NAPS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 159

FEDERAL COURT OF AUSTRALIA

NAPS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 159 NAPS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 585 of 2003 ALLSOP J 5 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 585 of 2003

BETWEEN: NAPS

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 5 MARCH 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of motion filed 9 October 2003 be dismissed. 2. The application be dismissed. 3. The applicant pay the respondent's 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 N 585 of 2003

BETWEEN: NAPS

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 5 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, who is a citizen of Sri Lanka, arrived in Australia on 27 May 2001. On 9 July 2001, he lodged an application for a protection visa. On 25 March 2002, a delegate of the Minister refused the application. On 28 March 2003, the Refugee Review Tribunal ("the Tribunal") affirmed that decision. 2 The application to this Court filed on 15 May 2003 under s 39B of the Judiciary Act 1903 (Cth) identified no ground that could be described as jurisdictional error. The grounds of the application were: 1. Insufficient and incorrect Country Information used. 2. Insufficient reason to doubt credibility. 3 On 25 August 2003, my chambers received a facsimile transmission from the applicant. It contained a letter with eight points that the applicant said "he wished to put forward". The facsimile also contained a document entitled "Some Arguments for Applicant", apparently drafted by someone with legal training, though its authorship was not identified. The eight points in the first document were as follows: 1. The RRT claims that I said Ajith and Janith were murdered in mid 2000. This was in my first statement to the Department which was forwarded by my adviser. This was confused by my adviser in relation to another election held at the end of 2000. At my interview with the Department I clearly explained that the correct date was that relating to the Presidential elections which occurred in April 1999. The RRT disregarded my explanation to the Department and considered a date that I had already explained was an error. The RRT should have clarified this with me. 2. I explained to the RRT the events that occurred prior to me leaving in May 2001. For some reason the RRT understood May 2000 and made its decision based on this. I did not mention May 2000. 3. With respect to the above dates the RRT at one time claims I was uncertain and indicated the event occurred on a Saturday in May 2001, yet the RRT continued to state that I claimed 12th May 2000 as the date. There is a fault in the understanding by the RRT. 4. The RRT states that my family and I lived in Batticalloa. This is not where I lived and I did not say this. 5. When asked by the RRT "why this person would want to kill you" I gave a number of reasons including the fact that I was a local UNP organiser and was very successful. In its decision the RRT only considered this reason and did not mention any of the other reasons. 6. The RRT relied on much information from my hearing at the department [sic] and made its findings on the basis without questioning me. The RRT is required to make a fresh decision which means any thing on Department records it is not satisfied with it should discuss with me. This did not occur. 7. There were some errors on behalf of the interpreter. In many instances the interpreter did not give a complete interpretation and substituted words such as "whatever" or "like that". It is possible that the RRT did not really understand my claims. 8. I feel that I was not given a fair hearing. There are many important errors made by the RRT. The RRT did not spend the time to clarify these issues with me properly and relied heavily on what was said at the Department hearing. The RRT also came to conclusions based on information I did not even give. My Hearing was unfair and had many errors. 4 The arguments in the second document raised a number of issues. First, there was an assertion of a failure by the Tribunal to accord the applicant procedural fairness (a) by failing to put to the applicant the aspect used in the assessment of his credibility that he provided different dates about the death of his associates, on different occasions; and (b) by failing to put to the applicant another aspect of the Tribunal's reasons for not finding the applicant credible: see [1] and [2] of this second document. Secondly, certain factual errors were identified: see [3] and [4] of this second document. 5 The respondent initially filed two sets of submissions, dated 11 and 15 September 2003. The first was filed in ignorance of the above facsimile as the applicant did not serve a copy on the respondent until 11 September 2003. 6 The matter came on for hearing on 16 September 2003. On that day I indicated to Ms Allars, who appeared for the respondent, that given the allegations now made by the applicant as to interpreting errors (see points 7 and 8 of the first document submitted by the applicant), it was appropriate that this aspect of the matter be the subject of evidence. To this end I made orders on that day which included the following: 1. On or before 4 pm Tuesday 23 September 2003, the applicant is to file and serve an affidavit, sworn or affirmed, deposing to any matters of evidence that he wishes to rely on in support of the submissions that he has filed. To be included in that affidavit is an exhaustive and complete list of all asserted interpretation errors in the tape recording of the tribunal hearing. Also in the affidavit should be all references to material, which it is said supports the submissions in paragraphs 1 through to 6 and 8 of the submissions provided to the Court. 2. The matter be stood over to 9.30 am, Friday 26 September 2003, on which day Allsop J will consider making an order for a court expert to examine and report on the interpretation at the tribunal hearing. 3. Direct the respondent to provide to the applicant by Friday 19 September 2003, a list of Sinhalese interpreters, who the respondent, from his or his department's enquiries, can assure the court, are proficient in Sinhalese. 7 I made clear on 16 September 2003 in discussion with the applicant (who spoke some English, see below and who was assisted by an interpreter) that the affidavit was to be an exhaustive list of the asserted interpreting errors. Order 1 in terms made that plain. 8 On 23 September 2003 the applicant filed an affidavit of himself which annexed a document that had been prepared after the applicant had listened to the tape recording of the Tribunal hearing. The affidavit was in English. The enclosed submissions were in English. 9 The matter came before me on 26 September 2003. The applicant did not appear. For the reasons that I gave on 26 September 2003 I set the matter down for hearing on 23 October 2003. 10 After 26 September 2003, the applicant telephoned my chambers and spoke to my associate. He was told that if he wanted to seek any order he should file a notice of motion. On 9 October 2003 the applicant filed a notice of motion in which he sought (in clear handwriting in English) the following orders: 1. Appointment of a linguistic expert in both the Sinhalese and English languages to determine the accuracy of the interpretation in the proceedings before the refugee review tribunal of my case. 2. A transcript of the review proceedings of my case before the refugee review tribunal. This to be kindly be made available to me. Due to my indigent circumstances. 11 The motion was made returnable on 23 October 2003, the date fixed for hearing. 12 On 9 October 2003, the applicant also filed an affidavit sworn on 7 October 2003 and handwritten in English. 13 It should be noted that the applicant stated on his original visa application that he could speak, read and write English. 14 The matter was called on before me on 23 October 2003. On that day, the applicant had the assistance of an interpreter. On that day, the first matter with which I dealt was the affidavit filed 23 September 2003. In evidence given to me on 23 October 2003 the applicant said that there were other important errors in the interpreting. 15 For the avoidance of doubt at this point, I should say that by this time, it was plain that the applicant had enough familiarity with English to be able to identify what he saw as errors in interpreting Sinhalese into English and vice versa. 16 That was the basis upon which the matter had proceeded on 16 September 2003 and 23 October 2003. The applicant said in evidence (through an interpreter) on 23 October that he had some facility with English and Sinhalese. The following exchange took place: His Honour: Just a minute. You had an interpreter before the Tribunal? The Interpreter: Yes His Honour: You have an interpreter today. The Interpreter: Yes. His Honour: You have some facility with English and Sinhalese? The Interpreter: Yes His Honour: Not enough to make you confident about giving your evidence to either the Tribunal or to me? The Interpreter: Yes His Honour: I understand that. There is no difficulty with that. … But your facility with both languages explains how you are able to assert the errors in interpretation of the interpreter before the Tribunal. The Interpreter: Yes His Honour: You have made assertions that the interpreting was deficient. The Interpreter: Yes. 17 I ordered the applicant to prepare another affidavit, this time exhaustively setting out his complaints. This involved another adjournment, which was opposed by the respondent. After hearing Ms Allars, I made the following order: 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. 2. The notice of motion filed by the applicant on 9 October 2003 and the applicant's application under s 39B of the Judiciary Act 1903 (Cth) be stood over for hearing to Wednesday 29 October 2003, at 2.15 pm. 18 I gave ex tempore reasons on 23 October 2003. 19 On 23 October 2003, the applicant rang my chambers and spoke to my associate (in English). On 24 October 2003, my associate sent a letter by express post to the applicant at the address identified on his Court filed documents. This letter was in the following terms: I refer to your phone call to chambers yesterday during which you requested my assistance in the drafting of your affidavit, ordered by his Honour at yesterday's directions hearing to be filed by midday, Monday 27 October. As I stated to you, that is not something I can help you with. It is inappropriate to request assistance of that kind from a staff member of his Honour. His Honour made it very clear at the directions hearing what was required in the affidavit. You are to set out an exhaustive and complete list of additional errors in interpreting you assert were made at the Tribunal hearing. There is no need to repeat what you have put in your affidavit of 23 September 2003. The matter is listed for the hearing of the notice of motion and your application proper on Wednesday 29 October 2003, at 2.15 pm. 20 On 24 October 2003, once again the applicant rang my chambers, spoke to my associate and sought assistance. On 27 October 2003 my associate sent a further letter by express post to the applicant in the following terms: I refer to my letter of 24 October 2003. On the afternoon of Friday 24 October 2003 you called chambers again, requesting my assistance in the drafting of your affidavit. I write to confirm my response to your request. As on the previous occasion outlined in my letter referred to above, I told you that the drafting of your affidavit is not something with which I can assist you. On his Honour's instruction I also stated to you that you are not to continue to call chambers. The matter is listed for the hearing of the notice of motion and your application proper on Wednesday 29 October 2003, at 2.15 pm. 21 On 27 October 2003 the applicant filed a 26 page handwritten affidavit. 22 The applicant undertook his own examination of the tape recording of the Tribunal hearing and prepared the two affidavits to which I have made reference after having a full opportunity to listen to the tape recording privately. 23 On 29 October 2003, I heard the matter. At the conclusion of the hearing, I gave leave for the filing of further submissions in the following terms which orders were made in Court in the presence of the applicant, and a copy of the terms of which orders were sent by letter on 29 October 2003 to the parties: 1. Grant leave to the applicant to file in the Registry and serve on the respondent further written submissions on or before 4 pm, Monday 3 November 2003. 2. Grant leave to the respondent to file and serve any submissions in reply on or before Wednesday 5 November 2003. 3. Grant leave to the applicant to file in the Registry and serve on the respondent any submissions in reply to the respondent's submissions on or before midday, Thursday 6 November 2003. 4. Judgment reserved. 24 On 3 November 2003, the applicant not only filed further submissions (for which he had leave), but also another handwritten affidavit (for which he did not have leave). 25 On 4 November 2003, the respondent filed supplementary submissions. The respondent opposed the reception of the further evidence in the affidavit filed by the applicant without leave on 3 November 2003. 26 On 6 November 2003, the applicant filed two further sets of written submissions. 27 On 24 February in circumstances that I will recount, the applicant filed a further submission.