FEDERAL COURT OF AUSTRALIA

NAHL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 344

NAHL of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1133 OF 2002

JACOBSON J

24 APRIL 2003

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

            1.         The appeal be dismissed.

            2.         The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from a judgment of Barnes FM given on 10 October 2002 dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”) handed down on 9 April 2002.  In that decision, the RRT affirmed a decision of a delegate of the Minister not to grant a protection visa.

Decision of the RRT

2                     The appellant is a citizen of India.  He claimed to have a well-founded fear of persecution on political grounds.

3                     He claimed that he was an active member of the Congress Party who had urged opposition to the party known as the BJP.  According to his claims before the RRT, when the BJP came to power, the appellant was wrongly victimised in a politically motivated false case brought by the BJP for allegedly killing a BJP supporter.

4                     He claimed that the police were continuously searching for him and that the police had mentally and physically tortured his family, pressuring them to reveal his whereabouts.  The appellant claimed that fearing being killed by supporters of the BJP, he was desperate to leave India and managed to obtain an Australian visa with help from family and friends.

5                     The principal reason why the RRT rejected his claim was that it was not satisfied that the appellant was a witness of truth.  The RRT said (at 10):-

“However, having carefully considered the Applicant’s oral and written evidence and his demeanour at the Tribunal hearing, the Tribunal is satisfied that the Applicant is not a witness of credit, at least in relation to his key claims.  Therefore the Tribunal does not accept that the Applicant was a Congress Party activist at least in the few years before he left India, or that local rival party members and supporters want to harm him for this reason or that he was falsely charged and wanted by the police for this reason.”

6                     In the hearing before the RRT, the appellant claimed that he did not understand the interpreter who was assisting him because the interpreter was a Bengali speaker from Bangladesh whereas the appellant is a Bengali speaker from the West Bengal State in India.

7                     The RRT was of the view that any misunderstandings or mistranslations were minor and that they were not of sufficient magnitude to prevent the appellant from giving evidence or understanding what was said to him or in making himself understood.

8                     The RRT noted that, in his application for a protection visa, the appellant claimed he could read and write Hindi, Bengali and English.  The RRT stated that during the hearing the Tribunal member made a point of speaking slowly and clearly especially when the appellant claimed (conveniently, in the RRT’s view) that he did not understand.

9                     The RRT noted that the appellant’s migration file discloses that he is a commerce graduate who had been in Australia for nearly four years at the time of the hearing before the RRT.  Moreover, the RRT observed that RRT staff had spoken to the appellant on the phone in English at which time he had no difficulty understanding or being understood.

10                  The RRT’s view was that the appellant’s oral evidence, demeanour and reliance on notes of dates led to the conclusion that he was trying to remember his claims because they were not based on his own experiences.

11                  The RRT also pointed to inconsistencies between the appellant’s oral and written evidence in relation to major issues.

12                  Against the possibility that it was wrong, the RRT said that even if the appellant was a Congress Party activist, it was not satisfied that he had a well-founded fear of persecution because he would not be of interest to his rivals after four years absence from India. 

13                  Moreover, the appellant had stated that he had no further interest in politics and would not get involved again.

14                  Furthermore, the RRT noted that even if the appellant has problems on return to India from his former political rivals, or decides to become active in politics again, or even if he has a false case lodged against him, there was independent country information to the effect that adequate State protection would be available.

15                  Finally, the RRT considered that even if the appellant still fears problems in his home area, he would be able to relocate elsewhere in India.

The Federal Magistrate’s decision

16                  The matter was set down for hearing before the learned federal magistrate on 11 July 2002.  However, during the hearing on that day, the appellant claimed that he could not understand the Bengali interpreter from Bangladesh who had been provided.  He also claimed that he was a psychiatric patient and that he was unwell, having been assaulted on 20 January 2002.  He asked the Court to have regard to the tapes or a transcript of the RRT hearing because he submitted that a number of matters were wrongly translated by the interpreter; see at para [9].

17                  Accordingly, the hearing was adjourned to 27 September 2002.  Barnes FM recorded at para [9] that the hearing resumed with an Indian Bengali interpreter.  The Minister provided the Court with an English language transcript of the hearing held by the RRT on 11 March 2002.

18                  The appellant raised four matters before the magistrate.  The first was that the RRT did not act in good faith.  The second was that there were errors in interpretation which amounted to a failure to give the appellant the opportunity to give evidence in accordance with s 425 of the Act.  The third was that the RRT failed to deal properly with the evidence of a witness called for the appellant.  The fourth was that the appellant was unwell at the time of the RRT hearing.

19                  The magistrate found at para [21] that the findings of the RRT did not reveal actual bias or bad faith.  The magistrate had regard to all of the evidence before her including the transcript of the RRT hearing and the RRT’s reasons for decision.  Barnes FM found at para [21] that there was no evidence of bad faith on the part of the RRT or an absence of a bona fide attempt by the RRT to exercise its powers.

20                  The appellant’s claim about the interpreter was dealt with in paragraphs [22] to [26].  Barnes FM referred to the decision of Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.  There, her Honour held that a departure from an appropriate standard of interpretation could amount to a failure to afford an applicant an opportunity to give evidence as was then required under the provisions of s 425 of the Act in the form in which the section then stood.  The magistrate also referred to decisions to similar effect on the current section; see W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788, per French J; Sreeram v Minister for Immigration and Multicultural Affairs [2001] FCA 53, per French J and Beaumont J.

21                  Barnes FM said at [24]:-

“It is clear from these cases and from the decision of Mansfield J in Tobasi v MIMA [2002] FCA 1050 that section 425(1) contemplates attendance by the applicant at the hearing to give evidence and present arguments ‘in a meaningful way’.  If inadequacies of an interpreter prevent the applicant from giving evidence or the Tribunal has made findings adverse to the applicant or to his credibility or reliability by reason of any erroneous interpretation or inadequacies in the interpretation of the applicant’s evidence the Tribunal will not have fulfilled its obligation under section 425(1) (see Ismael v MIMA [1999] FCA 1555 and Long v MIMA [2000] FCA 1172).  However, in this case I am satisfied that, having considered the submissions of the applicant and also the transcript of the hearing as well as the reasons for decision, no breach of section 425(1) has been established.  The alleged inadequacy of the interpreter is not such that it can be said that the applicant was not invited to give evidence or that his opportunity to give evidence was to any real measure frustrated.”

22                  The magistrate noted at [24] that despite the provision of the transcript to him, the appellant identified only two errors.

23                  Barnes FM expressed her findings on this issue at para [26] as follows:-

“Having considered all the evidence including the transcript provided I am not satisfied that the applicant was prevented from giving evidence.  Nor is there anything to suggest that the Tribunal made findings adverse to the applicant or to his credibility by reason of any erroneous or inadequate interpretation.  Despite the claimed differences in accent and dialect of the interpreter the applicant appeared to understand the Tribunal and there is no evidence that his evidence was mistranslated except in two minor instances.  The evidence does not establish that the quality of the interpretation (or the applicant’s understanding of what was said) was so poor that there was a breach of section 425.  Accordingly the claim based on the inadequacy of the interpretation must fail.”

24                  Further, the magistrate was not satisfied that the RRT failed to have regard to any relevant material in its treatment of the evidence of the witness for the appellant; see para [31].

25                  The learned magistrate also dismissed the appellant’s claim that he was unwell at the time of the RRT hearing.  She said at para [33] that no medical evidence was provided to support the claim.  She referred to Work Cover medical certificates which did no more than indicate that the appellant was unfit to work for a period of some six weeks at a time which was more than three months after the RRT hearing.  The magistrate concluded at para [33] by stating that no ground based on the claim of ill health had been established.

26                  Barnes FM dismissed the claim in relation to s 425 of the Act on an alternative basis, namely that the decision was immune from review upon the basis that it was a privative clause decision as construed by the majority of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449.

27                  However, the federal magistrate went on to say at [32] that it had not been established that the RRT identified a wrong issue or asked itself the wrong question or ignored relevant material or relied on irrelevant material or made any erroneous findings or reached a mistaken conclusion.  The magistrate said that if the RRT had done so, a decision which involved a jurisdictional error of the type identified in Craig v The State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 would have been validated under the majority view in NAAV.

The Appeal

28                  The appellant appeared in person.  He was assisted by a Bengali speaking Indian interpreter.

29                  The appellant’s notice of appeal was prepared by someone with legal training.  It referred to, amongst other things, High Court authorities.

30                  Written argument was supplied by the appellant.  The written argument made reference to the decision of the High Court in Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24.

31                  The principal focus of the appellant’s oral argument was upon what he said were translation errors.  He identified five errors in addition to those which he identified before the magistrate.  The additional “errors” to which he referred were at pages 27, 30, 38, 41 and 42 of the appeal papers.

32                  It is significant that none of the additional claimed errors was identified before the federal magistrate.  These matters are therefore not properly the subject of an appeal.

33                  I do not propose to set out all of the alleged errors but it is worthwhile mentioning one of them by way of illustration.  At page 38 of the appeal papers (page 33 of the transcript), the appellant is recorded as saying:-

“Because your brother’s house and my house – that’s train 1 hour 2 – one and 15 minutes – 15 minutes time – not so far away.”

34                  The appellant claims that he did not say “one hour”.  He claims that he said that it was only 15 minutes.  However, even if the transcript is not correct, it is plain that this is not an error of interpretation because the words were spoken by the appellant and not by the interpreter. 

35                  It is clear that whether the appellant’s complaint is limited to the two items referred to before the federal magistrate or whether the additional items identified on appeal are taken into account, the learned magistrate was correct in coming to the view that there was no breach of s 425 of the Act.

36                  Nothing has been identified before me which was of significance to the appellant’s claims or to the RRT’s decision; see Perera at [45].

37                  The only other issue which the appellant pursued in oral argument was the claim that he was unwell when he appeared before the RRT.

38                  The appellant tendered two documents, namely a Work Cover medical certificate dated 18 February 2002 and a sickness benefit certificate dated 22 October 2002.  I refused to admit these documents because they were not in evidence before the federal magistrate or before the RRT.  I had them marked as “MFI 1”. 

39                  Even if these documents are taken into account, the position is no different from that to which the magistrate referred at para [33].  As she correctly said, no ground based on the appellant’s claimed ill health at the hearing before the RRT was established.

40                  It is true, as counsel for the Minister said, that the federal magistrate rejected the application upon the basis of the privative clause.  However, this was merely an alternative basis for rejecting the application for review.  Indeed, the federal magistrate appears to have anticipated the decision of the High Court in S157 because she said at [32] that no jurisdictional error had been identified.

41                  In summary, it is my view that this appeal is entirely without merit.  I propose to order that the appeal be dismissed with costs. 

Associate:

Dated:              24 April 2003