Sook Rye Son v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1998-09-24|Before: Burchett J, Tamberlin J, Sackville J, Beaumont J, Katz JJ, Moore J

Introduction 16 This is an appeal against an order of a judge of this Court of 19 October 1998 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 3 June 1998. The application for judicial review was made under s 476 of the Migration Act 1958 (Cth) ("the Act").

Background 17 In his reasons for judgment the primary judge recounted the circumstances leading to the application for judicial review. This account was generally not put in issue in the appeal. The appellant arrived in Australia on 23 October 1997 on a visitor's visa. An issue before the Tribunal was the appellant's true identity. She had arrived in Australia carrying a passport issued by the Republic of South Korea in the name of Sook Rye Son. Her visitor's visa was extended once. She later applied for a protection visa. In that application the appellant contended she was a national of North Korea, her true name was Ms Hui Ying Zhou and that she had left North Korea illegally using a falsely obtained passport which is the passport she presented on arrival in Australia. She contended that if she was required to return to North Korea she would be persecuted. 18 The reasons for decision of the Tribunal principally addressed whether the appellant was the person she contended or whether she was, in truth, a national of the Republic of South Korea. In order to understand the issues raised before the primary judge it is necessary to recount briefly events leading to the hearing before the Tribunal and the decision it gave a little over a week after that hearing. 19 The application for a protection visa was refused by a delegate of the Minister for Immigration and Ethnic Affairs on 29 April 1998. The application to the Tribunal seeking the review of that decision was lodged on 11 May 1998. In that application the appellant described herself as "ZHOU, Hui Ying" and gave her home address as the Immigration Detention Centre, Villawood. The form stated that all documents would be sent to the applicant at the nominated address unless otherwise advised. The application indicated that a migration agent, Ms Marion Le of Belconnen, ACT was an adviser authorized to act for the appellant in relation to the application. The form stated that copies of correspondence would be sent by the Tribunal to the adviser. Though the form provided for an address for service to be identified, that part of the form was left blank. There was a conversation between Ms Le and a departmental officer on 14 May 1998 in which the hearing date scheduled for 21 May 1998 was discussed. Ms Le indicated that she might not be able to attend. A letter was sent on 15 May 1998 to the appellant addressed to her as Ms Hui Ying Zhou at the Villawood Detention Centre. This letter notified her of the hearing on 21 May 1998. It was common ground in this appeal that the appellant never received either the letter or a faxed copy sent to the Detention Centre later. It appears this had not been common ground before the primary judge. A copy of the letter was sent to the Indo-Chinese Refugee Association in Belconnen, ACT where Ms Le worked. On 20 May 1998 the Villawood Detention Centre contacted the Tribunal indicating that no-one was listed at the Centre by the name of Ms Hui Ying Zhou. The appellant was told of the hearing at about 8 pm on 20 May 1998 by an immigration officer. 20 The hearing proceeded on 21 May 1998 and the appellant was unrepresented. I return to consider what happened during that hearing shortly. At the conclusion of the hearing, the Tribunal gave the appellant until 29 May 1998 to provide further material supporting her contention that she was a North Korean national. A copy of the tapes of the hearing was given to the appellant on 21 May 1998. On 24 May 1998 Ms Le wrote to the Tribunal indicating that she wished to hear the tapes but would be unable to visit the appellant until the weekend of 30 and 31 May 1998. In response to this letter, the Tribunal advised Ms Le on 28 May 1998 that she could have the weekend to discuss the case with the appellant and that she would be given until the close of business on 2 June 1998 to fax any further submissions the appellant wished to make. In a letter dated 29 May 1998 Ms Le forwarded to the Tribunal some material and confirmed her awareness that any other material had to be provided by the close of business on 2 June 1998. Nothing further was received by the Tribunal by 3 June 1998 when it gave its decision. 21 At the hearing before the Tribunal the services of a translator were used to translate evidence given by the appellant in Korean. The interpreter was only sworn to interpret. However at several points during the hearing the interpreter was asked to express a view about the accent of the appellant and the language she used. The questions were directed to ascertaining whether the way the appellant spoke and the language she used tended to indicate she was from North Korea or South Korea. Observations made by the interpreter were taken by the Tribunal to indicate that the accent of the appellant and the language she used were indicative of her being from South Korea.

The proceedings at first instance 22 In his reasons for judgment the primary judge dealt with five issues. The first two were considered together as they both depended upon the combined operation of s 476(1)(a) and s 420 of the Act. The primary judge rejected a submission that the Tribunal failed to act according to substantial justice because it had denied the appellant the assistance of a migration agent and had notified the appellant of the hearing the evening before. On the issue of the lateness of the notification, his Honour rejected a submission that s 425 and s 426 of the Act, properly construed, entitled an applicant to at least seven days notice of the date on which the appellant was to be accorded a hearing. While his Honour accepted that late notice of the hearing might constitute a denial of the opportunity contemplated in s 425(1)(a) and also produce a denial of substantial justice in the way contemplated in s 420 it had not done in the circumstances of the present case. The third issue was said to arise under s 476(1)(g) in that it was contended there was no evidence which justified a finding about what the characteristics of a North Korean person were. His Honour rejected this submission. The fourth issue concerned the use that had been made of the interpreter. His Honour rejected a submission that unfairness of the type that would lead to a failure to accord substantial justice: see s 420, arose because of the use that had been made of the interpreter. As to the fifth issue his Honour rejected a submission which was to the effect that the Tribunal had been under a duty to consider obtaining expert linguistic evidence and information on a range of other matters bearing upon the evidence of the appellant which had led the Tribunal to conclude that she was not a North Korean. 23 Before considering the issues raised in this appeal I should briefly note the course the proceedings took before the primary Judge. The application for judicial review was filed on 24 June 1998. It identified a number of grounds for review. At that stage the appellant was represented by solicitors though on 2 October 1998 they gave notice of ceasing to act and notice that a Mr George Lombard was acting as the appellant's migration agent. The hearing before the primary judge was fixed for 6 October 1998 and on that day a letter was received by his Honour dated 5 October 1998 from George Lombard Consultancy Pty Ltd enclosing an outline of submissions. At the hearing itself the appellant was unrepresented though was assisted by an interpreter. Counsel for the respondent had prepared a written response to the appellant's outline and a copy of it was given to the appellant in court. In view of the fact that Mr Lombard had not seen that document, the primary judge reserved judgment and gave the appellant leave to submit a written reply to the respondent's submissions. A reply was provided by Mr Lombard under cover of the letter dated 10 October 1998. The primary judge decided the matter on the footing that the issues which were addressed by Mr Lombard in the two written submissions were the issues raised in the application for judicial review.

Issues in the appeal and legislative framework 24 While the notice of appeal raised several grounds of appeal based on alleged breaches of a number of provisions of the Act, counsel for the appellant expressly abandoned one ground of appeal and focused his submissions on two features of the hearing and determination of the application by the Tribunal. The first was the nature of notice to the appellant from the Tribunal about the hearing and related matters and the second was the use made by the Tribunal of the interpreter. 25 In order to understand the issues in the appeal it is necessary to set out a number of provisions found in Division 4 of Part 7 of the Act. That division concerns the conduct of reviews by the Tribunal. Section 423 provides a mechanism for an applicant for review to provide the Tribunal with a statutory declaration setting out facts relied upon by the applicant and a document containing the written arguments advanced. The Tribunal can then review that material and material provided by the Department of Immigration and Ethnic Affairs. If, having considered this material, the Tribunal is prepared to make the decision or recommendation most favourable to the applicant then it may do so without taking oral evidence. This procedure is called a review "on the papers". If the Tribunal is not prepared to make a decision or recommendation that is most favourable to an applicant then the following sections identify the procedure to be followed: 425(1)Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review. 426(1)Where section 424 does not apply, the Tribunal must notify the applicant: (a) that he or she is entitled to appear before the Tribunal to give evidence; and (b) of the effect of subsection (2) of this section. (2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. (3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice. 427(1) For the purpose of the review of a decision, the Tribunal may: (a) take evidence on oath or affirmation; or (b) adjourn the review from time to time; or (c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination. (2) … (3) Subject to subsection (4), the Tribunal in relation to a review may: (a) summon a person to appear before the Tribunal to give evidence; and (b) summon a person to produce to the Tribunal such documents as are referred to in the summons; and (c) require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and (d) administer an oath or affirmation to a person so appearing. (4) … (5) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true. (6) A person appearing before the Tribunal to give evidence is not entitled: (a) to be represented before the Tribunal by any other person; or (b) to examine or cross-examine any other person appearing before the Tribunal to give evidence. (7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter. 26 Section 428 authorizes the taking of evidence by others on behalf of the Tribunal both within Australia and outside Australia. Section 429 is the last section in Division 4 and provides: The hearing of an application for review by the Tribunal must be in private. 27 I turn now to consider the issues raised in the appeal.

The notice to the appellant 28 It is to be recalled that the appellant was sent a letter dated 15 May 1998 but it was never received. It is unnecessary to set out the text of the letter in full. However it comprised two pages and enclosed two forms of one page each or one form of two pages. What was enclosed is not entirely clear but it is probably the former. In the body of the letter the following was stated: You must do two things immediately:

