribunal’s questions to the applicant and the applicant’s responses to the Tribunal.  I find this evidence to be compelling.  I find confidently that the hearing held on that day did not afford the applicant the opportunity satisfactorily to communicate with the Tribunal at an oral hearing, as is required by the authorities which I have cited above. 

19. Counsel for the applicant invited me to draw the above conclusion. He then pointed to the admission by Ms Hajaj that the officers of the Tribunal who were responsible for arranging interpreters had not been able to arrange for a Haryanvi interpreter for 1 August 2007, and had booked only the Punjabi interpreter who had previously drawn attention to his own inability adequately to communicate with the applicant. Counsel invited me to find that, as a consequence, the rescheduled hearing was also incapable of providing the opportunity required by s.425. He submitted that this finding would be sufficient to find jurisdictional error which vitiated the Tribunal’s subsequent decision.

1. However, in my opinion, this submission is flawed, because it requires me to find that the Tribunal would not have afforded the applicant any other opportunity to participate in an oral hearing, if he had attended on 1 August 2007 without his friend Krishan and with only the previous interpreter in attendance.  This is completely hypothetical.  It might appear more likely that the Tribunal would have appreciated that the second hearing could again not proceed in the absence of an adequate interpreter, and would have taken further measures to overcome the difficulties, including by further adjournments and the use of different interpreters.  I am therefore not persuaded that, ultimately, the Tribunal’s decision is vitiated by any jurisdictional error arising from the difficulties of ensuring satisfactory interpreting on 31 July, or from the possibility that they might have recurred at the adjourned hearing on 1 August. 

2. The crux of the case therefore turns upon the events of 31 July 2007, in which the applicant was told that he was required to re‑attend on 1 August 2007, so as to complete his hearing.  I must decide whether, taking into account the surrounding circumstances, it was reasonable for the Tribunal, in effect, to demand the applicant’s attendance on the following day, in circumstances where the hearing had been suspended until a Haryanvi interpreter could be found, and in which the applicant was discouraged from expecting that this could be organised during the brief adjournment. 

3. Added to this, the applicant claims to have been confused and upset by the events on 31 July 2007, and then on the next morning to have found that he could not call upon the assistance of Krishan nor other friends to assist him to return to the Tribunal.  He submits that in all the circumstances, the appointment of the adjourned hearing was unreasonable, and that the Tribunal should have made a further effort to invite him to another hearing, for which he was given better notice and better assurances of an opportunity for adequate communication with the Tribunal. 

4. Taking into account the applicant’s oral evidence, I accept that he genuinely found the experience of the hearing on 31 July 2007, the long wait outside the hearing room, and the exchanges with Ms Hajaj, to be very confusing and upsetting emotionally.  I accept that these emotions were still in his mind on 1 August 2007, and contributed to leaving him mistrustful of attending on that day without the assistance of his friend Krishan, and without any guarantee that there would be a competent interpreter available.  I also accept that he made at least one unsuccessful attempt to locate another friend to take him to the Tribunal on the morning of 1 August 2007, before giving up any intention to attend the hearing appointed for 12.30 pm.  I do not accept that it was physically impossible for him to travel from Harris Park to the Tribunal on his own, but in all the circumstances I consider that it became reasonable for him to decide not to attend on that day. 

5. Weighing up all the circumstances surrounding the appointing of the adjourned hearing, including those known to the Tribunal as well as the subjective and other circumstances of the applicant unknown to the Tribunal, I have concluded that the adjourned hearing was not reasonably appointed.  The applicant faced very significant language and cultural barriers to satisfactorily participating in a Tribunal hearing, and these had appeared overwhelmingly at the hearing he attended on 31 July 2007.  In my opinion, it was unreasonable for the Tribunal to expect him to return the next day without any assurance that it could, or would, take measures to ensure that the same difficulties would not be repeated.  The applicant’s reasons for being absent are, in my opinion, very understandable, and provide a sufficient excuse for his absence.  When he did not attend, I consider that a fair procedure required that he be given a further opportunity to attend a hearing on a date when he could be given a reasonable period of notice, sufficient to allow him to make arrangements to be accompanied by an appropriate assistant who could communicate with the Tribunal.  I consider that the Tribunal’s failure, partly for reasons beyond its knowledge and control, to afford that further opportunity provides jurisdictional error which requires its decision to be set aside. 

6. I note that the Minister made no submission that, if I found that the Tribunal’s notice of the rescheduled hearing was unreasonable in the circumstances, I should decline to give relief.  I also note that a consequential costs order is agreed. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  28 October 2008