Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168

FEDERAL COURT OF AUSTRALIA

Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168 MIGRATION – application for protection visa – whether there occurred actual bias by the Tribunal – whether primary judge erred in determining no error of law in manner of linguistic interpretation of Tribunal hearing. Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 referred to Re Refugee Review Tribunal ex parte H [2001] HCA 28 referred to Ismail v Minister for Immigration & Multicultural Affairs (1999) FCA 1555 referred to Yusuf v Minister for Immigration & Multicultural Affairs (2001) 180 ALR 1 referred to MOHSEN SOLTANYZAND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 129 of 2000 SPENDER, LEE, TAMBERLIN JJ 28 AUGUST 2001 SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 129 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MOHSEN SOLTANYZAND

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SPENDER, LEE, TAMBERLIN JJ

DATE OF ORDER: 28 AUGUST 2001

WHERE MADE: SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT: The appeal 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

WESTERN AUSTRALIA DISTRICT REGISTRY W 129 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MOHSEN SOLTANYZAND

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SPENDER, LEE, TAMBERLIN JJ

DATE: 28 AUGUST 2001

PLACE: SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

THE COURT: 1 This is an appeal from a single judge of the Court, Carr J, who on 12 July 2000 in Perth, dismissed an application which sought an order of review of a decision of the Refugee Review Tribunal made on 17 December 1999 by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. 2 The appellant is a male citizen of Iran who was born on 5 May 1970. He arrived in Australia on 16 January 1999. On 22 January 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (the Department). That application was refused on 17 February 1999. On 26 February 1999 the appellant applied to the Tribunal for review of that decision. On 9 June 1999 the Tribunal, which can be referred to as "the First Tribunal", affirmed the decision of the Minister's delegate. The appellant then sought judicial review of that First Tribunal's decision. On 7 September 1999 orders were made by Lee J, by consent, setting aside the first Tribunal's decision and remitting the matter to the Tribunal, differently constituted, for reconsideration. As earlier indicated the Tribunal on 17 December 1999 affirmed the decision of the delegate of the respondent not to grant a protection visa to the appellant. 3 Initially, the appellant in his application to the Federal Court to review the decision of the Tribunal, was unrepresented. The initial hearing in the Federal Court was adjourned, the trial judge having referred the applicant pursuant to O 80 r 4(1) of the Federal Court Rules for the kinds of assistance referred to in O 80 r 5. When the matter resumed before the Federal Court on 6 June 2000, the appellant was represented by Ms A.M. Sheehan of counsel who appeared for the appellant on his application pro bono. 4 In the hearing before the primary judge, two grounds only were pressed. They were: (i) the Tribunal erred in law in failing to provide adequate or proper interpreting services. (ii) The Tribunal was affected by actual bias in proceeding to consider the case from a pre-conceived opinion. 5 It was submitted to the primary judge that the issues for determination by the Tribunal, including that of his credit, were affected by unconscious but actual bias. Further, it was submitted that the findings of credit by the Tribunal were materially affected by poor interpreting. 6 The primary judge found that the complaint of actual bias had not been sustained. His Honour considered the interpreting complaints, both specifically and generally, and concluded that the interpreting was not sub-standard in the sense referred to in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6. 7 Both complaints that were agitated before the primary judge, namely actual bias of the Tribunal, and incompetent interpretation, were repeated before this Court. Each of those matters will be dealt with in turn.