Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Application for review of decision of the Refugee Review Tribunal - interpreter not inadequate - no jurisdictional error - privative clause decision - application dismissed.

NAHL v Minister for Immigration [2002] FMCA 230 (10 October 2002)

NAHL v Minister for Immigration [2002] FMCA 230 (10 October 2002)
Last Updated: 31 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHL v MINISTER FOR IMMIGRATION
[2002] FMCA 230



MIGRATION - Application for review of decision of the Refugee Review Tribunal - interpreter not inadequate - no jurisdictional error - privative clause decision - application dismissed.



Applicant:
NAHL



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ387 of 2002



Delivered on:


10 October 2002



Delivered at:


Sydney



Hearing Date:


27 September 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr S. Lloyd



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application is dismissed.

(2) That the applicant is to pay the respondent's costs and disbursements assessed at $6,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ387 of 2002

NAHL


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 9 April 2002 refusing to grant the applicant a protection visa.

2. The applicant, who is a citizen of India, arrived in Australia on 14 May 1998. He filed an application for a protection visa in which he made no claims on 13 June 1998. The application was refused by a delegate on 19 June 1998 and the applicant sought a review of that decision by the Tribunal. On 1 June 1999 the Tribunal invited the applicant to give additional information. The applicant did not respond to that invitation. On 20 July 1999 the Tribunal affirmed the decision of the delegate.

3. Following the reasoning of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v A [1999] FCA 1679 the applicant was entitled to file a second application for a protection visa. On 30 March 2000 the applicant filed a second protection visa application which was refused by a delegate on 9 May 2000.

4. On 1 June 2000 the applicant lodged an application for review with the Tribunal. He attended a hearing before the Tribunal on 11 March 2002. On 19 March 2002 the Tribunal advised the applicant that it would hand down its decision on 9 April 2002. By letter of 20 March 2002 the applicant requested a further hearing with an Indian Bengali interpreter. The Tribunal considered but refused this request on 2 April 2002.

5. The Tribunal decision was handed down on 9 April 2002. Based on inconsistencies between the applicant's written and oral evidence, as well as his demeanour at the hearing, the Tribunal concluded that the applicant was not a witness of credit in relation to his key claims. In particular it did not accept his claims that he was a Congress Party activist in the few years before he left India, or that local rival party members wanted to harm him for this reason or that he was falsely charged and wanted by the police. It concluded that the applicant was not relating his own real experiences. It noted that the applicant did not mention his fear of arrest by the police on a false charge or police torture of his family in oral evidence until specifically asked about these issues despite these matters being the centrepiece of his written claims. The Tribunal considered that even if the applicant had been a Congress Party activist he would not still be of interest after four years of inactivity in circumstances where he stated that he had no further interest in politics and would not get involved again. Furthermore the Tribunal found that it would be reasonable for the applicant to move away from his local area and indicated a number of areas within India where he could go and could access State protection.

6. In its reasons for decision the Tribunal acknowledged that the applicant had complained about the interpreter at the hearing (a Bengali speaker from Bangladesh) whereas the applicant was a Bengali speaker from the West Bengal State in India. The Tribunal did not accept that any minor misunderstandings or mistranslations (for example the interpreter's reference to the BJP rather than the Congress Party) were of sufficient magnitude to prevent the applicant giving evidence or understanding what was said to him. Further it noted that the applicant had claimed to speak, read and write English in the protection visa application form completed a month after his arrival in Australia, that in India English has associate status as the official working language, that the applicant was a commerce graduate, that he had been in Australia for nearly four years and that he had communicated in English with Tribunal staff. The Tribunal member noted that during the hearing she had made a point of speaking slowly and clearly especially when he claimed "conveniently in the Tribunal's view" not to understand.

7. For all of these reasons the Tribunal affirmed the decision of the delegate of the respondent.

8. On 3 May 2002 the applicant lodged an application with the Federal Court under section 39B of the Judiciary Act 1903. On 29 May 2002 Conti J transferred the proceedings to this Court.

