FEDERAL COURT OF AUSTRALIA NAPS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1091 NAPS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 585 of 2003 ALLSOP J 26 SEPTEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 585 of 2003 BETWEEN: NAPS APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 26 SEPTEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The matter be set down for hearing on 23 October 2003, at 10.15 am. 2. The costs of today be costs in the cause. 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 N 585 of 2003 BETWEEN: NAPS APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: ALLSOP J DATE: 26 SEPTEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter the applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal), calling in aid s 39B of the Judiciary Act 1903 (Cth). Directions were made for the hearing of this matter on 16 September 2003. Included in those orders were orders for the delivery of submissions by the applicant of any further evidence that he wished to rely upon by 15 August 2003 and that he should file and serve an outline of submissions five clear working days before the hearing date. 2 On 25 August 2003, the applicant sent, by facsimile, to my chambers two documents which he no doubt thought to be submissions. One was entitled: "Some Arguments For Applicant", which, from its form, might be seen to have been drafted by a third party. The other document was apparently from the applicant. The respondent was not served with these documents until shortly prior to 16 September 2003. 3 The documents are not merely submissions, but contain assertions without any evidence as to an asserted failure of the interpreting service at the Tribunal hearing. When the matter was called on for hearing on 16 September 2003, I discussed with counsel for the respondent, Ms Allars, and the applicant, who appeared on that day, what steps should be taken in relation to this. I made plain to the applicant that these assertions of failure of the interpreter, as he claimed, were matters of evidence and not matters of submission. He simply could not assert them without their becoming evidence. 4 Therefore, on 16 September 2003 I adjourned the hearing and made orders that by Tuesday 23 September 2003, the applicant file and serve an affidavit deposing to any matters of evidence that he wished to rely on in support of the submissions that he had filed. I indicated that to be included in that affidavit would be an exhaustive and complete list of all asserted interpretation errors in the tape recording of the Tribunal hearing. I also indicated that in the affidavit should be all references to material which it is said supports the submissions in pars 1 through 6 and par 8 of the submissions provided to the Court. 5 I stood the matter over to 9.30 am today, that is, Friday 26 September 2003. I indicated that on that day I would consider making an order for a Court expert to examine and report on the interpretation at the Tribunal hearing. In support of that possibility, I directed the respondent to provide to the applicant by Friday 19 September 2003 a list of Singhalese interpreters the respondent, from his Department's inquiries, could assure the Court were proficient in Singhalese. 6 Blake Dawson Waldron, solicitors for the respondent, complied with that direction and on 18 September 2003, sent a letter to the applicant at the address identified by him in his application and on the affidavit to which I will refer in a moment, identifying three people with Level 3 NAATI interpreting accreditation in the Sydney area. 7 On 23 September 2003, the applicant filed an affidavit in the Registry, which sought to comply with my orders. I note that it states that examples of the interpreting deficiencies were as follows: 1. RRT asked if my family was safe in Kandy. I replied it was "safer". The interpreter relayed to the Member that I thought it was "safe". After some exchange of words the interpreter explained "safer". Result: It appeared to the Member that I was uncertain hence it reflected on my credibility. 2. With respect to tracing telephone calls, I explained to the Tribunal that initially, I obtained the call report then I cancelled it as I had to pay for the facility. The interpreter explained that I tried to get the call list but found it was two [sic] expensive so I did not continue. Page 159 Green Book. Result: The Member did not understand that I said that I did obtain the list and the expense was secondary. I wanted to explain this issue further but the Member having understood that I did not obtain the list for financial reasons left the issue. I did not know this at the time of the Hearing. This is an example of how a misunderstanding stops me for further explaining important issues. 3. The discrepancy with dates referring to a Saturday in May, The Interpreter said "he is not sure". I did not say this. Result: This uncertainty further added to the Members feeling that I was unsure of events and it effected my credibility. 4. I stated that such incidents are called underworld incidents. I said this in view of further explaining. I has some newspaper articles relating to this. The interpreter translated it in a of hand manner even using the word "whatever" The translation sounded as if it was a closing statement from me but it was actually an opening statement. Result: The member stopped the Hearing at this point as the translation of my statement sounded final. I was confused at the sudden stop and felt I had more to say. 5. The interpreter made a mistake and said to me "before 1999" I was confused and hesitated. The Tribunal said "you said after 1999". It was then explained to me correctly. Result: While this is a genuine error it only added to the confusion already existing. Also it stopped my fluency of thinking and provided a further feeling to the Member that I was generally confused with dates. 6. The RRT asked about my well founded fear. I replied "If I was there I would have been killed. I know the fear of death" The interpreter said "If I was in Sri Lanka maybe dead maybe already killed, I know about the fear of death or killing or whatever" Result: I made a very strong clear statement but it was translated as a vague and almost rambling statement. This did not let the Member feel my fear it only added to the already vaguely understood claims. 7. I said "if this person tried to kill someone, he definitely would kill them". The Interpreter said "Who ever this person tried to destroy is not there at all". I continued my explanation with the understanding that the Member has understood what I have said. After a while the member stopped me and said that she could not understand. The interpreter told me that I was not explaining clearly. Result: I had already said many things and I did not really know what the Member had understood and what was not understood. The Member did not receive what I said in the way I said it. It sounded to the Member that I was just speaking many non important words. 8. The RRT asked if the UNP won in your area. I said yes and these two people got the preferential votes more than we thought. The interpreter said "Yes, these people got more votes that we thought." I spoke again about preferential votes but the interpreter kept saying "votes". I tried to explain the system in Sri Lanka to the Member but she said she understand. Result: I tried to explain that UNP got the votes but others won the seat but this explanation did not arrive. 8 On 16 September 2003, I ordered (and made it very clear) that there be an exhaustive list of these deficiencies and the respondent should understand that he is entitled to approach this hearing, absent any further evidence, on the basis that the matters listed in the affidavit are the exhaustive list of deficiencies in the interpreting said by the applicant. If the applicant wishes to identify any further deficiencies he must make application on notice for the filing of further evidence. 9 The applicant has not appeared today. I have had the applicant called outside the Court three times. Of course, pursuant to the strictures of s 91X of the Migration Act 1958 (Cth), I cannot use the applicant's name. As I have said on a number of occasions, assuming as I must in the absence of argument that the provision is constitutionally valid, I must obey it and assume that the applicant is not outside. It should be noted however that it is not a busy morning on the floor on which I am sitting and there was no apparent person who may be the applicant within the purview of the Court. 10 I raised with Ms Allars, who appears for the respondent again today, what the Minister suggested the course should be. It appeared to me that the Minister may wish evidence to be led as to the state of interpreting, or he may not. It was also a possibility, as I indicated on the last occasion, that a Court expert be appointed. However, if a Court expert were appointed under Order 34, the usual rule would be that the parties jointly share the cost and expense. In this case, I would not expose the interpreter appointed, if one were to be appointed, to any risk of non-payment from the self-represented applicant. Thus, if there were to be a Court expert appointed the cost would be borne either by the Court or the respondent Minister. Given the arrangements that are currently in place for the interpreting costs which are significantly borne by the Court, I see no reason why the Court should bear a further burden in this litigation. Ms Allars opposes any order for a Court expert, in particular on the basis that her client should not have to pay for it. I think that is a reasonable position. 11 The Minister does not wish to lead any evidence about the interpreting. He proposes to deal with this application as currently framed on the basis that the applicant may wish to read this evidence. If the applicant wishes to call expert evidence he may do so only if he applies for leave to file further evidence, the timetable for evidence having been completed. In all the circumstances I do not propose to appoint a Court expert. I propose to have this matter set down for hearing without any further delay. 12 I set this matter down for hearing on Thursday, 23 October 2003 at 10.15 am. The costs of today will be costs in the cause. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 22 October 2003 No appearance by or on behalf of the applicant. Counsel for the Respondent: Ms M Allars Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 26 September 2003 Date of Judgment: 26 September 2003