WAFX v MIMIA [2004] HCATrans 174 (28 May 2004)

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WAFX v MIMIA [2004] HCATrans 174 (28 May 2004)

Last Updated: 10 June 2004

[2004] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P104 of 2002

B e t w e e n -

WAFX

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 28 MAY 2004, AT 10.44 AM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC: May it please the Court, I appear for the applicant. (instructed by the applicant)

MR P.R. MACLIVER: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

McHUGH J: Yes, Mr McIntyre.

MR McINTYRE: Your Honours have a summary of argument which I provided the applicant with some assistance in preparing. What it does is raise a potential procedural fairness issue based on the quality of the translation that was provided during the course of the Refugee Review Tribunal decision. There is an affidavit by a translator which supports what is put in the summary of argument as to the errors which are said to have occurred.

There has been some case law on this in the Federal Court and I have provided the Court with just an extract from the decision of a Full Bench of the Federal Court in the WACO Case and I see that my learned friends have also provided you with the full report of Perera v Minister for Immigration and Multicultural Affairs. You will see just from the extracts in the WACO Case that this is a matter which has been the subject of consideration in a number of cases in the Federal Court.

KIRBY J: Well, I was a participant in the earlier case, long before this series of cases came before the courts, in Gradidge, but that was a case where a judge stopped a translation from the mute language into English during the course of the proceedings and the person was required to just sit there mute and uncomprehending of what was going on. I would be most attentive to any suggestion that because of absence or inadequacy of translation the proceedings were not properly and fairly conducted, but that is a long way from this case. The factual substratum is not really established to make the deficiencies of the translation, if that there be – and I am inclined to think there were deficiencies – relevant to the understanding of the way in which your client was putting the case.

MR McINTYRE: Yes.

KIRBY J: It is the facts, not the law, that really worry me. I mean, mistranslating “sport” and “escort” just does not seem to get anywhere near making it a relevant or causative default in translation. Now, if I am wrong in that impression, please dissuade me, but that is the problem I have, not with the principle, but with the application.

MR McINTYRE: Your Honour, paragraph 7 of the applicant’s summary of argument specify in detail the matters which are said to have been the subject of misinterpretation or mishearing. It does become a question of adding up the sum of those and determining whether they had an effect in the decision that is made. That is a shorthand way of describing what the test is in - - -

KIRBY J: Well, I have read it carefully because I am sympathetic to this principle, very sympathetic to it. I mean, one has just to imagine what it would be like to be in Iran in a proceeding where you did not understand or fully understand what was going on to appreciate how important the principle is, but when one adds up these defects of translation, they really are, I have to say, rather trivial. That is my impression.

MR McINTYRE: Yes. I do not think I can put it any more strongly than it is put in the written submission, your Honour.

KIRBY J: You also have to consider, Mr McIntyre, what happens in a case that comes up to the High Court on interpreter rights and the case has such a factual substratum that it really endangers the principle. If we were to give special leave on an interpreter rights case, speaking for myself, I would like to do it in a case where the principle will be refined, sharpened and strengthened, not weakened because the factual substratum is so unconvincing.

MR McINTYRE: Yes, if it please the Court, I do not think I can assist you any further.

McHUGH J: Yes, thank you, Mr McIntyre.

The application for special leave in this matter must be refused. The Court is of the view that an appeal would have insufficient prospects of success. Nor are we convinced that there was any material error made in the translation, that is to say, material in the sense that it had any causative effect. Accordingly, the application is refused with costs.

The Court will now adjourn to reconstitute.

AT 10.50 AM THE MATTER WAS CONCLUDED