Toscano v Minister for Immigration and Multicultural Affairs

[2002] FCA 941

FEDERAL COURT OF AUSTRALIA

Toscano v Minister for Immigration & Multicultural Affairs [2002] FCA 941

HUBERT TOSCANO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1022 of 2001

WHITLAM J
30 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1022 of  2001

BETWEEN:	HUBERT TOSCANO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	30 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1022 of 2001

BETWEEN:	HUBERT TOSCANO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	30 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 May 2001 affirming the decision of a delegate of the respondent to refuse to grant a protection visa to the applicant.

2. The applicant is a national of Bangladesh born on 10 September 1947.  He arrived in Australia on 5 October 1995 and applied for a protection visa on 23 December 1997.  The decision of the delegate was made on 21 January 1998.

3. The applicant alleges that the Tribunal compromised his rights under s 425(1) of the Migration Act 1958 (“the Act”) by using at a hearing on 20 November 2000 an interpreter who was a Muslim. This action is said to make the Tribunal’s decision amenable to review under s 476(1) of the Act.

4. The applicant is a Christian.  He claimed that his name marked him out in his native country as a Christian and that on that basis he feared persecution there at the hands of “Muslim fanatics”. 

5. In Part C of his protection visa application, in answer to a question about other factors to be taken into account if he was called for an interview, the applicant wrote of his need for an interpreter of the Bengali language “only Bangladeshi interpreter & non-Muslim”.  That application was completed with the assistance of a migration agent, but no reason was given by the agent or by the applicant for such a request.

6. On 22 October 1999 the Tribunal invited the applicant to give evidence before it.  The applicant completed a “Response to Hearing Invitation” form, which asked “Do you have any special needs for the hearing? (eg. wheelchair access, male or female interpreter)”, by writing “Please provide me a non-Muslim interpreter.”  The applicant and a new migration agent also sent the Tribunal voluminous submissions, which gave no reason for the request about an interpreter. 

7. The Tribunal held a hearing on 16 December 1999, at which, it noted in its reasons (p 7), the applicant was assisted by an interpreter in the Bengali language.  The Tribunal explained (p 9) that the hearing was then adjourned so that certain inquiries could be made.  Additional information was obtained by the Tribunal and the applicant was invited to comment on that information and to provide any further information.  The applicant’s agent requested a further opportunity to give evidence.  The Tribunal acceded to this request, and this time the agent answered the same question on the “Response to Hearing Invitation” form by writing “Please provide us a non-religious or non-Muslim interpreter”.  Again, no reason was given for this specification.

8. The Tribunal said in its reasons for decision:

   “A further hearing was offered by the Tribunal on 20 November 2000, on that day the applicant objected to the interpreter provided by the Tribunal on the basis of his being Muslim.  He did not know the interpreter and had never met him.  The Tribunal advised that the hearing would not be adjourned on that basis.  The applicant determined, after consultation with his adviser, not to give further evidence to the Tribunal.”  (p 4)

   “The request for a further hearing was agreed to by the Tribunal and a further hearing was set for 20 November 2000.  A non-Muslim or non-religious interpreter was requested, however on the hearing day this request could not be met.  On the further hearing date the applicant objected to the interpreter provided by the Tribunal.  He was asked why and said that he had asked the interpreter his name and religion and been told that he was Muslim and this was the basis of his objection.  He advised the Tribunal that he did not know the interpreter and had never met him.  The Tribunal advised that the interpreter was a professional who took an oath or affirmation to keep confidentiality.  He said ‘I don’t have any problem like that’.  The Tribunal noted that this was the interpreter that was available and no adjournment would be granted.  The Tribunal pointed out that the applicant’s adviser was Muslim, the adviser said that though he was Muslim his wife was Christian.  The Tribunal called an adjournment for the applicant to consider his decision and seek advice from his adviser.  He returned and said ‘I don’t agree to sit with this interpreter’.  He would not give further evidence.  The Tribunal concluded the hearing.”  (p 12-13)

9. There is no other evidence of what occurred at the hearing on 20 November 2000. Counsel for the applicant sought an adjournment to obtain evidence of what he said was a specific, ad hominem basis for the applicant’s objection to the interpreter provided on that day.  That application was refused when counsel informed me that the basis for such an objection was not put to the Tribunal by the applicant or his agent.

10. In the event, the Tribunal found (p 16) that the applicant exaggerated the significance of events which had occurred and fabricated other parts of his claims.  The Tribunal did not accept (p 19) that the societal problems between various religious groups in Bangladesh were of such seriousness as to constitute persecution.  It recognized that some individual circumstances could be of such seriousness as to amount to persecution within the meaning of the Refugees Convention, but did not consider that this was so in the applicants’ circumstances.

11. Counsel for the applicant relies on a number of cases dealing with the obligation to invite an applicant to appear under s 425(1) of the Act and communication through an interpreter under s 427(7) of the Act. However, he is content to rely on the following summary by Goldberg J in Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31]:

    “… The invitation must not be a hollow shell or an empty gesture.  If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s 425(1).” (Emphasis supplied.)

12. Counsel for the applicant accepts that the cases he relies on were concerned with the standard or level of competence shown in the interpreting services provided before the Tribunal. Here there is no argument as to the technical competence of the interpreter, but counsel submits that the Tribunal rendered the applicant’s rights under s 425(1) “hollow or empty” by not acceding to his client’s request for a non-Muslim interpreter in the circumstances where he claimed to fear persecution at the hands of “Muslim fanatics”. Grasping for principle, he even falls back on the maxim that, not only should justice be done, but it should seem to be done. However, as counsel for the respondent correctly points out, s 476(2) of the Act precludes resort to such a notion in order to give content to the procedures required by the Act. Notwithstanding, the failure of his client to advance any reason whatsoever for his objection to an interpreter who was a Muslim, counsel for the applicant also submits that the Tribunal had a duty to inquire into the reason for the objection.

13. As I have mentioned, the only evidence before the Court of what took place on 20 November 2000 before the Tribunal is the account in the Tribunal’s reasons for decision. That does not suggest that the applicant objected on any rational basis. I accept the submission of the respondent’s counsel that this is not a case of an applicant being “unable” to give evidence, but of one being “unwilling” to do so. In my opinion, the key word in s 427(7) for present purposes is “communication”. The interpreter is merely the medium for the interchange between the Tribunal and the person appearing before it. The Tribunal is under no obligation to accommodate the prejudices of an individual, although in some cases it may be prudent to take them into account. In the present case the Tribunal was not distracted from its task and prepared a thoroughly professional and cogent statement of reasons for its decision.

14. The application will be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             30 July 2002

Counsel for the applicant:	M R Tyson
Counsel for the respondent:	R J Bromwich
Solicitors for the respondent:	Sparke Helmore
Date of judgment:	30 July 2002