Botros Mikhail Chedyak v Minister for Immigration and Multicultural Affairs

[1998] FCA 1731

FEDERAL COURT OF AUSTRALIA

MIGRATION – Refugee Review Tribunal hearing – translation errors by interpreter – adverse finding on applicant’s credibility – finding not critical to Tribunal’s decision

Migration Act 1958, s 427(7)

BOTROS MIKHAIL CHEDYAK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 24 of 1998
17 DECEMBER 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 24 of 1998

BETWEEN:

BOTROS MIKHAIL CHEDYAK

APPLICANT

AND:

MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

17 DECEMBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 24 of 1998

BETWEEN:

BOTROS MIKHAIL CHEDYAK

APPLICANT

AND:

MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	WHITLAM J
DATE:	17 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The applicant is a Lebanese national who arrived in Australia on 13 May 1996. On 12 August 1996, the day before his temporary visa was due to expire, he applied for a protection visa. That application was refused, and the applicant applied for review by the Refugee Review Tribunal (“the Tribunal”).

On 9 December 1997 the Tribunal held a hearing at which the applicant gave evidence through an interpreter. Section 427(7) of the Migration Act 1958 (“the Act”) provides that the Tribunal may direct such a procedure where a person appearing before it “is not proficient in English”. On 12 December 1997 the Tribunal affirmed the decision to refuse to grant a protection visa.

The applicant now challenges the Tribunal’s decision on the basis of alleged errors in translation made by the interpreter at the hearing on 9 December 1997. A seriously incompetent interpreter may well cause a hearing to be one in which an applicant is denied a fair chance of putting his case: Ameer v Minister for Immigration & Multicultural Affairs [1998] FCA 1027.

Before the Tribunal the applicant claimed fear of persecution in Lebanon for the reason of “political opinion” within the well-known definition of refugee in the Refugees Convention. Specifically, he claimed to have been a member of the Lebanese Forces (“LF”), which were disbanded in 1994, and to have been subsequently “put under pressure” by the Lebanese government and the occupying Syrian military forces. The Tribunal acknowledged (by a reference in its reasons for decision to an earlier decision) that a former member of the LF may well be a refugee within the meaning of the Convention definition. However, the Tribunal described the applicant’s evidence about the LF as “overwhelmingly unconvincing”. It found it “almost far-fetched that the Applicant could ever have been in the LF”. The Tribunal stated that it “does not believe the Applicant”. It is not entirely clear whether the Tribunal found that the applicant was never a member of the LF. However, the Tribunal plainly enough meant, by stating that it did not believe the applicant, that it did not accept that he had any subjective fear of persecution. Such a finding rests on the adverse view that the Tribunal took of the applicant’s credibility.

A transcript of what was recorded in English on a tape of the hearing on 9 December 1997 has been received in evidence. The provenance of this transcript has not been explained, but there is no suggestion that it was utilized in any way by the Tribunal. This is important because there are errors in the transcription that would have been obvious to the Tribunal member. For example, “they did ring together” (at p 13) must be “they drink together”. The applicant has supplemented this transcript by a translation of some of what was recorded on the tape as being said in Arabic by the interpreter and the applicant. This further material consists of eleven extracts which, the applicant submits, show that the translation by the interpreter at the hearing was inaccurate or incomplete.

This evidence does demonstrate that the interpreter’s translation was not word for word. Judges and lawyers, and no doubt experienced members of the Tribunal, know that such translation rarely achieves exact verbal equivalents. During his evidence the applicant complained on at least three occasions about the translation by the interpreter, who was a woman. On the second occasion the Tribunal member asked whether the applicant wanted to proceed with the interpreter and the applicant said that he had no objection. On the third occasion the Tribunal member rebuked the applicant for attempting to intimidate the interpreter.

The inaccuracies in translation are, by and large, quite minor and of no consequence. In context, they do not reveal a failure of communication. However, there are two topics relating to the applicant’s alleged membership of the LF upon which he and the Tribunal member appear to have been at cross-purposes. They are the applicant’s failure to draw a diagram of the LF’s organisation and “the accomplice” of one Hamid Keiruz.

The Tribunal member asked the applicant to what section of the LF he belonged and how did it “fit into the organisational diagram”. The interpreter does not appear to have translated the word “diagram” at all. In effect she appears to have conveyed in Arabic a request to draw “where was [the applicant’s] section” in the sense of where it was operating or located.

The applicant was also asked who supervised his section. He replied: “Those who were supervising us or responsible to watch us were part of the barracks of Mr Hamid Keiruz.” The interpreter translated this simply as: “It was the campus of Mr Hamid Keiruz.” The Tribunal member misheard “campus” as “accomplice” and, when he asked the applicant further questions about the “name of the accomplice”, the interpreter translated this expression as the “name of the barracks”. The applicant answered by giving the “war name [which was] secret” of a barracks in Beirut.

In its reasons for decision the Tribunal said:

Though many times asked to do so, the Applicant was unable to draw any diagram showing the structural organisation of the LF, let alone any reference to where the intelligence unit was placed. He spoke in locations, such as when he said he channelled information from Beirut to the north and back again. When asked for detail even in this area, he could only say that he would go to the north to talk with his friends and ask them about the latest news, but not tell them he was an [sic] LF member. He knew the name of two LF barracks and their general locations but could not connect them with the rest of the LF structure. The Tribunal asked the Applicant the name of his immediate supervisor. In reply, he said “accomplice of Hamid Keiruz”. When asked if Keiruz or an accomplice (not an official rank) was his supervisor, the Applicant said “both”. When pressed on the importance of showing inside knowledge of the operation, he wrote Geagea’s name, drew an arrow under it beneath which he wrote the name Ghassan Touma, drew another arrow under which he wrote the name Hamid Keiruz and a further arrow under which he wrote “ordinary members, lieutenants etc” amongst which he included himself. This illustration either implied that he was fourth in command of the LF, which he could not have been, or that Keiruz commanded an amorphous mass of LF adherents, which he did not. The Applicant’s evidence about the LF was overwhelmingly unconvincing.” (pp 5-6)

Read in isolation, this passage from the Tribunal’s reasons would suggest that deficiencies in translation handicapped the applicant in the presentation of his claim to have once been a member of the LF. However, elsewhere in its reasons, the Tribunal refers to the applicant’s inconsistent statements about when he joined the LF. More importantly, the Tribunal then turned to an examination of the applicant’s claims in respect of matters that had allegedly brought him to the attention of the authorities in Lebanon. Specifically, these consisted of two incidents involving delay or detention at military checkpoints. It was during the applicant’s account of the detention incident that he complained for the third time about the interpreter. Yet on this occasion, which prompted the rebuke from the tribunal member, the evidence does not reveal any error of substance on the part of the interpreter. On the contrary, it shows that the applicant did say what he later denied saying.

The Tribunal said:

“The applicant tired [sic] to alter this account significantly when adverse observations were put to him. He claimed he never said what he said and blamed the interpreter. Later, he admitted that he had said what he had said but that he had made a mistake. He blamed the mistake on his having misunderstood questions put to him at the time, but he had in fact told the story unprompted by any questions. The hearing tape will show that the Applicant had been given free reign at the time to tell his story; he was not responding to ambiguous or problematic questions, but merely relating a flowing account of ‘events’.

Throughout the hearing, whenever the Tribunal put adverse positions or testing questions to the Applicant he avoided them and when pressed to address the issues raised with him he would say that he had not understood the way the interpreter had conveyed them. The Tribunal asked the Applicant if he was dissatisfied with the interpreter and he said he was not; the Tribunal asked the Applicant if he wished to proceed with another interpreter, and he said he did not. The Tribunal concludes that the Applicant was deflecting his own difficulties with the facts onto someone else other than the Tribunal itself.” (p 7)

In its findings, the Tribunal said: “The Applicant was not able to satisfy the Tribunal as to his overall credibility.” It is also said:

“The Tribunal is satisfied that the standard of interpreting was not a factor hindering the just and proper conduct of the hearing. The Applicant’s preparedness to continue with the interpreter indicates that he agreed with this assessment.” (p 8)

In my view, the errors in translation, of which the Tribunal was not aware, must have affected its adverse finding on the applicant’s credibility. The Tribunal must, at the very least, have been left with a wrong impression about the applicant’s willingness to answer some of its questions about the LF. I do not think that the applicant’s “preparedness to continue” is particularly relevant. The applicant’s initial complaints about the interpreter do not suggest that he properly understood all of what had been said in English. The influence of a witness’s demeanour on credibility findings is often described as subtle. The transcript suggests that the applicant was himself largely responsible for the unfavourable impression of the Tribunal, but the impact of the interpreter’s errors cannot be entirely discounted. If the Tribunal’s decision turned on the applicant’s credit, I would set it aside on the basis that the procedure required by s 427(7) of the Act had not been observed. However, that finding was not critical to the disposition of the case.

The Tribunal did not accept that there was any objective foundation for a fear of persecution. That conclusion rested on the applicant’s ability to obtain a passport and travel twice to Australia and on information from the Department of Foreign Affairs and Trade (“DFAT”) posts in Damascus and Beirut. The Tribunal observed: “The Applicant’s own claims as to his encounters with the authorities appear to support the DFAT reports.” Notwithstanding the findings on credit, the Tribunal plainly took the view that there was no evidence or other material before it indicating that there was a real basis for any subjective fear of persecution on the part of the applicant.

The application will be dismissed with costs. However, I wish to say one further thing about the hearing before the Tribunal. The transcript suggests that during the applicant’s evidence the interpreter fielded a call on a mobile phone from her husband. If so, this is deplorable. Such behaviour unnecessarily disrupts the earnestness of the hearing which is, of course, of the utmost importance to the applicant.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:             17 December 1998

Appearances

Applicant: Mr T V Martin, solicitor, instructed by Harrisons

Respondent: Tim Reilly, of counsel, instructed by the Australian Government Solicitor

Dates

Date of hearing: 6 August 1998

Date of judgment: 17 December 1998