Kimura, Joji v Minister for Immigration & Multicultural Affairs [1997] FCA 955

FEDERAL COURT OF AUSTRALIA

MIGRATION - application for review of decision of the Refugee Review Tribunal ("RRT") that the applicant is not a refugee - whether error of law - whether applicant able to fully present his case to the RRT - claim by applicant that interpreters used were inadequate - claim by applicant that medical condition, fear and confusion prevented him properly presenting his case - claim by applicant that funds for legal representation were stolen Migration Act 1958 (Cth), ss 420, 425, 476(1), cited Eshetu v Minister for Immigration (1997) 145 ALR 621

JOJI KIMURA - v - MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 18 OF 1997 TAMBERLIN J SYDNEY 17 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 18 of 1997 ) GENERAL DIVISION )

BETWEEN: JOJI KIMURA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE(S): TAMBERLIN J PLACE: SYDNEY DATED: 17 SEPTEMBER 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: The application be dismissed with 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 ) NG 18 of 1997 ) GENERAL DIVISION )

BETWEEN: JOJI KIMURA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: TAMBERLIN J PLACE: SYDNEY DATED: 17 SEPTEMBER 1997

REASONS FOR JUDGMENT In this matter the Refugee Review Tribunal ("the RRT") determined that the applicant, Mr Kimura, did not have a well-founded fear of persecution for Convention reasons and was therefore not a refugee. The Convention referred to is the Convention Relating to the Status of Refugees made in Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees made in New York on 31 January 1967, which together will be referred as to "the Convention". Mr Kimura claims that he is a refugee. This term is defined in the Convention as a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...." The factual background is set out in detail in the comprehensive reasons given by the RRT on 20 December 1996. There is no need to repeat that background here. The applicant appeared before me in person. He did however have the services of an interpreter in relation to whom he expressed no dissatisfaction. The grounds alleged as the basis for the review are not in a clear or succinct format. Nevertheless, the substance of them can be gleaned from the application. 1. Inadequate interpretation Mr Kimura says that the interpreter at the hearing before the RRT used different words and did not accurately convey the case advanced by him so that the RRT could not and did not understand his case. For the purposes of analysing this argument, it appears to me, that the allegation is in substance based on s 476(1) of the Migration Act 1958 (Cth) ("the Act") which is that procedures required by the Act to be observed in connection with the making of a decision by the RRT were not observed. A related provision is s 425 which provides that the RRT must give the applicant an opportunity to give evidence before it and may obtain such other evidence as it considers necessary. In addition, the ground might be framed in terms of s 420(1)(ii)(b) which obliges the RRT in reviewing a decision to act according to substantial justice and the merits of the case. The fact is that two interpreters were engaged by the RRT for the applicant at the hearing of 19 December 1996. At pp 13 and 14 of its reasons the RRT stated: "The applicant then stated that he did not wish the hearing to continue because the interpreter was not good enough. It also became apparent that he had been making comments of a personal and derogatory nature to the interpreter throughout the proceedings which the Tribunal was unaware of. At this point the Tribunal stated that the interpreter was suitably qualified and asked Mr Kimura whether he wanted the opportunity of a hearing or not. He was also warned that he was being deliberately obstructive, and as such was not assisting the beneficial consideration of his claims as there was much information before the Tribunal which had direct bearing on his claims which was adverse to his claims and which he should comment on. He was also warned that if did not wish to avail himself of the opportunity of a hearing, the Tribunal would cancel the hearing and make a decision based on the papers and materials already before it. At this point the applicant acquiesced and stated that he wished the opportunity of the hearing. Hence, the Tribunal decided that the hearing would continue. However, at this point the interpreter, who had become quite strained, was unable to continue. Therefore, the Tribunal organised another interpreter to attend at short notice." After a second interpreter was obtained Mr Kimura was asked if he wished to avail himself of the opportunity for a hearing and if he wished the hearing to continue. He decided to continue. The RRT, in this case, went to considerable pains to accommodate the demands of the applicant in relation to the interpreter by arranging a second interpreter. Mr Kimura had made a number of previous complaints in relation to interpreters and this is evidenced in material before the RRT. In written submissions to the RRT, received on 4 December 1996, Mr Kimura asserted that in an interview with the Department of Immigration and Multicultural Affairs ("the Department") he had difficulties conveying what he wanted to say because a Korean interpreter was used who was not well-versed in modern Japanese. In the primary decision of 25 November 1996 the delegate of the Minister for Immigration and Multicultural Affairs noted that Mr Kimura said at the start of the interview that the interpreter was using old-fashioned Japanese and that he was difficult to understand. He was given an opportunity to stop the proceedings if at any stage he did not understand. Mr Kimura stated that his own English was quite good. On 31 July 1996 Mr Kimura wrote to the Department stating that his interview with the Department on 19 July of that year was legally invalid because he was given no legal advice and the interpreter provided was of extremely poor quality and this prevented accurate communication. On 12 August 1996, in an interview with the representative from the Department, the applicant is recorded as having corrected the interpreter's Japanese on several occasions with comments that his Japanese was not bad but it was "a foreign speaking Japanese". Having regard to the above material and given the opportunities afforded to Mr Kimura in relation to interpretation services, I am not satisfied that there has been any failure to observe a procedure required by the Act or the Migration Regulations to be observed in connection with the making of the decision. In forming this view I have proceeded on the basis that s 420(1), which requires the RRT in reviewing a decision to act according to substantial justice and the merits of the case, is a procedure within the meaning of s 476(1)(a) of the Act: see Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621. There is nothing in the material placed before me to indicate that the RRT has acted otherwise than in accordance with substantial justice and the merits of the case. Mr Kimura has been given every opportunity to appear and give evidence before the RRT and to fully present every aspect of his case which he considered would assist his position. I see no error in the way in which the RRT has approached the provision and availability of interpretation services in this matter. 2. Medical conditions The second ground raised by Mr Kimura is that he was unable to present his case because he mixed up many things as a result of medical problems including high blood pressure. There is no satisfactory evidence to support a determination that at the hearing before the RRT Mr Kimura was unable to put his case because of medical problems. Towards the end of the hearing he stated that he was not feeling well but his health was not one of the reasons advanced by him for any adjournment of the hearing. In my view there is no evidence to support the view that Mr Kimura was unable to put his case because of ill health at the hearing before the RRT. 3. Fear Mr Kimura says that at the hearing before the RRT he acted like a "robot" because he was scared about his life. The evidence in relation to this matter discloses no error of non-observance of any procedure because of his fear. The applicant did not indicate to the RRT that his fear was affecting his ability to put forward his case. An examination of the transcript of the RRT hearing indicates that he was given every opportunity to advance every matter which he considered could assist his case. There is no suggestion that he was denied any opportunity to present material or argue the matters he considered important. 4. Disclosure to Japanese Government The suggestion made is that an immigration official from the Department disclosed material to the Japanese embassy in relation to the application by Mr Kimura for a Protection Visa with the result that an arrest warrant was allegedly taken out in case he was deported from Australia. Mr Kimura asserts that this led to confusion on his part and he felt that he had not the opportunity to mention everything about his case. Mr Kimura did not indicate anything in the Departmental records to suggest that the fact of his application for a Protection Visa on the ground of refugee status was disclosed to the Japanese Embassy. Indeed, a memorandum in the file, dated 15 October 1996, indicates that the type of application Mr Kimura was endeavouring to make had not been disclosed to the Japanese authorities. This matter was not raised as the basis for any adjournment application and even if Mr Kimura had been able to establish that there was disclosure of an application for refugee status, I fail to see how that could result in confusion or inability on his part to advance his case before the RRT or to accurately answer questions posed. 5. Legal representation funds stolen The complaint alleged is that money which was available to Mr Kimura for legal representation had been stolen and accordingly he could not retain proper legal representation through lack of funds. The stealing of the money taken in isolation has nothing to do with the RRT and therefore cannot form the basis of a ground of review. However, insofar as the allegation is that he could not obtain proper legal representation it should be noted that under s 427(6) of the Act, a person appearing before the RRT to give evidence is not entitled to be represented by any other person or to examine or cross-examine any other person appearing before the Tribunal to give evidence. There is documentary evidence in the form of a File Note of the RRT, dated 19 December 1996, which reads: "Subject: Mr Joji Kimura Prior to his hearing the applicant claimed that he was waiting for papers to be prepared by 'Joel Adrian' his solicitor. I rang Mr Joel prior to the hearing and he stated that the applicant's mother had rang (sic) that morning asking him to represent the applicant and he had told her this was not possible so close to the hearing and suggested they try Parish Patience." This File Note supports the view that the reason for non-attendance of Mr Joel at the hearing was late notice and not lack of funds. Conclusion In my view the applicant has not established any error in the determination made by the RRT. None of the grounds of review have been made out. Accordingly, I dismiss the application for review with costs. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin