FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1376

MIGRATION LAW – use of an interpreter – whether Tribunal required to provide an interpreter – whether “proficiency in English” contemplated by s 427(7) requires greater expertise than ability to give evidence and present arguments in English

Migration Act 1958, s 425, s 427

Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 followed

DARSHAN SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Q43 OF 2001

TAMBERLIN, MANSFIELD & EMMETT JJ

28 SEPTEMBER 2001

BRISBANE

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent’s costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     The appellant, who is a citizen of India, arrived in Australia on 11 September 1995.  On 25 September 1995 he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs.  On 11 April 1997 a delegate of the respondent, the Minister for Immigration & Multicultural Affairs (“the Minister”), refused to grant a protection visa and on 1 May 1997, the appellant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).

2                     On 28 August 1998, the Tribunal affirmed the decision not to grant a protection visa.  On 28 September 1998, the appellant filed an application to the Court for an order of review of the decision of the Tribunal.  On 15 December 2000, a judge of the Court ordered that the application be dismissed and that the appellant pay the Minister’s costs in the proceeding.  The appellant now appeals to the Full Court from the orders of the primary judge.

THE APPELLANT’s CLAIMS

3                     The appellant’s claims were set out in written submissions to the Department, written submissions to the Tribunal and in oral evidence given to the Tribunal on 27 July 1998.  The appellant is a Sikh man who is in Australia with his wife and two sons.  His sister and her husband are in Australia.  His parents and his other sister live in India.

4                     The appellant said that he had owned a transport business with two partners in the Punjab since 1988.  He had also had some involvement in running his father’s bus business and some land.  Since his arrival in Australia he has not been involved in those businesses at all.

5                     The appellant indicated that in 1987 he joined the Congress (I) Party.  In 1989 he was given the role of District Vice-President of the party in his area of the Punjab and in 1991 he became the State Secretary-General.  In that role he received a monthly payment for his work.  The appellant said that in January 1984 a member of his party in the Punjab had his leg blown off in a terrorist attack.  He said that Sikh terrorists had threatened him many times by telephone and by letter, saying that they would kill him and his family.  He said threats came particularly from the Babbar Khalsa.  He said that as a result of the threats, he was given two bodyguards by the police for his personal protection.  He had those bodyguards until he left India.  The appellant also claimed that his leader, Mr Beant Singh, was assassinated by terrorists on 31 August 1995.  He said that it was for that reason that he decided to leave India for Australia.  He obtained visitor visas for himself and his family on 4 September 1995.

6                     The appellant claimed that he feared to return to the Punjab because he feared that he and his family would be killed.  He provided a number of photographs showing his activities in the Punjab and a number of newspaper reports about terrorist attacks in India.

7                     The appellant said that he and his family did not want to live in any part of India and indicated that they were established in business in Australia.  He said that his two children, aged seven and ten, were well established at school.  The appellant and his wife claimed that it would be hard to re-establish themselves in another part of India and that, since the children had been in Australian schools for nearly three years, they may have difficulty in moving to another school system.  The appellant claimed that he was too old to re-establish himself elsewhere in India.  He also claimed that he feared attacks elsewhere in India.

8                     At the request of the appellant, he was given time by the Tribunal to provide forward information about terrorist activities in India.  On 17 August 1998, he provided several copies of The Tribune newspaper from November 1997 to July 1998.  The articles referred to the arrest of terrorists or foiling of terrorist attacks in various parts of India.  They included a number of Khalistan groups and others, particularly focussed on the Punjab.

TRIBUNAL’S DECISION

9                     The Tribunal accepted that the appellant was involved in the Congress (I) Party in the Punjab and that he held a number of official positions in the party over the eight years that he was in the party.  It also accepted that the appellant may have felt fear from the activities of a number of Sikh militants in the Punjab in the early 1990s.  It accepted further that the appellant and his family had received some death threats from militants from time to time and that he had a bodyguard for a period of time.  However, the Tribunal noted that, apart from telephone and written threats, nothing in fact happened to the appellant and his family in the 21 months between when they first feared for their safety and when they left the Punjab.

10                  The Tribunal accepted that the Chief Minister of the Punjab, Mr Beant Singh, who was a member of the Congress (I) Party, was killed in the Punjab in September 1995.  However, the Tribunal considered that that assassination was a one-off situation and that there was no indication that there is a concerted or on-going effort by militant groups to eliminate members of the Congress (I) Party.  The Tribunal referred to independent country information that suggested that terrorist activity has been greatly reduced in the Punjab since the early 1990s and that militant groups have lost significant support in the Punjab since then.  The Tribunal said that it had seen nothing that suggests a concerted revival of those activities.

11                  The Tribunal said that it had seen nothing that would suggest that the Akali Dal Party, which at the relevant time was in coalition government in the Punjab, either supports or condones terrorist violence.  The Tribunal considered that the election of the Akali Dal Party in February 1997 indicated that Sikhs now have a government that is seen as able to put into action their concerns.  The Tribunal was of the opinion, therefore, that there is even less likelihood that militant groups will be able to operate against a party that is now the lawful opposition.

12                  The Tribunal considered that the appellant would not face a real chance of persecution for reason of his political opinion if he should return to the Punjab now or in the foreseeable future.  It found that the appellant did not have a well-founded fear of persecution for reason of his political opinion if he were to return to India either now or in the foreseeable future.

13                  Further, the Tribunal considered that, should the appellant still have a subjective fear, it would be open to him to relocate elsewhere in India.  The Tribunal referred to independent country information that suggested that Sikhs are able to live anywhere in India, that there are large numbers of Sikhs living outside the Punjab and that Sikhs are found in all major areas.

14                  The Tribunal formed the opinion that militants are decreasingly able to operate in the Punjab and that police are able to contain them due to their decreased support by the general population.  The Tribunal concluded that attacks are infrequent and that, when there are attacks, they are general terrorist attacks, which are not aimed at particular individuals. 

15                  The Tribunal said that it had considered the appellant’s claims that it would be difficult for him to relocate elsewhere in India because he is too old and because the children have now learned English and it would be hard for them to go back to speak other languages.  The Tribunal accepted that the appellant and his family may prefer to live in Australia and that they now feel settled here after nearly three years.  The Tribunal observed, however, that where a family might prefer to live is not a basis on which a claim for refugee status can be sustained.  The Tribunal considered that the appellant, being 39 years of age, is not old in terms of working life and has shown himself to be able to adapt to a new country, learn a new language and set up his business in Australia.

16                  The Tribunal considered that there are resources on which the appellant and his family could draw on return to India to re-establish themselves outside the Punjab.  The Tribunal determined that that it would not be unreasonable to expect the appellant to relocate to another part of India if he retained a subjective fear of harm in the Punjab.  The Tribunal therefore was not satisfied that the appellant is a person to whom Australia has protection obligations under the Convention.  No claims were made by or on behalf of the appellant’s wife and children separate from the appellant’s claims.  There was therefore no basis on which the Tribunal could be satisfied that any of them were refugees within the meaning of the Convention.

PROCEEDINGS IN THE COURT

17                  By his amended application, the appellant relied on seven grounds.  All grounds were rejected by the primary judge.  In his amended notice of appeal, filed only at the hearing of the appeal, the appellant relied on two matters only, said to establish the ground contained in s 476(1)(a) of the Migration Act that procedures that were required by the Act to be observed in connection with the making of the decision by the Tribunal were not observed.  The appellant contended that the primary judge erred in deciding:

·        that s 427(7) of the Act, which deals with interpreters, confers a power to be exercised at the discretion of the Tribunal;

·        that the Tribunal did not breach s 425(1) of the Act in failing to direct that communication with the appellant during his appearance proceed through an interpreter.

NO INTERPRETER

18                  Section 427(7) of the Act provides that, if a person appearing before the Tribunal to give evidence is not “proficient in English”, the Tribunal “may direct that communication with that person during his or her appearance proceed through an interpreter”.  The appellant contended that he was not proficient in English and that s 427(7) created an obligation on the part of the Tribunal to direct that communication with the appellant proceed through an interpreter.

19                  The appellant took both the primary judge and the Full Court to the transcript of the hearing before the Tribunal.  It was suggested that the appellant’s responses to questions by the Tribunal demonstrated that the appellant was far from well advanced, expert or skilled in speaking English and, therefore, was not proficient in English.  He contended that the transcript demonstrates that, while the appellant was able to understand and give responsive answers to some of the questions, his answers to some important questions were not responsive and demonstrated confusion and misunderstanding.  He contended that the transcript shows that the verbal exchange between the appellant and the Tribunal was disjointed.

20                  In his application to the Tribunal for review of the delegate’s decision, the appellant answered “No” to the question “Do you need an interpreter?”.  As indicated above, that application was lodged in May 1997.  In the appellant’s response of 2 July 1998 to the Tribunal’s offer of a hearing, the appellant again answered “No” the same question.  When the hearing began on 27 July 1998 the following exchange took place:

“[TRIBUNAL]:        Now, Mr Singh, just let me clarify:  you did not ask for an interpreter, did you?

MR SINGH:             Yes. I’m going to try by myself.

[TRIBUNAL]:          Okay.  You will speak English yourself, okay.  That’s fine. Mr Singh, what we need to do here is to clarify, firstly, are you the only person who is going to talk about your case or is your wife also wanting to give some evidence?”

21                  The appellant’s wife was present during the course of the hearing and from time to time responded to questions by the Tribunal addressed to her husband, indicating that she comprehended the questions.  It is also relevant that, by the time of the hearing, the appellant had been in Australia for nearly three years and had established himself in business.

22                  Before the primary judge, the appellant relied on an affidavit in which he said, inter alia, as follows:

“When I arrived in Australia I spoke very little English.  My application to the Immigration Department was completed for me by my sister and was decided ‘on the papers’.  I did not request an interpreter to be present at the Refugee Review Tribunal Hearing because I thought that everything would be all right and I did not want to appear incompetent in English.  Unfortunately I did not understand the Refugee Review Tribunal Hearing well at all.  I did not understand many of the questions I was asked and felt that I could not properly express my answers to the questions I could understand.  I was not able to explain all of the facts and matters set out in this my affidavit.”

The appellant was not cross-examined on that affidavit.

23                  The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a hearing before a court or tribunal.  Thus, an applicant for refugee status may be able to use English for some purposes, even professional purposes, but may be insufficiently proficient to give evidence and make submissions before the Tribunal in support of an application vital to his or her future prospects.  The fact that an applicant has sufficient knowledge of English for some purposes does not mean that the applicant will be so proficient that he could cope adequately with the giving of evidence and the making of submissions before the Tribunal – Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [34] – [36].

24                  The primary judge observed that the transcript demonstrates that the verbal exchange between the appellant and the Tribunal was disjointed.  However, her Honour concluded that there was nothing to suggest that language difficulties prevented the appellant from comprehending the full significance of the Tribunal’s questions and communicating arguments in response.  Her Honour did not consider that the verbal exchange was disjointed to such an extent that communication could be said to have been compromised.

25                  The transcript indicates that the appellant’s answers were responsive to the Tribunal’s questions.  They are generally coherent and are consistent with the written claims contained in his application and with the additional evidence sent to the Tribunal on 17 August 1998.  There is no indication that either the appellant or the Tribunal member became confused in the course of proceedings or that the appellant lacked confidence in his ability to participate in the Tribunal hearing by use of English.

26                  There is no warrant for reading s 427(7) as imposing an obligation on the Tribunal.  The Act regularly uses the word “may” and “must” in contexts where it is clear that the use of the former indicates a discretion whereas the use of the latter leaves no room for discretion.  Section 427(7) must be considered in the context of s 425.  Section 425(1) provides that the Tribunal “must invite” an appellant to appear before the Tribunal “to give evidence and present arguments” relating to the issues arising before the Tribunal.  Section 427(7) simply empowers the Tribunal to take steps to ensure that there can be real compliance with s 425(1). 

27                  There is a clear relationship between ss 425(1) and 427(7).  If an applicant for refugee status is unable to give evidence and present arguments in English, the effect of s 425(1) is to necessitate the exercise of the power under s 427(7) to direct that communication proceed through an interpreter – see Perera at paragraph [20].  Thus, the notion of proficiency in English that is referred to in s 427(7) must be understood by reference to the object for which s 427(7) is included in the Act.  It is there to ensure that at a hearing the applicant will have a real opportunity to give evidence and present arguments. 

28                  That is to say, the proficiency in English contemplated by s 427(7) is the proficiency necessary to enable an applicant to give evidence and present arguments in English in order to communicate the substance of his or her case and to respond to issues raised.  It does not require any greater expertise in English.  If the applicant can comprehend and articulate English sufficiently well to enable him or her, in a real sense, to give evidence and present arguments in English to the Tribunal, the requirements of s 425(1) will have been satisfied.  On the other hand, if an applicant does not have such proficiency, s 425(1) may well not be satisfied in the absence of a direction under s 427(1).  Either way, there is no independent obligation imposed on the Tribunal by s 427(1).

29                  We agree with the primary judge that the transcript of the hearing before the Tribunal in the present case indicates that, while the English of the appellant and his wife was at times broken and disjointed, it was sufficient to enable the appellant, in a real sense, to give evidence and present arguments relating to the issues that arose in relation to the decision of the delegate refusing protection visas.

CONCLUSION

30                  The appeal should be dismissed with costs.

Associate:

Dated:              27 September 2001