Eshetu v Minister for Immigration

REASONS FOR JUDGMENT In this matter the Refugee Review Tribunal ("the RRT") determined that the applicant, Mr Kimura, did not have a well-founded fear of persecution for Convention reasons and was therefore not a refugee. The Convention referred to is the Convention Relating to the Status of Refugees made in Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees made in New York on 31 January 1967, which together will be referred as to "the Convention". Mr Kimura claims that he is a refugee. This term is defined in the Convention as a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...." The factual background is set out in detail in the comprehensive reasons given by the RRT on 20 December 1996. There is no need to repeat that background here. The applicant appeared before me in person. He did however have the services of an interpreter in relation to whom he expressed no dissatisfaction. The grounds alleged as the basis for the review are not in a clear or succinct format. Nevertheless, the substance of them can be gleaned from the application.

1. Inadequate interpretation Mr Kimura says that the interpreter at the hearing before the RRT used different words and did not accurately convey the case advanced by him so that the RRT could not and did not understand his case. For the purposes of analysing this argument, it appears to me, that the allegation is in substance based on s 476(1) of the Migration Act 1958 (Cth) ("the Act") which is that procedures required by the Act to be observed in connection with the making of a decision by the RRT were not observed. A related provision is s 425 which provides that the RRT must give the applicant an opportunity to give evidence before it and may obtain such other evidence as it considers necessary. In addition, the ground might be framed in terms of s 420(1)(ii)(b) which obliges the RRT in reviewing a decision to act according to substantial justice and the merits of the case. The fact is that two interpreters were engaged by the RRT for the applicant at the hearing of 19 December 1996. At pp 13 and 14 of its reasons the RRT stated: "The applicant then stated that he did not wish the hearing to continue because the interpreter was not good enough. It also became apparent that he had been making comments of a personal and derogatory nature to the interpreter throughout the proceedings which the Tribunal was unaware of. At this point the Tribunal stated that the interpreter was suitably qualified and asked Mr Kimura whether he wanted the opportunity of a hearing or not. He was also warned that he was being deliberately obstructive, and as such was not assisting the beneficial consideration of his claims as there was much information before the Tribunal which had direct bearing on his claims which was adverse to his claims and which he should comment on. He was also warned that if did not wish to avail himself of the opportunity of a hearing, the Tribunal would cancel the hearing and make a decision based on the papers and materials already before it. At this point the applicant acquiesced and stated that he wished the opportunity of the hearing. Hence, the Tribunal decided that the hearing would continue. However, at this point the interpreter, who had become quite strained, was unable to continue. Therefore, the Tribunal organised another interpreter to attend at short notice." After a second interpreter was obtained Mr Kimura was asked if he wished to avail himself of the opportunity for a hearing and if he wished the hearing to continue. He decided to continue. The RRT, in this case, went to considerable pains to accommodate the demands of the applicant in relation to the interpreter by arranging a second interpreter. Mr Kimura had made a number of previous complaints in relation to interpreters and this is evidenced in material before the RRT. In written submissions to the RRT, received on 4 December 1996, Mr Kimura asserted that in an interview with the Department of Immigration and Multicultural Affairs ("the Department") he had difficulties conveying what he wanted to say because a Korean interpreter was used who was not well-versed in modern Japanese. In the primary decision of 25 November 1996 the delegate of the Minister for Immigration and Multicultural Affairs noted that Mr Kimura said at the start of the interview that the interpreter was using old-fashioned Japanese and that he was difficult to understand. He was given an opportunity to stop the proceedings if at any stage he did not understand. Mr Kimura stated that his own English was quite good. On 31 July 1996 Mr Kimura wrote to the Department stating that his interview with the Department on 19 July of that year was legally invalid because he was given no legal advice and the interpreter provided was of extremely poor quality and this prevented accurate communication. On 12 August 1996, in an interview with the representative from the Department, the applicant is recorded as having corrected the interpreter's Japanese on several occasions with comments that his Japanese was not bad but it was "a foreign speaking Japanese". Having regard to the above material and given the opportunities afforded to Mr Kimura in relation to interpretation services, I am not satisfied that there has been any failure to observe a procedure required by the Act or the Migration Regulations to be observed in connection with the making of the decision. In forming this view I have proceeded on the basis that s 420(1), which requires the RRT in reviewing a decision to act according to substantial justice and the merits of the case, is a procedure within the meaning of s 476(1)(a) of the Act: see Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621. There is nothing in the material placed before me to indicate that the RRT has acted otherwise than in accordance with substantial justice and the merits of the case. Mr Kimura has been given every opportunity to appear and give evidence before the RRT and to fully present every aspect of his case which he considered would assist his position. I see no error in the way in which the RRT has approached the provision and availability of interpretation services in this matter.