SZGFO v Minister for Immigration and Citizenship [2007] FCA 146 (19 February 2007)

Last Updated: 21 February 2007

FEDERAL COURT OF AUSTRALIA

SZGFO v Minister for Immigration and Citizenship [2007] FCA 146

SZGFO v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 2208 OF 2006

KENNY J
19 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2208 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGFO Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	KENNY J
DATE OF ORDER:	19 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.
3. The name of the first respondent be amended to "Minister for Immigration and Citizenship".

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	NSD 2208 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGFO Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	KENNY J
DATE:	19 FEBRUARY 2007
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

BACKGROUND

1 The Refugee Review Tribunal has found that the appellant is a citizen of Uzbekistan, who arrived in Australia on 11 August 2004 on a business visa.

2 On 27 August 2004, he lodged an application for a protection visa with the respondent Minister’s Department. He claimed refugee status on the ground of political opinion.

3 On 9 September 2004, a delegate of the first respondent refused to grant a protection visa to the appellant. The appellant applied to the Tribunal for review of the delegate’s decision. The appellant, through his agent, was invited to attend a hearing on 14 January 2005. The appellant requested an interpreter in the Uzbek language for the hearing.

4 The Tribunal handed down its decision affirming the delegate’s decision on 30 March 2005. On 5 May 2005, the appellant filed an application in the Federal Magistrates Court for judicial review of the decision of the Tribunal. The grounds of this application were:

"The Tribunal was unable to reach a correct decision because neither the Tribunal nor the applicant received any assistance of the qualified Uzbek language interpreter. Instead of providing the applicant with the Uzbek-English interpreter, as it was requested, the Tribunal provided the applicant with the Uigar language interpreter. This resulted in impossibility to deliver Tribunal questions to the applicant properly as well as the applicant’s answers to the Tribunal. Due to the above mentioned the applicant had no fair hearing and therefore the judgment was not correct."

A Federal Magistrate heard the application on 28 September 2006 and delivered judgment dismissing the application on that day. The appellant appeals from that decision.

TRIBUNAL DECISION

5 Before the Tribunal, the appellant claimed to fear persecution because of his political opinions. He claimed to be a member of an opposition party, which is not officially recognised by the Government of Uzbekistan. He claimed that, in Uzbekistan, harassment of activists was increasing, and that he feared physical harm at the hands of parties loyal to the current President if he returns there because of his opposition to the current Government.

6 The Tribunal found that the appellant was an unimpressive witness who contradicted himself in relation to significant parts of his evidence. His evidence to the Tribunal contained contradictions for which, in the Tribunal’s view, he had not given cogent explanations. The Tribunal did not accept that he had ever been a member or supporter of the opposition party, that he was prevented from expressing any opinion against the government of Uzbekistan, or that he genuinely feared that he would be imprisoned or killed if he returned to Uzbekistan. It therefore did not accept that there was a real chance that he would be persecuted for reasons of political opinion if he to return there.

7 In its reasons, the Tribunal stated that it was assisted by an interpreter in the Uzbek language.

THE FEDERAL MAGISTRATE’S DECISION

8 The Federal Magistrate received affidavit evidence from the interpreter who purported to assist the appellant at the Tribunal hearing. This affidavit evidence attested to her qualifications and language skills. The Federal Magistrate stated that, on the evidence, he was "not satisfied" that the interpreter at the Tribunal hearing "lacked general qualifications" to discharge an interpreter’s responsibilities. Further, his Honour found that there was: (1) no indication in the Tribunal’s reasons of any difficulties in communication; and (2) no evidence that, following the hearing, the appellant or his adviser made any complaints to the Tribunal about the interpreter at the hearing. The Federal Magistrate also noted that, whilst the appellant stated his dissatisfaction with the interpreter, he did not give any particulars of any misrepresentation and "nor did he present any evidence of an Uzbek interpreter or speaker deposing to having listened to the tapes and identified mistranslations". Accordingly, his Honour rejected the appellant’s application.

APPEAL TO THIS COURT

9 The appellant appeals to this Court on the following grounds:

"The Magistrate ... did not take into account the fact of impossibility for the RRT to reach right decision due to providing with me with wrong interpreter.

I need Uzbek interpreter to be able to answer RRT questions.

RRT did not apply correct test of nexus to Convention. It asked wrong questions and could not get right answers.

RRT did not assess some material facts in my application."

CONCLUSION

10 I have heard and considered the submissions for the appellant and the first respondent. The appellant, who was self-represented, was assisted by an interpreter at the hearing of the appeal.

11 The authorities in this Court establish that the obligation that is imposed on the Tribunal by s 425 of the Migration Act 1958 (Cth) includes an obligation to provide a suitable interpreter if one is needed. The obligation will not be discharged where an interpreter departs from the standard required for interpretation in the Tribunal. As the first respondent said, "the obligation [imposed by s 425] will not be met if mistakes by the interpreter result in an applicant not being able to present his or her case to the Tribunal". The Federal Magistrate held that, having regard to the evidence and other pertinent matters, the appellant had failed to make out his claim that the interpreter in his case fell short of the appropriate standard.

12 Today, the appellant reiterated his submission that the interpreter at the Tribunal hearing did not properly interpret his evidence. Amongst other things, he said that he could not understand her and she could not understand him. The appellant said that he ultimately left it to the interpreter to say what she thought was correct.

13 The appellant also sought to explain why the Tribunal did not believe him. He said that, when he arrived in this country, he did not trust people, including, it seems, the Australian authorities, and he was anxious that what he said about conditions in his country of origin might put his family in danger. The appellant also referred to the political conditions in Uzbekistan.

14 The appellant, however, adduced no evidence before the Federal Magistrate to support his submissions about the inadequacy of the interpreter at the tribunal hearing. Although the appellant said today that he had complained to his lawyer at the time about the interpreter, there was no evidence of this before the Federal Magistrate, and there remains nothing to corroborate the appellant’s claim. There was, as his Honour said, no indication of any such difficulties in the Tribunal’s reasons. Instead, the Federal Magistrate had evidence that attested to the interpreter’s qualifications and skills. It was open to him to accept this evidence, as I infer he did.

15 Accordingly, I accept the first respondent’s submission that nothing has been shown that would warrant disturbing the Federal Magistrate’s finding that the appellant failed to make out his claim that the interpreter fell short of the appropriate standard.

16 By his notice of appeal, the appellant sought to raise two further issues. Neither of them was raised by him in the Federal Magistrates Court. The appellant has provided no details of these additional issues save for what he said today. He has not given any explanation as to why he did not mention them earlier and, for these reasons, the Court should not entertain them. In any case, there is no merit in them. First, because the Tribunal rejected the appellant’s claims of political involvement and fear of imprisonment or death if returned to Uzbekistan, there was no "real chance" of persecution that required further analysis. It is clear from the Tribunal’s reasons that it considered the appellant’s claims and rejected them because of its conclusions about the appellant’s lack of credibility.

17 It is patent from the Tribunal’s reasons that it considered the appellant’s claims and rejected them in their entirety because of its conclusion as to the appellant’s lack of credibility. Although the appellant sought to explain the Tribunal’s rejection of his credibility, the issue of credibility is essentially for the Tribunal to determine. The matters to which the appellant referred are not therefore matters to which I may have regard.

18 Finally, the appellant reiterated his submissions regarding the inadequacy of the interpreter in support of his claim that the Tribunal did not assess the material facts. This, however, adds nothing to the primary ground of appeal (alleging inadequacies in interpretation), which I have already addressed.

19 For the reasons stated, I would dismiss the appeal. The appellant should pay the first respondent’s costs. As previously indicated, I would also order that the name of the first respondent be amended to "Minister for Immigration and Citizenship".

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated: 19 February 2007

Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter.
Counsel for the First Respondent:	Mr G. Kennett
Solicitors for the First Respondent:	DLA Phillips Fox
Date of Hearing:	19 February 2007
Date of Judgment:	19 February 2007