SZMDZ & Ors v Minister for Immigration & Anor [2009] FMCA 559 (26 June 2009)

Last Updated: 29 June 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDZ & ORS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 559

MIGRATION – RRT decision – Indian applicant claiming political persecution – Tribunal disbelieved claimed involvement in murder charges – reliance on DFAT inquiries in India – not invitation for additional evidence within s.424(2) – sufficiency of Malayalam interpreter at Tribunal hearing – standard of interpreting not shown to be inadequate – no jurisdictional error established – application dismissed.

Migration Act 1958 (Cth), ss.422B, 424(2), 424(3), 424A, 424B, 425

M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 Minister for Immigration & Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 SZKJM v Minister for Immigration & Anor [2008] FMCA 23 SZKTI v Minister for Immigration & Citizenship [2008] FCAFC 83; (2008) 168 FCR 256 SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51 VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723

First Applicant:

SZMDZ

Second Applicant:

SZMEA

Third Applicant:

SZMEB

Fourth Applicant:

SZMEC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3083 of 2008

Judgment of:

Smith FM

Hearing date:

26 March 2009

Date of Last Submission:

14 May 2009

Delivered at:

Sydney

Delivered on:

26 June 2009

REPRESENTATION

Counsel for the Applicants:

First and Second Applicants in person

Counsel for the First Respondent:

Mr H P T Bevan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application is dismissed.
(2) The first and second applicants must pay the first respondent’s costs as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3083 of 2008

SZMDZ

First Applicant

SZMEA

Second Applicant

SZMEB

Third Applicant

SZMEC

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are a family who arrived in Australia in May 2007 from India. On 21 June 2007 they lodged applications for protection visas. Only the husband made claims to satisfy the definition of a ‘refugee’ under the Refugees’ Convention as adopted by the Migration Act. As did the Tribunal, I shall refer to him as ‘the applicant’.
2. The applicant’s visa application contained no details of the persecution which caused him to leave India and to fear return. It said only that he would be killed by the RSS political party, its ‘related organisations’ and ‘the Department of Police’. It promised ‘related documents’ would be submitted within 15 days.
3. A statement and documents were received on 5 July 2007. In the statement, the applicant said he was the managing director of a successful ‘tourism and educational activities’ company in Kerala, and he submitted numerous documents to verify this claim. He claimed also to be a Muslim and a local leader of the National Development Front (“NDF”), which was “focusing on socio-economical issues of minorities giving a focus to Kerala Muslims, Dalits and Other Backward Classes in Kerala”. He referred to the murder in 1998 by ‘RSS people’ of a person converted to Islam, to the acquittal of the culprits, and their being “killed by some perverted Muslim Youth in January 2007”. He said that this led to “the trouble shootings in between RSS and NDF”, and to his being falsely accused in March 2007 of involvement in the murder of a RSS member called Laxmanan or Lakshmanan. His house was raided by police in March, and documents were seized and his wife and children threatened. Two of his co-workers were arrested, and the applicant was accused of involvement in a protest demonstration of NDF workers which attacked a police station. The applicant was scared to go home, and stayed at a property in another State, before moving to Chennai, and then Bangalore. A friend assisted him to get a tourist visa to come to Australia. He said:
   • Since I left from My Place I regularly Keep contact with Some People to know that about the matters related to me, I came to know that RSS had attacked many people from NDF and some of them are killed by RSS, the Department of Police also kept the watch over the matter they are looking for me,
   • Police had Declared that I am a Wanted Person Locally and India Wide, in connection with the false case Charged Against me, Also RSS, this is probably an united plan by both Police and RSS,
4. The supporting documents contained press cuttings about the NDF and RSS conflicts, the murder of Lakshmanan, and an attack on a police station, but they contained no corroboration for any involvement of the applicant in these events. The only corroboration of any involvement of the applicant in the NDF was a letter on NDF letterhead, dated 12 July 2007, which confirmed that he “has been working with NDF since February 1997”, and that he had been “elected as a Coordinator” of his town’s “D.T. Unit since December 2004 and still”. It said: “during this Period Mr [applicant]’s leadership and organizational skills have been invaluable to Our Organization, He has donated countless hours of his time to NDF”.
5. A delegate refused the visa applications on 22 August 2007. The delegate said that he accepted that the applicant “is facing criminal prosecution in India, as he has testified”, and that the applicant “fears prosecution on false charges and fears attack by RSS people”. However, the delegate thought that he could expect an appropriate standard of protection under Indian criminal law and its police and justice system.

The proceedings in the Tribunal

6. On appeal to the Tribunal, the applicant submitted an edited version of his earlier statement, and additional news reports concerning the events in which he claimed to have become personally implicated. None of these referred to the applicant.
7. He attended a hearing of the Tribunal, as first constituted, on 20 November 2007, at which he repeated his claims. He was put on notice that the absence of any general information corroborating his alleged involvement in the murder of Lakshmanan, and his ability to travel from India, were concerns of the Tribunal, and he was given an opportunity to respond orally and in writing.
8. A letter from the Tribunal dated 21 November 2007, requested corroborative documents showing that he had been charged with murder, and suggested that the absence of corroborative evidence might “call into account the credibility of your claims as this component of your claim is pivotal to you leaving India and seeking refugee protection in Australia”. This letter appears to comply with the requirements of ss.424(3) and 424B of the Migration Act 1958 (Cth), and the contrary was not asserted by the applicant.
9. The applicant then employed a migration agent, Mr Baker Musawi, who forwarded a submission, a statement of the applicant, and further documents. The applicant claimed that the police had confiscated all his documents ‘related to NDF’, and he only provided a brief letter purporting to be signed by a lawyer dated 1 December 2007. This stated that he was the applicant’s “legal advisor in connection with Lakshmanan Murder case registered by [town] Police in Crime No: 82/07, and [town] Police station attack Registered by [town] Police in Crime No: 96/07. Mr. [applicant] will be arrested if he reaches in India. Now he is absconded from his native place, If you have any query regarding this matter so please feel free to contact me on: [phone number]”.
10. The Tribunal then initiated inquiries by a local post of the Department of Foreign Affairs and Trade, to verify whether the applicant was the subject of charges as claimed, and whether the applicant’s advocate was a practising legal advisor. These inquiries may not have met the formalities required under ss.424(3) and 424B, and there was discussion at the hearing before me whether this gave rise to the jurisdictional error identified in SZKTI v Minister for Immigration & Citizenship [2008] FCAFC 83; (2008) 168 FCR 256, although this was not contended by the applicant. However, in my opinion, the recent judgment in SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51 establishes that none of the inquiries made in its request to DFAT, or conducted by DFAT as a result, constituted an invitation to “a person to give additional information” within the terms of s.424(2) as it then stood. Neither DFAT, nor the ‘police’ whose sources provided information, constituted a relevant ‘natural person’ who had previously given any information (see SZLPO at [88]-[109], [114] and [163]).
11. The DFAT response said that they consulted relevant police officers, and were informed that the applicant “is not one of the accused in the Lakshmanan murder case”, and this confirmed other information that “there were only four accused”. The First Information Reports in relation to the ‘crime’ numbers cited by the applicant’s advocate, showed no relationship with the Lakshmanan murder case, nor with the police station attack, but concerned minor motor vehicle cases. The telephone number on the advocate’s letter was that of a different person, and was used by a mineral water company who were not aware of someone with the advocate’s name.
12. This information was put to the applicant for written comment, in a letter from the Tribunal dated 1 February 2008. It suggested: “your central claims pertaining to you being wrongly charged with murder are false”.
13. The applicant’s agent forwarded a response and further documents by facsimile on 14 February 2008 and 25 February 2008. This included what was said to be a FIR concerning the murder of Lakshmanan. The applicant conceded that it did not name him, but said that “it is stated that MDF members are the suspects whom I am a member of and the local leader”. Other documents tended to confirm DFAT’s investigation of the telephone number. The applicant claimed that “information based on the Australian enquiries in India made it obvious that the enquiries have lead the Police in India to investigate further about me”.
14. The Tribunal, as first constituted, handed down a decision on 25 March 2008. It found that the applicant had not been charged with murder, and was not of interest to the authorities. However, that decision was set aside by consent order of this Court, upon the Minister’s concession that the Tribunal had failed to comply with s.425 of the Migration Act. This concession is unexplained in the note to the order, but the new member understood it to have resulted from the failure of the first Tribunal to take evidence from the applicant’s wife.
15. After the remitter, the applicant ceased to employ an agent, and conducted correspondence with the Tribunal from his own address. The applicant and his wife gave evidence to the reconstituted Tribunal at a hearing on 19 August 2008. The applicant was given a recording of the hearing at its conclusion. As I shall discuss below, he belatedly presented to the Court a document claimed to be a transcript of what was said in English and also in Malayalam. This is a confusing document, and the correctness both of its transcription of English and its translation of Malayalam is not authenticated to my satisfaction. It appears, however, largely consistent with the clearer account of the hearing given by the Tribunal in its statement of reasons. The applicant has not identified any material differences, but if they exist I would prefer the Tribunal’s account of the hearing, as a result of my lack of confidence in the applicant’s transcript.
16. Prior to the hearing, the applicant sent to the Tribunal by facsimile a submission and statement, which repeated his previous claims, without providing any additional corroboration. His statement made a new claim, that in January 2007 he had been injured in a traffic incident which was an attempt by the RSS to kill him. He said: “I am their wanted person; they target me continually for about last couple of years Just Because of I am a Muslim and a leader of NDF with a political opinion”.
17. The applicant also submitted a page printed from Wikipedia which included a name similar to his as a ‘famous personality’ from his home town. However, when this was discussed at the hearing, the applicant appeared to concede that such an entry was an unreliable source of information, particularly since it would have been open to the applicant to have inserted it himself. The Tribunal also questioned the applicant about his claimed role in the NDF, and other aspects of his claims. The Tribunal said:
    • 97. The Applicant said he would submit more letters. The Tribunal made it clear to him that it would not provide a period of delay for such letters to be submitted, advising that the provision of further information was purely a matter for him. The Tribunal notes that after nearly two months, no letters or other relevant information, let alone documents linking the Applicant to the NDF, have been submitted.
18. The absence of any further communications from the applicant is reflected in the Court Book, and other evidence to which I shall refer below. On 10 October 2008, the applicant was sent a letter informing him that the Tribunal’s decision would be handed down on 30 October 2008. There was no attendance, and the Tribunal posted its decision to the applicant on that day. It affirmed the delegate’s decision.
19. In its ‘Findings and Reasons’ the Tribunal accepted that the applicant had a “quite successful career in business” as a travel agent, and that he owned a farm property in a neighbouring state. It sufficiently summarised his refugee claims:
    • 143. The Applicant claims that he faces persecution in India because, as a well-known NDF leader in the locality of [town], he is suspected by the police and RSS of involvement in the killing of the RRS-linked Lakshmanan. He also claims that this killing was only one in a series of events that caused the RSS and the authorities to target him for harassment or murder over the last few years. He claims that his prominent role with the NDF in [town] has increased the negative profile attributed to him by the police and the RSS over time.
20. The Tribunal accepted the 2007 events shown in the newspaper reports, including the killing of Lakshmanan, and said: “the Applicant’s recollection of these apparently notorious, recent historical events is impressively close to what has been reported independently”. However, it did not believe any of the applicant’s claims that he was linked to these events. As a result of its adverse credibility findings, it did not accept any of the other claims of the applicant to have been harassed.
21. It said that it was “particularly struck by the lack of detail in the Applicant’s explanation of his activities as an NDF ‘Co-ordinator’”. It referred to his responses to questions about this as being “vague and unconvincing”, and “generally evasive and circular”. The Tribunal said that, contrary to his claims to have been of interest to authorities as a local NDF leader, “the independent evidence ... effectively shows that he has not been of relevant interest to the authorities at all”. It said that he had given “confused evidence about his place in the local NDF structure”, and that it was “positively unconvinced by the Applicant’s poorly detailed and sometimes contradictory written and oral evidence about his involvement in the NDF”.
22. It considered his NDF letter, but said that “considered alongside the Applicant’s unconvincing description of how he solicited the letter, the Applicant’s lack of credibility about his involvement with the NDF leads the Tribunal to give no weight at all to the 12 July 2007 letter”. It also said that it gave no weight to the Wikipedia article submitted by the applicant, and “suspects bad faith in its creation or modification as at the time the Applicant presented it in evidence”.
23. In relation to the third piece of corroborative evidence, the letter from the advocate, the Tribunal said: “the Tribunal gives no weight to the so-called solicitor’s letter of 1 December 2007, with its misleading police case numbers, even after considering the Applicant’s suggestion that the solicitor made some typographical errors”.
24. As a result of the Tribunal’s rejection of the applicant’s claim to have been an NDF member or office holder or activist, and its acceptance of the evidence from the police provided by DFAT, it said that it “does not accept that the Applicant was ever implicated in the killing of Lakshmanan or suspected of any involvement or complicity before, during or after the fact”. It also did not accept that the RSS had any significant interest in him, including in other incidents in which the applicant had claimed an involvement.
25. The Tribunal addressed the applicant’s claim to have been prejudiced by the DFAT inquiries, and said:
    • 170. The Tribunal is mindful of the fact that the Applicant’s name has been given to relevant authorities in India in the course of researching his claims about implication in the Lakshmanan matter. In view of the authorities stating that he is not a person of relevant interest, and in view of the Applicant being such an unreliable witness in the claims about the authorities seeking to harm him, the Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution as a result of the first Tribunal’s enquiries through DFAT, the [town] police and/or other sources.
26. The Tribunal considered whether the applicant would face persecution just as a Muslim from Kerala, but noted that he had not claimed this. It did not accept that he faced a real chance of serious discrimination in India for reasons of being a Muslim, nor for having sympathies with the NDF or any pro-Muslim party or association.

The proceedings in the Court

27. An application for review was filed in this Court on 25 November 2008. Among its grounds of review is the assertion:
    • 3. At the Tribunal’s hearing the interpreter did not translate accurately and properly to the question put to me, The use of an interpreter that the applicant was effectively prevented from giving evidence at the Tribunal hearing
      • The Applicant wrote to tribunal on 04 September 2008 by requesting that:
        • After a careful listening to the RRT hearing CD. I have realized that there are some errors made by the Interpreter by interpreting, so I request you to kindly re-arrange for a new hearing if possible with an accredited interpreter who is well able to translate, Further to this if you need any more documents which will help to my claim please do not hesitate to write to me,
      • The Tribunal did not considered Applicants request, that is a denial of Procedural fairness of section 425 (425(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review
28. No evidence of the asserted letter to the Tribunal was given in the accompanying affidavit, nor can it be found in the Court Book which was filed by the respondents on 13 January 2009. At the first court date on 16 December 2008, I fixed a timetable for the applicant to file his evidence, being 13 February 2009, prior to the hearing appointed for 26 March 2009. I expressly advised the applicant to consider the evidence he would require to establish a defect in the translation that occurred at the Tribunal’s hearing.
29. On 16 February 2009, the Tribunal received a facsimile letter from the applicant which said:
    • RE: Hearing CD
    • I would like to get a copy of my hearing CD with The Refugee Review Tribunal which held on 19 August 2008
    • The 1st CD of 2 is damaged and I needed a copy of 1st CD very urgent, also I would like to get the information about the fax which I sent to the Tribunal on 04 September 2004 [sic] in which I mentioned about the mistake made by the Interpreter, it is not appearing the Court book which I received from the Lawyers for the Minister
    • Thanks for helping me
30. The applicant did not file any additional evidence in the Court in accordance with my directions, although in an amended application he filed on 13 February 2009 he repeated his complaint about the interpreting at the Tribunal hearing.
31. The respondent filed on 20 March 2009, an affidavit by the Tribunal’s Sydney Registry Manager, Mr Wood, deposing to the absence in the Tribunal’s file of any incoming correspondence received by post, facsimile or e-mail on 4 September 2008. He also said that the Tribunal’s IT department had examined their records of all incoming facsimiles on that date, and informed him that “no facsimiles were received from the MRT-RRT on that day in the applicants’ names or in relation to the applicants”.
32. At the hearing, the applicant tendered, and was cross-examined on, a letter in identical terms (including capitalisation and punctuation) as those set out in his original application. The applicant maintained that he had sent this by facsimile machine from his home to the Tribunal on 4 September 2008, and explained why he had no corroborating evidence of doing this. I shall consider his evidence below.
33. The applicant also insisted that he did not understand the need for a transcript and expert evidence in support of his contention that errors of interpretation occurred at the Tribunal’s hearing, and he sought more time to present this evidence. I decided to give him another opportunity, and directed:
    • 1. The applicants must file and serve any additional evidence in affidavits upon which they seek leave to rely, together with an explanation as to why the Court should receive that evidence subsequent to the appointed hearing, no later than 23 April 2009.
    • 2. The first respondent may file and serve any response to such an application, including any evidence in reply, no later than 14 May 2009.
    • 3. Judgment shall stand reserved on that day.
34. The applicant did not comply with that timetable, but in a series of facsimiles to the Registry between 24 April 2009 and 11 May 2009 he filed 62 pages of an unauthenticated transcript.
35. He did not serve this on the first respondent’s solicitors, who did not discover its existence until 12 May 2009. They filed a submission which pointed out that the applicant had not complied with my directions, and had not attempted to explain why he had not filed his evidence prior to the hearing. They submitted that the new ‘transcript’ was not authenticated in relation to its translations and transcriptions, and that the applicant had made no attempt to identify any particular defects in the interpreting or other proceedings at the Tribunal’s hearing. They submitted that I should not give the applicant leave to rely upon the new evidence. There was force in their submissions, but I have decided that I should consider the evidentiary weight to be given to the applicant’s transcript, when addressing the applicant’s grounds of review.

The grounds of review

36. The applicant’s application presents three grounds, which are embellished in his amended application. The first ground is:
    • 1. The Tribunal breached s 424A of the Act by failing to invite applicant comment on or respond to adverse information.
37. The amended application then has six numbered paragraphs under this ground, which make what should be treated as separate assertions of jurisdictional error, not necessarily related to s.424A. I shall address them separately.
38. Particulars 1 and 2 of Ground 1 refer to paragraph 30 of the Tribunal’s statement of reasons, which appears in the middle of its lengthy summarising of relevant country information concerning politics in Kerala, the BJP, the IUML, the NDF, conflicts between the NDF and the RSS, the murder of Lakshmanan, and the subsequent attack on a police station. Of this material, paragraphs 32 to 37 duplicate paragraphs 25 to 29, and it is clear that there was a ‘cutting and pasting’ error in the course of the preparation of this part of the statement of reasons. In this context, it is clearly apparent that the challenged paragraph was part of a ‘cut and paste’ passage from an earlier decision of the Tribunal concerning a different applicant. The subsequent general information suggests that the Tribunal adopted its earlier research and added to that research some more information specifically relating to the 2007 incidents which the applicant claimed to have been involved in.
39. The paragraph of which the applicant complains states:
    • 30. The Applicant claims he is a member of the NDF. However, he misnamed it the National Democratic Front, giving it an explicitly political characteristic that it appears itself to disown. His description of the NDF’s activities, being to promote the social and economic interests of marginalised communities and minorities indicated he was talking about the National Development Front. However, he kept referring to it, wrongly, as the National Democratic Front. The Tribunal found numerous references to a National Democratic Alliance (NDA) operating in Kerala, but this is a political coalition led by the BJP, which is not Islamist or even Muslim-oriented but is rather, pro-Hindu, and sometimes linked to the RSS. (emphasis in original)
40. The applicant complains that this is incorrect in relation to his own refugee claims, and I accept that this is so. However, the context of the paragraph in my opinion shows clearly that its inclusion in the present statement of reasons was a typing error, in the course of the Tribunal extracting relevant general information from an earlier case. I can find no suggestion elsewhere in the Tribunal’s reasons that it thought that the present applicant had misnamed the NDF, and I do not consider that this flaw in its statement of reasons was of any material consequence to the Tribunal’s decision, when the reasons are read with the appropriate latitude (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 277 and 291).
41. I therefore do not consider that this error provides any grounds for quashing the Tribunal’s decision.
42. Particular 3 of Ground 1, asserts that an internet citation for one of the Tribunal’s quoted passages, which described the NDF as having attracted criticism as a terrorist group “does not exist”. It also presents an extract said to be from Wikipedia, which describes the NDF as having human rights and welfare concerns.
43. However, in the absence of better explanations, I cannot see how these propositions help the applicant to identify jurisdictional error on the part of the Tribunal, or even a factually erroneous understanding of the NDF. The cited internet source probably existed when it was accessed by the Tribunal. It was a matter for the Tribunal to identify what it regarded as relevant sources from which to obtain background information. I am not satisfied that the applicant has come even close to establishing that the Tribunal took into account material which was legally irrelevant. As well as I can understand the applicant’s contentions, I do not consider that they rise higher than arguments about the merits of the Tribunal’s assessment of background matters which, in any event, played little part in the Tribunal’s reasons for disbelieving the applicant.
44. Particular 4 of Ground 1 complains about the Tribunal’s reasoning in relation to his corroborative letter on NDF letterhead. It contends:
    • The Tribunal should write to the Applicant for the adverse information. The applicant asked to the Tribunal member that if he need any more document to prove that the applicant is a member of NDF and he have been elected as a co-ordinator of NDF [town]. The Tribunal member were not interested with this question.
45. However, according to the Tribunal’s description of the hearing, which I accept, the applicant was put on notice at the hearing that the Tribunal might not be persuaded by his document, and was given more time to submit better proof of his claimed involvement in the NDF. The Tribunal’s reasoning about the letter clearly does not demonstrate any breach of s.424A, nor any failure of procedural fairness. I am also unpersuaded, as was submitted to me orally by the applicant, that the circumstances gave rise to an exceptional situation where the Tribunal should have conducted more inquiries into this (cf. Minister for Immigration & Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [77]).
46. Particular 5 of Ground 1 challenges the Tribunal’s suggestion at paragraph 48 of its reasons, that the applicant misnamed in his original visa statement a person who was the subject of an RSS attack in 1998. This appears in its narration of the evidence before it, not in its ‘Findings and Reasons’. The Tribunal said:
    • 48. The only other information relevant to the Applicant’s substantive claims was a paper outlining the history and activities of the NDF and some articles from The Hindu such as the one cited under paragraph 39 above. The Tribunal notes that the man the Applicant called “Yasar” was, according to The Hindu, known, rather, as “Ansar”. This would seem to suggest that the Applicant was not closely acquainted with him, but this suggestion does not take away from the fact that the attack on this individual occurred in the general circumstances the Applicant has described.
47. The applicant now argues that he had correctly named the person, and he makes obscure reference to a 2007 news report to prove the Tribunal’s error.
48. I am not persuaded that the Tribunal’s observation was not open to it on the evidence which was before it. Moreover, the suggestion made by the Tribunal was a side comment, and even if it made an error I cannot conclude that it was a material error of fact which reveals jurisdictional error vitiating its decision.
49. Particular 6 of Ground 1 contends that the Tribunal erred by not accepting as credible evidence his description of his activities as an NDF coordinator. It also suggests that the Tribunal’s finding was the result of “the interpreter was not able to translate the Applicant to Tribunal”.
50. When invited at the hearing to indicate the parts of the Tribunal’s reasons which were based upon mistranslated information, the applicant referred me to paragraphs 137 to 139 of the Tribunal’s statement of reasons, and complained that they did not recognise the full extent of his evidence about his successful travel agency business. I accept that these paragraphs may well not refer to all of the applicant’s evidence about his business activities, but it is clear that the Tribunal accepted that evidence and it was not obliged to refer to all of its details. That part of the applicant’s claimed history did not bear directly upon the truth of his claims to fear persecution.
51. Neither the applicant’s submissions, nor the material he forwarded to the Court subsequent to the hearing, identified any particular imperfection in the interpreting of the applicant’s responses to the Tribunal’s questions about the applicant’s NDF activities. I am not persuaded that it was not open to the Tribunal to take an adverse assessment of the applicant’s evidence given at both Tribunal hearings about his involvement in the NDF. Nor – for reasons which I shall explain further under Ground 2 – am I persuaded that the applicant has established any material failure of the Tribunal to provide an adequate level of interpretation services, whether in relation to this topic or any other matter.
52. Ground 2 is that “the Tribunal breached s 422B of the Act by failing Exhaustive statement of natural justice hearing rule”. In particular, it is claimed that “at the hearing the interpreter did not translate accurately and properly to the question put to the Applicant, The use of an interpreter that the applicant was effectively prevented from giving evidence at the Tribunal hearing”. It is also claimed that the applicant drew attention to this and requested a new hearing with a different interpreter, in a letter sent by facsimile to the Tribunal on 4 September 2008.
53. Ground 3 appears to rely upon the same particulars as Ground 2, for its contention that “the Tribunal did not considered Applicants request, that is a Breach of procedural fairness of section 425 (425(1)”.
54. I have above referred to the evidence from the applicant and the Tribunal concerning the claimed facsimile letter to the Tribunal before it handed down its decision. On the balance of probabilities, the applicant’s evidence did not persuade me that, in fact, such a letter was transmitted to the Tribunal on 4 September 2008. The evidence of Mr Wood, which was not challenged by the applicant, is strongly against the receipt of such an electronic transmission. The applicant presented a possible, but unverified, explanation why he did not have any transmission record from his facsimile machine, but he did not present any telephone account records. The demeanour with which he responded to questioning, and the contents of his evidence, was not convincing, since he showed a disposition to talk over the interpreter – sometimes in English – with the object of making prepared statements. I was not persuaded by his explanation for not following up his claimed concern after it produced no response from the Tribunal, particularly after he received a notice of a proposed handing down appointment. The applicant’s other communications to the Tribunal were accompanied by telephone calls and the identification of a relevant Tribunal clerical officer, and this is notably lacking in the applicant’s evidence about this claimed letter.
55. Moreover, even if the applicant did send a complaint about the interpreter to the Tribunal, the Tribunal was not bound to accept it and to provide another opportunity for him to give evidence. On current authorities, this obligation arose under ss.422B and 425 only if, in fact, “the interpretation was so incompetent that he was effectively prevented from giving his evidence” (see Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [39]). Later judgments which have applied this test have considered the nature of any insufficient or incomplete translations, the existence of material factual errors which were not corrected, and whether any errors “deprived the appellant of a fair opportunity to succeed” (compare Finkelstein J in VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [27], and Gray J in M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 at [51]).
56. In SZKJM v Minister for Immigration & Anor [2008] FMCA 23, I considered a case where numerous discrepancies and criticisms were identified, with the assistance of evidence from expert interpreters. I suggested at [15]:
    • 15. ... Perfect interpreting cannot reasonably be expected in any case. A good interpreter will be conscious of his or her own imperfect translations, or of difficulties in communication which are occurring, and will attempt to rectify them in the course of the hearing. This happened in the present case, where at several points the interpreter departed from literal interpretations. Some of these departures also resulted from an understandable attempt by the interpreter to make clearer, awkwardly expressed questions by the Tribunal or answers by the applicant. A realistic appreciation of the role of interpreter at a hearing must allow latitude in relation to such matters.
    • 16. Moreover, the person conducting a Tribunal hearing with the assistance of an interpreter will inevitably detect points in the proceedings where it appears possible that imperfect communication is occurring, whether by reason of mistranslation or cultural or personal barriers. The present member was plainly alive to this concern at several points, and either repeated her questioning or decided to disregard apparently unreliable responses, ....
57. In the present case, I have above indicated the applicant’s failure to present the Court with any evidence to support his contention of errors made by the interpreter, apart from an unauthenticated and confusingly presented transcript tendered after the deadline allowed by the Court. He has made no attempt to isolate particular errors, or particular passages of concern, and to explain to me, with the assistance of a relevant expert in the Malayalam language, why a substantial and material error vitiated his opportunity to participate in the hearing.
58. In the absence of such submissions and expert evidence, I am not persuaded that he was denied that opportunity. The Tribunal provided an interpreter in Malayalam, a language which is notoriously poorly supplied with interpreters in Sydney. Assuming that it is appropriate to rely upon the applicant’s transcript of the hearing, it leaves me with the impression that both the interpreter and the Tribunal may have encountered difficulties extracting coherent evidence from the applicant, since he frequently interrupted or corrected the interpreter in English, or answered directly in English, or was unresponsive or verbose. Although at times some frustrations with the interpreter are expressed by him and by the Tribunal, any particular problems seem to have been corrected in the course of the hearing. Some of the applicant’s responses may have been condensed or not precisely translated by the interpreter, but I could not detect any significant evidence which was withheld from the Tribunal as a result of this.
59. The applicant appears to have a good grasp of English, and to have been keenly alive in the course of the hearing to draw attention to the occasions where he was dissatisfied with an interpreted answer, and he corrected the interpreter several times. I also detected this capacity in the applicant to check and correct the interpreting which occurred in the course of the hearing before me. The Tribunal’s questioning shows its appreciation of the need to clarify any responses which might have appeared significant, and a willingness to rely upon the gist of the applicant’s responses rather than upon his precisely translated words. Reading the Tribunal’s description of its hearing and its reasoning in its statement of reasons, I am unable to detect any material disadvantage suffered by the applicant which might have arisen from the interpreting services being provided at an unacceptable level.
60. For all of these reasons, therefore, I am unpersuaded that the applicant has established that he was denied the opportunity of participating at a hearing which was required to be held under s.425 of the Migration Act. I can detect no other contention of jurisdictional error arising from Grounds 2 or 3, or raised by the applicant’s submissions in support of those grounds.
61. I am unable to find any other jurisdictional error affecting the Tribunal’s decision. The decision is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 June 2009