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 Refugee Review Tribunal decision - procedural fairness - standard of interpretation - no jurisdictional error.

NAOV v Minister for Immigration [2003] FMCA 70 (16 April 2003)

NAOV v Minister for Immigration [2003] FMCA 70 (16 April 2003)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOV v MINISTER FOR IMMIGRATION
[2003] FMCA 70



MIGRATION - Application for review of Refugee Review Tribunal decision - procedural fairness - standard of interpretation - no jurisdictional error.



Judiciary Act 1903 (Cth)

Migration Act 1958

Migration Legislation Amendment (Procedural Fairness) Act 2002

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S134/2002 (2003) 195 ALR 1

VBAC v The Minister for Immigration Multicultural & Indigenous Affairs [2003] FCA 205

Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11

NAFF of 2002 v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCAFC 52

Re Refugee Review Tribunal; ex parte Aala (2000) 24 CLR 82

Steed v State Government Insurance Commission (1986) 161 CLR 141

Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502

Zhang v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 384

Chen v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 591

Applicant NAHF of 2002 v Minister for Immigration Multicultural &

Indigenous Affairs [2003] FCA 140

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1964-1965) 113 CLR 475

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759

Kioa v West (1985) 159 CLR 550

Ruangrong v Minister for Immigration & Ethnic Affairs (1988) 14 ALD 773

Chief Constable of North Wales Police v Evans [1987] 1 WLR 1155

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

R v Tran [1994] 2 SCR 951

W284 v MIMA [2001] FCA 1788

Dissanyayake v Minister for Immigration and Multicultural Affairs [2002] FCA 976

Muin v Refugee Review Tribunal [2002] HCA 30

Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1186

The Minister v Cho (1999) 164 ALR 339

Mohammed v The Minister [2000] FCA 264

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361

SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397

Applicant:
NAOV



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ734 of 2002



Delivered on:


16 April 2003



Delivered at:


Sydney



Hearing Date:


29 November 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr J. Smith



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) That the application be dismissed.

(2) That the Applicant pay the Respondent's costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ734 of 2002

NAOV


Applicant

And

MINISTER FOR IMMIGRATION& MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Background

1. This is an application under section 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (the Tribunal) made on 12 June 2002 and handed down on 2 July 2002 affirming a decision of a delegate of the respondent to refuse to grant a protection visa to the applicant. The applicant applied to the Federal Court on 17 July 2002. The matter was transferred to this Court by Whitlam J on 23 August 2002.

2. The applicant, who is a citizen of Georgia, arrived in Australia on

13 November 1998. On 12 February 1999 he lodged an application for a Protection (Class AZ) Visa. On 10 August 1999 a delegate of the Minister refused to grant the applicant a protection visa and on

1 September 1999 he applied to the Tribunal for review of that decision.

3. The applicant claimed that he was a Jehovah's Witness, was ruthlessly treated by Georgian religious authorities and that when he asked for police protection nothing was done. He also claimed that he was beaten severely several times by a gang of people who demanded that he return to his former religion (Georgian Orthodox). He claimed that he came to Australia on a business mission to export butter to Georgia and while here heard that his workshop in Georgia had been ransacked and equipment damaged. The applicant submitted a further detailed statement to the Tribunal dated 15 November 2001 in which he elaborated on his claims to have been beaten on a number of occasions. He stated that he had received threatening notes and been subject to humiliation from religious authorities and his family.

4. The applicant attended a hearing held by the Tribunal on 30 January 2002. The hearing did not proceed because the applicant said he was having difficulty understanding the interpreter who was a Georgian-speaking person of Turkish background. The Tribunal reasons for decision note that the applicant was offered the use of a Russian interpreter as he had indicated in his protection visa application that he spoke and read Russian but he had declined. A second hearing was arranged for 26 April 2002. This hearing was conducted with the assistance of a different Georgian/English interpreter.

5. In the course of the hearing the Tribunal indicated to the applicant that it had contacts with the Jehovah's Witness organisation in Eastern Europe and would like to make inquiries about him with them because given what he had said about his activities in Georgia it would expect he would be known. The applicant said that he was happy for the Tribunal to make such inquiries and also volunteered the names of two associates and two judges who were involved in the registration of the Jehovah's witnesses organisation in Georgia. At the end of the hearing the Tribunal member advised the applicant that if the contacts were able to confirm the applicant's claims the Tribunal would regard him as a refugee; if on the other hand the contacts contradicted his claims the Tribunal would write to him conveying the substance of what they had said and would invite further comments from him.

6. After the hearing the Tribunal sought information from the Chairman of the Administrative Centre of Jehovah's Witnesses in Russia regarding the applicant's claims of membership of a congregation in Tbilisi, the capital of Georgia. It provided details of the applicant and his claimed attendance at meetings of the organisation. It named two particular members the applicant had referred to and detailed his claims to have used his contacts to ensure that the organisation could be officially registered in Georgia without the need to pay bribes. Names of the Judges involved in the registration process were also provided and particulars of four claimed attacks on the applicant from September to November 1998. The Chairman was asked about the congregation in Isani, whether the members named by the applicant were members and, if so, whether they could confirm knowing the applicant and the veracity of his claimed of his claimed involvement with the organisation, the alleged attacks on him and whether he assisted in the organisation being officially registered in Georgia.

7. While these inquiries were under way, the applicant wrote to the Tribunal 8 May 2002 claiming that when he and a friend who was fluent in Georgian and English had listened to the tapes of the hearing they had found numerous misinterpretations of his claims which he believed had occurred due to the interpreter's incompetence. He gave examples of seven issues which he submitted were not properly interpreted. These were: questions about the Jehovah's Witnesses religion, his job, the Police, his persecution, what his friend had said to him about returning to Georgia, his knowledge of a particular Biblical passage and where the Jehovah's Witnesses met. He stated that if the Tribunal believed the issues warranted comment he would provide a detailed statement outlining all the interpreter's mistakes but that due to the lack of Georgian interpreters in Australia he would have to forward the tapes to the United States.

8. A Tribunal officer responded to this letter on 7 May 2002 stating that the Member advised that there was no need, at this stage, to comment further on the problems of translators at the recent hearing. `He accepts that there were problems, and will take this into account'. This letter also indicated that if the inquiries with the Jehovah's Witness hierarchy in Eastern Europe supported what the applicant had said, there would be no need for him to go to the trouble and expense of obtaining a transcript. The Tribunal would contact him again if the inquiries did not support the claims.

9. In a facsimile letter dated 8 May 2002 the Chairman of the Presiding Committee of the Administrative Centre of Jehovah's Witnesses in Russia advised that to the best of their knowledge the applicant was never a Jehovah's Witness in Georgia. It was said that while the applicant had obviously lived in the Isani district of Tbilisi and may even have attended a meeting of the local congregation of Jehovah's Witnesses and known some of the members personally, he `never became a member of the congregation nor was known as an interested person'. He was not involved in the registration process of the organisation. Further, there were no reports of attacks on individual Jehovah's Witnesses or congregations in Georgia in the year in which the applicant claimed to have been attacked (1998). Aside from isolated cases such attacks began in October 1999. The Chairman also advised that much detailed information regarding the attacks against Jehovah's Witnesses in Georgia during the last couple of years had been posted on the organisation's website and was open to the public. However the organisation kept good records of all congregation members so that it was not difficult to confirm whether an individual was a member of a particular congregation or related to Jehovah's Witnesses in Georgia.

10. On 9 May 2002 the Tribunal invited the applicant to comment on this information indicating that it was significant because if the Tribunal were to accept it, it could lead the Tribunal to conclude that the applicant's claims about his alleged involvement with the Jehovah's Witnesses were false. In particular it could conclude that he was not physically attacked in 1998. The Tribunal also addressed the claim that there were a number of interpreting errors in the hearing. It stated "The Tribunal accepts this, and as previously stated, will take this into account. It is a matter for you to decide if you wish to have an independent interpreter report on the tape recordings. However the Member considering your case has indicated that he sees the above information, suggesting you were not involved with Jehovah's Witnesses in Georgia, as so significant that he does not envisage that any errors in interpretation at the hearing would be material to the outcome of your application for review. Nevertheless, he will consider any further submissions you might care to make on this point." The applicant was given until 3 June 2002 to make comments.

11. In an undated letter received by the Tribunal on 3 June 2002 the applicant made further submissions. He claimed that due to incorrect interpretation the Tribunal did not consider his claims to be true, did not address the questions related to him as a Jehovah's Witness correctly and made inquiries which led to further misunderstanding and misinterpretation of his claims. He reiterated that he was not registered as a Jehovah's Witness in Georgia and that this would explain why he was not included on the organisation's data base. He suggested that his two named associates in the Jehovah's Witnesses organisation had distorted the truth or concealed his involvement. He also claimed that he had not complained about the violence, humiliation and threats to which he was subjected as the organisation would not have been able to help him. He enclosed a translated medical certificate relating to injuries observed on 2 November 1998 which he suggested showed that he had been beaten and sought medical help. He sought extra time to get other relevant documents from Georgia to confirm facts outlined in his application and mentioned at the hearing. The Tribunal replied to the applicant by letter dated 12 June 2002 stating that the member had decided not to delay his decision further.

The Tribunal decision

12. The Tribunal handed down its decision on 2 July 2002. The Tribunal indicated that a key issue was whether or not the applicant was a Jehovah's Witness in Georgia and was persecuted there because of his religion. His claims to that effect were unsubstantiated. The Tribunal described the results of its inquiries with a senior official of the Jehovah's Witnesses in Eastern Europe.

13. The Tribunal noted that the original hearing was cancelled prior to commencement because the applicant said he was having difficulty understanding the interpreter, who was a Georgian speaking person of Turkish background and that he had declined the use of a Russian interpreter. It was noted that `difficulties were encountered with interpretation' at the second hearing but that as the applicant speaks some English, it was possible to complete the hearing.

14. In relation to the applicant's complaints about the interpretation the Tribunal stated [at CB119]:

The Tribunal notes the applicant's comments that the interpretation at the hearing was poor. The Tribunal accepts that the interpretation was not as good as it would have wished. For this reason the Tribunal took particular care to rephrase questions when necessary. The applicant also has a degree of understanding of English, and the Tribunal is satisfied that there was no material issue on which translation problems may have impacted.

15. The Tribunal reasons state that it was not a lack of belief in the truth of the applicant's claims that had prompted further inquiries. Rather, the Tribunal had intended to make inquiries about him once it obtained detailed information about the congregation which he claimed to have attended and the names of key members. It was also pointed out that the applicant's last written submission made it clear that there was no misunderstanding on the Tribunal's part as to the names of the two people he provided, as to his claim to have been involved in the registration of the religion or as to the dates when he claimed to have been attacked. The Tribunal concluded that it was completely satisfied that the applicant had understood at the hearing that it intended to make inquiries about him overseas and that the names and details he had put to the Tribunal would be important. The applicant had made no attempt to suggest that the two people he had named would have had any reason not to support what he said. The Tribunal did not accept his claim that both those people acted with malice towards him and that this was the explanation for the response the Tribunal had received from the Jehovah's Witnesses in Russia. The evidence of the Chairman of the Presiding Committee was accepted by the Tribunal.

16. The Tribunal also noted that the applicant had said that his name was never actually registered as a member of the Jehovah's Witnesses. The Tribunal accepted this, but concluded that given his evidence about his involvement with the Isani congregation, it was inconceivable that he would not be remembered by name if his evidence were correct. The Tribunal also gave detailed reasons for giving little weight to the medical certificate as evidence that the applicant was persecuted as a Jehovah's Witness in November 1998. The Tribunal was not satisfied that the applicant was physically attacked on 1 or 2 November 1998 but found that even if he was, it was not because of an association with the Jehovah's Witness organisation. It was implausible that a person who was not a baptised Jehovah's Witness could have been targeted for attack for his involvement at a time when baptised members of the same congregation were not. The Tribunal found that the applicant had no association with the Jehovah's Witnesses at a level that would render him at a risk of attack if he were to return to that country now or in the foreseeable future.

17. The Tribunal noted that there were other reasons to doubt the applicant's claim about an association with the Jehovah's Witnesses in Georgia but "has not set them out, as they may have arisen from interpreting errors. However the Tribunal is satisfied that the considerations above do not arise from such errors, and are of sufficient strength to justify the Tribunal's conclusions" [CB 120].

18. The Tribunal considered that the applicant had a reasonable knowledge of the tenets of the Jehovah's Witness faith but considered that this knowledge had been acquired in Australia with a view to boosting his claims for protection. At the same time it noted that his claimed level of involvement with the organisation in Australia fell short of expectations of the local organisation in relation to a Witness from another country with a limited command of English. The Tribunal was satisfied that if the applicant were to return to Georgia he would not have any association with the religion which would be of sufficient strength to bring him to the attention of those who wished to persecute its adherents. In all the circumstances the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Georgia for reasons of religion.

The application

19. In his application to the Federal Court and in written submissions the applicant claimed that the Tribunal had no evidence to make its negative decision and that the evidence it used to justify its decision had nothing to do with the claims. It was also claimed that it was the Tribunal's responsibility to provide a qualified interpreter and that the interpreter provided did not have a good command of English or Georgian and that as a result the Tribunal had misunderstood the applicant's claims and subsequently accused him of being a dishonest witness. It was said that the Tribunal had accepted that the interpreter was not competent but nevertheless had not arranged another hearing but had made the decision based on the interpreter's distorted version of the applicant's accounts and that there was a failure to act in good faith. These claims were elaborated upon in written submissions which addressed the inquiry which the Tribunal had made with the Administrative Centre of Jehovah's Witnesses in Russia. It was pointed out that the Tribunal did not contact an official in Georgia but rather in Russia. The Russian official could not confirm that the applicant was a Jehovah's Witness as the organisation was not registered in Georgia at the time. The applicant said that he personally was not involved in the process of registration but merely introduced some people who would be able to sort the matter out and that it was not reasonable to expect that a Russian official would know a person who was not a member of the Jehovah's Witnesses (because there was no membership at the time) and who was not involved in the registration procedures and who left Georgia in 1998.

20. The applicant suggested that the details he had provided about meetings, his associates and his biblical knowledge clearly indicated that the information was true and correct. He suggested that the Tribunal's inquiry was a provocation and that the Tribunal member was aware that the Russian official would not confirm that he was known as a member of the Jehovah's Witnesses and as a person who registered the organisation.

21. In oral submissions the applicant elaborated on his concerns about what he perceived as the illogicality of making an inquiry about him with the Russian Jehovah's Witness organisation. He reiterated that he had never said that he was registered as a Jehovah's Witness in Georgia or in Russia. The applicant requested that I listen to the tapes of the hearing in relation to his complaint about the interpreter.

22. The respondent submitted that any interpretation difficulties did not relate to a matter of significance for the applicant's claim or the Tribunal's decision as the Tribunal's decision turned not on the evidence given by the applicant at the hearing but rather on the material obtained from the Jehovah's Witnesses organisation in Russia. The applicant had been given ample opportunity to address this information and to provide an accurate translation of his evidence at the hearing. Further the applicant had admitted that there are no Georgian interpreters in Australia. He had previously rejected an offer of a Russian interpreter and in those circumstances the Tribunal's decision and behaviour could not be impugned and that there was no failure to make a bona fide attempt to exercise its power.

23. The Georgian interpreter provided for the hearing was the same interpreter as had been used in the Tribunal hearing. Accordingly, at the request of the applicant, the hearing proceeded without this particular interpreter and with the assistance of a friend of the applicant who spoke in English and Georgian.

24. To ensure that the applicant was not disadvantaged by the absence of a qualified interpreter at the hearing before the Court he was given the opportunity to make further written submissions. Subsequently he did so indicating that on a number of occasions in the Tribunal hearing he had mentioned that the interpreter was not qualified, that as much as fifty percent of the information was interpreted incorrectly and that this had resulted in misunderstandings and confusions which had led to the Tribunal's `dubious' decision to get in touch with the Jehovah's Witnesses in Russia. He submitted what he described as a transcript of the Tribunal hearing, apparently prepared by a person whom the applicant had described in the Tribunal hearing as a Georgian he had introduced to the religion in Sydney. The applicant submitted that because of mistranslation he had not been aware that the Tribunal member was going to make inquiries through his contacts in Russia. If he had known he would have stated that the answer would be likely to be negative. He also submitted that the Tribunal member had been wrongly convinced that he participated in the registration process because of the interpreter's incompetence, that he personally had nothing to do with registration but had only organised a meeting of Jehovah's Witnesses and judges. There is no evidence before the Court of a translation prepared by a qualified or expert independent interpreter. I have, however, listened to the tapes of the Tribunal hearing as requested by the applicant.

25. In light of the decision by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 the parties were each given the opportunity to make further written submissions. No further written submissions have been received from the applicant. The respondent made supplementary submissions to the effect that on any view of what constitutes jurisdictional error there was none in this case, that the Tribunal based its decision on findings of fact which were available to it on the evidence and that there was no evidence to suggest that the translation was so inaccurate as to have denied the applicant a fair hearing.

The applicable law

26. Pursuant to section 483A of the Migration Act 1958 (the Act) this Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Act. Under sections 475A and 476(1) while the Court has no jurisdiction in relation to primary decisions made under the Act it has jurisdiction in relation to a "privative clause decision" made on a review by the Tribunal. "Privative clause decision" is defined in subsections 474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:

A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.

27. In NAAV v MIMIA [2002] FCAFC 228 the Full Court of the Federal Court held that section 474 must be construed in the same manner as the kind of privative clause considered in the decision of R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498. In other words there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as section 474 would be valid. These are: first, that the decision was a bona fide attempt by the decision-maker to exercise its power, second, that the decision related to the subject matter of the legislation, and third, that the decision was reasonably capable of reference to the power conferred on the decision-maker. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravened an inviolable limitation on the operation of the Act.

28. In Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 the High Court held that as a matter of construction the expression "decision ... made under this Act `in subsection 474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act" (at [76] and also see [19] per Gleeson CJ and [163] per Callinan J). If there has been a jurisdictional error the decision cannot properly be described as a decision made under the Act and is thus not a privative clause decision as defined in subsections 474(2) and (3) of the Act. Further a decision flawed for reason of failure to comply with the principles of natural justice is not a privative clause decision within section 474(2). If there is no jurisdictional error affecting the Tribunal's decision then the decision would be a privative clause decision and protected by section 474(1) unless it was shown that one of the Hickman provisos had not been met.

29. In Plaintiff S157/2002 the High Court confined itself to a general statement of principle in relation to jurisdictional error and the particular error of jurisdictional error by reason of a denial of procedural fairness as was asserted by the plaintiff in that case. The precise scope of the notion of jurisdictional error in this context and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints raises some complex issues (see for example Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S134/2002 (2003) 195 ALR 1 in relation to section 65 of the Migration Act). This issue was considered by Ryan J in VBAC v MIMIA [2003] FCA 205 in relation to a claim of denial of natural justice based on a claim that the Tribunal had failed to consider relevant matters and had considered irrelevant matters. In that case His Honour suggested (at [23]) that neither S134/2002 or S157/2002 established that `any' denial of procedural fairness would be sufficient to place a decision outside the protection of s.474. He indicated that the effect of these cases was that the Court should first assess whether there is a limitation imposed by the Act that has been transgressed or a statutory requirement which has not been observed. Ryan J suggested that:

"Thus, a decision purportedly made by the Tribunal, where it has not followed all procedural steps which it is obliged to follow (in the sense that there is nothing in the scheme of the Act to suggest that those steps are "not essential to the validity of a decision"), is a decision made without jurisdiction. In this limited sense, a denial of procedural fairness can constitute jurisdictional error, but not every case will disclose such a denial. What is required is more than an infraction of a rule of natural justice; it is a failure to exercise a jurisdiction, which the Tribunal was bound to exercise, in the manner in which it was bound to do so." (at [28]).

30. Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117, in which the Tribunal, though oversight, failed to give the applicant a hearing as it was obliged to do, was said by Ryan J to be the type of denial of procedural fairness which amounts to jurisdictional error. More recently the Full Court of the Federal Court in NAFF of 2002 v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCAFC 52, has confirmed that a denial of natural justice by the Tribunal "may result in a decision being made in excess of jurisdiction, in respect of which, notwithstanding s474 of the Act, prohibition will issue" (at [31] per Lindgren and Stone JJ and see Re Refugee Review Tribunal; Ex parte Aala (2000) 24 CLR 82 and S157). As the majority in NAFF concluded that there was no denial of natural justice it was unnecessary to determine when a denial of natural justice will result in a decision being made in excess of jurisdiction.

The present case

31. In this case the applicant claimed that the Tribunal member was not acting in good faith. In light of S157/2002 I have also considered whether, on the evidence before the Court, there has been a failure to accord the applicant `procedural fairness'. The Migration Legislation Amendment (Procedural Fairness) Act 2002 does not apply in this case as it came into effect after the application for review to the Tribunal.

32. As Lindgren and Stone JJ suggested in NAFF it is necessary to determine the scope and content of the requirements of natural justice in the particular factual circumstances of the case and whether those requirements were met. If a non-observance of such requirements is established the decision impugned will only be allowed to stand "if it is positively concluded that observance of the requirements could not possibly have produced a different result". In determining the scope of the requirements of natural justice (Lindgren and Stone JJ at [31]) referring to Steed v State Government Insurance Commission (1986) 161 CLR 141 and Aala) the observations of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 at [34] and [37] that what must be demonstrated is `unfairness' and that are pertinent the concern of the law is `to avoid `practical injustice'. Procedural fairness in the present context requires that the applicant be given a reasonable opportunity to present his case that he is a refugee to the Tribunal and to answer any information in the possession of the Tribunal that suggests otherwise. While there is no universal right to an oral hearing to accord with natural justice (see Zhang v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 384 and Chen v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 591) the content of the rules of natural justice in the context of a statutory power such as that conferred on the Tribunal under the Act involves, as Hely J noted in NAHF v MIMIA [2003] FCA 140 at [34], "a consideration of all the circumstances including the nature of the jurisdiction being exercised and the statutory conditions governing its exercise. The statutory framework is of crucial importance in determining the content of the rules of natural justice (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1964-1965) 113 CLR 475, 503)".

33. Under the Migration Act the Tribunal's power is to review decisions to refuse to grant protection visas. It is, by s.425, under a statutory obligation to issue an invitation to an applicant to attend a hearing. Hely J suggested in NAHF that this indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing and that a failure to provide such an opportunity will give rise to a breach of the rules of natural justice even if the procedural requirements of s.425 have been met (at [33] - [35]). I agree. In this case there was such an opportunity. This is not a case where the Tribunal failed to give the applicant a hearing (cf Bhardwaj). However it is well established that the invitation to a hearing must not be a hollow shell or an empty gesture. (Mazhar v MIMA [2000] FCA 1759 at [31]). The obligation to give such an opportunity to the applicant to attend an oral hearing will not be satisfied if, where the Tribunal knows that an interpreter is required, it provides an interpreter whose interpretation in such that the applicant `is unable adequately to give evidence and present argument to the Tribunal' (Goldberg J in Mazhar at [31]). The provision of an inadequate interpreter may amount to a denial of procedural fairness constituting jurisdictional error if it is established that the applicant was unable adequately to present his case and answer any information in the possession of the Tribunal.

34. There is no suggestion, nor could it be suggested on the material before me, that the decision was in anyway affected by bias, either actual or apprehended. The issue is the fairness (see Kioa v West (1985) 159 CLR 550) of the hearing and associated procedures. There is a distinction between the fairness of the procedure and the fairness of the decision produced by the procedure (see Ruangrong v MIEA (1988) 14 ALD 773 at 776 per Davies J Chief Constable of North Wales Police v Evans [1987] 1 WLR 1155 at 1173 and McHugh and Gummow JJ in Lam at [105] emphasising the "fairness of the procedure adopted rather than the fairness of the outcome").

35. It is not every error in interpretation that will amount to a denial of procedural fairness. A particular interpretation may be less than perfect (indeed, as Kenny J accepted in Perera v MIMA [1999] FCA 507 at [26] `perfect interpretation may ... be impossible') yet still be such as to avoid practical injustice. In Perera, Kenny J considered in detail the appropriate standard of interpretation for a Tribunal hearing. Her Honour's views have been adopted and applied in many subsequent cases in relation to s425 and provide appropriate guidance for a consideration of whether there has been a lack of procedural fairness. As Her Honour suggested, criteria such as continuity, precision (or accuracy), impartiality, competency and contemporaneousness may be relevant (see R v Tran [1994] 2 SCR 95). Accuracy and competence were said to be of particular relevance

36. As in Perera, apart from the applicant's claim that the interpretation was inadequate, there is no independent evidence before the Court in relation to the competence of the interpreter. As internal Tribunal documents in the bundle of relevant documents indicate, Georgian is not a language tested at professional level under the national system of accreditation and certification for interpreters and translators established by NAATI (see Perera at [40]). There was no affidavit or oral evidence of what took place in the course of the Tribunal hearing but the Court had before it the audio record of the hearing tapes. In so far as possible on the evidence before me I have considered the standard of the interpretation taking into account factors such as the responsiveness of interpreted answers to questions asked, the coherence of those answers, the consistency of one answer with another and with the rest of the applicant's case and any evident confusion in exchanges between the Tribunal and the interpreter (Perera at [41]).

37. In this respect I note that oral statements in a foreign language (such as appear on the tapes) cannot be proved without translation and the translation given in evidence sworn to by the person who makes the translation. That has not occurred in this case. The `transcript' submitted by the applicant as part of his written submissions did not purport to be a translation by a qualified or independent expert interpreter. The applicant was clearly aware of the need for such independent expert assessment should he seek to rely on a translation, as he had raised with the Tribunal the possibility of sending the tapes to the United States for translation in the absence of a Georgian interpreter in Australia. On 9 May 2002 the Tribunal had left it open to the applicant to obtain an independent interpreter's report on the tape recording or other submissions by 3 June 2002. In the letter received on 3 June 2002 there was no indication that the applicant intended to proceed in that manner (although he did seek extra time to get other relevant documents from Georgia to confirm his refugee claims). Nor did he provide or seek to provide the court with an expert interpreter's report or translation.

38. In these circumstances and bearing in mind that the applicant is self-represented, I have considered the Tribunal procedures, reasons for decision and the evidence on the hearing tapes as to the standard of interpretation and procedural fairness.

39. While the applicant understood and spoke some English (as is apparent from the hearing tapes which reveal that he stated that he understood untranslated aspects of the Tribunal member's explanation of the definition of refugee and that on several occasions he replied to Tribunal questions before they were translated) he stated that he needed an interpreter and gave most of his evidence in Georgian through the interpreter. The fact that the applicant had a degree of understanding of English does not establish that there was no need for an adequate interpreter.

40. The applicant rejected the offer of a Russian interpreter. An applicant's rejection of an interpreter in a language in which he has claimed proficiency (as in the applicant's protection visa application) may be relevant in determining whether the Tribunal has complied with its obligation to afford procedural fairness. In this case the first hearing was adjourned and a Georgian/English interpreter was provided for the second hearing. Certainly at that point there could be no criticism of the Tribunal.

41. There were a number of incidents during the hearing which establish that the applicant complained about the accuracy of the interpreter and that the Tribunal member responded to such complaints. I accept that, as conceded by the Tribunal in its reasons for decision, there were translation problems. On occasion the applicant indicated in English that the interpreter could not understand the Georgian language. Several times he queried the English translation of what the interpreter had said. For example, the interpreter's descriptions in English of his employment in a `butter factory' of having `broken' his ankle, and that the leader of a group of Jehovah's Witnesses was a `teacher' were queried by the applicant who also took issue with the interpreter's rendering in English of biblical concepts and aspects of the beliefs of Jehovah's Witnesses. There is no expert evidence to support the applicant's claims that the interpretation was inaccurate. On occasion the applicant would answer a question before it was translated into Georgian. Some exchanges between the applicant and the interpreter were not translated into English. The Tribunal member questioned the applicant in relation to matters such as his knowledge of the aspect of the beliefs of Jehovah's Witnesses. The applicant complained that the interpreter was not translating his Georgian into English correctly and, at the suggestion of the member, endeavoured to explain his biblical knowledge in English. The Tribunal member told the applicant that he had said it well enough for him, indicating that the would have difficulty putting such concepts in another language.

42. At one point after the applicant had queried the translation, the member asked the interpreter if he was Georgian. The interpreter stated that he was not but that he had finished school in Georgia. The member also stated that they were obviously having some problems with translation but that he wanted to try to persevere as it was virtually impossible to find anyone who was a native Georgian who could translate in Australia. It is apparent from the hearing tapes that the member was at pains to put repeated questions to the applicant and to clarify his answers. He put to the applicant summaries of his understanding of aspects of the applicant's evidence. It is also clear that the applicant was dissatisfied with the interpreter, that he queried his translations on occasion and that the member accepted that there were translation difficulties and possibly interpretation errors. However the applicant's translated answers appear responsive and coherent despite some occasions on which the use of a particular English word by the interpreter was questioned. His answers are consistent, not only with other answers given in the hearing but also with the rest of his case. Such confusion as is evident in exchanges occurs largely because the applicant takes issue with the interpreter's English.

43. The evidence of confusion in exchanges between the Tribunal member and the interpreter does not appear to be significant. Early in the hearing the applicant interrupted the member's explanation of the meaning of refugee and the Tribunal member asked the interpreter what the applicant had said. In this interchange the applicant kept speaking despite not being questioned and the member had to ask the interpreter to translate what he had said - which, as the applicant confirmed in English, was to the effect that the interpreter had used a particular Georgian word for the word `reason' which had made the applicant smile. It is clear that, despite this diversion, the applicant understood the Tribunal explanation, as he confirmed in English. Another occasion of possible confusion between the member and the interpreter was when the applicant responded (in Georgian) before the Tribunal member's English was translated - and the Tribunal member advised the interpreter that on occasion the applicant may answer directly (i.e. not wait for a translation). Finally at one point there appears to be some confusion about whether the applicant used the words Old Testament and New Testament in relation to parts of the Bible (after the member had suggested Jehovah's Witnesses used different words). The applicant described the parts of the Bible rather than confirming the names. The member did not pursue this issue, indicating that he was completely happy with the answer given. This is confirmed in the reasons for decision. The Tribunal was satisfied that the applicant had a reasonable knowledge of the tenets of the Jehovah's Witness faith.

44. In the context of determining whether there was a denial of procedural fairness it is appropriate to consider whether any departure from the standard of interpretation (even on the basis submitted by the applicant) related to matters which were significant for the applicant's case and the Tribunal's decision. Some of the areas identified by the applicant may have involved incorrect interpretation. There were clearly acknowledged problems. However, having regard to the reasons for the Tribunal decision, I am not satisfied that these departures were in any way significant to the applicant's case or to the Tribunal decision including its assessment of the applicant's credibility or reliability. On the contrary, the Tribunal concluded that based on the evidence the applicant gave at the hearing (for all the claimed interpretation difficulties), had his claim to be associated with the Isani congregation of Jehovah's Witnesses been corroborated by the Russian head of the Jehovah's Witnesses, his claim to be a refugee would have been accepted. On this basis he was not prevented from giving evidence on matters crucial to his application. The claimed departures from the requisite standard of interpretation were not critical to the presentation of his case and did not influence the Tribunal in its reasoning and the findings that it made (see to the same effect in relation to s.425 W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788 at [28]-[31] and see NAFF of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCAFC 52 at [23]). The Tribunal conclusions were based upon the evidence from the Jehovah's Witnesses organisation and other factors which did not depend upon the accuracy of the interpretation. None of the submissions by the applicant in relation to incompetent interpreting bore upon these conclusions. Even if one accepted all of the claims of the applicant in relation to the alleged deficiencies in interpretation there is nothing to support a conclusion that the Tribunal would have come to a different decision in the absence of such alleged errors.

I also note that the applicant had the opportunity after the hearing to make further submissions to the Tribunal in relation to matters which he considered were affected by errors in the interpretation. He was not deprived of the opportunity to present his case or to answer Tribunal information.

45. At the end of the hearing the Tribunal member advised the applicant that he accepted that Jehovah's Witnesses in Georgia were subject to persecution. Given that the applicant claimed to have played an important part in getting the organisation registered in Georgia it seemed to the member that the organisation would know who he was. The applicant was informed that if the organisation confirmed that they knew him, that he was associated with them and that he was attacked because of his involvement in Jehovah's Witnesses, the Tribunal would be satisfied that he was a refugee. If not the applicant would be given an opportunity to provide further comments. His responses (which in some cases were provided before any translation) satisfy me that the applicant understood that further inquiries were to be made. He offered the names of contacts - two judges and two Jehovah's Witnesses in Georgia. The applicant agreed that the two named members of the organisation were well known, and knew him personally. He clearly understood that inquiries were to be made. Whether or not the applicant understood the precise detail of the member's explanation of his intention to make overseas inquiries (and indeed the Tribunal did not expressly state that it intended to make inquiries in Russia) the Tribunal was at liberty to obtain relevant information in any way in which it saw fit and was then required to have regard to that information. (See sections 424(1) and 427(1)(d) of the Act and Dissanayake v Minister for Immigration and Multicultural Affairs [2002] FCA 976 at [17] - [19] per Sundberg J). It put the information to the applicant for comment and considered those comments as required by s.424A.

46. The applicant complained that it was incorrect interpreting which led to misunderstanding and confusion which in turn led to what he described as the `dubious' decision of the Tribunal to get in touch with Jehovah's Witnesses in Russia. He claimed that he was not aware that the Tribunal member was going to make inquiries through his contacts in Russia and indeed, as indicated above, the Tribunal member merely referred to contacts with a very senior person in the Jehovah's Witnesses who was not actually in Georgia but who was close by and in touch with the organisation. The actual inquiry made by the Tribunal provided the names of those members the applicant claimed to know personally and asked about any known involvement not merely membership of the local congregation. The fact that the applicant saw this as an inappropriate inquiry does not establish a lack of procedural fairness. There had been no corroboration of the applicant's claims. He assured the Tribunal that two prominent members of the organisation in Georgia knew him. The inquiry concerned relevant information. I am not satisfied that interpreting difficulties or any misunderstanding on the part of the Tribunal led to these inquiries or that the making of the inquiry indicated a lack of procedural fairness. Properly, the applicant was given an opportunity to comment on the advice from Russia.

47. Further I do not accept that the Tribunal misunderstood the applicant's involvement in the registration of the organisation as claimed, (which the applicant said was due to the interpreter's incompetence). He claimed that he personally had nothing to do with registration but only helped by organising a meeting through a judge who was a friend so that the organisation could be registered without paying a bribe. The Tribunal reasons for decision reveal [CB114] that the Tribunal understood that the applicant had used a contact he had with a friend who worked in a court to get official registration through the courts without any bribes having to be paid. Any misunderstanding about the degree or nature of his involvement in the registration process was not material. What was critical was the fact that he was not known as an interested person by the local congregation (two of whose names he had volunteered as well-known members who knew him personally) or as a person who was attacked in 1998 for reasons of his religion. The Tribunal addressed the comments made by the applicant in relation to the hearing and the fact that his claimed associates in the local congregation had not confirmed his involvement. While I accept that involvement of the nature claimed by the applicant in the registration of the organisations might not of itself be such as to be known to the authorities there was, as the Tribunal pointed out, a complete lack of independent substantiation of any claimed involvement with the Jehovah's Witnesses in Georgia. It has not been established that the standard of interpreting led to misunderstanding and confusion on the part of the Tribunal as claimed.

48. It is apparent from the Tribunal reasons for decision that it relied exclusively on material which did not depend upon the adequacy of interpretation in its findings, that being the evidence of the Chairman of the Presiding Committee of the administrative centre of Jehovah's Witnesses in Russia that the applicant was not a Jehovah's Witness in Georgia and was not known as an interested person. On this basis the Tribunal concluded that the applicant had no association with the Jehovah's Witnesses in Georgia at a level that would render him at risk of attack if he were to return to that country now or in the foreseeable future. The Tribunal accepted that the applicant was never actually registered as a member of the Jehovah's Witnesses but found that given his evidence about his alleged involvement with the Isani congregation it was inconceivable that he would not be remembered by name if that evidence was correct. This is not a case where the Tribunal made findings about the applicant's credibility based on his evidence at the hearing. Its findings cannot be seen as `infected' by doubts caused by interpretation inadequacies.

