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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - whether hearing should be adjourned to permit applicant to better prepare his case - procedural fairness - access to country information available to the RRT - alleged interpretation difficulties - no reviewable error found.

SZAAJ v Minister for Immigration [2003] FMCA 247 (12 June 2003)

SZAAJ v Minister for Immigration [2003] FMCA 247 (12 June 2003) Last Updated: 1 July 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA SZAAJ v MINISTER FOR IMMIGRATION [2003] FMCA 247 MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - whether hearing should be adjourned to permit applicant to better prepare his case - procedural fairness - access to country information available to the RRT - alleged interpretation difficulties - no reviewable error found. Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.424A, 425, 427, 474, 476 Ismail v Minister for Immigration (1999) 59 ALD 773 Perera v Minister for Immigration (1999) 92 FCR 6 Singh v Minister for Immigration (2001) 115 FCR 1 WAAJ v Minister for Immigration [2002] FCAFC 409 Zoeller v Federal Republic of Germany (1989) 23 FCR 282 Applicant: SZAAJ Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: SZ881 of 2002 Delivered on: 12 June 2003 Delivered at: Sydney Hearing dates: 27 February 2003 12 June 2003 Judgment of: Driver FM REPRESENTATION Counsel for the Applicant: Mr B Levet Solicitors for the Applicant: Bharati Solicitors Counsel for the Respondent: Mr G Kennett Solicitors for the Respondent: Clayton Utz ORDERS (1) The application is dismissed. (2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,500. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY SZ120 of 2003 SZAAJ Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT (Revised from transcript) 1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 5 August 2002 and handed down on 26 August 2002. The relevant background is set out in paragraphs 1 to 4 of the respondent's written submissions filed on 26 February 2003 and I adopt that background as follows for the purposes of this judgment: The Applicant is a national of India who arrived in Australia on 19 July 2000. His application for a protection visa, made on 16 August 2000, was rejected by a delegate of the Minister on 30 August 2000. He applied for review of that decision by the RRT on 27 September 2000. The applicant claimed, and the RRT accepted, that he was a Tamil and a Hindu and came from Tamil Nadu. However, the RRT did not accept the applicant's other claims - namely that he had been a leader in the Naxalite movement, had been charged with serious crimes on several occasions (and each time granted bail), and that he had left India in order to escape further arrest and physical harm arising from his Naxalite activities. The Tribunal's reasons for rejecting these claims were, in short, as follows: a) the RRT could not accept that, if he had been a Naxalite "mastermind", the applicant would have been allowed to go free (rather than detained under preventive detention laws or extra-judicially) for an extended period, and to leave and return to India without difficulty on many occasions. Nor could the RRT accept that a known senior Naxalite would be issued with a passport in 1998, as the applicant had been. b) the knowledge of the Naxalite movement which the applicant displayed at the hearing was significantly less than would be expected of a senior and long-standing member of the movement. c) the applicant's claims were not supported by any documents except for one police report which (for reasons which the RRT gave) it did not accept as genuine. The RRT therefore could not accept that the applicant faced any form of harm flowing from Naxalite membership. He had made no other claims (in particular, he made no claims concerning an interest which he said he had developed in Christianity). Accordingly the RRT was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention. 2. The matter proceeded today on the basis of an amended application filed in court this afternoon. The following grounds are contained in that application: (1) the RRT failed to accord procedural fairness to the applicant in that: (a) in reaching its decision the RRT used information, namely a country information file which was provided to the RRT by or at the behest of the respondent, but which was not made available to the applicant; (b) the RRT improperly received communication from the respondent prior to the hearing of the matter as to the content of the country information file to which the applicant was not privy; and (c) The interpreter supplied for the hearing before the RRT was not competent and failed to properly translate the proceedings. 3. The applicant relies upon two affidavits filed in court this afternoon; one by himself going to the issue of interpretation difficulties at the hearing before the RRT and the other by a recognised Tamil interpreter going to the issue of the amount of time that might be needed in order to provide an adequate transcript in Tamil and English of the proceedings before the RRT. I should say, in that regard, that Mr Levet, for the applicant, sought an adjournment of these proceedings for two reasons. The first was to permit him, through his instructing solicitor, to obtain a transcript of the proceedings before the RRT in Tamil and English in an attempt to put some flesh on the bones of the third ground of review set out in the amended application filed in court today. The other was so that notices could be issued pursuant to s.78B of the Judiciary Act 1903 (Cth) relating to the constitutional validity of s.424A(3) of the Migration Act 1958 (Cth) ("the Migration Act"). The latter issue only arose during the course of argument and is certainly not expressly dealt with in the amended application, although Mr Levet put to me that it could be seen to arise from it. 4. I declined to grant an adjournment. In relation to the interpretation issue, I declined to grant an adjournment on the basis that this matter had been previously on 27 February 2003 until today so that the applicant could better formulate his case based on the issue of procedural fairness. It was only in court today that the amended application and supporting affidavits were filed. I took the view that sufficient time had been made available to the applicant to prepare his case and that no further delay was warranted. In relation to the constitutional issue, I was not able to form a considered view as to whether there is, in substance, any constitutional issue to resolve. I formed the view that the preferable approach would be for me to make my decision in this matter today and for the constitutional issue, if there is one, to be pursued at the appellate level. 5. Accordingly, I proceeded to hear the matter on the basis of the evidence presented and on the basis of the amended application as set out. Although I accepted the applicant's affidavit into evidence, I stated that I would give that affidavit minimal weight because only general allegations of translation difficulties are made in the affidavit and no arrangement had been made by the applicant's solicitor to provide a Tamil interpreter so that the applicant could be cross-examined on his affidavit. There was, in fact, no cross-examination of the applicant on the affidavit, which necessarily significantly reduces the weight that I could attach to it. 6. Given that the applicant, through his solicitor, was able to produce an affidavit from a Tamil interpreter relating to the work that he would need to undertake to provide a transcript, it should have been possible for the applicant, through his solicitor, to make available an interpreter for the purposes of anticipated cross-examination of the applicant on his own affidavit. 7. The first issue raised by the applicant in the amended application is that there was procedural unfairness in the RRT proceedings in that the RRT used country information provided by the respondent but which was not made available to the applicant and, as a related issue, that the RRT improperly received communications from the respondent prior to the hearing of the matter as to the content of the country information file to which the applicant was not privy. 8. There are several elements to that claim. It is certainly the case that country information was, as is normal, made available by the Minister's department to the RRT. It is apparent (court book, pages 35 to 38) that certain country information was taken into account by the respondent's delegate in making the initial decision, refusing the applicant a protection visa. In particular, the delegate took into account country information relating to exit procedures from the Australian Department of Foreign Affairs and Trade and the US Department of State. 9. That same information was taken into account by the RRT. That information is referred to at page 85 of the court book. At page 87 of the court book, the presiding member clearly refers to the country information in making a material conclusion adverse to the applicant. However, the applicant was aware of that information, having been made aware of the decision of the Minister's delegate. 10. Mr Levet submitted to me that it was procedurally unfair for the RRT to have access to a body of information in electronic form, including the relevant country information, to which the applicant did not have access. In Mr Levet's submission, the applicant should have been given access to the general body of country information available to the RRT, so that he could make more effective submissions to the RRT about the particular country information relied upon by the delegate. There are several difficulties with that submission. The first is that I do not know as a fact that the applicant was denied access to the electronic body of information. The second is that I do not understand the fair hearing rule forming part of the requirements of procedural fairness to require a level playing field in litigation, let alone administrative review proceedings. 11. The body of information made available to the RRT is made available within the executive government. The RRT forms part of that executive government. Although the RRT has an obligation to act judicially, the RRT is not part of the judiciary. It forms part of the executive government and is entitled to have access to the resources of the executive government that assist it in performing its duties. I do not regard it as procedurally unfair for the RRT to have access to a body of material to which applicants may not have the same access. 12. In addition, to the extent that country information was relied upon by the RRT which was not disclosed to the applicant, that non-disclosure is protected by s.424A(3) of the Migration Act. I have previously held in reliance upon the decision of the Full Federal Court in WAAJ v Minister [2002] FCAFC 409 that that section excludes the operation of the common law so that while under the general law it may be procedurally unfair for the RRT to rely upon country information adverse to an applicant which is not disclosed to an applicant, the legal consequence of such unfairness is removed by s.424A(3). In any event, it appears from the court book that the applicant was made aware of the relevant country information relied upon by the RRT. Further, I have no evidence (as opposed to submissions from the bar table) of what opportunity the applicant may have lost. 13. The other issue raised by the applicant relates to the issue of the adequacy of interpretation provided at the RRT hearing. The first difficulty the applicant faces in this element of his claim is that only a general allegation of interpretation difficulties is made. There is nothing in the evidence before me to establish that any interpretation difficulties which may have occurred had a bearing upon the outcome of the proceedings before the RRT. 14. In Ismail v Minister for Immigration (1999) 59 ALD 773, at paragraph 26, His Honour Lee J stated that in relation to interpretation: The essential requirement is that the interpretation provided be of sufficient standard to ensure that justice is done and is seen to be done: Zoeller v the Federal Republic of Germany (1989) 23 FCR 282 at 290-292. Errors by interpreters which lead a Tribunal to make adverse findings material to an applicant's claim will mean that such a requirement has not been satisfied and the ground for an order of review will be made out. 15. Mr Kennett, for the Minister, took me to other decisions of the Federal Court, in particular Perera v Minister for Immigration (1999) 92 FCR 6 and Singh v Minister for Immigration (2001) 115 FCR 1 to similar effect. All of those cases were dealing with the statutory grounds of review in former s.476 of the Migration Act which are no longer applicable. There is a question of whether the same principle would apply under the general law. 16. Mr Kennett took me to an extract from Aaronson and Dyer's Judicial Review of Administrative Action (2nd edition) on page 436 relating to the interpretation issue. In that passage (footnotes omitted) the learned authors state that: There can be no doubt that procedural fairness may in some circumstances require that a person be permitted to use an interpreter at a hearing although Australian authority to that effect is difficult to find. To prevent a person who has no understanding of English or no hearing from using an interpreter would be no different from denying a hearing altogether. 17. The learned authors go on to say that the issues become more difficult when it comes to persons with some understanding of English, and the question of whether an interpreter must be provided at public expense. At common law the provision of an interpreter in curial proceedings is a matter within the discretion of the trial judge. It would seem that the courts have maintained this approach because of concerns about the difficulty of defining the limits of the right to an interpreter. 18. As the learned authors state, these concerns may well qualify entitlement to an interpreter at common law in administrative proceedings as well, although the learned authors would question whether that is always appropriate. The learned authors note that in some cases there may be an express or implied statutory right to an interpreter. Section 425 of the Migration Act requires the RRT to invite an applicant to appear. Section 427(7) authorises the RRT to arrange an interpreter for an applicant. The general practice of the RRT is to do so where an interpreter is reasonably required. 19. In my view, it is likely that under the general law where the RRT exercises the authority given to it to arrange an interpreter, that interpreter must be of reasonable competence so that the right to a hearing before the RRT is a real right. Hypothetically, if the interpretation is so incompetent to destroy the efficacy of a hearing, the proceedings before the RRT would be procedurally unfair. However, in this case, the state of the evidence before me could not and does not persuade me that there was any unfairness. There is no more than a bald allegation and there is nothing to persuade me that any interpretation problems had a bearing on the outcome of the RRT proceedings. 20. Accordingly, I find that the grounds of review advanced by the applicant are not made out. The proceedings before the RRT were not unfair. There is no suggestion that the Hickman provisos to the privative clause in s.474 of the Migration Act have not been satisfied. I will accordingly dismiss the application. 21. The applicant having been wholly unsuccessful and the Minister being wholly successful, it is appropriate that I should make an award of costs in the Minister's favour. On the previous occasion when the hearing of this matter was adjourned, I made an order in favour of the Minister in respects of costs thrown away by reason of the adjournment. Mr Kennett initially sought an order for costs in the sum of $4,500, which he submitted would be only a partial indemnity in respect of the Minister's legal costs, but he conceded that a significant proportion of the costs incurred would be costs incurred prior to the previous hearing before me covered by the earlier in respect of costs thrown away. 22. Some reasonably novel issues were raised by the applicant through Mr Levet which required a response by Mr Kennett, although they were raised at such a late stage that Mr Kennett was called upon to deal with them on his feet. In the circumstances, the previous preparation for the hearing was largely futile. That preparation was not very onerous, given the lack of preparation of the applicant's case before trial. 23. In all the circumstances, I take a view that an order for costs in the sum of $3,500 would be appropriate when added to the previous order in respect of costs thrown away. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $3,500. I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM Associate: Date: 23 June 2003
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