SZGFF v Minister for Immigration and Citizenship [2007] FCA 147 (19 February 2007)

Last Updated: 20 February 2007

FEDERAL COURT OF AUSTRALIA

SZGFF v Minister for Immigration and Citizenship [2007] FCA 147

SZGFF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2306 OF 2006

KENNY J
19 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2306 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGFF 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.

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 2306 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

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

REASONS FOR JUDGMENT

BACKGROUND

1 The Refugee Review Tribunal has found that the appellant is a citizen of Uzbekistan, who arrived in Australian in August 2004 on a business visa. On 27 August 2004, he lodged an application for a protection visa with the respondent Minister’s Department, claiming refugee status on the ground of political opinion. This morning, I considered a virtually identical claim in SZGFO v Minister for Immigration and Citizenship [2007] FCA 146.

2 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 10 January 2005. The appellant requested an interpreter in the Uzbek language for the hearing.

3 The Tribunal handed down its decision affirming the delegate’s decision on 30 March 2005. On 3 May 2005, the appellant filed an application in the Federal Magistrates Court for judicial review of the decision of the Tribunal, upon the ground that:

"The Tribunal was unable to reach a correct decision because neither the Tribunal nor the applicant received any assistance of the qualified Uzbek interpreter. Instead of providing the applicant with the Uzbek language 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 incorrect."

A Federal Magistrate heard the application on 2 November 2006 and delivered judgment dismissing the application on the same day. The appellant appeals from that decision.

TRIBUNAL DECISION

4 Before the Tribunal, the appellant claimed to fear persecution on account of his political opinions. In particular, he claimed to fear persecution by the Uzbek authorities loyal to the current President because he was a member of the opposition party, ERK.

5 The Tribunal found that the appellant was an unimpressive witness of credit. It found that his evidence did not show the level of familiarity with Uzbek political matters that would be expected of someone who was involved in an opposition party; and that his return to Uzbekistan from another country in 2003 did not seem consistent with him having a genuine fear of persecution. The Tribunal did not accept that he had ever been a member of ERK, that he had been involved in political activity in Uzbekistan, or that he genuinely feared being persecuted 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 returned to Uzbekistan.

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

THE FEDERAL MAGISTRATE’S DECISION

7 In the Federal Magistrates Court, the appellant complained that he did not receive a proper hearing because of the absence of a qualified interpreter. This contention failed on the evidence. The Federal Magistrate found that there was no evidence to support the appellant’s claims that he did not understand the questions the Tribunal asked and his answers were not properly delivered. There was no transcript of the hearing before the Tribunal or other evidence that showed that the hearing had miscarried in any way. On the evidence before him, his Honour held that there was no evidence capable of establishing that any inadequacies in the interpreting at the hearing led to the formation by the Tribunal of an adverse view of the appellant’s credibility.

APPEAL TO THIS COURT

8 The appellant appeals to this Court on the following ground:

"The applicant was deprived of receiving of procedural fairness as the Tribunal has not provided the applicant with qualified interpreter. The Honourable trial Judge erred in considering this issue."

9 The appellant did not appear at the hearing of this appeal this afternoon. My associate had a telephone conversation with the appellant, and his migration agent, on Friday, 16 February 2007 and at 2:20 pm today, shortly before the matter was called on for hearing when my associate telephoned him at my request since he was not present in court ready to proceed. On the latter occasion, the appellant had the benefit of an interpreter who was present for the hearing of the appeal. Through the interpreter, the appellant stated that he was aware of the hearing but was sick in bed and would not be attending. The appellant did not request an adjournment and did not seek to provide any evidence of his medical condition, or that it was such that he could not attend the hearing of his appeal. In the circumstances, I consider it appropriate, pursuant to O 52 r 38 (1)(d) of the Federal Court Rules, to continue the hearing of this appeal in the appellant’s absence.
CONCLUSION

10 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".

11 The Federal Magistrate held that there was no proper basis for a conclusion that the interpreting at the Tribunal hearing fell short of the appropriate standard. This was plainly correct. There was no evidence capable of establishing that the interpreting at the hearing was deficient in any material way.

12 The appellant referred to the fact that the interpreter did not have any specific qualifications in Uzbek, in the sense the interpreter was not accredited at the relevant level. There was, it seems, no testing available in Australia for accreditation as an Uzbek interpreter. This factor is relevant but not determinative and, given the absence of any other evidence supportive of the appellant’s claim, does not materially advance the appellant’s case.

13 For these reasons, the appeal should be dismissed with costs.

I certify that the preceding thirteen (13) 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:	No appearance by the appellant.
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