Md Sazzad Alam Khan v Minister for Immigration & Multicultural Affairs [1998] FCA 1608 (17 December 1998)

Last Updated: 21 December 1998

FEDERAL COURT OF AUSTRALIA

MIGRATION - Migration Act 1958 (Cth) - application to review decision of Refugee Review Tribunal ("the RRT") to refuse protection visa - whether decision ought to be set aside on the basis of alleged problems with interpreter at the hearing before the RRT - whether the RRT acted according to substantial justice and merits of the case

Migration Act 1958 (Cth) ss 36(2), 420, 476(1)(a), 476(2)(a)

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, considered

MD SAZZAD ALAM KHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 609 of 1998

BRANSON J

SYDNEY

17 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 609 of 1998

BETWEEN:	MD SAZZAD ALAM KHAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):	BRANSON J
DATE OF ORDER:	17 DECEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal be affirmed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 609 of 1998

BETWEEN:	MD SAZZAD ALAM KHAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	BRANSON J
DATE:	17 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

By an application dated 22 June 1998 the applicant has sought review of a decision of the Refugee Review Tribunal ("the RRT"), dated 25 May 1998 by which the RRT affirmed a decision of a delegate of the Minister to refuse to grant to the applicant a protection visa.

Section 36(2) of the Migration Act 1958 (Cth) ("the Act") provides for a class of visa known as protection visas. The applicant is entitled to a protection visa if the relevant decision-maker is satisfied the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Refugees Convention").

Australia has protection obligations to any person who:

"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...". (Article 1A(2) of the Refugees Convention)

GROUND OF REVIEW

The only basis upon which the applicant contends that the decision of the RRT should be set aside is that his evidence before the RRT was distorted, and the hearing was misleading, due to the misinterpretation of his evidence to the RRT. It is, I understand, not contentious that the interpreter at the hearing before the RRT was not from Bangladesh (the applicant's country of citizenship) and was not familiar with the applicant's Bengali dialect. The applicant, by a letter addressed to the Registrar of the Court, has drawn attention to passages of the transcript of his hearing before the RRT the accuracy of which he disputes or which he asserts requires further clarification. Although the applicant describes such passages as only a "few examples", I am satisfied that they are the only significant passages of the transcript which the applicant disputes. The applicant has further complained that the transcript does not record the discussion between the applicant and the interpreter which took place in Bengali. I do not accept that this is a valid complaint. The applicant was legally represented before the RRT. I see no reason to conclude that he did not understand that the RRT would only be able to understand, and thus only be able to act on, what was said at the hearing in English. Undoubtedly his legal representative would have so understood.

I accept that the RRT would not have acted "according to substantial justice and the merits of the case" (see s 420 of the Act) if it acted on the basis of "evidence" materially distorted by inaccurate translation. For present purposes I consider it appropriate to proceed on the basis that, if such a situation did arise, the decision of the RRT would have been reached without observance of procedures required by the Act to be observed in connection with the making of the decision (Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300) and the ground of review set out in s 476(1)(a) of the Act would be made out. I am not satisfied that the applicant's complaint raises any other of the grounds of review set out in s 476 of the Act.

EVIDENCE OF THE APPLICANT

The applicant claimed to have fled from Bangladesh to Thailand in 1992 out of fear of the Purba Bangla Sarbahara Party ("the Sarbahara"), an illegal Maoist group to which he claimed to have belonged until 1989.

The applicant acknowledged having returned to Bangladesh on two occasions after fleeing to Thailand. He said that he returned to Bangladesh on 1 January 1993 as he had received advice that a brother, whom he had believed to be dead, had been found. He further said that he travelled to Bangladesh in November 1995 to see his mother who was ill. His evidence was that on the first occasion he was attacked and captured by Sarbahara members, subjected to a "court martial" and sentenced to be tortured, but that he escaped with the help of a sympathetic guard. He returned to Thailand. He said that on the second occasion that he returned to Bangladesh he stayed in a hotel in Dhaka and did not go to his village. He was able to return to Thailand without encountering difficulties with the Sarbahara.

REASONS OF THE TRIBUNAL

The reasons for decision of the RRT recognise that there were some difficulties of interpretation at the hearing, and that the interpreter did not always understand what the applicant was saying. The RRT placed significance on the fact that "the applicant ... spoke sufficient English to be able to correct the interpreter and make some comments in English". It noted that the applicant "works in Australia as a taxi driver" and concluded that he was not disadvantaged by any possible difficulty with the interpreter.

The Tribunal concluded that the applicant's claim to have been an important member of the Sarbahara, acting as a recruitment officer and circulation secretary, was inconsistent with his inability to indicate clearly the goals and objectives of the party or to articulate the words that he used when recruiting.

The Tribunal further concluded that the applicant had fabricated claims and history to fit in with his return visits to Bangladesh. It found his stories of having returned to Bangladesh to look for his brother, and of returning to Bangladesh to visit his mother, knowing that the Sarbahara was looking for him, to be implausible and untrue.