Conclusion

49. It has not been established that in the circumstances of this case there was a lack of procedural fairness. The Tribunal adjourned the first hearing when the interpreter was found to be inadequate. While the second interpreter was not a native Georgian the hearing proceeded. That there was no native Georgian or other suitably qualified interpreter available in Australia was not challenged, although this in itself is not an answer to the applicant's claim. The applicant clearly understood some English, as evidenced by his correction of the interpreter's English and by occasions on which he answered questions before they were translated. He chose not to proceed with a Russian interpreter. He had the opportunity to address any concerns about the interpreting and its impact after the hearing. He has not provided evidence by a qualified expert interpreter of translation inaccuracies. Further while some concerns are apparent from the tapes (in the sense that the applicant corrected the interpreter's English, the Tribunal member queried his ethnicity and acknowledged some difficulties) it has not been established that the standard of interpreting was such as to deprive the applicant of the opportunity to present his case and respond to Tribunal concerns. Clearly there will be many cases where the standard of interpreting falls short of perfect. Yet it cannot be that every such case constitutes a denial of procedural fairness or jurisdictional error. The evidence in this case does not establish that the standard of interpretation provided by the Tribunal constituted a lack of procedural fairness.

50. This is not a case where a person with no understanding of English has been prevented from using an interpreter. Nor is it a case where the applicant was refused a requested adjournment or where it has been established that it would have been proper for the Tribunal member to offer him an adjournment. It is not an easy case. The applicant has a complaint which is, to some extent, acknowledged by the decision-maker. There is no expert evidence of the alleged inadequacy in interpretation. The decision-maker took the view that the concerns about the interpreter were not such as to warrant an adjournment (though this may also reflect the fact that he knew of no other Georgian interpreter). The tapes reveal that the Tribunal reiterated, repeated and rephrased questions in an effort to ensure that they were understood. The applicant's answers, as rendered in English by the interpreter, are responsive. At times he appears to interrupt the translation of lengthy passages by the interpreter but any consequential confusion cannot be attributed to a lack of procedural fairness. This is not a case where the applicant has not been informed of the case against him or not given a reasonable opportunity to answer it (cf MIMA v Bhardwaj [2002] HCA 11). Nor has it been established that the applicant was misled in such a way as to constitute a denial of procedural fairness (cf Muin v Refugee Review Tribunal [2002] HCA 30. He claimed that he would have told the Tribunal that the Russian Jehovah's Witnesses would not have known him if he had understood that that was the proposed inquiry. Procedural fairness must, in the context of the Tribunal procedures, be seen as encompassing not only the actual hearing but also the other procedures adopted. The Tribunal disclosed the fact that it intended to make further inquiries. I am satisfied that the applicant understood this to the extent that he provided the names of claimed associates. The Tribunal provided a mechanism (the opportunity for subsequent comment) for the applicant to address relevant issues further. The applicant was given a reasonable opportunity to make relevant submissions and give evidence and to address Tribunal concerns. He was also given an opportunity to address his concerns about the interpreter. When the information from the Russian Jehovah's Witnesses did not support his claims he was given a further opportunity to make submissions. He made such submissions which were taken into account. The fact that he may not have seen the mode of inquiry as appropriate does not establish unfairness given the nature of the inquiry, the response and the opportunity he was given to comment on the response.

51. On balance, having considered the evidence before me I am not satisfied that the interpretation was such that the applicant was unable adequately to give evidence and present argument to the Tribunal or indeed that the alleged errors (if established) might have led the Tribunal to view the reliability of the applicant's evidence differently (cf W284 v MIMA [2001] FCA 1788). It has not been established that the interpretation was so incompetent that the applicant's right to give evidence was compromised or that any departure from the required standard of interpretation related to a matter of significance or influenced the Tribunal in its reasoning and the findings it made. There were problems of interpretation acknowledged by the Tribunal but it has not been shown on the balance of probabilities that the interpretation provided was incompetent in significant respects (Yi Gui Stone v Minister for Immigration & Ethnic Affairs (unreported Federal Court, Hill J 28 June 1996). The evidence does not establish material errors in the interpreting of the applicant's statements or a miscarriage in the decision-making process (see Soltanyzard v MIMA [2001] FCA 1168 at [17 - [19] per Spender, Lee and Tamberlin JJ). No breach of s.425 has been established. While there is a distinction between s425 and what Sackville J (in The Minister v Cho (1999) 164 ALR 339) described as the `full range of natural justice requirements' (also see Mohamed v The Minister [2000] FCA 264) on the evidence before the Court, I am not satisfied that there has been a denial of natural justice or lack of procedural fairness arising from the standard of interpretation or any other aspect of the Tribunal procedure and decision. In reaching this conclusion I have taken into account the statutory framework of the Act and that the obligation to invite the applicant to hearing in s425 does not define the extent of the so called `hearing rule' for the purposes of procedural fairness. It has not been established that there was a failure to observe any statutory requirement or a disregard of a fundamental limitation arising by necessary implication from any other provision of the Act (such as the requirement that an applicant have opportunity to attend an oral hearing (see Hely J in NAHF and Ryan J in VBAC at [32]). As no denial of natural justice has been established it is unnecessary to determine whether the decision was made in excess of jurisdiction (see VBAC and NAFF). No jurisdictional error is apparent.

52. The decision is a privative clause decision. It has not been established that the decision maker did not make a bona fide attempt to exercise power. Such an allegation is a serious matter involving personal fault on the part of the decision-maker (see SBBS v MIMIA [2002] FCAFC 361). In this case I am satisfied that the decision-maker made an honest and genuine attempt to undertake the task (SCAS v MIMIA [2002] FCAFC 397). There is nothing to suggest that the other Hickman provisos are not met. Accordingly, the application must be dismissed. As the applicant has been wholly unsuccessful it is appropriate that he meet the respondent's costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: Wednesday 16 April 2003
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia