FEDERAL COURT OF AUSTRALIA

NAFF v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

FCA 946

MIGRATION – Application for review of Refugee Review Tribunal decision – whether applicant prejudiced during hearing before Tribunal because interpreter spoke a different dialect – whether Tribunal misinterpreted applicant’s submissions – claim that Tribunal offered applicant an opportunity to further address matters raised – whether tribunal dealt with claims made – whether error of principle or law

Migration Act 1958 (Cth) s 474

NAFF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 284 OF 2002

TAMBERLIN J

SYDNEY

22 JULY 2002

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of India who arrived to Australia on 1 September 1999.  On 30 September he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Migration Act (1958) (Cth) (“the Act”), on the basis that he is a refugee within the meaning of the definition of “refugee” in Article 1A(2) of the Convention and Protocol Relating to the Status of Refugees.

2                     The applicant therefore is required to show that owing to a well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or a political opinion he is unable to avail himself of the protection of India. 

3                     The application for a protection visa was considered by a delegate of the respondent (“the Minister”) and on 15 March 2000 a decision was made refusing to grant such a visa on the basis that the applicant was not a refugee.  On 12 April 2000, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision.  After the hearing of the applicant's case, the Tribunal refused the application for review and affirmed the decision of the Ministerial delegate not to grant a protection visa, on 22 February 2002.

4                     When the matter came on for hearing before me this afternoon, the applicant raised two points.  The first one was that there had been difficulties in the interpretation of his submissions before the Tribunal because the interpreter assigned to the matter spoke Sri Lankan Tamil and not Indian Tamil and therefore the translation process was not effectively carried out and as a result he was prejudiced.

5                     On the hearing before me he has had the advantage of an Indian Tamil interpreter who has explained his case to me.  No transcript of the proceedings before the Tribunal has been produced and there is no oral evidence as to what took place before the Tribunal.  However, on an examination of the reasons which were given for the decision it appears to me that the matters which concerned the applicant in relation to the translation had in fact been raised and dealt with by the Tribunal. 

6                     The first of the matters raised so far as interpretation is concerned was that there had been in the mind of the applicant a misinterpretation as to the number of members in a particular body to which he belonged and that the figure was in fact two million whereas it had been conveyed by the interpreter to the Tribunal that the number was vastly in excess of this as the result of a misinterpretation.  However, on examining the reasons of the Tribunal it appears that the Tribunal proceeded on the basis that nationwide the members of this organisation were in the order of one and a half million so that it seems to me nothing really flowed as a consequence of this claimed error. 

7                     The second matter which was referred to, so far as interpretation is concerned, was the question of the applicant’s relocation and this turned on the question whether the applicant could relocate to a safe place in India if returned to that country.  This matter was considered by the Tribunal and the issue was raised and dealt with.  Again, in my view, it cannot be said that it has been demonstrated that there was any error in principle in dealing with this matter.

8                     The third question raised related to the departure of the applicant from India and the reference to an amount of 300,000 Indian Rupees.  This matter was discussed by the Tribunal in its reasons.  I am not satisfied that any error has been shown in relation to this matter and therefore the misinterpretation alleged in relation to it has not been shown to have given rise to a reviewable error.

9                     As I explained to the applicant at the outset of the hearing, it is not the function of this Court to review or reconsider the factual findings of the Tribunal but only to reconsider whether they were made in accordance with the appropriate procedures and principles which are applicable. 

10                  The second matter raised by the applicant was that there was a statement by the Tribunal member to the effect that he would be given an opportunity to address four matters after the close of the hearing.  These matters he says were raised during the course of the hearing and the Tribunal indicated he would have a chance to respond.  Having considered the Tribunal’s reasons I am satisfied that the matters which have been complained of were raised by the applicant and considered by the Tribunal and that the applicant's submissions in relation to them are set out so that the applicant had an opportunity to deal with them.

11                  In particular, the first matter referred to is the inconsistencies relating to the applicant’s claims which the Tribunal found to be important in reaching its decision.  I am satisfied that the reasons of the Tribunal indicate that the Tribunal member raised with the applicant inconsistencies in the evidence and asked the applicant questions about them and referred to evidence which was not in accordance with the evidence that the applicant was giving before the Tribunal.  I am therefore satisfied that no unfairness or breach of procedure has occurred in relation to this particular matter. 

12                  The second matter was the problems with the translation by the interpreter which the applicant said he would be given an opportunity to address.  For reasons given above I am not satisfied that the specific matters which the applicant raised concerning the interpreter made any difference to the outcome or could have made any difference to the outcome of the hearing before the Tribunal and that they were considered in the course of the reasons for decision. 

13                  The next matter is the issue of the ability to leave India and this issue, as I mentioned earlier, was raised and considered by the Tribunal, taking into account the applicant's submissions in reaching a decision adverse to the applicant. 

14                  The final matter in so far as inconsistency is concerned was the applicant’s ability to relocate and again I am satisfied that this matter was dealt with in the course of the reasons for decision of the Tribunal.

15                  In all the circumstances I am not satisfied that on the material before me there has been any error of principle of law which would warrant the setting aside or variation of the Tribunal decision.  Furthermore, I am satisfied that in the circumstances of this case the provisions of s 474 of the Act apply and that it has not been shown that the principles laid down in that section have not been satisfied so as to render it inapplicable.

16                  Accordingly, for the above reasons I am persuaded that the application for review should be dismissed and I can see no reason why costs should not follow the event and I therefore order that the applicant should pay the costs of the first respondent.  I also confirm that at the outset of the hearing I made an order removing the Tribunal as a second respondent because it had been wrongly joined as a party and was unnecessary for it to be a party for the proper resolution of this matter.

Associate:

Dated:              31 July 2002