REASONS FOR JUDGMENT

1                     This is an appeal from an order made by the Federal Magistrates Court on 15 July 2010. On that day, the Federal Magistrates Court dismissed an application by the appellant for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”) (SZNPJ v Minister for Immigration and Citizenship [2010] FMCA 410). The Tribunal had decided to affirm a decision of a delegate of the Minister of Immigration and Citizenship not to grant a Protection (Class XA) visa (“protection visa”) to the appellant.

2                     The appellant is a national of India. He arrived in Australia on 27 September 2008, and, on 3 October 2008, he applied to the Minister for Immigration and Citizenship for a protection visa. A delegate of the Minister refused his application on 24 December 2008. The appellant applied for a review of the delegate’s decision by the Tribunal. The Tribunal affirmed the delegate’s decision on 20 April 2009. The appellant sought constitutional writs directed to the Tribunal, and, on 29 October 2009, the Federal Magistrates Court made an order setting aside the Tribunal’s decision and remitting the application for review to the Tribunal to be determined according to law. The decision which was the subject of the present application was the second decision of the Tribunal.

3                     The federal magistrate described the appellant’s claims for refugee status in the following way:

… the appellant claimed that he was a businessman in India who had commenced operating his business after he finished his degree. The applicant claimed that at College he became a member of the All India Anna Dravida Munnetra Khazagan party (AIADMK).

The applicant claimed that he worked hard for the AIADMK and developed a significant profile. He became the secretary of the Pallavaram City electorate of the AIADMK. He claimed that he became known to members of the opposing political party, the DMK.

The applicant claimed that he had been arrested on 4 occasions between 1997 and 2005. In particular, the applicant claimed that after the last occasion upon which he was arrested (in 2005) formal charges were laid against him and he was brutally tortured when arrested and detained.

The applicant also claimed that in the aftermath of the 2006 Indian general election he was physically attacked by DMK supporters with the result that his business and his livelihood were destroyed. He claimed that after that he and his family were subjected to further threats.

Accordingly, in September 2008 the applicant applied for a visa to come to Australia. He claimed that he feared persecution because of the change of government in 2006. He claimed that if he returned to India his life would be in danger.

The application to the Federal Magistrates Court for constitutional writs

4                     The grounds of the application for constitutional writs were as follows:

1.         The Tribunal denied the applicant a fair hearing.

Particulars

(a)        The Tribunal retained a Tamil interpreter from Shri Lanka when the applicant explained that an Indian Tamil interpreter was required.

(b)        The Tribunal listened to the recording of the evidence given before the first Tribunal in the absence of the applicant.

(c)        The Tribunal relied upon the evidence given by the applicant to an officer of the first respondent’s department.

(d)        The applicant informed the Tribunal that he was unwell at the hearing and explained that he couldn’t understand what was happening.

            The Tribunal persisted with the hearing.

2.         The Tribunal failed to comply with the Migration Act 1958 s 424A.

Particulars:

(a)        The Tribunal relied upon information contained on the file of Department of Immigration and Citizenship without giving the applicant particulars of that information, explaining why it was relevant and giving him a real opportunity to comment on it.

5                     The federal magistrate rejected the first ground of the appellant’s application, and the appellant’s first ground of appeal to this Court is that the federal magistrate erred in doing so.

6                     The federal magistrate rejected the second ground of the appellant’s application and there is no appeal by the appellant against the rejection of the second ground.

7                     The appellant appeared in person before this Court. He had the assistance of an interpreter. He did not file written submissions in support of his appeal. He did make brief oral submissions. Although there is no appeal against the federal magistrate’s rejection of the second ground of the application, I have considered his reasons in relation to that matter. It seems to me that he adopted the correct approach.

The grounds of appeal to this Court

8                     As I have said, the first ground of appeal is that the federal magistrate erred in rejecting the first ground of the application. I will deal with this shortly.

9                     The second ground of appeal to this Court is in the following terms:

The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.

10                  The point the appellant is seeking to raise in this ground of appeal is not clear. It is not a matter which was raised before the federal magistrate and the appellant did not say anything in support of it on the appeal. No error which appears to relate to it emerges from the federal magistrate’s reasons. In those circumstances leave to raise the second ground of appeal must be refused.

A fair hearing

11                  I will deal with the four matters raised in the order of the interpreter question, fitness at the hearing, the recording of the first hearing and evidence given by the appellant to an officer of the first respondent’s Department. I will consider each matter individually and then all four together.

The interpreter question

12                  It would seem that if through language difficulties and the absence of a competent interpreter, the applicant is denied an opportunity of giving evidence and presenting arguments in a meaningful way, then the Tribunal has failed to comply with s 425 of the Migration Act 1958 (Cth) and the error goes to its jurisdiction: Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322; [2002] FCA 1050; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126; Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41.

13                  In his reasons the Tribunal member noted that during his preliminary remarks the appellant said that he was having some difficulty understanding the interpreter because the interpreter was from Sri Lanka, and he (the appellant) was from India. He asked for an Indian interpreter. He said that Sri Lankan Tamil and Indian Tamil are different. The Tribunal member noted the following in his reasons:

The Tribunal asked the applicant if he would prefer the hearing to be adjourned again and for the Tribunal to attempt to locate a Tamil interpreter from India. The applicant said that that should be a matter for the Tribunal to decide. Knowing the difficulty in obtaining an interpreter from India, and having observed no particular difficulties in the communication between applicant and the interpreter who had been engaged, the Tribunal said that the hearing would continue for the time being but that it could be adjourned if there are any real difficulties. The Tribunal invited the applicant to interrupt at any time he did not understand what was being put to him.

There were a few instances during the hearing when the applicant said he had not understood a particular question. On each occasion the question was rephrased or repeated and the applicant understood and answered appropriately. On a number of occasions, the Tribunal paused and explicitly asked the applicant if he was having any problems understanding the interpreter, and on each occasion he said he was having no problems. The interpreter had no difficulty understanding the applicant.

14                  The federal magistrate reviewed the transcript of the hearing before the Tribunal. He made the following points. First, during the Tribunal member’s preliminary remarks, the appellant indicated that on occasions he did not understand the Tamil spoken by the interpreter. He was asked by the Tribunal member whether he wanted the matter adjourned so that another interpreter could be obtained. The appellant said that it was a matter for the Tribunal to decide. The Tribunal member said that he would try to proceed for a little while and see if there was a problem. If there was he said that he would be quite happy to adjourn and come back with another interpreter. Secondly, the Tribunal member summarised the appellant’s claims and the appellant agreed that the summary was a fair summary of his claims. Thirdly, on at least two occasions during the course of the hearing, the appellant indicated that he did not understand what was being put to him. On each occasion the matter was clarified with him. Finally, towards the conclusion of the hearing the Tribunal member asked the appellant whether he was satisfied with the way in which the questions he did not understand had been clarified and the appellant said that he was satisfied.

15                  The federal magistrate reached the conclusion that the appellant had been able to communicate effectively through the interpreter who had been provided.

16                  I have had the opportunity of reading the transcript of the hearing before the Tribunal. I can detect no error in the reasoning of the federal magistrate. I am satisfied that through the interpreter provided by the Tribunal, the appellant was given the opportunity of giving evidence and presenting arguments in a meaningful way. I have reached that conclusion for the same reasons the federal magistrate reached the conclusion referred to in the preceding paragraph.

Fitness at the hearing

17                  The hearing before the Tribunal was originally scheduled to take place on 2 February 2010. The appellant appeared on that date and he submitted his passport for perusal by the Tribunal. The Tribunal took copies of the relevant pages. However, the appellant was unwell, and during the Tribunal member’s preliminary remarks it became apparent that he would be unable to continue. The hearing was adjourned to 9 February 2010.

18                  On 9 February 2010, the appellant’s health had improved although he said he still had “this dizziness”. The Tribunal member told the appellant that if he needed to stop for a little while then he should let the Tribunal member know. About half way into the hearing the Tribunal member asked the appellant whether he understood what the Tribunal member was saying. The appellant said that he had no difficulty in understanding, although he was getting “some dizziness and headache”. He was asked whether he wanted the Tribunal member to stop, but he said “you can continue with the questions sir”.

19                  No medical evidence was put before the Tribunal or the federal magistrate.

20                  The federal magistrate considered that the Tribunal had taken adequate precautions to ensure that the appellant was fit to proceed and continue with the hearing and that he was sufficiently fit to do so. The federal magistrate also referred to the fact that the Tribunal, in reaching its conclusions in the case, considered the applicant’s claims that he becomes dizzy from time to time and that he was dizzy and had a headache at one stage in the second hearing. The federal magistrate reached the following conclusion.

In my view, the Tribunal followed best practice both in relation to the issue of interpretation and in relation to the applicant’s state of health and no criticism can or should be directed at the Tribunal for the manner in which it proceeded and dealt with those issues.

21                  As I have said, I have read the transcript of the hearing before the Tribunal and the Tribunal’s reasons. There is nothing to suggest that the appellant’s condition was such that it affected his capacity to give his version of events, to put arguments on his own behalf and to understand and respond to questions put to him.

22                  The appellant’s application for review was adjourned on 2 February 2010 because he was unwell. He would have known that he could obtain an adjournment if necessary. In any event, he was told that on 9 February 2010. He did not request an adjournment and in fact at one point told the Tribunal member that he could continue. That consideration and my examination of the transcript of the hearing before the Tribunal lead to the conclusion that the appellant’s health did not impair his ability to give evidence and present arguments in a meaningful way.

The recording of the first hearing before the Tribunal

23                  The Tribunal member listened to a recording of the first hearing before the Tribunal and the complaint was that he did so in the absence of the appellant. The Tribunal member summarised the evidence as it emerged from the first hearing in his reasons. The Tribunal member advised the appellant at the hearing before him that he had listened to a recording of the previous Tribunal hearing and would take that evidence into account, although he would not necessarily be going over all the same things.

24                  The federal magistrate said that the Tribunal was not under an obligation to give the appellant an opportunity to listen to the sound recording of the first hearing before the Tribunal. The federal magistrate said that the critical matter was whether the Tribunal had put to the appellant what he (the appellant) had told the Tribunal at the first hearing and given him the opportunity to understand and deal with the Tribunal’s concerns regarding any issue on which the review might turn. The federal magistrate noted that the Tribunal member had summarised the appellant’s claims and that the appellant had accepted the member’s summary as a fair one. The federal magistrate said that there was extensive discussion with the appellant about his claims as put to the Tribunal at the first hearing and that that discussion is “faithfully recorded” in the Tribunal’s reasons. The federal magistrate said:

I am satisfied from that discussion, as verified by the transcript, that the applicant was left in no doubt as to the essential and significant issues upon which the review would turn. Those issues were the applicant’s knowledge about the AIADMK, the political party he claimed to be involved with, the convention nexus with police action against the applicant, the credibility of the applicant’s claims that political opponents destroyed his livelihood and he was subject to political threats in the aftermath of elections conducted in 2006 and his delay in seeking protection.

25                  My review of the transcript of the hearing and of the Tribunal’s reasons leads me to the conclusion that the federal magistrate did not err in reaching the conclusion he did.

Evidence given by the appellant to an officer of the first respondent’s Department

26                  The Tribunal member told the appellant that he had not been able to listen to the recording of the interview with the delegate held in December 2008 because there was something faulty with the recordings. The Tribunal member said that “it had noted the delegate’s comments in the decision record regarding the evidence of the appellant had given”.

27                  The federal magistrate said that he did not think the Tribunal acted unfairly in its reliance upon the available record of what the applicant had told the Minister’s Department. There is nothing before me to suggest that that conclusion of the federal magistrate is erroneous.

All matters considered together

28                  The federal magistrate’s conclusion was as follows:

Taking into account all of the asserted problems individually and cumulatively, I am not persuaded that the hearing opportunity afforded the appellant was subverted or even that it was unfair.

I agree with that conclusion.

Conclusion

29                  In the circumstances, the appeal must be dismissed.

Associate:

Dated:         12 November 2010