Sook Rye Son v Minister for Immigration & Multicultural Affairs [1999] FCA 7

FEDERAL COURT OF AUSTRALIA

Sook Rye Son v Minister for Immigration & Multicultural Affairs [1999] FCA 7 MIGRATION – Refugee Review Tribunal – use of interpreter – whether procedural obligation to act according to substantial justice was not observed when an applicant's interpreter was used, during the course of the applicant's evidence, as a witness against her – impartiality of interpretation – expertise of interpreters – ethics of interpreters – unfairness to applicant when interpreter was asked to comment, and did comment, in English on linguistic questions bearing on claims made by the applicant as to her place of origin – applicant's right to give evidence and to seek to have witnesses called – content of notice under s 426 – Tribunal's duty to give notice under s 426 as part of the statutory mechanism for quick and fair review – circumstances in which notice of hearing received only the night before did not comply with sections 420 and 425 – whether notification under s 426 must actually be received – whether the Minister is entitled to rely on reg 4.41 read with reg 5.03 to deem notification to have been received – whether reg 5.02 prevails over reg 4.41 where an applicant is in immigration detention – whether the words "subject to the Act" in reg 5.03 leave s 426 untrammelled – whether, if the regulation were not subject to the Act, it would be within the power given by s 504(1)(e) and (3) – consideration of authorities concerning s 478 and the possible application of reg 5.03. Migration Act 1958 (Cth), ss 5(1), 420, 425(1)(b), 426, 427, 478, 504(1)(e) and (3) Migration Regulations, regs 4.41(1)(d)(ii), 5.01, 5.02, 5.03 Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513, applied Susaki v Minister for Immigration and Multicultural Affairs [1999] FCA 196, applied Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, referred to Liversidge v Anderson [1942] AC 206, referred to Capitly v Minister for Immigration and Multicultural Affairs (Burchett J, unreported, 24 September 1998), referred to Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193, referred to Budiyal v Minister for Immigration and Multicultural Affairs (Tamberlin J, unreported, 20 March 1998), referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, referred to Nguyen v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 437, referred to Kamkar v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 424, referred to Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386, applied Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446, referred to Shrestha v Minister for Immigration and Multicultural Affairs (Sackville J, unreported, 13 October 1997), referred to Alkaab v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 375, referred to Nguyen v Refugee Review Tribunal (1997) 74 FCR 311, referred to