SZIME v Minister for Immigration and Citizenship [2007] FCAFC 10 (13 February 2007)

Last Updated: 23 February 2007

FEDERAL COURT OF AUSTRALIA

SZIME v Minister for Immigration and Citizenship [2007] FCAFC 10

SZIME v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1755 OF 2006

ALLSOP, LANDER AND MIDDLETON JJ
13 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1755 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGES:	ALLSOP, LANDER AND MIDDLETON JJ
DATE OF ORDER:	13 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The first respondent be amended to Minister for Immigration and Citizenship.
2. The appeal be dismissed.
3. The appellant 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	NSD 1755 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGES:	ALLSOP, LANDER AND MIDDLETON JJ
DATE:	13 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

ALLSOP J

Issue

1 This is an appeal from orders made by a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal.

2 Two questions only were tendered for consideration on the notice of appeal:

(a) whether the Federal Magistrate erred in concluding that the Tribunal did not breach s 429 of the Migration Act 1958 (Cth), that is whether the Tribunal hearing was "in private" in the circumstances that occurred; and
(b) if the Federal Magistrate did so err, and if the hearing was not "in private", whether that fact led to jurisdictional error on the part of the Tribunal.

Conclusion

3 I have come to the view, for the reasons set out below, that the Federal Magistrate did not err and that the Tribunal hearing was in private. It is therefore unnecessary in my view to deal with the second question.

Reasons

4 Section 429 of the Migration Act is in the following terms:

"The hearing of an application for review by the Tribunal must be in private."

5 In SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49; (2006) 229 ALR 423, the High Court dealt with the meaning of the phrase "in private" in s 429. In a joint judgment the Court said at [23], [25] and [26]:

"[23] The concept of privacy is imprecise, and is not to be equated either with secrecy or isolation. Where, as in s 365, the Act requires that evidence be given "in public", then the requirement is satisfied if, subject to any relevant provisions of the Act, and to the exercise of a tribunal's express or implied powers, the proceedings are open to the public in the sense that members of the public who wish to be present may attend and observe what is going on. Obviously, in order for a hearing to be in private it is necessary that it not be in public. However, it is not sufficient. A hearing would not be in private if, for example, a Tribunal member decided to invite a group of his or her acquaintances to be present. In such a case the hearing would not be open to the general public, but the applicant's entitlement to privacy would be disregarded. "Public" and "private" are words that are used in contrast, but they do not cover the entire range of possibilities... Furthermore, the question whether proceedings are taking place in public is not the same as the question whether there are present at the proceeding persons who, vis-à-vis an applicant, are to be regarded as members of the public... The group of onlookers, in the example just given, would, vis-à-vis an applicant, properly be regarded as members of the public, but the hearing would not be open to the public because ordinary members of the public, other than members of the group of onlookers specially invited to be present, would be excluded.

...

[25] It was accepted on both sides that s 429 was enacted to benefit or protect applicants in at least two respects. It is in the nature of proceedings of the kind in question that an applicant may make allegations that could expose the applicant to a risk of reprisals, either in Australia or abroad, if they were made public. A related consideration is that applicants should feel uninhibited in presenting their cases to the tribunal. Since the requirement of privacy is for the benefit of an applicant, it is not open to the tribunal member to allow anyone to be present at the hearing so long as it is not open to the general public. On the other hand, persons whose presence is reasonably required for purposes of or in connection with the performance of the tribunal's functions are clearly within the contemplation of the statute as persons who may be present at the hearing. Obvious examples may include interpreters, security officers, necessary administrative staff and witnesses, although privacy may require the exclusion of witnesses when they are not giving evidence.

[26] Subject to the powers of the tribunal earlier mentioned, it is consistent with the statutory purpose, and with common use of language, to treat the concept of privacy as embracing, not only agents of an applicant, but also persons whom an applicant desires to be present and thus to be made privy to what occurs at a hearing. The girlfriend referred to earlier in these reasons provides an example. If one of the applicants wanted her to be with him for moral support, and the tribunal member had no reasonable grounds for objecting to her presence during that applicant's evidence, then her presence would not destroy the privacy of the occasion. It is unnecessary for present purposes to examine the extent of a tribunal member's powers to exclude such a person. No such issue arises in the present case. A meeting between A and B does not cease to be private if, by mutual consent, one is accompanied by a friend or supporter. There may be cases where a tribunal member would feel a need to impose some requirement of confidentiality upon an applicant's friend or supporter but, again, that issue does not arise in this case."

[footnotes omitted]

6 Without wishing or intending to put any gloss on what the Court there said, I take from those passages that the question as to whether persons present at a Tribunal hearing deny the quality of privacy of the hearing will be a question of fact in each case recognising that the phrase "in private" is an ordinary English expression and that the purpose of the provision is to protect the applicant in the respects identified.