…
COMPLETE the attached form and RETURN it to the Tribunal within fourteen days of the date of this letter. 29 At a later point the letter said: If you want the Tribunal to take oral evidence from any witness or witnesses, you must fill in their names on the enclosed form. You must also give brief details of what they will say at the hearing. The Tribunal will consider your wishes but it does not have to take evidence from any of your witnesses. (emphasis added) 30 The form or one of the formsaccompanying the letter made provision for an applicant to identify witnesses that the applicant would like the Tribunal to hear. Section 426(1)(b) obliges the Tribunal to notify an applicant of the effect of s 426(2). That latter provision enables an applicant to identify, but it must be within seven days of being notified of its effect, people from whom the applicant wishes the Tribunal to obtain oral evidence. It was conceded by counsel for the Minister in the appeal that s 426(1)(b) was not complied with. This concession appears to have been made on the footing that even if the Migration Regulations operated to deem the notice to have been received by the appellant after seven days of it being sent (and it appears to have been contended by counsel for the Minister they did), the time that elapsed between the sending of the letter and the date of hearing was insufficient to enliven the regulation so as to deem receipt of the letter by the appellant and give the appellant an opportunity to nominate witnesses within the prescribed period. 31 Counsel for the appellant submitted that the failure to comply with s 426(1)(b) constituted a breach of procedure of the type contemplated in the ground of review in s 476(1)(a). The Minister's response was that the appellant's representative had been sent a copy of the letter of 15 May 1998 and that at no stage was it suggested either by the appellant or her representative that there were witnesses the appellant wished to call in the sense that the appellant wished to identify the names of people whom the Tribunal might call. The plain language of s 426(1) is that the Tribunal must notify an applicant. There is nothing in the language or structure of Division 4 that suggests that such notification may be effected by notifying someone other than the applicant. The Act provides a mechanism for the quick and fair hearing of the review of a decision to refuse a protection visa. Those procedures were discussed by Burchett J in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 at 314 - 323. Parliament has struck a balance between the quick disposition of applications for review and affording applicants a fair opportunity to have the application for review heard and determined. In creating that balance the legislature has required, in express terms, that notice of a particular matter has to be given to an applicant. Plainly it may be critical to the applicant's case that the Tribunal be given the opportunity of hearing oral evidence from a person nominated by an applicant who is perceived by the applicant to be important to his or her case. While the Tribunal is not obliged to hear that oral evidence it can be fairly assumed that in many cases it will do so as an incident of affording the applicant a fair hearing. 32 However even if the letter of 15 May 1998 had been received by the appellant, in fact or because it is deemed to have been received by operation of the regulations, the letter would not have satisfied the requirements of s 426(1)(b). Section 426(2) contains several elements. The first is that an applicant should give written notice to the Tribunal of any desire for the Tribunal to obtain oral evidence from another person. The second element is that those persons must be named in the notice the applicant gives to the Tribunal. The third element is that the notice must be given by the applicant within seven days of having been given notice of the effect of that subsection. While the letter of 15 May 1998, on one construction, would have informed the appellant of the first two elements of s 426(2) it would not have informed her of the last. That is, it failed, in terms, to inform her that the written notice she was to give about witnesses had to be given within seven days. The letter of 15 May 1998 erroneously identifies fourteen days as the time within which the notice was to be given by the appellant. On another construction it identified no time. If received, it would have induced the appellant into believing she had a longer period in which to notify the Tribunal what the Act dictated or there was no specified time in which to act. 33 The failure to comply with s 426(1)(b) is a basis provided by s 476(1)(a) for setting aside the decision of the Tribunal. It is unnecessary to consider the further issue that might arise having regard to the facts in this case, namely whether s 426(1)(b) requires actual notification rather than notification by service of a document which, by operation of the regulations, is deemed to be received within a specified time of its dispatch: see regs 4.41 and 5.03 and Alkaab v Minister for Immigration & Multicultural Affairs [1998] FCA 1353, Susiatin v Minister for Immigration & Multicultural Affairs [1998] FCA 825, Rahman v Minister for Immigration & Multicultural Affairs (1998) 155 ALR 465, Nguyen v Refugee Review Tribunal (1997) 74 FCR 311, Chun Wang v Minister for Immigration & Multicultural Affairs 71 FCR 386, Milan Kumar Shrestha v Minister for Immigration & Multicultural Affairs [1997] FCA 1051, Dawai & Voravora v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 379, Kamkar v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 424, Nguyen v Minister for Immigration & Ethnic Affairs (1996) 68 FCR 437. 34 Counsel for the appellant also submitted that the appellant had not been given sufficient warning of the hearing at which her evidence would be taken and therefore had not been given a reasonable opportunity to appear to give evidence. Reference was made to the judgment of Tamberlin J in Budiyal v Minister for Immigration and Multicultural Affairs [1998] FCA 243. Tamberlin J considered a situation in which a letter had been sent to the applicant for a protection visa on 8 September 1997. The letter advised that a hearing had been set for 15 October 1997 and that unless the Tribunal heard from the applicant within fourteen days of the letter, viz. 22 September 1997 the hearing would not take place and a decision would be made on the evidence already before the Tribunal. The Tribunal made its decision on 29 September 1997 having not heard from the applicant. The Tribunal was in fact contacted by a representative of the applicant on that day but after the decision was made. In relation to the provisions of s 425(1) his Honour said: The starting point is that the applicant has a statutory entitlement to be given an opportunity to appear before the RRT to give evidence: s 425(1). This provision prescribesa procedural requirement, which must be followed: Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 587. … The content of the procedural requirement that the applicant be given "an opportunity to appear before it to give evidence" is an objective one which must ultimately be decided by the Court. However, in order to perform its function, the Tribunal must form a view as to what is a reasonable period within which the opportunity must be availed by the applicant. Obviously, s 425(1)(a) is not open-ended as to the time in which the opportunity must be taken up. On a proper construction of the provision there must be an implication that the opportunity provided is a reasonable one. 35 In the present case the earliest at which it can be said that the appellant was notified of the hearing on 21 May 1998 when her evidence was to be given was when she had a conversation with an immigration officer the evening before. While the appellant's adviser, Ms Le, had known of the hearing date some time earlier, there is no finding by the Tribunal nor the trial judge that the appellant was informed by her adviser of that date nor is there evidence which suggests an inference should be drawn that the appellant was aware of the hearing date before the evening of 20 May 1998. The adviser's address was not specified in the application as an address for service. Under reg 4.39 of the Migration Regulations an address for service, as distinct from place of residence, was optional. 36 Counsel for the Minister points to the nature of the examination that was undertaken on 21 May 1998 as indicating that the short notice was nonetheless reasonable. That is, the hearing on 21 May 1998 generally involved the Tribunal asking the appellant questions about her circumstances in Korea and the manner in which, on her version, she left North Korea. It was submitted by counsel for the Minister that the appellant would have been able to adequately deal with a hearing involving questions of that type with the notice that was actually given. However this submission does not pay sufficient regard to the statutory scheme in Division 4. Section 425(1)(a) concerns the applicant appearing before the Tribunal to give evidence. Section 425(2) declares that the Tribunal is not required to allow a person to address it orally about the issues arising in the review though that subsection is said to be "subject to paragraph (1)(a)". Thus the section contemplates that in the course of giving evidence an applicant may give evidence that is argumentative as part of the opportunity s 425(1)(a) is intended to provide. 37 In addition an applicant might wish to bring to the Tribunal's attention factual matters that go beyond areas of fact the Tribunal itself wished to explore. It could be expected that the legislature intended the appellant should be given some time to reflect on what facts she might wish to draw to the Tribunal's attention. That was, in substance, the conclusion of Tamberlin J in Budiyal (supra) with which I respectfully agree. While it is plainly intended that the process of review be conducted expeditiously, and thus the time for reflection cannot be open-ended, this case illustrates a situation where, in my opinion, insufficient time was provided. Indeed the appellant complained about the shortness of the notice at the hearing. If the appellant's account was an honest one, and for present purposes it must be assumed that it might have been, it was far from straightforward. Obviously there were matters that needed to be explained and the appellant would have needed some time to reflect on them. This is not to suggest that if the appellant had concocted a false account of her circumstances in her country of nationality and/or a false account of events leading to her arrival in Australia, she should be given sufficient time to ensure that the false account is cohesive and overtly credible. Rather, the need to provide the appellant with some time to reflect on the evidence she might give is based on a recognition that applicants for protection visas who are or may well be refugees to whom Australia owes protection obligations are in an unfamiliar country and often suffer from disabilities relating to language, culture and isolation. In the present case the Tribunal, by failing to give the appellant a reasonable opportunity to give her evidence, has failed to comply with both s 425(1)(a) and s 420(2)(b).

The use of the interpreter 38 When the appellant gave evidence before the Tribunal it was through an interpreter of the Korean language. The transcript records that at the commencement of the hearing the Tribunal member asked that "both" interpreters be sworn. One was to interpret the Korean language and the other Mandarin. It appears that the Tribunal wished to ascertain whether the appellant could speak Mandarin though this aspect of the hearing assumes no significance in this appeal. The transcript indicates that at least the Korean interpreter was sworn to interpret. At one point in the questioning of the appellant by the Tribunal, questions were asked about the way in which the appellant claimed she escaped from North Korea. In her account the appellant had said that she had travelled by boat from North Korea to South Korea and ended her boat trip in an area she thought might have been Pusan. The Tribunal asked her about why she thought it was near Pusan. The following are the questions asked of her by the Tribunal and her answer. Her translated answer is attributed in the transcript to the interpreter. However in the following passage a point was reached where unambiguously the Tribunal directed questions to the interpreter personally who answered personally. Those sections of the transcript where questions were directed to the interpreter personally and answered by the interpreter are in bold italics: (TRIBUNAL MEMBER): Could it have been near Seoul? INTERPRETER: I think near Pusan. (TRIBUNAL MEMBER): Why do you think that? INTERPRETER: It's that accent was, sound like Pusan. (TRIBUNAL MEMBER): Okay. How do you know the Pusan accent? INTERPRETER: That's a common accent to know. (TRIBUNAL MEMBER): What accent do you have? INTERPRETER: I be speak in North Korean accent. (TRIBUNAL MEMBER): I will now ask the interpreter if she recognises your accent as North Korean? (POINT A) Do you recognise the applicant's accent as North Korean? INTERPRETER: I do some words and it's tone is very flat. I don't know. (TRIBUNAL MEMBER): What is the flat tone like? INTERPRETER: For example, Pusan accent is a very intonations up and down, very strong accent. (TRIBUNAL MEMBER): Yes, and the North Korean accent? INTERPRETER: North Korean accent is particularly the word long, sounds like the dialect, but his young lady is, she speaks formal language to me, formal language like Seoul. We do have a formal language, everybody understand. She hear Punyan language, yes, I did but I'm not from Punyan. (TRIBUNAL MEMBER): Okay, that is all right. In North Korea, do people learn to speak Seoul style, the way you have been speaking? INTERPRETER: Yes, we just speak like that. While we have one language, accent is strong and soft. (TRIBUNAL MEMBER): Can you speak in your accent? If I ask you the next question could you answer it in your home accent? INTERPRETER: I just talk as I speak. (TRIBUNAL MEMBER): Okay, are we now speaking with a North Korean accent? Interpreter? INTERPRETER: It's hard to say. To me it's formal. (TRIBUNAL MEMBER): Seoul style? INTERPRETER: Yes. Certainly there is a little difference but language by itself is a very good level, formal form. No dialect … (TRIBUNAL MEMBER): Are you talking about her language on this occasion? INTERPRETER: Yes. (TRIBUNAL MEMBER): No dialect? INTERPRETER: No dialect. (TRIBUNAL MEMBER): Good command of Seoul style Korean? INTERPRETER: Yes, yes, that's what I'm saying, yes. (TRIBUNAL MEMBER): Okay. I am asking you, the applicant, now you are at home with your mother and you say to your mother I do not want to go to school today. How do you say that in your local language? INTERPRETER: Not much difference. (TRIBUNAL MEMBER): Say it - imagine I am your mother and say to me as a child in your local - in your local dialect, "I don't want to go to school today". It is not coming naturally is it? INTERPRETER: I do not understand why you sort of ask the question. (TRIBUNAL MEMBER): Okay. I am happy to explain why. I am trying to authenticate your North Korean origins. It is not six or seven hours from northern North Korea to the demilitarised zone in a speed boat. It certainly could not be six or seven hours in a boat smaller than this room from the northern end of North Korea to Pusan. Now you claim to know a Pusan accent, you are speaking Korean today in the received Seoul manner - in the manner that, I guess, people broadcasting from Seoul would use to communicate on national radio and television to be understood by Koreans, whatever their accent or dialect. Now I want some stronger evidence that you really are from the northern most regions of North Korea. So far you are unable to tell me how you would just speak to your mother in your village and say, "I don't want to go to school today". 39 It is likely that the question immediately preceding Point A (which is a reference which has been added to the transcript for ease of identification) was translated but the question immediately following was not. 40 A little later in the hearing a similar exchange occurred between the member of the Tribunal and the interpreter. Again the questions directed to and answered directly by the interpreter have been highlighted in bold italics: (TRIBUNAL MEMBER): Now, since the last time we asked, I am asking the interpreter again, what style of Korean language are we speaking here? INTERPRETER: I have noticed a few North Korean sort of language and I still maintain general sentences in formal language. (TRIBUNAL MEMBER): North Korean words for example? INTERPRETER: … school and talented and … (TRIBUNAL MEMBER): Anything since - since then? INTERPRETER: No, I heard a few, one or two words. (TRIBUNAL MEMBER): I was just asking the interpreter again about what style you have generally been speak in since the last time we asked. She again identified the Seoul style but said that you used a couple of North Korean terminologies. Now we have come to what I think is the end of the hearing today. Are there any facts that you want to raise, that you think you need to raise that you have not had a chance to raise? 41 Counsel for the Minister submitted that we should not proceed on the basis that the passages in which the interpreter responded directly to a question from the Tribunal were not, in fact, translated by the interpreter to the appellant. This is unlikely given that it would have substantially interrupted the dialogue between the Tribunal and the interpreter. It is also unlikely this would have occurred in the absence of a direction from the Tribunal to the interpreter to effect such a translation. It is more probable that the dialogue between the Tribunal and the interpreter remained untranslated. Indeed the last comment of the Tribunal in the second passage quoted above indicates that the Tribunal saw the need to tell the appellant what had been occurring. That would have been unnecessary had the exchange between the Tribunal and the interpreter been translated as it occurred. 42 Counsel for the appellant submitted that the use that was made of the interpreter involved a contravention of guidelines adopted by the Tribunal for the use of interpreters, a code of ethics drawn up for interpreters by the Australian Institute for Interpreters and Translators on behalf of the Tribunal and the general code of that body. Whether, in this case, the interpreter breached an ethical constraint in answering directly the Tribunal's questions is, in my opinion, essentially beside the point. That is not to say, however, that the highest ethical standards should not be maintained by interpreters in proceedings before the Tribunal or, indeed, before any other administrative body or before the courts. They perform an important function in Australia's legal system in its broadest sense. However the relevant question, for present purposes, is whether the use that was made by the interpreter establishes a ground of review identified in s 476. 43 The significance of the procedure adopted by the Tribunal is threefold. The first is that the interpreter was called upon to give expert evidence of sorts without his or her expertise being established. That is not to say that an interpreter is to be treated as having no expertise. That expertise was described by Mason CJ and Brennan and Deane JJ in Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180 at 188 in relation to written translations of a tape recording of a conversation: The translations are the respective renditions in English of what the interpreters heard in repeated playings of the tape. The respective translations are the product of the expertise which the interpreters brought to the task: they became ad hoc experts as to what was recorded by repeatedly listening to the tape being played over and they were experts in the languages to be translated. 44 The second is that even assuming the interpreter in the present case might be treated as having some knowledge sufficient to found an opinion about accents and languages in Korea, it was not an opinion which itself was expressed by a witness sworn to give expert evidence but rather by a witness sworn simply to interpret. However the third feature has the greatest significance. It is that the appellant was not made aware, other than in general terms, what the views were that were being expressed by the interpreter about the appellant's accent and the language she was using. 45 Counsel for the appellant submitted that the use made of the interpreter involved a contravention of both s 426(7) and s 420. There is, in my opinion, no substance to the submission that s 426(7) has been contravened. It is merely a provision to facilitateevidence being given per medium of an interpreter. It does not impliedly constrain the use that might be made of an interpreter. Of greater substance is the reliance on s 420. In my opinion a fundamental unfairness is visited upon a witness who is also an applicant if, in the context of the evidence being translated, the interpreter effecting the translation is asked to comment on the accent and language used by that person. The role of the interpreter should be clear. It is to translate and do nothing more. If the interpreter is called upon to offer opinions about what is being said in a foreign language it can quite unfairly put the applicant and witness in a position of not knowing whether the role of the interpreter is entirely neutral or is, in some respects, a partisan one. It could readily lead, on the part of the applicant and witness, to a loss of confidence in the interpreter, a hesitation in answering questions or answering them fully, and confusion. It is all the more unfair if the applicant and witness is not informed of precisely what was asked of the interpreter and any views the interpreter might have proffered. The Tribunal treated the statements of the interpreter as probative material. Even though the appellant had no statutory right to cross examine the interpreter, there may nonetheless have been questions the appellant might have wished the Tribunal to ask of the interpreter or evidence she might have herself given or asked to be called on her behalf. While the appellant was given the tapes of the hearing at the conclusion of it, all the relevant sections would have been in English and it can be inferred that they would not have been understood, or at the very least not fully understood, by the appellant. Even if it is to be assumed the appellant's English speaking adviser heard the tapes at the weekend of 30 and 31 May 1998 the time had passed, in a real and practical sense, for the views of the interpreter to be tested by further questioning. The use made by the Tribunal of the interpreter constituted an unfairness comprehended by s 420(2)(b). 46 The appeal should be allowed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

On appeal from a Judge of the Federal Court of Australia

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT 47 KATZ J: I have had the opportunity of reading in draft the reasons for judgment in this matter both of Burchett J and of Moore J. 48 In his reasons for judgment, Moore J holds that, in the course of its review of the Minister's delegate's decision to refuse the appellant a protection visa, the Tribunal committed a number of errors reviewable by this Court, with the result, in substance, that the Tribunal should be ordered to consider further the appellant's application to it for review of the Minister's delegate's decision. 49 In his reasons for judgment, Burchett J essentially agrees with Moore J, adding some further comments about two aspects of the matter. 50 Among the reviewable errors held by Moore J to have been committed by the Tribunal in the course of its review of the Minister's delegate's decision was one involving its use of a Korean language interpreter. I agree generally both with the reasons given by Moore J for holding that the Tribunal committed reviewable error by the particular use which it made of that interpreter and with the further comments about that matter made by Burchett J. 51 There are, however, three additional comments which I wish to make about that matter. 52 First, in his reasons for judgment, Moore J identifies two passages in the transcript of the hearing before the Tribunal in which the Tribunal is seen to be questioning, not the appellant, but the interpreter, and to be getting answers, not from the appellant, but from the interpreter himself. I add in that connection that those passages are not the sole ones in the transcript in which the interpreter was acting otherwise than as an interpreter. Another such passage appeared after some evidence by the appellant as to her having worked for a little while after leaving school. The transcript then records, "MR HARDY: Okay. Are we now speaking - I'm going to ask the interpreter - are you monitoring a northern tone in the speech or the Seoul receiving [sic]? INTERPRETER: ….. that it's the formal language." 53 Secondly, in his reasons for judgment, Moore J draws attention to the fact that the interpreter had been sworn simply to interpret and not to give other evidence, as he did. I add in that connection that it was submitted on the appeal on behalf of the appellant that, all other things apart, the interpreter was incompetent to give that other evidence, because he had not been sworn (or taken an affirmation) before giving it. As at present advised, I do not accept that potential witnesses before the Tribunal are incompetent unless, beforehand, they are sworn (or take an affirmation): see par 420(2)(a) of the Act, providing (relevantly) that the Tribunal, in reviewing a decision, is not bound by rules of evidence. However, the peculiar nature of the Tribunal's method of proceeding in the present matter is emphasised by the fact that it did choose to swear the interpreter qua interpreter (and, I may add, also chose to swear the appellant as a witness). 54 Thirdly, in his reasons for judgment, Moore J refers to the submission on the appeal on behalf of the Minister, which his Honour rejects, that this Court should not proceed on the basis that the interpreter had not interpreted to the appellant his own evidence. I add in that connection that that submission was coupled with a further submission on behalf of the Minister that the submission on behalf of the appellant that the interpreter had not interpreted to the appellant his own evidence was being made for the first time on the appeal and that this Court should therefore refuse to deal with it. It was said that, if that submission had been made on behalf of the appellant before the primary Judge, rebutting evidence on the point could have been called then on behalf of the Minister. In the light of that further submission on behalf of the Minister, his counsel was asked whether her client wished to apply for leave to call rebutting evidence on the point on the hearing of the appeal. After taking instructions on the matter, she informed the Court that her client did not wish to apply for such leave. Speaking for myself, the Minister's lack of desire even to seek leave to call rebutting evidence on the point on the hearing of the appeal, when, in effect, invited by the Court to do so, strengthens the view which I have otherwise formed from the terms of the transcript itself that the interpreter did not interpret to the appellant his own evidence. 55 Given that, as I have already mentioned above, I agree generally (subject to the additional comments about the matter which I have made above) with the reasons given by Moore J for holding that the Tribunal committed reviewable error by the particular use which it made of the interpreter and with the further comments about that matter made by Burchett J, so that the appellant's application to the Tribunal for review of the Minister's delegate's decision to refuse her a protection visa must be considered further by the Tribunal, I consider it unnecessary for me to express a view on the other reviewable errors held by Burchett and Moore JJ to have been committed by the Tribunal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice KATZ.

Associate: Date: 23 March 1999 Counsel for the Appellant: M.W. Gerkens

Solicitor for the Appellant: Fernandez, Canda & Co

Solicitor for the Respondent: Australian Government Solicitor

BURCHETT J 1 I have had the advantage of reading in draft the reasons prepared by Moore J, and it is unnecessary for me to repeat his Honour's recitation of the facts of this matter. As Moore J has explained, and I agree, this appeal must be allowed with costs, essentially because the Refugee Review Tribunal failed to comply with the terms of s 426(1) of the Migration Act 1958, and also failed to "act according to substantial justice" within the meaning of s 420 in the way in which it used an interpreter at the hearing. I desire to add only some further comments about these two aspects of the matter. 2 Substantial justice is not accorded to an applicant, who cannot communicate adequately in English, if that applicant is denied by the actions of the Tribunal the services of a completely impartial interpreter. Since it is axiomatic that a proper opportunity to put forward the case sought to be made is absolutely fundamental to a fair hearing, the role of the interpreter in such a case is vital. But if the interpreter's impartiality is compromised, the applicant can have no confidence that his or her version is even reaching the Tribunal, except perhaps in a distorted form. For a person already at the disadvantage of communicating through an interpreter darkly, any demonstrated (or even apparent) hostility of that very interpreter must create an impossible barrier to the presentation of a case. In the present instance, once the interpreter was understood to express to the Tribunal disbelief of the appellant's claim to speak as, and to be, a North Korean, how was the appellant to make a vigorous rebuttal, whilst relying on the witness against her to express that rebuttal for her? In my opinion, the gross unfairness of being placed in such a position requires, without more, that the appeal be allowed. It is really a matter of supererogation to point out that, in the circumstances, the appellant was also denied even the benefit of a clear and precise statement of the interpreter's adverse reasoning, which she had to answer. On the face of the transcript, it could not be assumed the attack was incapable of convincing answer, had the appellant been clearly apprised of what she had to refute, and been afforded a proper opportunity of doing so. The Tribunal appears to have reasoned, and possibly the interpreter did so too, on the basis that if the appellant had come from a remote rural village in North Korea, she would have spoken a peasant patois or dialect peculiar to the region; but that does not inexorably follow from the very sparse facts that were taken into account, for, according to the evidence, the appellant was the daughter of a high school teacher and a doctor. Therefore, it is not possible to reject the appeal on the ground of futility: Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 at 519; Susaki v Minister for Immigration and Multicultural Affairs [1999] FCA 196 at para 29. 3 At the hearing of the appeal, the contention was raised, for the Minister, that the appellant could still have made answer on a later occasion. That, of course, would depend on whether she ever understood sufficiently what it was she had to answer, and retained, after the use that was made of the interpreter, sufficient faith in the impartiality of the Tribunal. Even so, any further evidence would have required, to be really effective, a further hearing, which was not offered. More fundamentally, to say that unfairness could possibly have been palliated, or even remedied, is not to deny the existence and impact of the unfairness. In my opinion, it was a very serious breach of s 420 to deprive the appellant of impartial interpretation of her evidence by using the interpreter provided to her as a witness against her, and that breach was compounded by the way in which it was done, which involved the appellant being called upon to answer allegations made in English, which had never been properly (and certainly not impartially) communicated to her. 4 The other matter on which I desire to comment relates to the provisions of s 426, which reads: "1. Where section 424 does not apply [ie where the Tribunal is not prepared to make 'the decision … most favourable to the applicant' without taking oral evidence], the Tribunal must notify the applicant: (a) that he or she is entitled to appear before the Tribunal to give evidence; and (b) of the effect of subsection (2) of this section. 2. The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. 3. If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice." In this case, the application for review made to the Refugee Review Tribunal did not include an address for service (by reg 4.39, the provision of an address for service is optional), but it did show the "Home Address" of the applicant, who was in detention, as "IMIGRATION DETENSION CENTRE VILLAWOOD" (sic). There was a note on the form, following the provision for the insertion of a home address and also of an address for service (in this case left blank), in the following terms: "we will send all documents to you at this address unless otherwise advised". There was also provision in the form for an applicant to provide details of any adviser. Following these details, which were completed, although the adviser was not present at the hearing before the Tribunal, thisese wordsstatement appeared: "The Tribunal will send copies of all correspondence to your adviser." What happened was that the Tribunal sent off a letter dated 15 May 1998, addressed to the appellant as "Miss Hui Ying Zhou" at Villawood Detention Centre. In her application, she had given her name in the Chinese style, with the surname first, as "ZHOU HUI YING". In the records of the detention centre, she was apparently listed under the South Korean passport name of Sook Rye Son, which she had disavowed, claiming to be an ethnic Chinese from North Korea. The letter, the terms of which, in any case, as Moore J has pointed out, did not comply with s 426 (cf Susaki at para 19), was never delivered to the appellant. 5 The respondent, in answer to the appellant's reliance on the Tribunal's failure to comply with the mandatory requirement of s 426(1) to "notify the applicant" of the matters mentioned in the subsection, relied on the terms of regulation 4.41(1)(d)(ii) of the Migration Regulations. This regulation relevantly provides: "(1) If: (a) a document is to be given to, or served on, a person for the purposes of a review by the Tribunal; and (b) no other provision as to the manner of giving or serving the document is made by the Act or these Regulations; the document may be given or served: … (d) if the person has not lodged an address for service: (i) by giving it to the person personally or to a person duly authorised to receive documents on behalf of the first-mentioned person; or (ii) by posting it to the person at his or her last-known place of residence; or …" 6 The first difficulty about the respondent's reliance on regulation 4.41 arises out of the language of paragraph (b) of sub-regulation (1), which operates to make the regulation applicable only where "no other provision as to the manner of giving or serving the document is made by the Act or these Regulations". There is other provision in the case where a person is "in immigration detention". That expression covers someone held in a detention centre established under the Act: s 5(1). For such a case, regulation 5.02 provides: "a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf". That some such special provision might be thought appropriate, where detention imposes restrictions on a person's freedom to make arrangements regarding the receipt of mail, is obvious, and is illustrated by the facts of this very appealcase. In the context, the "giving … to the person himself or herself, or to another person authorised" requires actual delivery to the one or the other of those persons. If it were not so, the department could rely on the blunders mistakes of its own employees to cut off the rights of the detained. Even if regulation 4.41 had not expressly excluded a case where "other provision" for service is made, and despite the permissive language of reg 5.02 ("may be served"), the position would have been the same. Regulation 4.41 is a general provision for the service of documents; but reg 5.02 is a special provision for the case of service of documents (of various kinds including letters and notifications: reg 5.01) on a person in immigration detention, designed to allow for the disabilities of such a person and to discharge the Minister's responsibility as his custodian. If it were otherwise open to apply both regulations, the special one must prevail: generalia specialibus non derogant. 7 Assuming, however, that regulation 4.41 was applicable, the question remains whether the mere posting of a letter addressed in some manner to the appellant at the detention centre, on the basis that this was "her last-known place of residence" (sub-para (d)(ii)), was a compliance with s 426 in a case in whichalthough the letter was never received. So to hold would, of course, be contrary to the essential purpose of provisions of the scheme established by the Act, including s 426, as explained in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 at 320. That purpose was to provide a protective code, assuring an applicant a fair hearing. 8 The Minister says reg 4.41 is picked up by reg 5.03, with the result that a failure of delivery of the notification is irrelevant. Regulation 5.03 reads: "(1A) This regulation applies to a document sent by the Minister, a Tribunal or review officer to a person in that person's capacity as: (a) an applicant, of any kind, under the Act or these regulations; or (b) the holder, or the former holder, of a visa. (1) For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either: (a) if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document; or (b) if the document is sent from: (i) a place outside Australia to an address in Australia; or (ii) a place in Australia to an address outside Australia; or (iii) a place outside Australia to an address outside Australia; 21 days after the date of the document. (2) Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document." 9 The first thing to observe about this regulation is that it does not provide for a manner of the receiving of a notification; it simply provides that "a document is to be taken to be received" (a document, by reg 5.01, "includes … a letter" and also a "notification, … if it is in writing"). A question is immediately raised whether Parliament's "must notify" (in s 426(1)) can be so easily evaded by a mere regulation saying notification "is to be taken" to have been given, when actually it has not been. And not only that. Regulation 5.03(2) makes it clear the documents to which the regulation applies may be "sent" (on the Minister's submission, by posting) up to six days after their date, but will be taken (by reg 5.03(1)(a)) to have been received "7 days after the date of the document", not the time of posting. Plainly, if reg 5.03 applies to a notification under s 426(1), the statutory period of seven days allowed an applicant to "give to the Tribunal written notice" under s 426(2) will almost always be abridged by at least a day or two (a substantial part of the very short time Parliament fixed, but all of which Parliament intended the applicant to have), and in some cases instances (not by accident or misfortune, but by the inevitable operation of the regulation in a case of delayed posting) will be largely or wholly eliminated. That this could happen in the face of the statutory requirement to notify, and of the applicant's right to be exercised "within 7 days after being notified", is sufficiently extraordinary; that it should happen by an artificial redefinition - to the point of negation - of Parliament's plain word "notify" is even more extraordinary. It calls to mind Lord Atkin's scornful reference to Lewis Carroll in Liversidge v Anderson [1942] AC 206 at 245, and Macbeth's bewildered exclamation (Macbeth, Act 5, Scene VIII, lines 19-22) against - "… these juggling fiends … That palter with us in a double sense, That keep the word of promise to our ear, And break it to our hope!" 10 I hasten to say I do not accept the submission that reg 5.03 has any such effect. It applies "subject to the Act", and it applies only to documents. The obligation in s 426, expressed by the words "must notify the applicant", is not limited to documents, and in practice it might be fulfilled orally at an interview. But it requires communication. The subject matter makes that clear. This is not notice of some peripheral thing. This is the essence of the provision of a hearing. What "the Tribunal must notify the applicant" is not only the matter in s 426(2), important though that is, but the core entitlement given expressly by s 425 and referred to in s 426(1)(a), "to appear before the Tribunal to give evidence". It is unthinkable that Parliament intended its assurance that an applicant would be told of that matter (bearing in mind that a refugee from an undeveloped country might be ignorant of his rights under our legal system) to be a mere "word of promise to [the] ear", the substance of which a regulation could negate. It is also unthinkable, of course, that Parliament would itself carefully prescribe, under s 426(2), the extremely restricted time of seven days, within which an applicant must exercise the right to seek to have witnesses called, and intend the time it had selected to be abridged, and in some cases abolished, by regulation. The absurdity of the proposition that reg 5.03 applies to s 426 is underlined when it is appreciated that the application of the regulation would convert into a deception a notification to just the effect required by the statute. For, under the statute, the notice "must" be to the effect that the necessary action is required of the applicant "within 7 days after being notified", but almost always, if reg 5.03 applies, an applicant who believed that, and acted on it, would be out of time.

11 Remembering that, as I have observed, the duty to notify embraces the right given by s 425 as well as that given by s 426(2), there would also be no point in an intention to subject the duty to curtailment by regulation. For failure to communicate to an applicant his right to give evidence might embarrass the Tribunal, or capriciously jeopardize the position in fact of some particularly unfortunate applicant; but it could not destroy that right, which is conferred unqualifiedly by s 425(1)(a): Capitly v Minister for Immigration and Multicultural Affairs (unreported, Burchett J, 24 September 1998) at 4-5; Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193 at para 31, per Wilcox and Hill JJ; Budiyal v Minister for Immigration and Multicultural Affairs (unreported, Tamberlin J, 20 March 1998); and see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 584, where Kirby J said that "[t]he tribunal was obliged by the terms of the Act to perform its duties in accordance with the Act". Nor, though a denial to an applicant of the rights given by s 426(2) and (3) would be a significant denial, would the Tribunal, even in respect of the matter of witnesses, be excused from performing its duties under ss 420, 425(1)(b) and 427. Section 426(1) is a provision imposing a duty to communicate matters which must be communicated in some way to enable a fair and expeditious hearing to be held. It leaves room for a regulation as to the manner of the communication, but none for a regulation excusing the Tribunal from communicating what it "must notify", and none for a regulation effectively shortening the period of seven days which Parliament specified in s 426(2).

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (19)

Cited By (4)