NAPS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 159 (5 March 2004)

Last Updated: 5 March 2004

FEDERAL COURT OF AUSTRALIA

NAPS v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 159

NAPS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 585 of 2003

ALLSOP J
5 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 585 of 2003

BETWEEN:	NAPS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	5 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion filed 9 October 2003 be dismissed.

2.	The application be dismissed.
3.	The applicant pay the respondent’s costs.

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	N 585 of 2003

BETWEEN:	NAPS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	5 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant, who is a citizen of Sri Lanka, arrived in Australia on 27 May 2001. On 9 July 2001, he lodged an application for a protection visa. On 25 March 2002, a delegate of the Minister refused the application. On 28 March 2003, the Refugee Review Tribunal ("the Tribunal") affirmed that decision.

2 The application to this Court filed on 15 May 2003 under s 39B of the Judiciary Act 1903 (Cth) identified no ground that could be described as jurisdictional error. The grounds of the application were:

1. Insufficient and incorrect Country Information used.

2.	Insufficient reason to doubt credibility.

3 On 25 August 2003, my chambers received a facsimile transmission from the applicant. It contained a letter with eight points that the applicant said "he wished to put forward". The facsimile also contained a document entitled "Some Arguments for Applicant", apparently drafted by someone with legal training, though its authorship was not identified. The eight points in the first document were as follows:

1.

The RRT claims that I said Ajith and Janith were murdered in mid 2000. This was in my first statement to the Department which was forwarded by my adviser. This was confused by my adviser in relation to another election held at the end of 2000. At my interview with the Department I clearly explained that the correct date was that relating to the Presidential elections which occurred in April 1999. The RRT disregarded my explanation to the Department and considered a date that I had already explained was an error. The RRT should have clarified this with me.

2.	I explained to the RRT the events that occurred prior to me leaving in May 2001. For some reason the RRT understood May 2000 and made its decision based on this. I did not mention May 2000.

3.	With respect to the above dates the RRT at one time claims I was uncertain and indicated the event occurred on a Saturday in May 2001, yet the RRT continued to state that I claimed 12th May 2000 as the date. There is a fault in the understanding by the RRT.

4.	The RRT states that my family and I lived in Batticalloa. This is not where I lived and I did not say this.

5.	When asked by the RRT "why this person would want to kill you" I gave a number of reasons including the fact that I was a local UNP organiser and was very successful. In its decision the RRT only considered this reason and did not mention any of the other reasons.

6.	The RRT relied on much information from my hearing at the department [sic] and made its findings on the basis without questioning me. The RRT is required to make a fresh decision which means any thing on Department records it is not satisfied with it should discuss with me. This did not occur.

7.	There were some errors on behalf of the interpreter. In many instances the interpreter did not give a complete interpretation and substituted words such as "whatever" or "like that". It is possible that the RRT did not really understand my claims.

8.

I feel that I was not given a fair hearing. There are many important errors made by the RRT. The RRT did not spend the time to clarify these issues with me properly and relied heavily on what was said at the Department hearing. The RRT also came to conclusions based on information I did not even give. My Hearing was unfair and had many errors.

4 The arguments in the second document raised a number of issues. First, there was an assertion of a failure by the Tribunal to accord the applicant procedural fairness (a) by failing to put to the applicant the aspect used in the assessment of his credibility that he provided different dates about the death of his associates, on different occasions; and (b) by failing to put to the applicant another aspect of the Tribunal’s reasons for not finding the applicant credible: see [1] and [2] of this second document. Secondly, certain factual errors were identified: see [3] and [4] of this second document.

5 The respondent initially filed two sets of submissions, dated 11 and 15 September 2003. The first was filed in ignorance of the above facsimile as the applicant did not serve a copy on the respondent until 11 September 2003.

6 The matter came on for hearing on 16 September 2003. On that day I indicated to Ms Allars, who appeared for the respondent, that given the allegations now made by the applicant as to interpreting errors (see points 7 and 8 of the first document submitted by the applicant), it was appropriate that this aspect of the matter be the subject of evidence. To this end I made orders on that day which included the following:

1. On or before 4 pm Tuesday 23 September 2003, the applicant is to file and serve an affidavit, sworn or affirmed, deposing to any matters of evidence that he wishes to rely on in support of the submissions that he has filed. To be included in that affidavit is an exhaustive and complete list of all asserted interpretation errors in the tape recording of the tribunal hearing. Also in the affidavit should be all references to material, which it is said supports the submissions in paragraphs 1 through to 6 and 8 of the submissions provided to the Court.

2. The matter be stood over to 9.30 am, Friday 26 September 2003, on which day Allsop J will consider making an order for a court expert to examine and report on the interpretation at the tribunal hearing.

3. Direct the respondent to provide to the applicant by Friday 19 September 2003, a list of Sinhalese interpreters, who the respondent, from his or his department's enquiries, can assure the court, are proficient in Sinhalese.

7 I made clear on 16 September 2003 in discussion with the applicant (who spoke some English, see below and who was assisted by an interpreter) that the affidavit was to be an exhaustive list of the asserted interpreting errors. Order 1 in terms made that plain.

8 On 23 September 2003 the applicant filed an affidavit of himself which annexed a document that had been prepared after the applicant had listened to the tape recording of the Tribunal hearing. The affidavit was in English. The enclosed submissions were in English.

9 The matter came before me on 26 September 2003. The applicant did not appear. For the reasons that I gave on 26 September 2003 I set the matter down for hearing on 23 October 2003.