9. The matter was set down for hearing on 11 July 2002. During the hearing on that day the applicant claimed that he could not understand the Bengali interpreter from Bangladesh who had been provided for the hearing, that he was a psychiatric patient and that he was unwell having been assaulted on 20 January 2002. He also asked the Court to have regard to the tapes or a transcript of the Tribunal hearing as he submitted that a number of matters were wrongly translated by the interpreter. The hearing was adjourned to 27 September 2002. It resumed with an Indian Bengali interpreter. The Respondent provided the Court with an English language transcript of the hearing held by the Tribunal on 11 March 2002.

The applicant's submissions

10. In his application to the Court the applicant claimed he was not satisfied with the RRT decision, that he was "deprived" (sic) to fully present his case to the Tribunal, that the Tribunal failed to act according to substantial justice and the merits of the case and that he was not satisfied with the Tribunal's comments regarding his "witness remark". On 1 July 2002 he filed a document entitled Amended Grounds of Application for Review which claimed that the decision was induced or affected by actual bias within section 476(1)(f) and listed five findings by the Tribunal in support of this claim. He also filed a letter addressed to the Court which indicated that the application was pursuant to section 39B of the Judiciary Act and claimed that the Tribunal did not consider the applicant as a refugee despite many evidentiary proofs, that the procedures required to be observed under the Migration Act 1958 in connection with the making of the decision were not observed, that the Tribunal ignored the merits of the claim and did not take into account relevant matters, that the Tribunal did not act in good faith, that the Tribunal misjudged the fate of the applicant's claim and that the Tribunal made a number of errors. It noted that the applicant was not represented by a solicitor. The applicant also provided written submissions in which he claimed that he was not able to adequately conduct these proceedings in person, that he was a psychotic (sic) patient having been assaulted on 20 January 2002 and that his mental state had not been considered by the Tribunal. It was suggested that the Tribunal decision contained a number of errors including failing to apply the Refugees Convention test of persecution correctly, taking into account irrelevant considerations, depriving him of natural justice, not providing the requested Bengali interpreter, not believing the applicant, asking misleading questions, the interpreter not interpreting the concept "sovereignty" properly and the Tribunal making its decision without any inquiry as to his claims beyond departmental information. He requested that the Court listen to the Tribunal interview.

11. In the first hearing the applicant submitted a Workcover New South Wales medical certificate stating that he had suffered a head injury in January 2002, was to be reviewed by a psychiatrist on 14 August and was unfit to work from 30 June to 15 August 2002. He also provided a further written submission stating that the interpreter not only interpreted the wrong party name but also asked wrong and misleading questions and answers in the hearing, that he (the applicant) was mentally nervous and embarrassed due to misleading and misguided questions, that he lost his temperament (sic) and attention and that he had not included relevant information in his oral evidence. He gave no details of the alleged "wrong and misleading" questions and answers. He also stated that he had lost his normal memory and conciseness, and that he felt sick. He stated that he was under psychotic (sic) treatment. The applicant repeated these claims in his oral submissions made on

27 September 2002.

12. Prior to the adjourned hearing on 27 September 2002 the applicant was provided with a copy of the transcript of the Tribunal hearing. The only interpretation errors that the applicant indicated were the interpreter's reference to BJP instead of Congress Party and his failure to interpret correctly the word "sovereignty". The applicant suggested that any mistakes that he himself had made in the Tribunal hearing were because of his memory loss.

The respondent's submissions

13. Prior to the first hearing date the respondent provided written submissions addressing each of the applicant's claims at that time. Further oral submissions were provided on 27 September 2002. It was submitted that, as the decision of the Tribunal was a privative clause decision, the applicant could succeed only if he made out his allegations that the Tribunal did not act in good faith. It was further submitted that the allegation of actual bias was not established by the reference to five findings by the Tribunal which did not show that the Tribunal had a fixed view of the applicant's case from the outset and was unwilling to change its view. Insofar as the applicant sought to rely upon section 476(1)(f) this was an error and an amendment to this effect should not be permitted. It was argued that the applicant was not entitled to challenge findings of fact by the Tribunal in judicial review proceedings.

14. As to the allegation that the applicant was not given a hearing by the Tribunal because of the alleged inadequacies of the interpreter it was submitted that the applicant had raised this matter with the Tribunal during and after the hearing, that the Tribunal had indicated in its reasons for decision that it was satisfied that the applicant did understand questions put to him and was able to give evidence and that it had been noted that he had shown some skills in the English language. The Tribunal had adjudged that there was no need for a second hearing. While it was conceded that prior to the privative clause it was possible to have a decision of a Tribunal set aside if it could be proved that there were serious errors in the interpretation of evidence at the hearing, in the present case it was said that there was no evidential basis for the Court to assess the quality or otherwise of the interpretation before the Tribunal apart from the Tribunal's own analysis that the errors were minor and not material to its decision. In any event it was submitted that the privative clause no longer makes section 425 of the Migration Act a precondition to the valid exercise of power.

15. At the hearing on 27 September 2002 Counsel for the respondent made further submissions in light of the decision of the Full Court of the Federal Court in NAAV [2002] FCAFC 228 and on the basis of the transcript of the Tribunal proceedings. It was submitted that the fact that the Tribunal did not believe some of the statements of the applicant was merely a question of fact for the Tribunal. The Tribunal gave coherent reasons for its failure to believe the applicant and its findings did not support any suggestion of bias.

16. As to the quality of interpretation at the hearing, it was suggested that in relation to the mistaken reference to BJP instead of the Congress Party there were an overwhelming number of instances which made it clear that the Tribunal appreciated with which party it was that the applicant claimed to be associated. It was noted that apart from the privative clause the obligation to provide an interpreter had been interpreted by the Federal Court to require an interpreter to be of sufficient quality to give the applicant the ability to communicate his claims and evidence to the Tribunal. The transcript of the Tribunal hearing made it clear that there was no indication of any significant interpretation error particularly when read as a whole. The transcript made it clear that the applicant often spoke in English and that when he used the interpreter his responses were overwhelmingly responsive. Indeed such difficulties as did occur tended to occur in circumstances where the Tribunal asked a question of the applicant to which he did not know the answer, at which point the applicant would complain of interpretation difficulties. It was submitted that looking at the transcript as a whole, while on occasion there were complaints by the applicant during the hearing (and he did request a further hearing because he was unhappy with the interpreter) there was nothing in the evidence to support the inference that the quality of the interpretation was so poor that there was a breach of any of the provisions of the Migration Act. Furthermore even if the Court accepted that the interpretation was inadequate, at most this would amount to a breach of section 425 of the Migration Act which deals with an invitation to a hearing to present evidence and make submissions. It was said to be clear from NAAV (particularly von Doussa J at [631] and [633]) that provisions such as section 425 are not inviolable limitations.

Application of the Law

17. The Tribunal's decision is a privative clause decision within the meaning of section 474(2) of the Migration Act and is thus subject to the limitations on judicial review prescribed by section 474(1) which were introduced by the Migration Legislation Amendment (Judicial Review Act) 2001 as applicable to all applications made to the Court on and from 2 October 2001.

18. The decision of the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228 is of relevance. Each member of the Court delivered a separate judgment in relation to each appeal. All agreed that s.474(1) is constitutionally valid and that the amendments have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by validating decisions that might otherwise have been invalid.

19. There was broad agreement that s.474(1) is not to be read literally but is to be construed in the same manner as the kind of privative clause considered in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598. In that case Dixon J observed at 615:

"Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body."

20. There was also broad agreement in NAAV that the purported exercise of power by the decision-maker must not be one that contravenes what is variously described as an `inviolable limitation or restraint' (Black CJ at [12]), a `final limitation upon the powers, duties and functions of the decision-maker' (von Doussa J at [619]) or a `structural' element in the operation of the Act (Black CJ at [37]). As a matter of construction, the broad statement of legislative intention expressed in a privative clause may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure or the proper consideration of some issue is to be a precondition for a valid decision. As outlined by Sackville J in Zahid v MIMIA [2002] FCA 1108, there is a difference between the approach taken by the majority (Black CJ, Beaumont and von Doussa JJ) and that of the minority (French and Wilcox JJ) in relation to the correct approach to such final or inviolable limitations on the decision-maker's powers.

21. The applicant claimed that the Tribunal did not act in good faith and that its findings demonstrated actual bias. As was stated by Kiefel J (with whom Spender J agreed) in NADR v MIMIA [2002] FCAFC 293 bad faith implies "a lack of an honest or genuine attempt to undertake the task and involves a personal criticism of the Tribunal or officer in question" (also see Beaumont J in NAAV at [107] referring with approval to the decision of Allsop J in NAAG of 2002 v MIMIA [2002] FCA 713 at [24]). Her Honour also pointed out that an allegation of bad faith is a very serious allegation and should not be made without a proper foundation in fact. The findings of the Tribunal in this case do not in any way reveal actual bias or bad faith. They simply indicate, as was submitted by the respondent, that the Tribunal found against the applicant. I have had regard to all of the evidence before me including the transcript of the Tribunal hearing, the Tribunal reasons for decision. There is no evidence of bad faith on the part of the Tribunal or an absence of a bona fide attempt to exercise its power.

22. The applicant also alleged that he was not given a proper hearing because of the inadequacies of the interpreter. Section 425(1) of the Migration Act 1958 provides:

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

23. Before the introduction of section 474 there were instances in which a decision of a Tribunal was set aside if it could be proved that there were serious errors in the interpretation of evidence at the Tribunal hearing. In Perera v Minister for Immigration and Multicultural Affairs [1999] 92 FCR 6 Kenny J accepted that a departure from the appropriate standard of interpretation could amount to a failure to afford an applicant an opportunity to give evidence as was then required by section 425 of the Act. The current formulation of section 425 was considered by French J in W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788. He concluded that inadequate interpretation may constitute a failure by the Tribunal to observe procedures required by the Act (the former section 476(1)(a)). In that case there were accepted errors in the interpretation at the hearing which might have led the Tribunal to view the reliability of the evidence of the applicant differently. Both French J and Beaumont J in Sreeram and Minister for Immigration and Multicultural Affairs [2001] FCA 53 agreed with the view of Goldberg J in Mazhar v Minister for Immigration and Multicultural Affairs [2000] 64ALD 395 as follows:

The invitation [in section 425] 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 s425(1).

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 Ismail 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 at the hearing or that his opportunity to give evidence was to any real measure frustrated. The reference to BJP (instead of the Congress Party) was noted in the Tribunal's reasons for decision. The applicant also claimed that the interpreter could not interpret the word "sovereignty". No other particular errors were identified despite the provision of the transcript. The minor inconsistencies and errors in interpretation which have been identified were not material to the Tribunal's decision. There is no indication from the transcript of any significant error in interpretation.

25. The Tribunal member indicated to the applicant that she understood from his application form that he spoke English and gave him the choice of responding in English at any time if he wanted to or of using the interpreter. He indicated that he would do both and the transcript shows that he did so. The Tribunal explained clearly the manner in which the interpreter would be used. The applicant offered to explain the Tribunal's questions (in English) to his witness. When he was asked who was the President of the Congress Party before Sonya Gandhi he claimed not to understand the interpreter, a Bangladeshi rather than an Indian speaker of Bengali. The question was asked again and the applicant indicated that he could not remember the name of the earlier President of the Congress Party. The member clarified and repeated questions when the applicant gave non-responsive answers. When the applicant used the interpreter his answers were usually responsive. In the reasons for decision the Tribunal noted that the applicant sometimes appeared not to listen to the questions, often interrupted or talked over the interpreter or the Tribunal as well as claiming at times not to understand or be understood by the interpreter. His answers to questions were described as "often very hesitant, evasive and vague despite the notes (he said of dates) to which he referred". The transcript is consistent with these comments.

26. 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.

27. Furthermore the decision of the majority in the Full Court of the Federal Court decision of NAAV means that a decision which involves a breach of a procedural provision such as section 425 is validated by the privative clause. Von Doussa J took a narrow approach to what factors constitute the inviolable limitations or restraints upon the attraction of the relevant authority and powers under the Migration Act (see [625]). He rejected an argument that procedural provisions including sections 424A and 425 which provide that the Tribunal must do certain things (including inviting the applicant to appear before it) do not give way to the general intention indicated by section 474(1). As he said at 633:-

"S474 was introduced as the centrepiece of amending legislation which had a very specific intention. I do not think it can be doubted that s474 was intended to amend provisions of the Act relating to the procedures attending the decision making processes which the Act envisaged. That amendment was to occur by the expansion of the power and authority of decision makers. The intention was that s474 would have the effect that the provisions, or at least some of them, relating to the decision making process that had hitherto been understood to be mandatory would henceforth be only directory (see R v Murray: Ex parte Proctor at 399). In its intended operation the terms and intent of s474 were specific."

28. Von Doussa J also expressed the view (at [672]) that to treat a failure by the Tribunal to give to the applicant all the information required by s.424A or a failure to give the invitations required by ss.424B, 425 or 425A as preconditions to the exercise of the power to make a decision would be to defeat the object of s474(1).

29. While this opinion was expressed in the context of the decision relating to the Minister v Wang in relation to which Von Doussa J was in dissent (this decision related to the cancellation provisions of the Migration Act) his views in relation to the procedural steps in a validly attracted area of decision making were adopted by Black CJ (at [37]). It is clear from this part of his judgment and also his comments at [4], [15]-[18] and [30] that he agreed with the views of Von Doussa J in relation to a failure to comply with a section such as 425.

30. Accordingly there is a majority view in NAAV v Minister that section 474(1) protects the decision from invalidity where the decision maker has not complied with section 425 provided the Hickman provisos are satisfied. In other words section 425 is not an "inviolable" limitation or restraint on the powers of the Tribunal. Furthermore NAAV has established that s.474(1) excludes the rules of procedural fairness (see von Doussa at [648], with whom Black CJ and Beaumont J agreed).

31. As to the applicant's complaint about the Tribunal's treatment of the evidence of his witnesses I note that this evidence was referred to by the Tribunal in its reasons for decision. The evidence as to the applicant's political involvement was from a long time ago (when the witness, who was born in 1962, was about 20). The witness also said that the applicant's wife and children had said that the applicant should stay where he was because if he came back there would be a problem. They gave no reason. The Tribunal findings were that it did not accept that the applicant was a Congress Party activist &qu;
ot;at least in the few years before he left India". The witness' evidence did not relate to such times. The other witness was a character witness. I am not satisfied that the Tribunal failed to have regard to relevant material in its treatment of the witness' evidence.

32. Nor has it been established that the Tribunal otherwise identified a wrong issue, asked itself the wrong question, ignored relevant material, relied on irrelevant material or made any erroneous findings or reached a mistaken conclusion. Had it done so, a decision which involves a jurisdictional error of the type identified by the High Court in Craig v South Australia [1995] 184 CLR 163 and MIMA v Yusuf [2001] 180 ALR 1 would now be validated by section 474(1) according to the majority in NAAV (see Black CJ at [30], von Doussa J at [636]-[639] and Beaumont J at [277]).

33. The applicant also claimed to be unwell at the time of the Tribunal hearing. No medical evidence was provided to support this claim. The Workcover medical certificate merely indicates that the applicant was unfit to work from 30 June 2002 to 15 August 2002. The Tribunal hearing was on 11 March 2002. No ground based on the applicant's claimed ill-health has been established.

34. I have already indicated that it has not been established that the decision was not a bona fide attempt to exercise power. I have considered the other claims made by the applicant. They do not suggest that the decision of the Tribunal did not relate to the subject matter of the legislation or that it was not reasonably capable of reference to the power given by the decision maker or that the decision contravened an inviolable limitation. It follows that the applicant's claim for relief pursuant to section 39B(1) of the Judiciary Act must be dismissed.

35. I therefore dismiss the application and order that the applicant pay the respondent's costs. Counsel for the Minister indicated that the actual costs incurred in this case were $8,700 which included the costs of providing the transcript of the Tribunal hearing and two hearings. While on the first hearing date the Court had the assistance of a Bengali interpreter of Bangladeshi background, rather than a Bengali interpreter of Indian background as sought by the applicant I am satisfied that the applicant was not prevented from giving evidence or making submissions in the first hearing. However, when he failed to understand a legal issue or submission put by Counsel for the respondent he suggested that the difficulty was with the interpreter. Nonetheless in assessing the costs to be met by the applicant I have taken into account that he did specifically request the Court to provide a Bengali interpreter of Indian background and that the medical certificate provided related to the time of the first hearing date.

I consider that the applicant should pay the costs of the respondent fixed at $6,000 under Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia