SZKHC v Minister for Immigration

[2007] FMCA 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKHC v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2006

MIGRATION – Review of decision of Refugee Review Tribunal – information received in relation to level of interpretation at hearing before the Court – Court not satisfied applicant received a fair hearing – orders made for further hearing.

Applicant: SZKHC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 730 of 2007

Judgment of: Nicholls FM

Hearing date: 7 December 2007

Date of Last Submission: 7 December 2007

Delivered at: Sydney

Delivered on: 7 December 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Ms N Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. This matter be set down for further hearing on Friday 11 April 2008 at 11.30am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 730 of 2007

SZKHC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. Following the hearing in this matter on 30 November 2007, I had intended to hand down judgment in this matter. But following the hearing and before final consideration of this matter, I was made aware by an employee of the Court who was present during the hearing and who is a fluent Mandarin speaker that there were, in her view, “difficulties”, as she described them, with the level of interpretation that was provided to the applicant. 

2. In particular, the matters that concerned me were that there were what was described as “critical errors” in conveying to the Court what the applicant was saying in relation to matters involving his passport and exactly what was his complaint about the Tribunal’s decision in relation to the passport issue.

3. Secondly, that there were errors in terms of conveying the tone with which matters were discussed with the applicant in terms of whether it was a statement or a question and that the applicant would have been left with the wrong impression as to what was being, alternatively, asked of him or put to him in that things were put to him he thought were questions and things that were asked of him he thought were statements.  This in some way explains to me now why there was some paucity of argument and claim which can perhaps be put down to apparent confusion.

4. The third issue concerned the translation of what the Minister’s counsel was saying, which would have left the applicant with some misunderstanding of what the Minister’s position, as conveyed by Counsel, was. This was in the case, I am told, of the Minister’s reliance on certain authorities and their relevance. One could say that for an applicant who is not a lawyer and is unrepresented, whether an authority means one thing or another, even if properly translated, may be meaningless in one sense. But on the other hand, we have to be guided by the fact that an applicant is entitled to a fair hearing in the sense of whether the level of interpretation was not perfect but adequate.

5. Certainly in relation to the first two matters outlined above, it is quite clear that it is unfair and unsafe for the Court to proceed to make a judgment based on that hearing. I find I have no other alternative than to give the applicant the opportunity of another hearing.

6. Steps will be taken to advise the Registry of this issue and I will make a direction that that interpreter is not to be used in matters before me again.

7. In relation to the applicant before me, I am not satisfied that there was a fair hearing in the sense that is required by the provision of an adequate level of interpretation.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  12 December 2007