SZNRW v Minister for Immigration
[2009] FMCA 1184
•8 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNRW v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1184 |
| MIGRATION – Visa – Protection (Class XA) visa – citizen of India from Kerala claiming fear of persecution as a result of his opposition to sales of alcohol – where applicant sought to claim under all five Refugees Convention grounds – complaint about the quality of interpreting – credibility – where applicant complained to the Tribunal about being depressed – merits review – whether the Tribunal failed to provide a fair hearing under Migration Act 1958 (Cth) s.425 – no jurisdictional error. PRACTICE & PROCEDURE – Audio recording of Tribunal hearing – where applicant requested that Court should listen to audio recording of Tribunal hearing in the presence of an interpreter to ascertain errors in translation. |
| Migration Act 1958 (Cth), ss.91X, 424AA, 424A, 425, 425A, 474, 476 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 followed Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; [2000] FCA 1759 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 815 CLR 359; [1996] HCA 6 SZNHO v Minister for Immigration & Anor [2009] FMCA 460 SZITH v Minister for Immigration & Anor [2009] FMCA 877 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 |
| Applicant: | SZNRW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1490 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 November 2009 |
| Date of Last Submission: | 11 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Counsel for the Respondents: | Ms Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1490 of 2009
| SZNRW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This application is by a citizen of India, who asks the Court to review a decision of the Refugee Review Tribunal made on 1st June 2009. The Tribunal affirmed the decision by a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
The only order that the Applicant seeks in his application filed on 23rd June 2009 is:
Please refer my Application to another RRT Member.
It is well established by now that the Federal Magistrates Court’s power to remit a matter to the Refugee Review Tribunal for determination according to law does not carry with it the power to make a direction as to the constitution of the Tribunal (SZEPZ v Minister for Immigration and Multicultural Affairs[1] at [30] and [36]).
[1] [2006] FCAFC 107
The Minister, who is the First Respondent, opposes the application for review.
Background
The Applicant arrived in Australia on 9th July 2008. He applied for a Protection (Class XA) visa on 21st August 2008.
In a statement filed with his visa application, the Applicant claimed to be a Malayalee from Kerala, South India, who feared persecution for all five of the Convention grounds:
I wish to emphasize that as far as the submissions in respect of race, religion, and nationality, membership of a particular social group or political opinion are concerned I submit that for the most part they are indistinguishable from each other.[2]
[2] See Court Book at page 30
He claimed to have come from a Christian family and had been involved in a campaign against the sale of liquor. He said that he was threatened by a businessman called Manichen who told him to leave the country or he and his family members would be killed. Some people in the church arranged a passport for him in another name and he left India for Australia. He applied for a visa in his correct name.
The Department of Immigration and citizenship invited the Applicant to attend an interview with a Departmental officer on Thursday 6th November 2008. The Applicant attended the interview.
On 19th November 2008 the Minister’s delegate refused the application for a protection visa. The delegate’s reasons were:
At interview the applicant did not satisfy me as the credibility and well foundedness of his claim.
It is clear from the applicant’s claim that the government of India is in no way implicated in the perpetration of harm, which he claims to fear. The applicant has not provided any evidence to show that he was unable to access State Protection as a result of the difficulties he faced other than his bare statement that the police refused to offer him protection…
I am satisfied that there is State protection for the applicant.[3]
[3] Court Book 54
Application to the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for review of that decision on 8th December 2008. On 8th January 2009, the Tribunal wrote to the Applicant and invited him to attend a hearing to give oral evidence and present arguments in support of his case on 5th February 2009.
The Applicant forwarded a Response to Hearing Invitation to the Tribunal on 27th January 2009, along with a number of documents in support of his claim.
The Applicant attended the hearing on 5th February 2009 and gave evidence with the assistance of a Malayalam interpreter. The hearing was not completed on that day. The Tribunal noted that:
The Tribunal put to the applicant adverse information orally, inviting his comments/responses. He gave some comments to these at the first session, and also requested additional time to give further comments, orally. The Tribunal adjourned the hearing till Wednesday 11 February 2009.[4]
[4] Court Book 218
The Tribunal arranged a resumed hearing for 11th February. The Applicant attended that hearing and again gave evidence.
The Applicant produced a number of documents to the Tribunal on that occasion, not all of which were in English. Some documents were press reports downloaded from the Internet.
After the hearing, the Tribunal wrote to the Applicant on 17th February 2009, inviting him to comment on or respond to information which it set out. The letter was intended to comply with the requirements of s.424A of the Migration Act. The Tribunal’s letter also referred to matters put to the Applicant at the hearing under the provisions of s.424AA of the Act. The Tribunal’s letter asked the Applicant to provide his comments or response in writing by 12th March 2009.
The Applicant replied by letter dated 11th March 2009. He advised that he was suffering from “mental depression”[5] for which he was undergoing treatment. He set out a considerable number of matters and stated:
With this I am humbly submitting that I need protection from those groups (Anti Christian groups, liquor mafia, police authorities and political groups) and also a fearless life. If it is not given I am afraid that my mental condition will get worse and will adversely affect my family and me.[6]
[5] Court Book 119
[6] Court Book 121
The Tribunal made its decision on 1st June 2009, affirming the decision not to grant the Applicant a Protection (Class XA) visa.
The Refugee Review Tribunal Decision
In its Decision Record, the Tribunal set out the Applicant’s claims and evidence from:
a)The application for a protection visa;
b)Information provided by the Applicant at his interview with the officer of the Department of Immigration and Citizenship;
c)The various documents that the Applicant forwarded to the Tribunal prior to the hearing;
d)The Applicant’s evidence at the hearing;
e)The Applicant’s submission in reply to the s.424A letter; and
f)Independent country information about:
i)Catholics in Kerala; and
ii)Catholics and the Anti-Liquor Movement in Trivandrum and Thumba.[7]
[7] Court Book 223
The Tribunal also noted, at paragraph [66] of its Decision Record, a complaint by the Applicant about the quality of the interpreting:
The applicant registered with the Tribunal, the day after the first session of the hearing, his concerns about the quality of interpretation the previous day. He indicated that he had not understood all of the Tribunal’s questions and the information that it had put to him. He declined to be more specific or to give examples. The Tribunal undertook to go through with him at the second, resumed session any points that had been unclear. It allowed time at the second session to revisit any points that the applicant had felt were unclear.[8]
[8] Court book 221 at [66]
The Tribunal also noted the Applicant’s claim to be depressed and in receipt of treatment.
The Tribunal’s Findings and Reasons
The Tribunal accepted that the Applicant is a national of India. It also accepted for the purpose of the decision that the Applicant’s name was that which he used to apply for a visa, although it did so with some reservations, saying:
For the reasons set out below, the Tribunal has extensive concerns about the applicant’s credibility. These go so far that the Tribunal cannot rule out the possibility that the applicant recently adopted the identity of (SZNRW)[9] for the purpose of this application.[10]
[9] The Applicant’s name is not published to comply with s.91X of the Migration Act.
[10] Court Book 226 at [87]
The Tribunal noted the Applicant’s claim that he feared persecution under all five Convention grounds. It accepted that his claims related to his actual and imputed political opinion and to his religion. It also accepted that there was a particular social group in Kerala consisting of lay Catholic social activists or anti-liquor campaigners. The Tribunal did not find anything in the Applicant’s claims to suggest that he feared persecution on the Convention grounds of nationality or race.
The Tribunal took into account the Applicant’s claim to be depressed and to have sought help from the Asylum Seekers Centre. The Tribunal said:
The Tribunal found the applicant at the hearing to be confident and assertive, although his evidence was often unfocused and discursive. It did not observe anything that might bring into question his competence to present his refugee claims.[11]
[11] Court Book 227 at [90]
The Tribunal dealt with the Applicant’s complaint about the quality of the interpreting on the first occasion:
The day after the first hearing session, the applicant told Tribunal staff of his concerns at the interpretation, and said that he had not understood all the Tribunal’s questions and the adverse information. The Tribunal is somewhat sceptical of this claim, given that it had invited the applicant at the start of the hearing to alert it to any communication problems, including interpretation issues. It also notes the applicant’s reluctance to give specific examples of any such problems. Nonetheless, the Tribunal observed that the applicant appeared to speak in a rapid-fire, disjointed manner, and that he may felt in retrospect that his points had not been fully conveyed. The Tribunal provided him with the opportunity at the second session, to revisit any points from the first session. The Tribunal is satisfied that the standard of interpretation and the time given over the 2 hearings sessions gave the applicant a full opportunity to give evidence and present his arguments. The applicant has not registered any further concerns in this regard.[12]
[12] Ibid at [91]
The Tribunal accepted that the Applicant was:
a)A Latin Catholic from Kerala;
b)A person who had been active in the Latin Catholic community in Thumba as a social activist, youth worker, lay teacher and ‘team member’ in the local anti-liquor program; and
c)A person who was well-known beyond his local area as a social activist and anti-liquor campaigner in Trivandrum up to 2004.
However, the Tribunal expressed “comprehensive concerns” about the Applicant’s credibility, as well as finding that he had exaggerated and misconstrued some aspects of his personal background. It set out why it made those adverse findings about his credibility in paragraphs [99] to [104] of the decision.
The Tribunal then dealt with a claim, raised by the Applicant at the hearing, that he was at risk of persecution in India because of false criminal charges made against him. It found:
Significantly, the applicant did not mention any criminal charges in either his written or oral evidence to the Department, as the Tribunal noted at the hearing and in its 424A letter. The applicant explained that he told his former migration agent, a Tamil speaker, but he may not have understood or recorded it properly. He also said that he felt that he had been cut short at the Department interview, so did not have a chance to say everything. The Tribunal finds that these explanations, even if there were some truth to them, do not adequately explain the complete omission of reference to such a critical claim. In the Tribunal, this is compelling evidence that the applicant is not subject to any criminal charges, but that this is recent invention to cure a defect in his earlier set of claims.[13]
[13] Court Book 230 at [107]
The Tribunal dealt with the Applicant’s claims that a person called Manichan and his associates were persecuting him because the anti-liquor campaigns harmed their business interests. The Tribunal did not accept that Manichan and his associates had in fact targeted the applicant.
The Tribunal then went on to consider the Applicant’s other claims of past harm, but dismissed them as fabrications. In summary, the Tribunal found:
The Tribunal, having formed an adverse view of the applicant’s credibility, and given specific concerns about individual claims, finds that he has misconstrued his personal circumstances in order to bolster his refugee claims. It does not accept that the applicant has suffered harm or made changes to his political or social activism, places of residence, employment or any other aspect of his life to avoid harm from the police or liquor barons. To the extent that these circumstances are based on fact, the Tribunal finds that they are for reasons unrelated to his refugee claims, such as his shift of priority over time from social work to his own young family, his computer business and his ambition to live abroad.[14]
[14] Court Book 234 at [126]
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision not to grant him a Protection (Class XA) visa.
Application for Judicial Review
The Applicant filed an application and an affidavit in support on 22nd September 2009. That application set out his application for an order in the nature of mandamus remitting his application for review of the delegate’s decision not to grant him a protection visa to the Tribunal for determination according to law.
The Applicant filed an amended application on 22nd September 2009. He did not seek any further orders in that document, presumably relying on the order sought in his original application. In the amended application he sets out 5 grounds, which appear to be as much a submission as an exposition of grounds of review.
The grounds, in summary, are;
a)A complaint of “mal-interpretation” at each of the Tribunal hearings, so that the Tribunal Member did not get the “real feelings” of his case;
b)A complaint that he was provided with a CD of a Tribunal hearing that was not his hearing, even though he conceded that he received the CDs that did relate to his case;
c)A complaint that he the threats of death he received and those received by his wife and children caused him psychological problems but when he revealed this situation to the Tribunal the Tribunal member simply “refused (his) needs”;
d)A complaint that the Tribunal “humiliated” a priest in India who had helped him to obtain a fake passport; and
e)A complaint that the Tribunal made a “puzzleful decision” in obtaining country information from the Internet which was peripheral, so that the Tribunal did not take any steps to find out the “deep information” about his case.
The Applicant did not submit any separate written outline of submissions but he attended Court and made oral submissions.
The Applicant told the Court that, even though he had complained about the interpreter after the first Tribunal hearing, the same interpreter was used on the second occasion. He complained that the country information used by the Tribunal did not highlight the problems in Kerala. Further, the Tribunal did not show due respect for the information that he had provided. He also said that he had been misled by his migration agent about the account that he should give to the Department when applying for a visa.
Further, the Applicant complained that he was not able to express his feelings to the Tribunal at the hearing because of:
a)the difficulties in communication caused by the failings of the interpreter; and
b)the stress from which he was suffering.
The Applicant also told the Court that all the documents that he provided to the Tribunal were genuine and the Tribunal had the opportunity to contact the authors of the documents to verify their authenticity. However, the Tribunal doubted that some of the documents were genuine.
The Applicant also asked the Court to play the compact disc of the Tribunal hearings with the assistance of another Malayalam interpreter so that the Court would see that there were errors in the interpreting at the Tribunal hearings. This request was refused.
Submissions on behalf of the First Respondent
Ms Nanson, solicitor, appeared for the First Respondent, the Minister for Immigration and Citizenship. As to the Applicant’s first ground, she submitted that, to succeed in claiming a breach of s.425 by reason of inadequate translation services, it would need to be established that the standard of interpretation was so inadequate that the Applicant was effectively prevented from giving evidence or that the errors of the Tribunal were material to its conclusions adverse to the Applicant (see Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs[15] at [17]; also Perera v Minister for Immigration and Multicultural Affairs[16]; Mazhar v Minister for Immigration and Multicultural Affairs[17] at [26]).
[15] [2003] FCAFC 230
[16] (1999) 92 FCR 6; [1999] FCA 507
[17] (2000) 183 ALR 188; [2000] FCA 1759
Here, it was submitted, there was no evidence before the Court that the interpreting was so incompetent or inadequate that it prevented effective communication, nor was there any evidence as to what, if any, findings were made by the Tribunal adverse to the Applicant which arose from any misinterpretation.
In respect of the other grounds in the amended application, Ms Nanson submitted that they amount to nothing more than disbelief in or disagreement with the Tribunal decision, given the evidence provided by the Applicant. She submitted that:
a)Disagreement does not establish jurisdictional error; and
b)If the Applicant is seeking merits review of the facts found by the Tribunal, this course of action is not open to the Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[18] at 272).
[18] (1996) 815 CLR 259; [1996] HCA 6
Conclusions
The Applicant’s first ground complains of failures by the interpreter on both days of his hearing before the Refugee Review Tribunal. In his amended application, the Applicant states:
Lord, if you want, you can exam my hearing CD with the help of another one Malayalam interpreter.
At the hearing of his application for review, the Applicant asked the Court to play the compact discs of the Tribunal hearings with another Malayalam interpreter to see the errors of interpreting. I declined this request.
There are times when it may be appropriate to play an audio recording of a Tribunal hearing in Court. In SZNHO v Minister for Immigration and Citizenship[19] I acceded to a request by the Applicant that the Court should play the CDs of the hearing in support of a claim that the Tribunal was biased. The claim was made for the first time in Court. With the agreement of counsel for the Minister, the matter was adjourned. During the adjournment, the Minister’s lawyers listened to the recordings and, after the Court was informed that they had done so, I listened to the recordings in my chambers. The substance of the Applicant’s complaint related to the Tribunal Member’s “harsh” or “picky” manner of asking questions. As the Applicant had not given any prior notice of the claim of bias, I granted leave to the Minister to file a supplementary outline of submissions prior to the resumed hearing.
[19] [2009] FMCA 460
In SZITH v Minister for Immigration & Anor[20] it was agreed between counsel that a portion of the audio recording of the Tribunal hearing was to be played in open court. The purpose of that exercise was to ascertain a point in the hearing where it was alleged that an incident had occurred during the course of the Tribunal hearing.
[20] [2009] FMCA 877
However, in this case I did not accede to the request to play the audio recordings of the hearing with another Malayalam interpreter. The Applicant did not volunteer any information as to what the alleged interpreting errors were, when they had occurred, or how they had affected his ability to obtain a fair hearing. In effect, the request was that the Court should carry out its own investigation of the Applicant’s claim.
The applicant has at no time given any details of his claim that the interpreting at both Tribunals was defective; all he has done is make a generalised assertion. The Tribunal took his complaint seriously when it was made a day after the first hearing:
The Tribunal undertook to go through with him at the second, resumed session any points that had been unclear. It allowed time at the second session to revisit any points that the applicant felt were unclear.[21]
[21] Court Book 221 at [66]
The Applicant complained to the Court that there were problems at the second hearing session as well. Certainly, the Tribunal hearing Records show that the same interpreter was present on each occasion.[22] The Applicant did not make a further complaint about the interpreter at the second hearing. He explained this to the Court by saying that he did not want to jeopardise that person’s job.
[22] Court Book 74 and 78
In Mazhar v Minister for Immigration and Multicultural Affairs[23], Goldberg J said at [26]:
The applicant’s submission in relation to the standard of interpreting invites the inquiry whether the material before the Court is sufficient to make out a case that the interpretation before the Tribunal was so incompetent that the applicant was prevented from giving her evidence, and that the departure from the required standard of interpretation related to a matter of significance for the applicant’s claim or the Tribunal’s decision: Perera v Minister for Immigration and Multicultural Affairs (supra) at 22, 23.[24]
[23] supra
[24] (2000) 183 ALR 188; [2000] FCA 1759 at [26]
In Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs[25], the Full Court of the Federal Court (Mansfield, Emmett and Selway JJ) said at [17]-[18]:
In its written submissions the respondent, after referring to these cases, submitted that in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that:
(a)the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b)errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
The respondent’s acknowledgment in those terms seems to reflect the views of the Court in Singh (at 6 [27]) and in Perera (at 22 [38]-[41]) as to the first proposition and in Soltyanzand v Minister for Immigration and Multicultural Affairs ([2001] FCA 1168 at [18] as to the second.[26]
[25] Supra
[26] {2003] FCAFC 230 at [17]-[18]
In my view the material before the Court is not sufficient to make out a case that the interpretation before the Tribunal was so incompetent that the Applicant was prevented from giving his evidence, or that that there was any departure from the required standard of interpretation relating to a matter of significance for the Applicant’s claim or the Tribunal’s decision. There is no evidence of any errors by the interpreter at the Tribunal hearing that were material to the conclusion of the Tribunal adverse to the Applicant.
The Applicant’s first ground of review fails.
The Applicant’s second ground of review states:
I have been given all of my hearing CDs and I heard all CDs but the first CD was not mine. That was another person hearing CD. So I did not get the complete hearing CD. This shows the careless mentality of the RRT hearing officer.
This is not a ground of review. If the Applicant was sent the wrong CD, he should have asked the Tribunal to send him the correct one. Whilst it may have been an administrative error, it is not an error of law, let alone a jurisdictional error. The Applicant’s second ground of review fails.
The Applicant’s third ground of review claims that he suffered from psychological problems:
As a social worker I faced real threatened of death in my country. I escaped from several traps that they were created for me. I have been given an opportunity to arrive here as a refugee after my arrival the people back in India come to my home and threatened my wife and children. They decided to commit suicide, and I knew about that and started my psychological problems. I could not hide my feelings in my mind and all thoughts about my family and thought about my future in Australia created more tension and stress in my mind. When I reveal this matters to my Hon RRT member he hesitate to accept my plead and he simply refused my needs.
The Applicant was asked about his sensational claim that his wife and children decided to commit suicide. The Applicant told the Court that his wife and three daughters were in hiding. They did not commit suicide. They are still alive.
As to the Applicant’s claim that he was suffering from depression, the Tribunal noted this claim and referred to the STARTTS psychological assessment provided. The Tribunal stated:
The Tribunal found the applicant at the hearing to be confident and assertive, although his evidence was often unfocused and discursive. It did not observe anything that might bring into question his competence to present his refugee claims. From the Tribunal’s observation, the applicant appears anxious about the outcome of this application, and the Tribunal has taken this into account when assessing his evidence. However, his symptoms do not, of themselves, demonstrate the veracity of his refugee claims.[27]
[27] Court book 227 at [90]
The Tribunal was aware of the Applicant’s psychological difficulties and took this matter into account. There is no evidence to show that the Applicant was not in a fit mental state to have given evidence at the Tribunal hearing. This ground of review fails.
The Applicant’s fourth ground of review refers to his claim that a priest in India “gave a good support to take a fake passport for me”. The Applicant complains that:
Through this incident RRT officer can understand the real matter in my life but he simply hesitated the truth and humiliate Rev. Priests those who helped me to arrive Australia.
This is not a ground of review. It does not allege any jurisdictional error. The Applicant’s fourth ground fails.
The Applicant’s fifth ground of review claims that the Tribunal made a “Puzzleful Decision”:
Hon RRT Member has given puzzleful decision against my case. He has given 80% of positive hints and findings from my side and collected 20% of country information from internet, that country information was peripheral and they did not take any steps to find out the deep information from my case. So that my Hon RRT Member did not get the real information about me.
The ground appears to claim that:
a)Through comments made during the hearing, the Tribunal led the Applicant to believe that his application would be successful;
b)The Tribunal should not have relied on the country information that it did; and
c)The Tribunal should have made its own inquiries about the Applicant’s refugee claims.
The Applicant did not provide any particulars of the first claim, which, in any case, does not amount to jurisdictional error. As to the second part of the claim, it is well established that it is a matter for the Tribunal which country information it refers to and what weight it gives to that information.
As to the third claim, there is no general obligation on the Tribunal to make its own independent inquiries as to the Applicant’s refugee claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[28]). There was nothing to suggest that the Tribunal should make its own inquiries about the Applicant’s claims.
[28] (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32
The Applicant’s fifth ground fails.
The Tribunal affirmed the decision because it was not satisfied about the Applicant’s credibility, which was entirely a matter for the Tribunal. This was based on the Applicant’s own evidence and on Independent Country Information. It is noteworthy that the delegate also made an adverse finding about the Applicant’s credibility, so the Applicant should have been on notice that this would be an issue before the Tribunal.
There is no breach of s.424A of the Migration Act. The Tribunal wrote to the Applicant under the provisions of that section and the Applicant made written submissions in reply. The Tribunal considered those submissions. The Tribunal put matters to the Applicant at the first hearing under s.424AA of the Act, and adjourned the hearing so that he could reply.
The Tribunal invited the Applicant to attend a hearing under s.425 of the Act. The hearing invitations dated 8th January[29] and 6th February 2009[30] complied with the requirements of s.425A.
[29] Court Book 62-63
[30] Court Book 76-77
The Applicant attended the hearings on both days and gave evidence with the assistance of a Malayalam interpreter. I am satisfied that that the Applicant has not made out a claim that he was denied a fair hearing due to inadequate interpretation.
The Tribunal considered the Applicant’s claim that he was depressed and under treatment for psychological issues but was satisfied that he was able to give evidence at the hearings. I am satisfied that the Applicant has not made out a claim that he was psychologically unfit to give evidence at either Tribunal hearing.
There is no breach of s.425 of the Act.
There is no jurisdictional error. The Tribunal decision is a privative clause and, as such, is final and conclusive and not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s.474(1)).
It follows that the application must be dismissed.
I will hear submissions as to costs.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 3 December 2009
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