BGA15 v Minister for Immigration

[2018] FCCA 78

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGA15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 78

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – where Applicant claims interpreter could not speak Urdu – Applicant claims he could not understand the interpreter – Applicant chose to proceed in English – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:

BZAID v Minister for Immigration and Border Protection [2016] FCA 508

Applicant: BGA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1510 of 2015

Judgment of: Judge Hartnett

Hearing date: 5 September 2017

Delivered at: Melbourne

Delivered on: 17 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1510 of 2015

BGA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant relies upon an amended application for judicial review of a decision of the then Refugee Review Tribunal (‘the Tribunal’) made on 17 June 2015 wherein the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) visa (‘the visa’).

2. The amended application, filed 21 December 2016, relies on only one ground of review, being that:-

   “The decision of the Tribunal is affected by jurisdictional error, in that the applicant was not afforded a real and meaningful hearing as required by s 425(1) of the Migration Act 1958 (Cth), by reason of inadequate interpreting”.

3. The Applicant argues that he requested, before the Tribunal, to be assisted by an interpreter in the Urdu and English languages, but that the interpreter provided to assist him was a Hindi speaker, who purported to translate between the Urdu and English language, but who was not NAATI accredited to do so and could not read Urdu. Thus the Applicant claims he could not understand more than about 50-60% of what the interpreter said to him, and he gave much of his evidence in English, affected by his limited ability to speak and understand English.

4. The Applicant relies upon his amended application together with the following documents:-

   a)an affidavit affirmed by him on 20 December 2016;

   b)affidavits affirmed by Ms Siran Nyabally on 20 December 2016 and 20 February 2017;

   c)an affidavit affirmed by Ms Zheng Xi Lam on 17 February 2017; and

   d)submissions filed 21 December 2016 and 20 February 2017

5. The First Respondent seeks dismissal of the application and costs. The First Respondent filed the Court Book on 15 March 2016 and the Court has before it the evidence contained therein. The First Respondent relies upon submissions filed 7 October 2016 and 27 February 2017. The First Respondent argues the Applicant does not provide any, or any sufficient, admissible evidence that the competency of the interpreter was such that the hearing was unfair.

Background

1. The Applicant is a citizen of Pakistan. He arrived by boat on Christmas Island on 9 August 2012. A useful summary of the Applicant’s claims for the visa is set out in paragraphs 5 and 8 of the First Respondent’s submissions filed 7 October 2016 and are adopted herein:-

   “5. … On 16 January 2013, the applicant lodged an application for the visa with the assistance of the Refugee and Immigration Legal Centre Inc (RILC). Various documents were provided with the visa application,…including a statutory declaration made by the applicant on 20 December 2012, in which the applicant relevantly claimed:

   • he was a Sunni Muslim of Punjabi ethnicity, and was born in Kamal Pur Syeda Village in Attock District, where Sunni and Shia people both lived. The Wahhabi people and the Taliban conducted targeted killings and kidnappings in the area, and many people go missing because Sunni and Shia people live together;

   • his college, the Construction Technology Training Institute in Islamabad, was attacked at the end of his first year. A suspected suicide bomber also attempted an attack on the college, and was caught and charged;

   • when he lived in Rawalpindi, he shared a flat with Shia friends;

   • in 2010 while he was living in Rawalpindi, a Sunni mosque called Ali Sunnat was attacked and bombed by the Taliban while people were praying inside the mosque. Thereafter, he feared being killed if he went to the mosque, so he prayed at home;

   • in 2010 in Rawalpindi, three or four men with turbans and long beards assaulted him. They took out a machete to cut his leg, but were stopped by a passer-by. He went to the police station and made a First Information Report but did not hear from the police;

   • in 2011 in Attock, at 8 or 9 pm a car approached him with 3 or 4 people who had covered faces, and tried to drag him into the car. He managed to escape. Three or four days earlier, he had heard about a person from his town who had been kidnapped and disappeared;

   • young people and students are targeted by the Taliban, as the Taliban try to make young people join them and fight for their cause; and

   • if it was discovered that he had been in a Western country, he may be accused of spying or rejecting Islam.

   …

   8.  By email dated 29 May 2015, RILC provided the Tribunal with the applicant's written submissions, a statement by the applicant dated 29 May 2015, and a screenshot from Facebook in support of the visa application. In the written submissions, the applicant relevantly claimed to fear harm on the basis of:

   a) his Shia Muslim religion;

   b) his actual or imputed political opinion in opposition of the Taliban and Wahhabi, on account of:

   i) his Shia religion;

   ii) his conversion from Sunni to Shia Islam;

   iii) his association with Shi'a people;

   iv) his status as a successful engineering student; and

   v) his extended presence in Australia as an asylum seeker; and

   c) his membership of the particular social groups, “Pakistani Sunnis who have converted to Shi'a Islam", and “returned failed asylum seekers from a Western country.”

The Tribunal

1. The Tribunal noted, relevantly, in paragraph 22 of the Statement of Decision and Reasons (‘the Decision Record’), the provision of an interpreter to the Applicant by the Tribunal as follows:-

   “22. The applicant appeared before the Tribunal on 2 June 2015 to give evidence and present arguments. An interpreter in the Urdu and English languages was present at the hearing by the applicant’s request although the applicant insisted on speaking English. The applicant was represented in relation to the review by his registered migration agent.”

2. The Tribunal then went on to set out the Applicant’s evidence about his background in paragraphs 23 to 26 of the Decision Record as follows:-

   “23. … He is 23 years old, Punjabi and Muslim. He speaks English, Urdu, Pashtu and Punjabi. He was born in Attock city, Attock cantonment, in Punjab. He lived in Rawalpindi while studying for his diploma from 2008 until the end of 2011. After his studies he continued living with friends in Rawalpindi and applied for a student visa. He then went home to live with his father and told him he wanted to leave Pakistan.

   24. His father is in Attock and had his own construction company and was a government contractor. His mother mostly now lives with his elder brother Zubair, who lives in Rawalpindi, because sometimes his parents fight. Another older brother Umer lives thirty minutes from Attock. Both brothers are now married. Zubair works in the Air Force as an electrician. Umer is an electrician in a private company. He is in touch with his father but not his brothers. They last spoke two weeks ago.

   25. The applicant completed a diploma of civil engineering in Rawalpindi at the Construction Technology Training Institute. He has done a security officer course in Australia. He worked in Pakistan only for his father. He works as a painter and taxi driver in Australia now.

   26. He was asked about the outcome of his student visa. He applied to do a business management course in Melbourne and went through a consultant. He waited for four months. He applied through a migration consultant but then withdrew his application because it took so long.”

3. The Tribunal did not accept many of the Applicant’s claims. It said as to those claims, in paragraphs 101 and 102 of the Decision Record, the following:-

   “101. The tribunal found several key aspects of the applicant's claims to be vague and lacking in clarity, implausible and containing omissions and inconsistencies. The applicant was given several opportunities during the hearing to clarify his evidence and respond to the tribunal's concerns. For reasons set out below, the tribunal did not find his evidence persuasive or credible.

   102. The applicant made references in the hearing to being 'disturbed', confused and to being emotional when talking about his faith. The tribunal did not observe any overt emotional response in the applicant when he gave evidence about his motivations for conversion, nor did the applicant explain how his alleged emotional response affected his ability to respond to the tribunal’s questioning. Further, the applicant has not provided any evidence that he is experiencing any mental health issues and advised that he has not been seeing any mental health professionals. The tribunal accepts that the applicant may feel depressed for a number of reasons on the evidence before it including the absence of any expert opinion or diagnosis from any health professionals, the tribunal is not satisfied that the applicant is experiencing any significant mental health issues that would have affected his ability to participate in the hearing. While the tribunal acknowledges that the protection process and hearing can cause stress and anxiety in applicants and has taken this into account, it is not satisfied that the significant deficiencies identified in the applicant’s evidence can be simply explained by nervousness, confusion, being 'disturbed', depressed or emotional. The tribunal is further satisfied on the evidence before it that the applicant was able to meaningfully participate in his hearing.”

Consideration

1. This is a very discrete issue. The legal principles which govern a matter such as this, are set out by Edelman J in BZAID v Minister for Immigration and Border Protection [2016] FCA 508 at paragraphs 50 to 54, as follows:-

   “50. In Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6, 19 [29], Kenny J said of an earlier version of s 425 that:

   Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.

   51. That statement has been described as the “seminal” statement in this area and has been applied to s 425 in its current form: SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 [29] (Jacobson J).

   52. The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, “Working with Interpreters: Judicial Perspectives” (2015) 24 JJA 207. The relevant principles are summarised below:

   (1) interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;

   (2) whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;

   (3) in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;

   (4) where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;

   (5) where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;

   (6) where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;

   (7) if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;

   (8) however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.

   53. The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (215 [9]):

   The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

   54. In some circumstances it might be the case that a process is procedurally unfair even if a conclusion cannot be reached that the irregularity might reasonably have led to an adverse finding. One reason for this is that the reviewing body, and the appellate court, does not have the benefit of all of the advantages of the Tribunal which sees and hears the witnesses and considers that evidence in the context of the whole record, usually with less time constraints. Those disadvantages of the review or appellate court could require a finding of procedural unfairness in some circumstances even if the reviewing or appellate court is unable to conclude that the irregularity might reasonably have led to an adverse finding. It is not necessary to consider that issue further in this case because, as I explain below, I consider that the irregularities in this case, when viewed as a whole, might reasonably have led to an adverse finding.”

2. There is before the Court a transcription of the Tribunal hearing, prepared from an audio recording of the Tribunal hearing, by Ms Lam, annexed to her affidavit of 17 February 2017, which is accepted by the Minister as an accurate transcript of the Tribunal hearing. Where the Applicant in his affidavit, refers to what the Tribunal member or the interpreter said during the course of the hearing, and it differs from the transcript, annexed to Ms Lam’s affidavit, the transcript is accepted by the Court to be an accurate account, and is preferred to the evidence of the Applicant.

3. The Applicant makes the following specific allegations about the interpreter provided by the Tribunal in his submissions:-

   a)she was a Hindi speaker;

   b)she was not “NAATI” accredited to translate between the Urdu and English languages; and

   c)she could not read Urdu.

4. As to the first two matters, the First Respondent argues the Applicant has not provided any admissible evidence that could establish these allegations. The highest the evidence rises is the exchange at the commencement of the hearing recorded in the transcript annexed to the affidavit of Ms Lam. That exchange does not establish any of the allegations that are now made. In respect of the third allegation the First Respondent argues, it is hard to see how, if true, that interfered with the Applicant's participation in the hearing. As the exchange on pages 46-48 of the transcript reveals, when there was writing in Urdu, the Applicant was able to read it to the interpreter who interpreted for the Tribunal. The First Respondent further argues that indeed, in relation to each of these allegations, none on their own or together, could establish that the standard of interpretation provided by the interpreter was such that the hearing was unfair. The only way that could be established would be through admissible evidence about the standard of interpretation.

5. The transcript of the Tribunal hearing makes clear that the Applicant was given an opportunity by the Tribunal to tell the Tribunal “at any time” of “any problems with (the Applicant) understanding (the interpreter)” and that the hearing was conducted mostly in English, at the election of the Applicant, who proceeded with it in an obviously competent way.

6. Near the commencement of the hearing, the Applicant told the Tribunal the interpreter spoke Hindi, and that “some words” he did not understand. The following exchange then occurred between the Applicant and Tribunal member and interpreter:-

   “[Applicant ‘A’]: Hindi, Urdu, a little bit different but I understand.

   [Tribunal Member ‘M’]: I think the majority of our Urdu interpreters are actually Hindi because my understanding is that the languages are so similar.

   [A]: Same, same, same, yeah. Yeah.

   M: Yeah, so ...

   [A]: A little bit different, yeah.

   M: But I mean it's really up to you. You've requested an interpreter to assist you.

   [A]: Yeah some-

   M: so if you're not comfortable, if you think there's going to be an issue, you should let me know.

   [A]: Okay.

   M: But maybe we can .... I mean, I was told before I came in that you actually wanted to speak in English. I'm not sure if that's because you felt uncomfortable…

   [A]: No, I speak in English but whenever I need interpreter, so I tell them

   M: Okay, so you feel comfortable conducting this hearing in English?

   [A]: Yeah.

   M: Okay, all right. Well ...

   Interpreter: Even before he heard me, anything saying, he mentioned that to [00:03:30- inaudible].

   M: Ok alright. Well if that's the case then we'll just proceed in English, if that's what you want. If there is, at any time, any problems, use the interpreter, and if there's any problems with you understanding her, let me know and we'll try and see if we can sort it, okay?

   [A]: Thank you

   M: Good.

   All: [inaudible - 00:03:48] all voices can be heard.

   M: Perfect. Thank you very much.

   M: Okay. Then I'll just give you an introduction about what my role is and what we're going to be doing here today in English. If I'm speaking too fast or if you don't understand anything, just stop and ask for clarification because the interpreter will be listening to us the whole time, okay?

   [A]: Okay.”

1. The Applicant claims in his affidavit evidence that for cultural reasons he could not complain to the Tribunal, nor his lawyer, about his claimed inability to understand the interpreter. However, in that same affidavit of evidence he subsequently admits that he did complain to his lawyer during a break in the proceedings and that his lawyer told him his English was good, and that he should continue in the manner he was proceeding.

2. The Applicant fails to put before the Court evidence, in admissible form, that supports a conclusion that as a matter of fact there was an error in interpretation. He put no evidence before the Court as to the interpreter’s actual NAATI accredited status. It is accepted by both parties that the transcript suggests that the interpreter could not read Urdu. When that issue arose, the Applicant read to the interpreter what he required to be interpreted, and the interpreter interpreted it for the Applicant and the Tribunal, without complaint from the Applicant. There is no admissible evidence before the Court to the effect the interpreter could not interpret Urdu, or did so inaccurately, so as to render the Tribunal hearing unfair. What evidence there is, as set out in the transcript of the proceedings, is indicative of the Applicant having a clear comprehension of matters asked of him by the Tribunal and his giving of meaningful responses.

3. In the circumstances the application cannot succeed and shall be dismissed. Costs shall follow.  

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  17 January 2018