S1152 of 2003 v Minister for Immigration & Multicultural Affairs (No 1) [2006] FCAFC 97 (8 May 2006)

Last Updated: 20 June 2006

FEDERAL COURT OF AUSTRALIA

S1152 of 2003 v Minister for Immigration & Multicultural Affairs (No 1) [2006] FCAFC 97

APPLICANT S1152 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NSD5 OF 2006




EMMETT, STONE & BENNETT JJ
8 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD5 OF 2006

ON APPEAL FROM THE CHIEF FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1152 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	EMMETT, STONE & BENNETT JJ
DATE OF ORDER:	8 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to amend the amended application before the Federal Magistrates Court is refused.

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	NSD5 OF 2006

ON APPEAL FROM THE CHIEF FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1152 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	EMMETT, STONE & BENNETT JJ
DATE:	8 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EMMETT J:

1 Counsel for the appellant moved ore tenus for leave to amend the amended application to the Federal Magistrates Court. The form of amendment sought to be made was as follows:

‘The Refugee Review Tribunal committed jurisdictional error by proceeding with the hearing with the use of an inappropriate interpreter.’

2 The application was made in order to support Ground 2 of the notice of appeal to the Federal Court. Ground 2 is as follows:

‘The Federal Magistrate should have found that the Tribunal erred by conducting its hearing with an Interpreter adverse to the interest of the applicant.

(a) The applicant is a Sri Lankan Tamil and he speaks Tamil and requested for a Tamil Interpreter and the Interpreter presented at the hearing was a Sinhalese, and she spoke Sinhala language which was different in accent and also several differences in the use of words and understanding them;

(b) The applicant's complaint of persecution was against the LTTE and the Sinhalese dominated Sri Lankan forces and the police and he felt very embarrassed and uncomfortable to make his claims before a Sinhalese Interpreter.’

3 No such ground was mentioned either in the original application to the Federal Magistrates Court, or in the amended application filed on 3 September 2004. However, that question appears to have been raised orally in the course of the hearing before the Federal Magistrates Court on 19 December 2005. In support of the application for leave to amend, the appellant relied upon two affidavits affirmed by him and an affidavit sworn by Mr Edilbert Naveenan Rajadurai.

4 The appellant’s first affidavit, affirmed on 3 May 2006, referred to the fact that he appeared in person at the hearing before the Federal Magistrates Court on 19 December 2005. He said that, at the hearing, he attempted to raise the issue of inadequacy of interpreter, but was stopped from proceeding with that submission by reason of the Minister's objection, based on the unavailability of a transcript of the hearing before the Tribunal.

5 In his second affidavit, affirmed on 5 May 2006, the appellant said that, on 3 May 2000, the day allocated for the hearing of the matter before the Tribunal, he was advised by an officer at the counter of the Tribunal’s registry, that the interpreter assigned to assist at the hearing of his matter was Sinhalese. He said that, upon being informed of the ethnic background of the interpreter assigned to his matter, he told the relevant Tribunal officer that he required a Tamil interpreter and that that was stipulated in his response to the hearing invitation to a hearing by the Tribunal. He says that in response the officer at the counter said:

‘If you change the date of hearing there will be problems.’

6 The papers before the Court include a copy of the response to the invitation to the hearing before the Tribunal, completed on behalf of the appellant on 12 April 2000. In answer to the question ‘Do you need an interpreter?’ he answered yes and specified ‘Sri Lankan Tamil’. It is also evident from the material before us that the interpreter who was assigned to assist the appellant before the Tribunal interpreted in the Sinhalese Sri Lankan language.

7 The third affidavit relied on by the appellant is an affidavit by a Tamil interpreter, who says that he has transcribed the English speech recorded in tapes of the hearing before the Tribunal. It is unclear why a Tamil interpreter would be required for such a transcription. Be that as it may, the material is before us on the hearing of the application for leave to amend. The transcription, assuming for present purposes that it is accurate, is informative.

8 After introducing herself, the member who constituted the Tribunal said ‘I understand that there is some problem with the interpretation’. The appellant responded that he requested a Tamil interpreter. The member said that she had looked at the file and that is what it said. The following dialogue then ensued:

Member: ‘Ok. What’s your feeling about conducting the hearing in English?’

Appellant: ‘I can speak English but there some words I will not understand. That’s the main thing. I prefer the Tamil interpreter.’

Member: ‘You prefer to have a Tamil interpreter?’

Appellant: ‘Interpreter yes, but I can speak English.’

Member: ‘But how do you feel, it is up to you? We don’t have to go ahead today. We can stop today and say that we will try to get a Tamil interpreter in the next few days.’

Appellant: ‘Yes’

Member: ‘It is up to you. You know I can’t make that decision for you because I am, I am very concerned that you are given a fair hearing and I don't want you to feel that you are prejudiced in any way, ok, that you are not going to have a fair hearing if you don't have the right interpreter.’

Appellant: ‘Mmm’

Member: ‘All right, so if you want to say to me I want a Tamil interpreter that is okay and if you say I am happy to conduct the hearing in English that is okay too. It is up to you.’

9 There was then a further exchange in which the appellant made it clear that his preferred language was Tamil, which was his first language, and that Sinhalese was his second language. The exchange went as follows:

Member: ‘What about the language of Sinhalese?’

Appellant: ‘I move with Sinhalese people I can.’

Member: ‘You can understand, speak, Sinhalese?’

Appellant: ‘Understand, speak Sinhalese.’

Member: ‘It is a problem. I mean I am happy to continue today but I don't want you to feel that there are things you don't understand that I am saying.’

Appellant: ‘Yeah, that is the thing.’

Member: ‘Or that you are not getting your full story across to me. Do you think you might feel that way today? It is up to you, it is really up to you.’

Appellant: ‘It is okay to interpret in Sinhalese. If there is any problem, if any words or something like that that is okay to like express it in English.’

Member: ‘All right, look, why don’t we try, why don’t we start? If there are problems that you feel as we go along then you just tell me, ok.’

Interpreter: ‘Even I told him, even he can't understand anything just it is nothing to do with me so.’

Appellant: ‘Okay, all right,...’

Member: ‘What I am going to do first is swearing the interpreter then I will swear you in.’

After exchanges that covered several pages of transcript, the following exchange occurred:

Member: ‘How are you going with understanding the interpreter?’
Appellant: ‘Is all right.’
Member: ‘And with me as well?’
Appellant: ‘Yes.’
Member: ‘All right, as I said if there is any problem along the way.’
Appellant: ‘Yeah.’
Member: ‘You must raise it.’
Appellant: ‘Yes.’

10 We were taken to several instances in the transcript where, counsel for the appellant submits, there was some difficulty on the part of the member in making herself fully understood. A reading of those instances, however, leads to the conclusion that the Tribunal member was taking great care to endeavour to ensure that the appellant understood the questions that were being put to him.

11 Two instances involve possible misunderstanding as to language. One concerned the word ‘contact’, when the member asked the appellant what contact he had with the LTTE. The response was an assertion that he had no ‘connection’ with the LTTE. The other instance involved a claim by the appellant that he had been abducted. He seems to have had some difficulty in understanding that word but, ultimately, after persistent questioning, it is clear that the member made herself understood to the appellant by asking whether he was taken away at night by some people, as he alleged. The member asked detailed questions about the appellant’s claims in that regard and it is clear from the transcript that answers were given that were responsive to the questions that were put. On the assumption that the transcript is an accurate record, it does not give any impression that there was any failure or inability to interpret accurately, such as would constitute a denial of procedural fairness.

12 A second aspect of the appellant’s complaint is to be found in a paragraph in his affidavit of 5 May 2006. The appellant said that, due to the fact that the interpreter was Sinhalese, he was unable to express his claims fully at the Tribunal hearing for fear of repercussion to his family from the authorities in Sri Lanka, who are dominated by Sinhalese. He said that he was afraid that the interpreter may divulge his claim to the Sri Lankan authorities. That would be a matter of some concern, if there were any basis upon which that fear could be said to have been communicated to the Tribunal. However, counsel for the appellant was unable to take us to any part of the transcript in which any such fear was expressed or even hinted at. The most that could be said is that the appellant, when asked about his former wife, gave evidence about cultural difficulties between himself as a Tamil and his wife, who was Sinhalese.

13 The appellant also gave evidence before the Tribunal about problems that he was having in the tea estates where he worked, which he characterised as a Tamil-Sinhalese problem. He explained that that was a language problem and, in response to a question from the Tribunal member, agreed that he was saying that there were cultural problems between the Tamils and the Sinhalese. However, he then limited his comments to his relationship with his wife, saying that they had arguments and fights. He also mentioned there were arguments and fights between himself and his wife as well as being between Tamils and Sinhalese on the tea estates. However, there was no hint in that exchange that, because of the differences between Tamils and Sinhalese, the appellant felt in some way constrained in the evidence that he gave to the Tribunal by reason of having a Sinhalese interpreter.

14 I do not consider, on the material that has been put before us, assuming it is all accepted as correct, that the material would give rise to any arguable case of a denial of procedural fairness on the part of the Tribunal. It is also significant that the appellant has previously filed three formal legal documents in which there has been no suggestion of a denial of procedural fairness by reason of the ethnicity of the interpreter or difficulties in interpretation.

15 On 13 July 2001, the appellant became a party to the proceeding in the High Court that ultimately gave rise to the decision in Muin v Refugee Review Tribunal [2002] HCA 30. At that time, the appellant was represented by a solicitor. One would normally draw an inference that the solicitor would have taken instructions from his client before joining him as a party to that proceeding.

16 Following orders made by Gaudron J in November 2002, the appellant commenced his own proceeding in the High Court. That involved filing a draft order nisi seeking Constitutional writ relief in respect of the Tribunal’s decision, supported by an affidavit. While the ground for relief specified in the draft order nisi was a denial of procedural fairness, there was no hint of a denial of procedural fairness on the basis of lack of an appropriate interpreter. It is common ground that no mention was made of an interpreter in either the original application filed in the Federal Magistrates Court on 8 April 2004 or in the amended application filed on 3 September 2004.

17 I have some difficulty in knowing precisely what the appellant’s complaint is, when characterising the interpreter as ‘inappropriate’ in the proposed amendment. In any event, in my view, whatever the complaint may be, the application for leave to amend the amended application should be refused. It would follow that the second ground in the notice of appeal could not possibly succeed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 19 June 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD5 OF 2006

ON APPEAL FROM THE CHIEF FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1152 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	EMMETT, STONE & BENNETT JJ
DATE:	8 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

STONE J:

18 I would also refuse leave to amend and for the reasons given by Emmett J.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 19 June 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD5 OF 2006

ON APPEAL FROM THE CHIEF FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1152 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	EMMETT, STONE & BENNETT JJ
DATE:	8 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BENNETT J:

19 I also agree that leave to amend should be refused for the reasons given by Emmett J.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 19 June 2006

Counsel for the Appellant:	Dr J T Azzi
Counsel for the Respondent:	Mr G T Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 May 2006
Date of Judgment:	8 May 2006