The Tribunal found that the applicant had not been a member of the Sarbahara and had not suffered arrest, detention or torture at the hands of the Sarbahara as claimed. It further found that, even if the applicant were given "the benefit of the doubt" in relation to his alleged membership of the Sarbahara, "his return on two occasions indicates that he is of no continued interest to members of that group". It found that "the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion".

CONSIDERATION

The transcript of the hearing before the RRT confirms that there were difficulties of interpretation experienced at the hearing. It seems likely that the interpreter was not an experienced interpreter. The transcript records the interpreter as saying on one occasion:

"What is surely the case, he say, Gillar is the town and in that this college is. Because I'm not used to this but I'm trying to understand but he says he is having problem with me."

On a number of occasions the transcript records the interpreter as apparently addressing the RRT herself rather than directly interpreting the answers of the applicant. The following excerpt is one example of this:

"INTERPRETER: At the end of 1992 there was a letter in my sister's name that the letter said that we have got news about your brother and - now I understand. The end of 1992 his sister wrote him a letter that you come back and we have got some news about your brother".

It is not without significance so far as this excerpt is concerned, that later answers given by the applicant indicate that his case was that a Sarbahara member had written the letter in 1992 and made it look as though it had been written by the applicant's sister.

The transcript of the hearing before the RRT reveals that it became apparent at an early stage of the hearing that the applicant's credibility was likely to be important so far as the decision of the RRT was concerned. That the interpreter was having some difficulties also became apparent early in the hearing. I do not understand the respondent to have disputed before me that the interpreter at the RRT hearing was not familiar with the applicant's Bengali dialect.

Serious difficulties can attend the making of judgments on credibility when an applicant gives evidence through an interpreter even when the interpretation process runs smoothly. When there is reason to believe that there may be difficulties of interpretation which could be cured by an adjournment and the identification of a more appropriately qualified interpreter, the obligations imposed on the RRT by s 420 of the Act will, in my view, ordinarily call for the hearing to be adjourned to allow such an interpreter to be identified. It is not to the point, in my view, that an applicant can speak some English. The issue is whether the applicant's English language skills are sufficient for him or her to be able to answer questions in the context of an inevitably stressful interview in a way which will fairly place his or her case before the RRT.

In the circumstances of this application for review, however, I must consider whether the applicant suffered any material disadvantage by reason of the difficulties which attended the interpretation of his interview by the RRT. That is, whether the RRT is to be regarded as having acted other than "according to substantial justice and the merits of the case" by reason of such difficulties.

It seems to me that the RRT's conclusion that the applicant was not able to indicate clearly the goals and objectives of the Sarbahara, or to articulate the words that he used when recruiting, might have been influenced by problems of interpretation at the hearing. The applicant has asserted that there were problems of interpretation as he was being questioned on these topics, and the transcript of the hearing confirms that he demonstrated impatience with the interpreter at this stage of the hearing.

Significantly, however, the RRT went on to consider whether the applicant would be entitled to a protection visa if he were given "the benefit of the doubt" as to his membership of Sarbahara. It concluded, as I understand it, that the applicant's return to Bangladesh on two occasions after 1992 indicated that he was aware that he has not been of continuing interest to the Sarbahara since his departure from Bangladesh in 1992. I am not able to be satisfied that the finding of the RRT that the explanations offered by the applicant for his having returned to Bangladesh on two occasions since 1992 despite, on his assertion, facing risk of serious harm from the Sarbahara, were implausible and untrue was influenced in any material way by difficulties of translation. The applicant did not suggest to this Court that his explanations were significantly distorted by the interpreter. Nor does the transcript of the hearing suggest that real difficulties of interpretation were experienced in respect of this aspect of the applicant's evidence. The applicant's complaint concerning his evidence touching upon his returning to Bangladesh went essentially to matters of detail whilst the RRT gave weight to what it saw as the inherent improbability of the broad explanations offered by the applicant.

In reaching a judgment as to whether the RRT failed to act "according to substantial justice and the merits of the case" it is appropriate, in my view, to place some weight on the fact that the applicant had the benefit of legal representation before the RRT. The applicant's legal representative did not request that the hearing be adjourned to allow an alternative interpreter to be found. Nor did he make any criticisms of the service provided by the interpreter in his final submission to the RRT. Although I am told that the applicant's legal representative may have informally advised the RRT approximately two weeks after the hearing that there were problems with the interpretation, no particulars of such problems or submissions concerning them were provided to the RRT.

I entertain reservations about the wisdom and fairness of the decision of the RRT to allow its interview of the applicant to proceed in the face of apparently legitimate concerns about the ability of the interpreter to provide a high quality interpreting service. However, an application for review of the decision of the RRT can not be made on the basis that a breach of the rules of natural justice occurred in connection with the making of the decision (s 476(2)(a) of the Act). Having reviewed the transcript of the hearing and the reasoning of the RRT, and considered the particular complaints made by the applicant, I am not satisfied it

has been demonstrated that the decision of the RRT is tainted by any failure of the RRT to act according to substantial justice and the merits of the case.

The decision of the RRT will be affirmed.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Associate:

Dated: 17 December 1998

The Applicant appeared in person
Counsel for the Respondent:	Mr P Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 October 1998
Date of Judgment:	17 December 1998