7 Here, the applicant for protection visa is a Nepali. An interpreter was present. The interpreter took an oath of confidentiality. During the course of the hearing the applicant’s migration agent, who was a native speaking Nepali, raised a number of difficulties with the interpreting. There were exchanges between the Tribunal member and the agent in which the agent did not appear to be hesitant to point out perceived error on the part of the interpreter. Later, after further complaints by the agent and after the interpreter said that she did not feel well, that she did not have much experience and that the applicant might need a better interpreter, the Tribunal adjourned the hearing for a short time. A new interpreter then took over. The Tribunal member announced this as follows:

"Tribunal Member: Thank you. What I’ve chosen to do is this. Thank you very much, hearing officer, you can leave now. I’ve chosen to retain the original interpreter for training purposes and just for her educational benefit until the end, at least until the end of her appointment today, and we’ve engaged another interpreter. Thank you very much for coming in at short notice.

Interpreter You’re welcome.

Tribunal Member: And I put on the record I thank the original interpreter very much for raising her concerns with the tribunal about her confidence in continuing. I certainly at this stage, taking full account of your concerns, [name of adviser] I see no reason not to have confidence in the interpretation of proceedings up to this point and that’s my position at this stage."

8 In the Tribunal’s reasons for decision the matter was explained as follows:

"During the RRT hearing, the adviser expressed concern about some of the terms translated by the initial interpreter. The Tribunal considered the adviser’s concerns but found no reason to lack confidence in the interpreter. However, later in the hearing, the interpreter herself said she was feeling ill and asked to be released from the matter. The Tribunal was able to engage another interpreter quite expeditiously and the Applicant continued to give evidence, assisted by the second interpreter.

...

As the first interpreter was new to working in this particular the jurisdiction, [sic] and since she was already sworn to confidentiality, the Tribunal invited her to continue attending the hearing as an observer, to help her familiarise with RRT proceedings. The first interpreter stayed for a period."

9 It would appear that the period for which the interpreter stayed was the bulk of the balance of the hearing. Neither the applicant nor the agent objected to the first interpreter remaining though it should be said the Tribunal did not seek their consent.

10 Also it should be noted that at the end of the hearing the Tribunal member said the following to the applicant and his agent:

"Thank you for letting the other interpreter stay, it will enhance her familiarity with this jurisdiction. Thank you."

To which the adviser responded:

"That’s fine and I have two ..."

Thereafter the agent adviser took up a substantive point at the hearing.

11 The appellant submitted that the Tribunal’s decision to keep the first interpreter at the hearing was presented as a fait accompli. Thus, it was submitted, the presence of the first interpreter was akin to the presence of any member of the public. It was submitted that her presence was not necessary for the performance of the Tribunal’s functions, was not desired by the applicant and was not of any advantage to the applicant. It was submitted that the hearing was not in private.

12 I disagree. The first interpreter was not a stranger. Whilst her role had ceased, she remained clearly bound by the oath of confidence. The hearing was not open to the public. The purpose of the interpreter remaining as identified by the Tribunal was one reasonably required in connection with the Tribunal’s functions generally. In this respect, I do not read what the High Court said [25] of the reasons of SZAYW as limited to the Tribunal’s functions with respect to the review at hand. It is plainly in the interests of the due administration of the Tribunal’s function that there be competent interpreters available to it. Unfortunately this interpreter had not proved wholly satisfactory. The opportunity for some further exposure to the processes of the Tribunal and its procedures was a legitimate connection with the performance of the Tribunal’s functions. This is especially so in circumstances where there was no objection. It is true that there was no consent requested, however, the migration agent had displayed no hesitation in speaking in his client’s interests up to that point. Whilst a request for consent would have been both appropriate and courteous (though I do not say that the Tribunal was discourteous) a lack of such request did not convert the first interpreter into a stranger or interloper. This conclusion is reinforced by the reaction of the adviser at the end of the hearing when thanked by the Tribunal member.

13 Each case must be viewed on its own facts. Here, having regard to the purpose of s 429 as identified by the High Court the functions of the Tribunal, how the interpreter came to be there, the events that happened and the expressed reason for retaining the presence of the first interpreter, I agree with the Federal Magistrate that the interpreter was not to be taken as a member of the public and that the hearing was "in private" for the purposes of s 429 of the Migration Act.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 19 February 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1755 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGES:	ALLSOP, LANDER AND MIDDLETON JJ
DATE:	13 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LANDER J

14 I agree with the reasons and orders proposed by Allsop J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 19 February 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1755 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGES:	ALLSOP, LANDER AND MIDDLETON JJ
DATE:	13 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MIDDLETON J

15 I also agree with the reasons of the learned Presiding Judge and the orders he proposes.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated: 19 February 2007

Counsel for the Appellant:	Mr L J Karp
Solicitor for the Appellant:	Parish Patience Immigration Lawyers
Counsel for the Respondent:	Mr J A C Potts
Solicitor for the Respondent:	Clayton Utz Lawyers
Date of Hearing:	13 February 2007
Date of Judgment:	13 February 2007