10 After 26 September 2003, the applicant telephoned my chambers and spoke to my associate. He was told that if he wanted to seek any order he should file a notice of motion. On 9 October 2003 the applicant filed a notice of motion in which he sought (in clear handwriting in English) the following orders:

1. Appointment of a linguistic expert in both the Sinhalese and English languages to determine the accuracy of the interpretation in the proceedings before the refugee review tribunal of my case.
2. A transcript of the review proceedings of my case before the refugee review tribunal. This to be kindly be made available to me. Due to my indigent circumstances.

11 The motion was made returnable on 23 October 2003, the date fixed for hearing.

12 On 9 October 2003, the applicant also filed an affidavit sworn on 7 October 2003 and handwritten in English.

13 It should be noted that the applicant stated on his original visa application that he could speak, read and write English.

14 The matter was called on before me on 23 October 2003. On that day, the applicant had the assistance of an interpreter. On that day, the first matter with which I dealt was the affidavit filed 23 September 2003. In evidence given to me on 23 October 2003 the applicant said that there were other important errors in the interpreting.

15 For the avoidance of doubt at this point, I should say that by this time, it was plain that the applicant had enough familiarity with English to be able to identify what he saw as errors in interpreting Sinhalese into English and vice versa.

16 That was the basis upon which the matter had proceeded on 16 September 2003 and 23 October 2003. The applicant said in evidence (through an interpreter) on 23 October that he had some facility with English and Sinhalese. The following exchange took place:

His Honour: Just a minute. You had an interpreter before the Tribunal?

The Interpreter: Yes

His Honour: You have an interpreter today.

The Interpreter: Yes.

His Honour: You have some facility with English and Sinhalese?

The Interpreter: Yes

His Honour: Not enough to make you confident about giving your evidence to either the Tribunal or to me?

The Interpreter: Yes

His Honour: I understand that. There is no difficulty with that. ... But your facility with both languages explains how you are able to assert the errors in interpretation of the interpreter before the Tribunal.

The Interpreter: Yes

His Honour: You have made assertions that the interpreting was deficient.

The Interpreter: Yes.

17 I ordered the applicant to prepare another affidavit, this time exhaustively setting out his complaints. This involved another adjournment, which was opposed by the respondent. After hearing Ms Allars, I made the following order:

1.	On or before midday, Monday 27 October 2003, the applicant file and serve an affidavit setting out an exhaustive and complete list of any additional asserted errors in interpreting at the Tribunal hearing.

2.	The notice of motion filed by the applicant on 9 October 2003 and the applicant’s application under s 39B of the Judiciary Act 1903 (Cth) be stood over for hearing to Wednesday 29 October 2003, at 2.15 pm.

18 I gave ex tempore reasons on 23 October 2003.

19 On 23 October 2003, the applicant rang my chambers and spoke to my associate (in English). On 24 October 2003, my associate sent a letter by express post to the applicant at the address identified on his Court filed documents. This letter was in the following terms:

I refer to your phone call to chambers yesterday during which you requested my assistance in the drafting of your affidavit, ordered by his Honour at yesterday’s directions hearing to be filed by midday, Monday 27 October. As I stated to you, that is not something I can help you with. It is inappropriate to request assistance of that kind from a staff member of his Honour.

His Honour made it very clear at the directions hearing what was required in the affidavit. You are to set out an exhaustive and complete list of additional errors in interpreting you assert were made at the Tribunal hearing. There is no need to repeat what you have put in your affidavit of 23 September 2003.

The matter is listed for the hearing of the notice of motion and your application proper on Wednesday 29 October 2003, at 2.15 pm.

20 On 24 October 2003, once again the applicant rang my chambers, spoke to my associate and sought assistance. On 27 October 2003 my associate sent a further letter by express post to the applicant in the following terms:

I refer to my letter of 24 October 2003.

On the afternoon of Friday 24 October 2003 you called chambers again, requesting my assistance in the drafting of your affidavit. I write to confirm my response to your request. As on the previous occasion outlined in my letter referred to above, I told you that the drafting of your affidavit is not something with which I can assist you. On his Honour’s instruction I also stated to you that you are not to continue to call chambers.

The matter is listed for the hearing of the notice of motion and your application proper on Wednesday 29 October 2003, at 2.15 pm.

21 On 27 October 2003 the applicant filed a 26 page handwritten affidavit.

22 The applicant undertook his own examination of the tape recording of the Tribunal hearing and prepared the two affidavits to which I have made reference after having a full opportunity to listen to the tape recording privately.

23 On 29 October 2003, I heard the matter. At the conclusion of the hearing, I gave leave for the filing of further submissions in the following terms which orders were made in Court in the presence of the applicant, and a copy of the terms of which orders were sent by letter on 29 October 2003 to the parties:

1. Grant leave to the applicant to file in the Registry and serve on the respondent further written submissions on or before 4 pm, Monday 3 November 2003.

2. Grant leave to the respondent to file and serve any submissions in reply on or before Wednesday 5 November 2003.

3. Grant leave to the applicant to file in the Registry and serve on the respondent any submissions in reply to the respondent’s submissions on or before midday, Thursday 6 November 2003.

4. Judgment reserved.

24 On 3 November 2003, the applicant not only filed further submissions (for which he had leave), but also another handwritten affidavit (for which he did not have leave).

25 On 4 November 2003, the respondent filed supplementary submissions. The respondent opposed the reception of the further evidence in the affidavit filed by the applicant without leave on 3 November 2003.

26 On 6 November 2003, the applicant filed two further sets of written submissions.

27 On 24 February in circumstances that I will recount, the applicant filed a further submission.

The Background and the Tribunal Decision

28 The claim of the applicant as set out in his visa application were summarised by the Tribunal at pp 4-5 of its reasons as follows:

The Applicant is a 36 year old married man. He lists his religion as Buddhism, his ethnic group as Sri Lankan and his occupation as business. He speaks, read and writes, Sinhalese and English. Prior to his arrival in Australia he ran his own grocery business. The Applicant has a sister in Australia. His wife and son are in Sri Lanka as are his parents and three brothers.

The Applicant’s claims are set out at Folio 18-25 of the Department file. The Applicant claims that he is a supporter of UNP and participated actively in supporting and campaigning for the local UNP candidate. The Applicant lists his involvement from 1989 onwards and claims that he has faced harassment from the JVP and PA because of his support for UNP.

A further statement of claims prepared by the Applicant’s adviser is set out at Folio 44-49 of the Department file providing the following details.

The Applicant was a member of the UNP and worked in the polling district of Kaduwela in Colombo. The Applicant’s involvement dates back to 1995 and the Applicant campaigned for the UNP in the 1999 Presidential elections.

The Applicant and Mr Janith’s brother, Mr Ajith were close friends also supporting the UNP. Both the Applicant and Mr Ajith were campaigning in support of the UNP and Mr Janith in particular...The Threesome campaigned heavily against Mr B during the 1995 elections. Similarly in 1999 the threesome campaigned heavily in favour of the UNP for the Presidential elections. During the 1999 campaign the threesome vocalised various issues of corruption lead by Mr B...

During Mr B’s 5 year term, the threesome became increasingly well known and popular... After the 1999 elections the Applicant put much of his time and effort into promoting the UNP policy...

As the October 2000 election camping [sic: campaigning] neared the PA and Mr K and Mr B in particular were acutely aware of the effect that the threesome were creating by promoting the UNP policy...

Prior to the October 2000 election campaign, Mr Janith received numerous death threats. Shortly before Mr Janith’s murder, Mr Ajith discussed with the Applicant the very real likelihood that the death threat will become a reality... In mid 2000 Mr Janith, Mr Aijth [sic] and his young son were murdered...

Within a few weeks of the funeral the Applicant began to experience threats and real incidents...

The Applicant claims that he was returning from the bank while his friend waited near their car. Shots were fired at the car but their [sic] was no injury...The Applicant states that this incident was the first that was aimed directly at him and in fact was the incident which bought him too [sic] the realisation that there was a real chance that his life was in danger.

During the actual campaign. [sic] The Applicant received many threatening messages and his wife answered many threatening calls...On 12 May 2000 the Applicant left his shop to attend some duties. His shop manager remained at the premises. Within a few hours the Applicant had heard that the manager was shot and was critical at the hospital...

Immediately after this incident the Applicant removed his wife and child to the home of a relative in Kandy. Most of the family’s possessions remain in their home. The Applicant after securing a temporary safety of his family fled to Australia to seek protection.

29 The Tribunal referred to the fact that in September 2001, after an interview with the Department, the Department wrote to the applicant in the following terms:

In your application and at your interview, you claimed that you were a prominent member of the UNP and that you worked for the election of the UNP representative in your electorate Dr Kodituwakku. You claim that through your work in electioneering you have made powerful enemies in the PA and you fear for your life.

Specifically, you claim that your close associate in the UNP, Janith Perera and his brother Ajith Perera were killed by unknown assassins on 18/4/99. You believe that the assassins are linked to the PA and may also target you. You claim that prior to the election to the PA put up posters and a stage covering your shop and did not take it down. You state that you and your friends dismantled the stage. You claim further that the next day, shots were fired at your van near a bank. You claim that this was an attempt on your life and that these shots were fired by a person linked to the PA in your area.

The factors and information below will be taken into account in determining the credibility and well-foundedness of your claims and are significant in determining whether you meet the criteria for a Protection Visa.

1.	At the end of the interview you were asked to provide additional information. This has not been received.
2.	Extensive searching by the Department’s Country Information Service has failed to locate any mention of the deaths of Ajith and Sujith which you said at interview was reported in the newspapers.
3.	According to information available to me through our Country Information Service, the incident involving the pulling down of the posters in front of your shop occurred in 1997, not at the time you claimed.
4.	In your application and at interview you omitted revealing that your brother is in Australia and his immigration status.
5.	I have offered to use the resources of the Department of Immigration to confirm your claims with Dr Kodituwakku and you have failed to give your permission for us to do so. An adverse inference may be drawn from this.
6.	Your description of the incident when your van was shot at is not plausible. You state that at the time you thought it was a robbery but no attempt was made to obtain money from you.

If you want to comment on this, you should do so in writing. If you want to submit documents that are not in English, you should also submit English translations of those documents. For information about providing translated documents, please contact the Translating and Interpreting Service on phone number [number provided]. You can ask for an interpreter to help you with your inquiry.

You have 28 days from receipt of this letter to send your written comments to the address below. You are taken to have received this letter 7 working days after the date of this letter.

30 The Tribunal also referred to the fact that the applicant, through his then immigration adviser, responded to this letter of the Department over four pages. The adviser included a copy of the front page of a newspaper dated 18 April 1999 in connection to the murder of Janith and Ajith. Submissions, largely by way of factual clarification, were made on the six numbered paragraphs in the Department’s letter of 20 September 2001.

31 The Tribunal then recounted the claims and evidence made and given at the hearing before it. Part of that recounting of evidence was as follows:

The Applicant was asked who exactly wished to kill him. He stated that it was a person by the name of Mr Buddasara who was Chairman of Kaduwela Local Government Body. He stated that this person would organise a gang of thugs to kill him. The Applicant was asked if this was the only person of the PA party that he thought wished to kill him. The Applicant stated that as far as he knew he was the only person who wished to kill him.

The Applicant was asked why he would wish to kill him. He stated that because he was a local UNP organiser and was very successful.

The Applicant was asked when he first realised that this person wished to kill him. He stated that on the 28 April 2001 as he was leaving the bank a shot was fired but that no one was hurt. He stated that a friend had recognised a person at the scene as a person who was part of Mr Buddasara’s gang.

The Applicant was asked if any events took place before April 2001. He stated that he had received telephone calls from unknown persons and that these calls had started about three to four months prior to April 2001. The Applicant stated that as he did not take these calls seriously he could not recall when exactly they began. The Applicant was asked if he took any action in respect to the phone calls. He stated that he initially organised to check where his incoming calls were coming from, but as you had to pay for this service and as it was expensive he did not pursue it. He stated that as parents and friends also received nuisance calls he did not give the calls much importance and did not report the matter to the police.

The Applicant was asked about any other events. He stated that the incident which led him to have fear was the incident that took place in his grocery shop. He stated that normally he would go down to the shop at 7.30 pm in the evenings and take over from the person working in the shop. The Applicant stated that in May 2001 on a date he cannot recall but that it was a Saturday he had not gone to the shop as normal and that the person looking after the shop at that time was shot and later died in hospital. The Applicant stated that he believed that the intention was to kill him as he is normally at the shop at that time. The Applicant stated that the murder is still under investigation by the police and was ambiguous as to whether or not there were witnesses to the incident. The Applicant stated that he believed that it was intended to kill him because he had achieved all the things he had set out to achieve in the political arena. The Applicant stated that he believed that Buddasara was behind the incident in the ship as the Applicant was an active campaigner for the UNP in the Kaduwela electorate and that Buddasara belonged to the PA. The Applicant stated that he believed that that Buddasara had contracted some thugs to kill him but instead they had killed the other person in his shop.

The Applicant stated that he did not go down to the shop after the shooting but that his father did. He stated that his family considered it unsafe for him and that they decided that he must leave. He stated that he took his wife and child to Kandy and stayed with them, returning to Colombo to organise his passport and visa to Australia.

The Applicant stated that he did not go to the police or inform the police that he suspected that he was the intended victim in the shooting and that the shooting was organised by Buddasara. The Applicant stated that he did not believe that the police would or could do anything and he did not trust them. He stated that maybe his father had told the police.

The Applicant was asked what he thought would happen if he returned to Sri Lanka. He stated that he would be killed. The Applicant was asked why they would still wish to kill him as he had been absent for sometime and was no longer active in politics and had no intention of getting involved in politics again. The Applicant stated that there are lots of examples of people who leave Sri Lanka out of fear for their lives and they return some time later and are then killed.

The Applicant was asked if he considered that he could relocate to a place such as Kandy where his wife currently lives. The Applicant stated that he did not think that he would be safe in Kandy and that they would still try and kill him.

The Applicant stated that he feared for his life as his friends and political associates were murdered in 1999 and that he was the next in line. The Applicant was asked that if this was the case why nothing happened to him until April 2001 some two years after the killing of his associates. The Applicant stated that although he was involved in politics he became more heavily involved after the killing of his friends and that is why he was at risk. He stated that after the death of his friends he took the frontline and was thus next in line to be killed.

The Applicant stated that Buddasara was involved in corrupt practices in regard to liquor licenses and that he had opposed these practices.

The Applicant was asked about his failure to go to the police to report threats to him. The Applicant stated that the police do not care and that there are a considerable number of political murders in Sri Lanka which indicates that the police are ineffective and unable to provide protection. The Applicant stated that the authorities are corrupt and cannot help.

The Applicant stated that he no longer wished to participate in politics in Sri Lanka.

32 The Tribunal then referred to a submission provided to it after the hearing and to available country information.

33 In its findings and reasons the Tribunal expressed the following:

(a)	It came to the conclusion that the applicant was not credible in respect of "key aspects" of his claims. Certain "key aspects" of the applicant’s evidence were described as unsatisfactory, implausible and incongruent.
(b)	The first aspect said to be unsatisfactory was the evidence concerning his two close political associates, Janith and Ajith. The Tribunal noted discrepancies concerning the date of the alleged murders of Janith and Ajith contained in submissions filed with the Department (2000) and that contained in the advisers letter supported by newspaper clippings (April 1999). At the hearing, the Tribunal said, the applicant reiterated that the murders took place in 1999.
(c)	The Tribunal was unconvinced by the applicant’s claims of the shooting outside the bank and at his shop in 2001. Important to the Tribunal’s reasoning was the two year gap between the alleged murder in 1999 and the shootings in 2001.
(d)	Further, the Tribunal found a number of further matters incongruent expressed as follows:
(i)	...that the Applicant on the one hand claims that when he began receiving threatening phone calls in early 2001 he paid little attention to them and thus could not remember when they began, did not report them to the police and did not investigate them very much because of the expense involved yet on the other hand he claims he knew that he was the next in line to be killed following the death of his claimed political associates in 1999 and thus needed to flee the country.
(ii)	...that the Applicant was relatively unconcerned about threatening phone calls in the early parts of 2001 such that he takes few precautions but that three months later when there is a shooting incident at his shop, when he is not present, he is gripped by such fear for his life and is so sure that he was the intended victim, he sees no alternative but to flee the country.
(iii)	Further given that Sri Lanka has a history of political violence as outlined by the country information cited above the Tribunal considers it to be incongruent that a person claiming a high level of financial and public commitment to political action dating back to 1995 and which is reaffirmed and not thwarted following the murder of his claimed political associates decides, following two inconclusive incidents within a relative small time frame that of April and May 2001, that he must flee the country immediately because his life is under threat because of his political activities.
(iv)	The Tribunal considers it incongruent that a person claiming such an intensity of political commitment to the cause of UNP over an extended period of time and having been spurned on to greater involvement following the claimed killing of his associates flees the country so abruptly in the face of his first personal brush with claimed political violence.

34 Having expressed these views the Tribunal concluded:

These factors considered collectively lead the Tribunal to conclude that the Applicant is not credible in his claim that threats were made against his life because of his political activities, and that for this reason he fled to Australia. Not being satisfied in respect of these aspects of his claims, as outlined above leads to the Tribunal to conclude that the applicant is not in genuine fear of persecution.

35 The Tribunal also concluded that the applicant faced no threat upon his return to Sri Lanka for the following reasons:

Further the Tribunal is not satisfied that the Applicant faces threats to his life for reasons of his political opinion on his return to Sri Lanka. The Tribunal reaches this finding on the basis that the Tribunal does not accept that the Applicant did in fact face any threat to his life for reasons of his political activities prior to his arrival in Australia. Further, the Applicant has resided in Australia for the past eighteen months and as such was absent during the last election campaign (which resulted in a change in government with the UNP taking power and the PA now in opposition) and the Applicant stated in the hearing that he has no intention of pursuing any further political activities in Sri Lanka. Accordingly the Tribunal does not accept that the [sic: he] faces a threat to life for reasons of his political activities on his return to Sri Lanka.

The various submissions of the Applicant

25 August 2003

36 I deal with the numbered complaints in the facsimile from the applicant (see [3] above) as follows:

1.	The Tribunal did not disregard the applicant’s explanation of the correct date of the alleged murders of the two men in 1999. After commenting upon the discrepancy the Tribunal proceeded on the basis that the murder of the two men took place in 1999.
2.	The applicant misunderstood what the Tribunal said in its reasons. The Tribunal did not say in its reasons that the events which he complained happening (outside the bank and in the shop) took place in May 2000; nor did the Tribunal say that the murder of the two men and the child took place in May 2000.
3.	The same misconception appears in paragraph 3 of these submissions. The Tribunal did not claim that 12 May 2000 was a relevant date save for the comment in relation to the past submissions made on behalf of the applicant.
4.	The applicant claimed to live Battaramulla, though the Tribunal found that his parents and a younger brother lived in Batticaloa and that he lived next door to them. To the extent that there is an error here it is an error of fact and does not appear to have any central foundation in the reasoning of the Tribunal.
5.	This is not a ground of jurisdictional error. It was not incumbent upon the Tribunal to deal with every reason given by the applicant. The Tribunal’s reasons dealt with the applicant’s claim for asylum. The Tribunal was not obliged in law to traverse every piece of evidence given.
6.	This paragraph appears to carry with it the complaint as to an asserted lack of procedural fairness. I will deal with this in a moment in dealing with the second document submitted on 26 August 2003.
7.	I will deal with the interpretation question below.
8.	This raises the question of procedural fairness and the interpretation issue both of which I will consider below.

37 I will now address the arguments on behalf of the applicant in the document entitled "Some Arguments for the Applicant".

38 The first two numbered paragraphs of the submissions complained about the failure to put matters central to the reasoning process of the Tribunal to the applicant. The first matter complained of was that the Tribunal did not put to the applicant the fact that he provided different dates in respect of the death of the associates, mid 2000 and April 1999. This is not a matter which needed to be placed before the applicant. It was part of the reasoning process of the Tribunal. The applicant had already been asked by the delegate about the relevant dates. The applicant had placed a number of pieces of material before the Department, the delegate and the Tribunal. The applicant had been provided the full opportunity to be heard in respect of the matters he wished to put forward to support his claim. The right to procedural fairness does not include a requirement to be informed of, and have an opportunity to deal with, the mental processes or process of reasoning used by the decision-maker to come to his or her decision: Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591-92 and cf Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 587. That is what this submission demands. It should be rejected.

39 The second submission in the document was similarly misconceived. There was a complaint about the reasoning that "it was incongruent that a person claiming a high level of financial and public commitment to political action dating back to 1995 ... following two inconclusive incidents within a relatively small time frame of April and May 2001 [decides] that he must flee the country immediately because his life was under threat because of his political activities": see the passage on page 13 of the Tribunal’s reasons quoted at [33] above. Once again, this is a requirement to disclose the reasoning process by which the Tribunal was dealing with the matter. It was not necessary for this to be put to the applicant separately.

40 The third argument for the applicant in this document complained about a finding that the Tribunal was unconvinced that the shooting event in the applicant’s shop was in fact an attempt upon his life because of his political activities. Objection was taken to this finding on the basis of material before the Tribunal. No submission was put in the document that the finding displayed an error of jurisdictional kind.

41 The fourth paragraph of the document also complained of a factual finding that the applicant lived in Batticaloa it is said that this may have effected the outcome. No rational submission was put as to why it would so effect the outcome. If there was an error, as there may have been, it was an error of fact on an adjectival question not displaying any jurisdictional error.

the affidavit of 23 September 2003

42 I turn now to the more detailed complaints concerning the interpreting. The significance of this issue goes not only to the complaint that the hearing before the Tribunal was so flawed by the interpreting as to not amount to a sufficient hearing for the purposes of the Act, but also goes to the question as to whether I should adjourn the further hearing of the matter and make an order for the appointment of an interpreter to act as an independent expert to comment on the quality of the interpreting. As I said in my earlier judgment, it may, at first sight, appear strange that these assessments are made without independent evidence. However, it is plain from the way the applicant has conducted the case, from what he has said and from what he said in his original application that he has sufficient familiarity with English to be able to identify such flaws as he perceives in the interpreting in order that a judgment can be made as to whether or not there is a sufficient doubt as to the interpreting, such that an independent expert should be appointed or that there can be sufficient criticism made of the interpreting to conclude that there has been a jurisdictional error or that there has not really been a hearing. Thus, the complaints of the applicant will be identified to see whether they should result in either the application succeeding or orders being made under the notice of motion.

43 Before beginning to examine the various matters said to be interpretation errors it is to be noted that in evidence on 23 October 2003 the applicant said that there was no error on the part of the Tribunal when it stated on page 14 of its reasons that:

The applicant stated in the hearing that he has no intention of pursuing any further political activities in Sri Lanka.

44 This was the foundation for the Tribunal’s conclusion in the following sentence that:

Accordingly the Tribunal does not accept that the [sic: he] faces a threat to life for reasons of his political activities on his return to Sri Lanka.

45 In annexure A to the affidavit of 23 September 2003 the applicant listed 8 examples of misinterpretation. The first complaint was as to whether he said he was safe or safer in Kandy. The submission of the applicant makes plain that the member was given the correct version after discussion. [See also [61] below.]

46 Secondly, the applicant complains about the interpreting concerning the reasons for not obtaining further information about the telephone calls. Here, there is no factual difference of substance between what the applicant said and what the interpreter conveyed to the Tribunal. The real complaint appears to be that the applicant might, in retrospect, have wanted to say more about the question. This is not a problem of misinterpretation. The Tribunal dealt with the question of the applicant’s response to the telephone calls at page 7 of its reasons. The finding made by the Tribunal was that the applicant did not give importance to the nuisance telephone calls and did not report the matter to the police. The Tribunal it would appear understood that there was a difficulty in paying for the service, and that appears from page 7 of the reasons. There does not appear to be any real difference between what the applicant claims he intended to say or explain and the understanding of the Tribunal member.

47 Thirdly, the applicant complains of the evidence concerning a Saturday in May. The Tribunal deals with this on page 7 of its reasons in referring to a date in May 2001 which it said the applicant could not recall but which was a Saturday (see [30] above). The applicant said that he did not say "he is not sure". There is no basis here for thinking that any substantive or substantial misinterpretation occurred. The Tribunal itself said that the applicant said it occurred on a Saturday: see page 7 of the Tribunal’s reasons. I accept the submission of Ms Allars for the respondent that it is implicit in the Tribunal’s reasons that he was asked for the date. He apparently gave the date as best he could.

48 Fourthly, the applicant complained of the use of the word "whatever" by the interpreter in a context which sounded as though it was a closing statement when it was in fact an opening statement; that is that the word "whatever" was used in a colloquial and off-hand manner. This does not appear to have played any real part in the Tribunal’s reasons. The applicant said that he was confused at the sudden stop and felt that he had more to say. That is a claim about the applicant’s experience and feelings in the course of the hearing, it is not a claim about a mistranslation or misinterpretation.

49 Fifthly, it was said that the interpreter made a mistake and said to the applicant "before 1999". It appears that some confusion at this point in the transcript was clarified. It was said by the applicant in the affidavit that this stopped his fluency of thinking and provided a further feeling to the member that the applicant was generally confused. I am not persuaded on this evidence that any significant flaw in the interpreting took place. In particular, since the parties to the conversation (the Tribunal, the interpreter and the applicant) appeared to have corrected the matter.

50 Sixthly, the applicant complained about the quality of the interpreting of what he said was a strong and clear statement by him. On the evidence there is no significant difference between what the applicant said and what the interpreter said he said. I do not accept that the interpreter’s words were either vague or rambling, but were rather a reasonably close translation of what was said.

51 Seventhly, there is a complaint about interpreting related to what appears on page 8 of the reasons concerning his fear of being killed. The applicant says that he said:

If this person tried to kill someone he definitely would kill them.

52 The applicant says the interpreter said "whoever this person tried to destroy is not there at all". At this point the member stopped the applicant and said the member could not understand. It is plain from page 8 of the reasons that the applicant was able to explain to the Tribunal what he thought would happen if he returned to Sri Lanka. He stated that he would be killed. After being asked why people would wish to kill him as he had been absent for some time, was no longer active in politics and had no intention of becoming involved in politics, the applicant stated that there are lots of examples of people who leave Sri Lanka out of fear for their lives, return some time later and are then killed. I am not persuaded that the seventh asserted interpretation error was of any significance.

53 Eighthly, there was an asserted inadequacy in the interpreting of evidence of the voting system in Sri Lanka. Nothing turned on this in the reasons. No particular finding was made by the Tribunal. I am not persuaded that there is any significance in this at all.

54 Annexure A then proceeded under the heading "other issues" to raise eight further issues.

55 The first complaint was that the Tribunal made a mistake with the names of areas. This is the issue about the place of living of the applicant and his family. I have already indicated that I do not think that this factual error, if it be one, is of any significance.

56 A point was made about the use of country information. I am not able to divine any basis for concluding that there is any jurisdictional error on the part of the Tribunal in this respect. The applicant said that the Tribunal did not understand that his ability to spend money on the party was one of the reasons why he was targeted. This is a factual complaint with the conclusions of the Tribunal, which does not exhibit any jurisdictional error.

57 The applicant complained that the Tribunal did not see the relevance of Mr Buddadasa’s son being in line for future elections. Once again this is a cavilling with the factual approach of the Tribunal. The applicant says that political murders only happen prior to and during election time which explains the period of time between the murder of the two men and the attempts on the applicant’s life. The applicant says that the country information proves that these murders happen at specific times. Again, this is a factual debate about the evidence in which I do not propose to involve myself.

58 The applicant complained the delegate and the member confused issues and dates by confusing different elections, presidential and council. Again, this is a disconnected submission concerning the merits of fact finding by the administrative decision-maker.

59 An assertion was made that date confusion arose from confusion with interpretation. There is no evidence of this.

60 An assertion was made that the Tribunal’s conclusion as to the unsatisfactory nature of the applicant’s evidence was due to interpreting error. Thus far, there is no basis in the evidence for that conclusion.

the affidavit filed 27 October 2003

61 In this affidavit the applicant annexed two schedules (B) and (C); annexure B was a list of interpreting errors. Annexure C was a transcript made by the applicant in hand, although not a complete transcript of the hearing. It is to annexure B that the submissions were primarily directed. In the affidavit the applicant sought the independent expert to assist in explaining the significance of the errors. As will become plain on the material before me including this affidavit, I do not think that there is any basis to conclude that either it is necessary to have an independent interpreter or that there was any failure of the interpreting before the Tribunal of such a consequence that a new hearing should be ordered. I turn to the individual matters raised by the applicant.

62 The first concerned the question of the correct interpretation of what the applicant said about Kandy being "better safe" than Colombo. I have read what the applicant said on pages one and two of annexure B. To the extent that he wanted to say something more I do not think that the interpreting had any bearing on preventing him saying whatever he wanted to say. This first complaint in the affidavit filed on 27 October 2003 is the same as point one in annexure A in the affidavit of 23 September 2003. To the extent that the applicant was complaining that the Tribunal did not understand (because of the interpretation errors) his submission or his evidence that neither Kandy nor Colombo was safe, that fact was made plain in the transcript contained within annexure C. It is plain that the Tribunal asked the applicant whether he thought that any part of Sri Lanka was safe and that the applicant said that he did not think any part was safe.

63 The next asserted error is identified on pages three and four. The asserted difference is one that is not of substance. The applicant says that he said:

When I was doing politics, I use to involved it very heavy.

64 The applicant says that the interpreter translated this as "I used to involve with politics a lot and I used to do a lot".

65 It was at this point in the submissions on 29 October 2003 that the applicant began to ascertain what the Tribunal member must have thought. I indicated to the applicant that he could not say one way or the other what the Tribunal member thought and to restrict himself to what the interpretation error was. I do not think that this second asserted error was of any significance.

66 The third asserted error was on pages 5, 6 and 7 of the affidavit. It is described by the applicant in his affidavit as being with respect to tracing telephone calls. The applicant said that he explained to the Tribunal that this was the case and that the interpreter used additional sentences for the interpretation which he did not say. This appeared to be the same mistake as appeared in point two of annexure A of 23 September. On pages 6 and 7 it was asserted that the interpreter said that the tracing of the telephone calls was very expensive. This was corrected by the applicant who said it was not very expensive. The interpreter then corrected this and said not very expensive. On this basis there was a correct interpretation. The applicant was able to correct the interpreter at the hearing. No credibility finding was made on any perceived change in evidence with regard to the reason for stopping the telephone service. Also, as is made clear on page 7 of the affidavit in annexure C, it was not because of the expense of the telephone service that it was terminated but that the applicant did not take seriously the threats.

67 As to the fourth claimed misinterpretation on pages eight and nine of the affidavit there was a complaint that the interpreter misinterpreted a question about 28 April 2001. Nothing appears to have turned upon this passage.

68 The fifth complaint was set out on page 10 of the affidavit. This concerns the discrepancy about dates referring to Saturday 12 May. This is the same complaint referred to in point 3 of Annexure A to the affidavit of 23 September. If the affidavit is a correct recitation of the tape recording there was a failure at this point by the interpreter to convey to the Tribunal did say the 12^th of May. The relevant part of the Tribunal’s finding is on page 7 of the reasons set out in [30] above. In fact, the applicant could recall the date. I accept Ms Allars submissions that nothing turned on the precise day. On page 12 of the reasons the Tribunal made findings concerning this matter. It found that it was unconvinced that the shooting which occurred outside a bank in April 2001 and the shooting incident in his shop in May 2001 when he was not present were in fact incidents directed at the applicant. Thus, the date of the incident was not material. The Tribunal accepted that a shooting occurred in May 2001. Nothing turned on the precise date or whether the applicant could recall the precise date. Rather, the concern of the Tribunal was with the two year gap between 1999 and 2001.

69 The sixth claim of interpretation error is found on page 11. This concerned passages in the Tribunal about who went to observe or find out about the incident at the shop – whether it was the applicant’s father or not. A passage is set out of the applicant and then an interpretation by the interpreter and a following question by the interpreter as to whether that was correct to which the applicant responded "yes". Thus, it would appear that the interpretation was correct. The complaint now appears to be as to the lack of confidence of the interpreter which then effected the confidence of the applicant. I see no basis to conclude that any unfairness took place in relation to the interpretation in this respect.

70 The seventh complaint of interpretation is contained on page 12 of the affidavit. This complaint was the same as that contained in point four in annexure A to the affidavit of 23 September. The complaint was that instead of interpreting "underworld" the interpreter used the word "gang". However, the applicant then apparently corrected the interpreter and the interpreter then said "underworld or underground or whoever or gang". I do not see how it can be said that there was a true inadequacy in the interpretation.

71 The eighth complaint is on pages 13 and 14 of the affidavit. This concerned the asserted failure of the interpreter to use a proper word for "preferential votes". This is the same as point eight in the annexure to the affidavit of 23 September. Nothing needs to be added to what I said earlier about this.

72 The ninth complaint is on pages 15 and 16 of the affidavit. It concerns the matters referred to in point six in annexure A and relates to the interpretation of the applicant’s claim that he feared he would be killed if he retuned to Sri Lanka. It is clear from pages 12 and 13 of the reasons that the Tribunal understood that the applicant claimed that he would be killed if he returned to Sri Lanka.

73 I have examined the supplementary submissions of the applicant filed on 3 November 2003. They, in part, contain evidence of explanations as to the conduct of the matter in the past. In particular, in relation to the conduct of the migration agent. This evidence was not tendered at the hearing. In any event none of the submissions as to the conduct of the adviser and none of the other submissions filed on 3 November takes the matter any further. The submission is a mixture of repetition of the complaints as to the interpretation with which I have dealt and the concern with the factual conclusions reached by the conclusions.

74 The reception of the affidavit filed on 3 November 2003 is opposed. It contains a history of the applicant’s claims and personal life. It is not appropriate to receive this evidence on this review hearing in particular, since the applicant had no leave to file it. I will leave the affidavit in the file and I do not propose to rely upon it.

75 In submissions filed on 6 November 2003 (without leave) the applicant sought to explain the matter to which I made reference at [42] and [43] above, that is that the applicant stated at the hearing that he has no intention of pursuing any further political activities in Sri Lanka. In seeking to explain this the applicant pressed upon me what he said he pressed upon the Tribunal: that notwithstanding that he will not engage in further political activities he is still in danger. He said that the persons who tried to kill him know him and know that he knows who killed the manager in the shop and that he knows who killed Ajith and Janith. The submissions involve a factual debate with the matters dealt with by the Tribunal.

76 On 6 November 2003 the applicant filed another set of submissions. The submissions refer to the leave I gave the applicant to put in a further document. On 29 October 2003 the applicant handed to me in Court a document to which he wanted to speak. This is reflected at pages 17 and 18 of the transcript of that day. I gave the applicant an opportunity to deal with the matter with the benefit of a little more time: see the bottom of page 18 of the transcript. At that point I handed the document back to the applicant so that he could use it as the foundation for further submissions: see transcript page 19. I did not retain a copy. I did not read it. The submission filed on 6 November 2003 which appears to assume that the Court had the document handed up and returned on 29 October 2003 takes the matter no further either in relation to the asserted interpreting errors or any other asserted errors of a jurisdictional kind of the Tribunal. However, given that the submission filed on 6 November 2003 seemed to assume that the Court had in its possession the document handed up and returned on 29 October 2003 I thought it appropriate to give the applicant a further opportunity to file any further submissions free of any misapprehension as to what was in possession of the Court: see my short judgment on 11 February 2004 ([2004] FCA 62).

77 Pursuant to the leave I gave on 11 February, the applicant once again filed a handwritten submission in the Registry. I do not propose to deal with this submission paragraph by paragraph. It was a submission of five pages restating various matters and substantially asserting the factual errors committed by the Tribunal. It does not take the matter any further.

78 I am not satisfied that the Tribunal hearing miscarried in any way by reference to the asserted interpreting errors. I refer, in particular, to the decision of Kenny J in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 and to the decision of Goldberg J in Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759. It is unnecessary for me to discuss the nature and content of the obligation on the Tribunal to provide a hearing or to discuss the level or quality of interpreting being required for any hearing. It is sufficient to say in this case that I am not satisfied that there was any substantive defect whatsoever in any of the interpretation.

79 There is no other basis in my view from the submissions filed to conclude that the Tribunal committed any error of a jurisdictional kind in the handling of the applicant’s case.

80 For these reasons the notice of motion filed 9 October 2003 is dismissed and the application is dismissed.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 5 March 2004

The Applicant appeared in person.
Counsel for the Respondent:	M Allars
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	16 September, 26 September, 23 October and 29 October 2003
Last submission	24 February 2004
Date of Judgment:	5 March 2004