SZTTO v Minister for Immigration - [2016] FCCA 2128

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTTO v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2128

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – standard of interpretation at Tribunal hearing – whether non-compliance with s.425 of the Migration Act 1958 (Cth).

Legislation:

Migration Act 1958 (Cth), s.425

Applicant:

SZTTO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 55 of 2014

Judgment of:

Judge Barnes

Hearing dates:

23 June 2015

19 August 2015

Delivered at:

Sydney

Delivered on:

19 August 2016

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision made on 9 December 2013 in Tribunal case number 1217632.
A writ in the nature 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 made on 10 October 2012.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 55 of 2014

SZTTO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 9 December 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Nepal, was born…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 2128
Decision Date: 19 August 2016

CaseChat Overview and Summary

This matter came before Judge Barnes of the Federal Court of Australia concerning an application for judicial review by SZTTO (the Applicant) against the Minister for Immigration (the First Respondent). The Applicant sought to challenge a decision made by the Administrative Appeals Tribunal, which had affirmed a decision to refuse her visa application. The core of the Applicant's challenge related to alleged deficiencies in the interpretation provided during the Tribunal hearing.

The legal issues before the Court were whether the Administrative Appeals Tribunal had failed to afford the Applicant a fair hearing, contrary to section 425 of the Migration Act 1958 (Cth), due to the alleged lack of professionalism and experience of the interpreter. The Applicant also contended that the interpreter used English words excessively, which was not apparent from the transcript. The Court was required to consider the evidence before it, including the transcript of the hearing and the Tribunal's record, to determine if these alleged deficiencies rendered the hearing unfair.

Judge Barnes reasoned that while there were apparent typographical errors in the transcript, the First Respondent did not dispute its general accuracy. Regarding the interpreter, the Court noted that the interpreter was NAATI accredited, albeit at Level 2. Crucially, the Applicant had indicated at the commencement of the hearing that she had no difficulty understanding the interpreter and was happy to proceed. There was no evidence that the Applicant subsequently raised any concerns about the interpreter's performance with the Tribunal. While the absence of a complaint was not determinative, it did not support the contention that the interpreter's qualifications or experience inherently demonstrated a failure to afford a fair hearing. The Court also found no evidence from the transcript or other material to support the claim that the interpreter used English words more than 30 per cent of the time. The Court considered the transcript as a whole in relation to the Applicant's claims about the interpretation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There are what appear to be minor mistakes or typographical errors on the part of the transcript provider, such as misspelling “complimentary” protection and recording the Tribunal referring to “real exestuation (sic) of what was happening” (transcript 1, p.8) when it appears that the Tribunal was putting to the Applicant that the claim that she was beaten up and tortured all her life was a “real exaggeration of what was happening” (translated by the interpreter at the hearing as “made up extremely, more than what happened, it was extremely made up.”) Further, according to the transcript, the Tribunal referred to a well-founded fear of being “prosecuted” in describing the Refugees Convention criterion. It seems inherently unlikely that the Tribunal would not have referred to a well-founded fear of “persecution”. However, the First Respondent did not seek to dispute the general accuracy of the transcript (apart from taking issue with particular limited aspects) and did not seek to file his own transcript of the hearing. First, contrary to the Applicant’s assertion in ground 2 that the interpreter used by the Tribunal was “not professional” and “lacked experience”, the Tribunal hearing record in the Courtbook indicates that the interpreter used at the hearing was NAATI accredited (albeit only Level 2). There is otherwise no evidence as to the extent of the interpreter’s experience or expertise. Early in the hearing the Applicant indicated, when asked, that she had no difficulty understanding the interpreter and that she was happy to talk through that interpreter. There is no evidence or suggestion that she subsequently raised with the Tribunal any concern about the interpreter or the standard of interpretation. While the absence of any such complaint is not determinative in relation to the adequacy of the interpretation, these factors do not support a contention that the interpreter had such a lack of qualifications or experience as to in itself demonstrate a failure by the Tribunal to afford the Applicant the requisite hearing under s.425 of the Act. In any event, what is in issue is not whether the interpreter “lacked experience” as such, but rather the fairness of the hearing in the sense considered in SZSEI. It was also contended in ground 2 that the interpreter used English words more than 30 per cent of the time. This is not apparent from the transcript. Nor is there anything in the transcript (or otherwise in the evidence before the court) to suggest that the Applicant raised any such concern with the Tribunal. This part of the Applicant’s claim is not made out on the evidence before the court. While the Applicant made only limited submissions in particularising certain asserted deficiencies in interpretation, the transcript speaks for itself. I have considered the transcript as a whole in relation to the Applicant’s claims that the interpreter did not interpret properly and failed to translate several (unspecified) parts of the Applicant’s evidence.