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

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?'