NAPS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1207

FEDERAL COURT OF AUSTRALIA

NAPS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1207 NAPS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 585 of 2003 ALLSOP J 23 OCTOBER 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: 23 OCTOBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. On or before midday, Monday 27 October 2003, the applicant file and serve an affidavit setting out an exhaustive and complete list of any additional asserted errors in interpreting at the Tribunal hearing. 1. The notice of motion filed by the applicant on 9 October 2003 and the applicant's application under s39B of the Judiciary Act 1903 (Cth) be stood over for hearing to Wednesday 29 October 2003, at 2.15 pm. 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: 23 OCTOBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant has claimed that there were serious interpreting errors before the Tribunal. In significant respects, the Tribunal rejected the applicant's application, based on credit. It is fundamental to the whole administrative and legal structure for the undertaking and review of applications of this kind that all parties have and are able to work on the basis of having confidence in the procedures involved. 2 The assertion that the interpreting was of such a quality as to unfairly prejudice the applicant is a very serious one. When I use the phrase serious, I am not suggesting that there is any personal criticism of the interpreter in question. The interpreter, no doubt, attempted to do his or her best. 3 What I mean by serious is that if it be the case in decisions where credit is a determining or important factor, that there is a suggestion raised as to the inadequacy of interpreting, those matters either need to be vindicated or put to rest without qualification. The applicant should understand that on the errors that are presently identified, I am as yet far from persuaded that they could reasonably be seen to have fundamentally affected the fairness of the hearing. However, I have not heard his submissions on those matters yet and I have not formed a view. 4 I previously gave a direction for all asserted interpretation errors to be identified. That order, though clearly made, was not complied with. There is much force in what Ms Allars says, that is, that the applicant has had plenty of time to put together all the interpreting errors. Nevertheless, as I have said, the attack on the quality of a hearing is a most important matter, and in the interests not only of the administration of justice in this case, but generally, I think it appropriate to ensure that the applicant has every opportunity to identify the asserted errors, even if the giving of the further opportunity is a direct cause of his failure to take up an earlier opportunity. 5 It may be seen as curious that this assertion is being made without the assistance of expert interpreting evidence. That curiosity is more apparent than real. The applicant has some facility with English. He was able to prepare, largely through his own efforts, an affidavit in English and a notice of motion in English which are currently before the Court. His facility in written English may be superior to his facility in spoken English. Nevertheless, anyone who is familiar with the litigation process and with the need for giving evidence in matters such as this, would appreciate that a facility to some degree in a foreign language does not mean that giving evidence before a Tribunal and being asked questions can safely be undertaken without an interpreter. 6 But what it does mean is that if these assertions are to be made, I need to understand the complete universe of the complaint before I decide whether or not to put either the Minister or the Court to the expense of having an expert interpreter listen to the totality of a Refugee Review Tribunal hearing in order to assist the Court in assessing whether the hearing miscarried. There may, of course, be an underlying issue as to whether or not the Tribunal hearing miscarried even if fundamental interpreting errors did occur, but I think that question should be approached not in the abstract but in the context of a concrete body of assertion and evidence as to particular interpreting errors. 7 Today's debate should have taken place on Friday, 26 September. It should have taken place on Friday, 26 September with the information that will only become available next week. I do not propose to delay any longer today to deal with that question of costs. I will deal with that next Wednesday. While I have not formed a final view and I will hear the applicant, at the moment for whatever difference it may make, I am minded to order the costs of 26 September and of today to be paid by him in any event, that is, whether he wins or loses the case. If he loses the case, the usual order would be that he would pay the costs. If he wins the case, he would normally obtain his costs of the proceedings. The real purpose of this order would be that if he won the case he would still have to pay those two days' costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.