BPD15 v Minister for Immigration
[2016] FCCA 1943
•28 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPD15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1943 |
| Catchwords: MIGRATION – whether an extension of time pursuant to s.477(2) of the Migration Act 1958 should be granted – where delay limited and explanation reasonable – where arguable case – extension granted – where Applicant who is self-represented afforded opportunity to file further material at final hearing. |
| Legislation: Federal Circuit Court Rules 2001, r.12 Migration Act 1958 (Cth), s.477 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 BZAID v Minister for Immigration and Border Protection [2016] FCA 508 Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment [1984] FCA 186; 3 FCR 244; 58 ALR 305 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252 SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 SZSUT v Minister for Immigration and Border Protection [2015] FCA 190 |
| Applicant: | BPD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1782 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 22 April 2016 |
| Date of Last Submission: | 22 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 28 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Applicant is granted an extension of time pursuant to sub-s.477(2) of the Migration Act 1958 (Cth) in which to file his application for judicial review.
The matter is listed for final hearing on 10 November 2016 at 10.00am.
The Applicant be referred to a Registrar of this Court pursuant to r.12.02(1) of the Federal Circuit Court Rules 2001 (Cth) for referral to a lawyer on the pro bono panel for legal assistance, that assistance pursuant to r.12.04 of the Federal Circuit Court Rules 2001 (Cth) to include:
(a)advice in relation to the proceedings;
(b)the drafting or settling of documents to be filed or used in the proceedings; and
(c)representation generally in the conduct of further proceedings before this Court.
Costs be reserved.
The parties have liberty to apply.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1782 of 2015
| BPD15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This decision concerns an application for judicial review filed on 31 July 2015 (CB 1-6) of a decision of the Administrative Appeals Tribunal (“the Tribunal”) on 17 June 2015, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”), on 16 March 2015 to refuse to grant the Applicant a Protection (Class XA) visa (“the visa”).
Pursuant to sub-s.477(1) of the Migration Act 1958 (“the Act”), an Applicant applying for judicial review in this Court is required to, “in relation to a migration decision”, make the application “within 35 days of the date of the migration decision”. The Applicant’s application was filed 16 days out of time.
Pursuant to sub-s.477(2) of the Act, the Court may extend the 35 day period if, a) the application for an Order to extend the period has been made in writing to the Court specifying why the Applicant considers that it is necessary in the interests of the administration of justice to make the Order; and (b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the Order.
In his application for judicial review, the Applicant’s ground for an extension of time centred around the fact that, at the time he received the decision of the Tribunal, he was in immigration detention and that he had relied on his case manager in the detention centre to file his application by facsimile. He said he requested, on numerous occasions, a copy of a receipt indicating that the document had been filed but was not given one. He then rang the Registry of this Court and was informed that his application forms had not been received. Following this, he filed his application for judicial review.
As the Applicant has complied with sub-s.477(2)(a) of the Act, it falls to the Court to consider whether it is satisfied that it is necessary in the interests of the administration of justice, to make the Orders sought by the Applicant for an extension of time.
I explained to the Applicant, who is self-represented, that the Court has a broad discretion under sub-s.477(2) of the Act. However, the factors that the Court generally takes into account are the extent of the delay, the reasons for the delay, any prejudice to the First Respondent and whether the application for judicial review discloses an arguable case: Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment [1984] FCA 186; 3 FCR 244; 58 ALR 305.
In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252, Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time under sub-s.477(2) of the Act. His Honour explained the matters relevant to an application under s.477(2) as follows:
“46.There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
47.The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
“(a)Whether there has been a reasonable and adequate explanation for the applicant's delay;
(b)Whether there is any prejudice to the Minister;
(c)Whether the applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time.”
48.The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.”
The Minister concedes that the delay in filing the application is short and that there is no real prejudice to the Minister in allowing an extension of time. The Minister’s submission is, however, that an extension of time should not be granted on the basis that the grounds of review do not contain any merit.
I am satisfied that the Applicant has provided a reasonable explanation for delay, which was a short period, and that there would be no prejudice to the Minister in allowing an extension of time.
Whether the Applicant's substantive case for judicial review is sufficiently arguable
By way of background, the Applicant is a 19 year old citizen of Malaysia, of Hindu and Tamil ethnicity (CB 191 at [9]). The Applicant has, since 2011, spent interrupted periods of time in Australia and Malaysia.
The Applicant applied for the visa on 23 January 2015 (CB 14-48).
The Applicant claims to fear harm arising from a financial dispute between his father, regarding a loan borrowed around six years ago from a loan shark named Raj, following the collapse of the Applicant’s father’s scrap metal and transport business in 2008 or 2009.
The Applicant claims that he had received threats from, and was harmed by, Raj on two separate occasions. The first incident occurred in 2012, while the Applicant was living with his stepmother. The Applicant claims that Raj and some of his friends came to his stepmother’s house, hit him and told the Applicant that he had two choices: work for Raj to pay off his father’s debt or to repay the money. The Applicant said he could not do either. The Applicant said that Raj beat him again, told him to ‘think again’ and said that he would return the next day. The Applicant claims that he reported the incident to the police but they called him racist names and told him to leave (CB 50-52, 191 at [9]).
The second incident occurred in 2014, when Raj’s friend tried to kidnap the Applicant, but the Applicant managed to escape. The Applicant thereafter came to Australia to live with his sister, returned to Malaysia after 8 months but then returned to Australia two weeks later, because he heard that Raj was looking for him (CB 51, 191 at [9]).
The Applicant fears that if he returns to Malaysia, he will be harmed by Raj as an incentive for his father to repay the money, or he will be forced to sell drugs on Raj’s behalf (CB 191 at [9]).
Tribunal hearing and decision
On 19 March 2015, the Applicant applied to the Tribunal for a review of the delegate’s decision (CB 81-82). On 15 April 2015, the Applicant was invited by the Tribunal to give evidence and present arguments relating to the issues in his case, at a hearing scheduled on 5 May 2015 (CB 91). On 1 May 2015, the Applicant’s representative, the Refugee and Immigration Legal Centre (“RILC”), provided a written submission to the Tribunal (CB 94-115).
The Applicant appeared before the Tribunal for a hearing on 5 May 2015. On 15 May 2015, the RILC requested that the Tribunal invite the Applicant and his father to a further hearing, in order to allow the Applicant’s father to provide evidence to the Tribunal. The correspondence requesting the further hearing set out the instructions that the Applicant’s father had given to the RILC, that was relevant to the Applicant’s case (CB 166-167).
The request for a further hearing was granted, and a hearing was listed by the Tribunal for 29 May 2015. There is a case note dated 27 May 2015 made by a staff member of the Tribunal. It records (CB 174):
“On 27/5/15 the Rep. called stating the witness required a Tamil (Malaysia) for the hearing on 29/5/15; and I checked the system, it appeared that the Tribunal has already booked a Tamil (Sri Lankan) for this hearing; and the Rep. stated she would put it in writing to the Tribunal about this matter; and I told her I would also make a case note regarding her call and bring it to the Member’s attention asap.”
On 27 May 2015, the RILC wrote to the Tribunal member, stating relevantly (CB 176):
“…We have been advised that a Tamil interpreter has been booked for this hearing (on 29 May 2015) to assist (the applicant’s) father to give evidence.
We note that [the applicant’s] father is Malaysian and requires a Malay Tamil interpreter, not a Sri Lankan Tamil interpreter. We are therefore writing to confirm that the interpreter who has been booked is accredited in Malay Tamil. We are instructed that there is a difference in dialect between Malay Tamil and Shri Lankan Tamil.”
The Court Book filed by the Minister does not contain any response to this correspondence. Furthermore, it does not contain the Tribunal’s usual form, which records those present at the hearing, for the hearing on 29 May 2016. This is not a criticism of the Minister. Rather, it is an observation of the absence of evidentiary material regarding the language skills of the interpreter at the hearing.
In its decision record, the Tribunal accepted that the Applicant is a citizen of Malaysia and stated that, in assessing his claims and evidence, it took into account the fact the Applicant had only recently turned 18 years of age (CB 203 at [120]-[121]). The Tribunal accepted that the Applicant’s father borrowed money from a man named Raj, but otherwise rejected the Applicant’s claims, largely because of its adverse view of the credibility of the Applicant, having regard to the inconsistencies in the Applicant’s evidence, the inconsistencies between the Applicant’s evidence and his stepsister’s evidence and, relevantly for these proceedings, between the Applicant’s evidence and his father’s evidence.
The Tribunal’s disbelief regarding the credibility of both the Applicant’s and his father’s evidence, is evident from the following extracts from the decision record (CB 203, 205-206) :
“122. The tribunal found several aspects of the applicant’s evidence to be vague, lacking in detail, exaggerated, based on hearsay and generally unreliable… It has taken into account evidence provided by the applicant’s father when assessing the applicant’s claims. However, the tribunal also found several aspects of the applicant’s father’s evidence to be vague and inconsistent. Furthermore, several aspects of the conduct of the applicant’s family members give rise to concerns about the applicants claim to face a real chance or risk of harm in Malaysia.
...
136. The applicant’s claims that he will face serious or significant harm from a loan shark named Raj appears to be predicated on threats and past harm that he claims he and other family members have suffered. However, the applicant’s and his father’s evidence in relation to those past threats and harm is on the whole vague, unpersuasive and inconsistent.
137. The applicant’s evidence about the chronology of his father’s relationship with Raj is inconsistent with evidence given by his father and generally vague. His written claims appear exaggerated in light of evidence he provided orally at hearing. Several aspects of the applicant’s evidence appear not to have been contemporaneously known by him and it appears that the applicant has relied on a lot of evidence told to him by others.
…
140. His evidence that Raj’s threats started in 2011 is inconsistent with his father’s evidence that Raj threatened him and his children in 2008, before the father’s travelled to Australia…
141. Both the applicant and his father provided evidence that was vague and lacking in detail regarding whether any threats were made to other members of their family…”
At CB 206 at [142], the Tribunal recorded that the inconsistency in the Applicant’s evidence (that he was threatened by Raj in approximately 2012) and his father’s evidence (that this event happened in 2014) was one that it found “significant”.
There are many other points in the Tribunal record where the Tribunal sets out its view that the Applicant’s and his father’s evidence was implausible, vague or exaggerated: (see CB 207-208, at [144], [145], [148], [150] and [152]).
The Tribunal, ultimately, did not accept that Raj had ever made threats, by telephone or in person, against the Applicant’s father, the Applicant or anyone else in the Applicant’s family. While the Tribunal accepted that the Applicant’s father came to Australia in 2009 to make money to pay debts, it did not accept that this was out of fear of harm from Raj (CB 209 at [156]). It did not accept that the Applicant’s travels to Australia were as a result of any threats he faced from Raj (CB 209 at [158]). The Tribunal did not accept that the Applicant was threatened to repay his father’s debt or sell drugs for Raj, that he was beaten by Raj, treated at hospital or that he reported the incident to the police who did not take his complaint seriously (CB 210 at [160]).
Given the Tribunal’s findings that Raj had not threatened or harmed the Applicant’s father, the Applicant, or anyone else in his family at any time in the past seven years since the Applicant’s father borrowed money from him, and that the Applicant’s father continues to make repayments on that debt, the Tribunal did not accept that there is a real chance or risk that the Applicant would face serious or significant harm perpetuated by Raj (CB 210 at [164]).
On 5 June 2015, following the second Tribunal hearing, the RILC sent a further submission to the Tribunal, responding to information put to the Applicant during the Tribunal hearing and raising concerns relating to the conduct of the Tribunal’s hearing (CB 178-182). One concern was expressed as follows (CB 178):
“d) The interpreter utilised during the hearing on 29 May 2016 was not able to communicate effectively between the witness and the Tribunal, thereby denying my client of the opportunity to participate in a hearing and present his case in accordance with s.425
a. There is a significant difference between Sri Lankan Tamil and Tamil-Nadu / Indian Tamil
b. There were several instances, pointed out during the course of the hearing, where the witness did not understand the interpreter and / or the interpreter did not understand the witness
c. The Tribunal was put on notice prior to the hearing that an Indian Tamil or Tamil-Nadu interpreter would be necessary to allow effective communication…”
On 17 June 2015, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa (CB 189-214).
The Tribunal addressed the concern regarding the interpreter at the Tribunal hearing, as follows (CB 204-205 at [127]-[131]):
“127. Submissions from the applicant’s representative, both at and post-hearing, raised concerns about the interpreting during the second hearing for the witness and that the applicant did not believe that his father understood the interpreter.
128. The tribunal has considered the representative’s submissions on this point. Firstly, the tribunal is satisfied that steps were taken to ensure a suitable interpreter was organised for the scheduled hearing upon receipt of the applicant’s request for a ‘Malay Tamil’ interpreter on 27 May 2015.
129. The representative has submitted that the tribunal had to repeat or rephrase questions several times, that the interpreter stated that he did not ‘get’ or understand certain sentences, that the witness’s answers did not always correspond to the question asked and that the interpreter and witness spoke different dialects. The representative referred to specific examples at the end of the hearing of what were perceived to be interpreting errors. For example, the representative referred to the interpreter interpreting the witness’s reference to ‘Gang Zero Four’ as ‘Gang Number Four’. As noted at the hearing, the tribunal does not consider this quite minor discrepancy to be of significance or indicative of a below standard level of interpreting.
130. The tribunal has considered the other specific examples of misinterpreting raised by the applicant via his representative. However, it is not satisfied that any of the specific examples pointed out indicate that there were any significant issues with the interpreting that affected the witness’s ability to give evidence or the tribunal to understand the evidence. The tribunal is mindful of the difficulties that can arise when using an interpreter. However, it does not accept that the matters raised by the applicant or his representative either at hearing or in the subsequent written submissions indicate that the interpreter and witness were unable to understand each other or that the witness was prevented from giving evidence to the tribunal. The tribunal notes that at no time did the witness himself raise any concerns about the interpreting. Nor has the applicant provided evidence of what, if any, significant omissions or mistakes occurred in the interpreting.
131. The tribunal has considered the representative’s submissions that it cannot be satisfied that its question about any other connections or associations that ‘Raj’ had with the witness’s family was properly interpreted or understood and that it may have been interpreted or understood as referring to whether anyone else was a ‘business associate’ of Raj. However, the tribunal is satisfied on the evidence before it and in the absence of any evidence to the contrary, that its question of whether Raj had any other connections to the witness’s family was properly interpreted. The witness had several opportunities to provide evidence about Raj’s connection or relationship with other people in his family, namely, his stepdaughter or about any further information he had about Raj. While the post-hearing submissions state that Raj and the witness’s stepdaughter separated in 2007 and she is unaware of the ‘full extent’ of Raj’s criminal activities since that time, the tribunal finds it an unlikely coincidence that the man who the witness borrowed money from in 2008 happens to be the ex husband of his stepdaughter. The tribunal does not accept that this link would not be known to the witness. The tribunal is of the view that, had Raj actually had this connection with the witness’s family, he would have mentioned this in his evidence.”
Judicial Review
Does the Applicant’s application for review reason arguable case?
The grounds of judicial review set out in the Applicant’s application for judicial review are (CB 5):
“1. The tribunal denied me procedural fairness because they didn’t give me a fair hearing.
2. The tribunal failed to properly consider all my claims.”
As the Minister correctly observed, these grounds were not particularised, and did not assist either the Minister or the Court in understanding the Applicant’s case. The Applicant was asked to explain what he meant by his grounds of review. In respect of the first ground, the Applicant said that he was denied a fair hearing because the interpreter at the Tribunal hearing, who was made available by the Tribunal to interpret his father’s evidence into English, was a Sri Lankan Tamil interpreter and not a Malay Tamil interpreter, and that these are different dialects.
When the Applicant was asked how this affected his father’s capacity to give evidence, he referred to the submissions made on his behalf by the RILC on 5 June 2015, following the hearing, where it was stated (CB 181):
“…There were several times during the course of the hearing where the Member had to repeat or rephrase questions after the interpreter had, to the best of his ability, interpreted what was said. There were also multiple times where the interpreter stated words to the effect of “I didn’t get the rest of that sentence” or “I didn’t understand the second sentence”. Regardless of the reason for the interpreter’s inability to fully interpret the evidence of our client’s father, it is remains our submission that aspects of his evidence were not presented to the Tribunal because he and the interpreter were speaking different dialects. It is unkown whether those un-interpreted sentences are essential to the applicant’s case; however it is vehemently submitted that on the basis of the above information and submissions, the Tribunal cannot lawfully find that a perceived ‘omission’ from Mr Kannan’s evidence is the reason or part of the reason for affirming the decision under review.
It is noted that the Tribunal asked Mr Kannan whether anybody in his family was “associated” with the loan shark from whom he borrowed money. Mr Kannan’s response was in the negative. It is our submission that this statement should not be held against our client, as there is no way for the Tribunal to be satisfied that this word was interpreted in the context in which it was intended to be understood: namely the context which would be understood by a Tamil-Nadu or Indian Tamil speaker. In English it is possible to have business associates and personal associates, close associates and ‘friend of a friend’ associates. If Mr Kannan understood the interpreter to ask whether anybody else in his family was a business associate of the loan shark from whom he borrowed money, his negative response was indeed correct. Because of the different dialects spoken by the interpreter and the witness, the context in which the question was phrased cannot be confirmed with any accuracy.
It is also noted that the interpreter stated he had no problems understanding the witness. We refer the Tribunal to the above-quoted information that speakers of Sri Lankan Tamil understand speakers of Indian Tamil better than Indian Tamil-speakers understand them. Accordingly, it is submitted that [the Applicant’s] evidence during the hearing that he did not think that his dad always understood the interpreter is not something which can be disregarded.”
Plainly, the Applicant’s first ground of review that he was not afforded a fair hearing is centred on, firstly, the fact that his father was not assisted, when he gave evidence to the Tribunal in relation to the Applicant’s claims, by an interpreter in his native language. Secondly, there were many instances where the interpreter indicated to the Tribunal he did not “get” the remainder of a sentence spoken to him by the Applicant’s father. Thirdly, the absence of a suitable interpreter may well have resulted in evidence given to the Tribunal by the interpreter, on behalf of the father, which was not in fact the father’s evidence on matters germane to the Applicant’s claim.
At the date of the first Court hearing, the Applicant had not filed a transcript of the Tribunal proceedings in English, nor had he filed any documentation which would enable the Court to ascertain, by reason of a transcript, the father’s evidence given in Tamil Nadu.
Accordingly, the Court hearing was adjourned to another date, and the Minister was ordered to file a transcript of the electronic recording of the second hearing before the Tribunal, when the Applicant’s father gave evidence.
I should note here that at the first Court hearing, the Applicant also informed the Court that he did not wish to pursue ground 2 of his grounds of review.
Before considering whether the Applicant’s substantive case is sufficiently arguable, it is, in my view, appropriate to traverse relevant authorities which bear on this case.
The decision of the Full Court in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (“SZRMQ”) is, with due respect, the appropriate starting point in considering the authorities on the question arising in this case. The decision was concerned with a process that was then available for the review of decisions of delegates of the Minister, outside of the scope of the Act, referred to as “Independent Merits Review.” Although the Full Court in SZRMQ was concerned with principles arising from the common law, subsequent decisions of the Federal Court have proceeded on the basis that the principles enunciated in SZRMQ apply within the statutory context of Tribunal hearings under the Act: SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 per Griffiths J at [114].
In SZRMQ, Allsop CJ agreed with the judgment of Robertson J (with Flick J dissenting), adding to his Honour’s reasoning the following relevant observations:
“5. Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.
6. The requirements of procedural fairness are not generally apt for precise delineation. Some aspects can be reduced to a verbal expression of law. The test for apprehended bias is perhaps an example of that. The difficulty in precise formulation of many aspects of the requirements is that the informing norm and root of the principle is fairness: Kioa v West [1985] HCA 81 ; 159 CLR 550 at 583–585. Even in relation to the proper test for apprehended bias, however, the use of the fair-minded observer in the construct imports the norm of fairness: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].
7. Fairness is normative, evaluative, context specific and relative. As such, its assessment is sometimes imprecise in articulation and open to debate. Nevertheless, subject to any clear contrary statutory intention, fairness is an inhering requirement of the exercise of state power: Jarratt v Cmr of Police (NSW) [2005] HCA 50; 224 CLR 44 at 56–57 [26]; and SZRUI at [5].
8. The requirement of power to be exercised fairly will generally carry with it the requirement to exercise the power in a way that is apparently fair. This derives from the recognition of the importance of the process of the exercise of state power and not just the correctness of the outcome. The process of the exercise of state power is integral to the legitimacy of the outcome of the exercise of that power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at 97 [19]; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 295 ALR 638 at 693 [209]; NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; 115 FCR 561 at 583[84]; and SZRUI at [2].
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.
10. How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing: cf Assistant Commissioner Condon v Pompano 295 ALR at 693 [209]; NIB Health 115 FCR 561 at 583 [84]; R v Tran [1994] 2 SCR 951 at 988, Lamer CJ, writing for the Canadian Supreme Court otherwise comprised of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, in a passage cited by Kenny J in her Honour’s influential decision in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 at 19–20 [30]. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?”
Robertson J set out principles to be applied, before considering the case before the Court, as follows:
“65. The issue in the present appeal being procedural fairness under the general law, the analysis must be focused on the particular circumstances of the case: whether or not there has been a denial of procedural fairness is fact-sensitive.
66. The question is whether the mistranslation or non-translation, singular or plural as the case may be, individually or in the aggregate, led to a material unfairness, that is, relating to a matter of significance or potential significance for the applicant’s case and what the applicant was putting about the claim or for the decision-maker’s decision.
67. Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated.
68. The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.
69. If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness.
70. It will often be important to distinguish between a case where the mistranslation or non-translation is frequent or continuous, on the one hand, and a case, such as the present, where the errors are intermittent.
71. In the former case it will be easier to conclude that there has been a denial of procedural fairness because, considered overall, the process has miscarried. The cause may be incompetence of the translator in English or in the particular non-English language but the cause is of very little relevance in my opinion.
72. In the latter case, where the errors are intermittent, care must be taken to evaluate the overall fairness of the hearing as well as the individual instances in order to assess the quality of the process and whether it amounts to the applicant having had a reasonable opportunity to be heard and to present his or her claim.
73. It is also important, in my view, to keep separate questions of mistranslation and non-translation, on the one hand, and mere errors of fact on the other hand. Similarly, it may be that a translation is confused and confusing because what an applicant has said is confused and confusing.
74. I have had the advantage of reading in draft the reasons of the Chief Justice. I agree with his Honour’s general comments and his analysis of the authorities. It is significant that the errors of translation in the present case are to be tested against procedural fairness under the general law rather than by reference to the blunter question of whether the Tribunal has given the applicant an opportunity to appear before it to give evidence: s 425(1)(a) of the Migration Act 1958 (Cth) as considered by Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.”
In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, Kenny J said:
“20. In relation to the Refugee Review Tribunal, Parliament has recognised that an applicant for refugee status is to be given an opportunity to give evidence before a decision against him or her is made and that, in so doing, the applicant may need the assistance of an interpreter. If the Tribunal cannot make the decision most favourable to the applicant “on the papers”, s425(1)(a) provides that the Tribunal “must give the applicant an opportunity to appear before it to give evidence.” The Tribunal must notify the applicant that “he or she is entitled to appear before the Tribunal to give evidence”: see s426(1)(a). The Tribunal may take the evidence on oath or affirmation to the effect that the evidence to be given will be true: see s427(1)(a) and (5). Section 427(7) specifically provides:
“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.”
If not proficient in English, the applicant is effectively unable to exercise his right to give evidence unless an interpreter assists him. The Tribunal is unable to give the applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter to assist. Thus, in my view, if an applicant for refugee status is unable to give evidence in English, the effect of s 425(1)(a) is to necessitate the making of a direction, pursuant to s 427(7), that communication proceed through an interpreter. The terms of any such direction extend to the whole of the hearing and are not limited to the applicant's evidence.
21. Given that, absent an interpreter, the Tribunal is unable to afford an effective opportunity to a non-English speaking applicant to give evidence, then, in my view, the Tribunal lacks the jurisdiction to continue the hearing before it unless it provides an interpreter: cf Ebatarinja v Deland (1998) 157 ALR 385 and Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584 at 585-586 [1] per Burchett J. If it were to proceed, the Tribunal's decision would be reviewable upon the ground set out in s 476(1)(b) of the Act (or s 476(1)(c) or (e)). Alternatively, it might be said that the Tribunal's failure to provide an interpreter in such a circumstance constituted a failure to observe the procedures required by the Act to be observed in connection with the decision: see s476(1)(a) and compare s420(2)(b)); Sook Rye Son at 585-586 [1] and 586 [3] per Burchett J, 592 [16] per Moore J and 603 [50] per Katz J; and Abebe v The Commonwealth of Australia (1999) 73 ALJR 584; 162 ALR 1. (The Court held, in Sook Rye Son, that the Tribunal committed a reviewable error by inviting an interpreter to give an opinion as to the probable origin of the Korean dialect of the applicant for refugee status whose evidence was being interpreted.)”
Her Honour then proceeded to address the role and standard of, as well as the need for, an interpreter:
“(c) The role of the interpreter
24. “The right to a hearing is a vain thing if the [applicant for refugee status] is not understood.” Gonzales v Zurbrick (6th Cir 1930) 45 F 2d 934 at 937 (6th Cir 1930). In this country, the function of an interpreter in courts and tribunals is to convey in English what has been said in another language (and vice versa). The function of an interpreter in the Tribunal (as in a court) is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication: see Gradidge v Grace Bros Pty Ltd at 425 per Samuels JA. An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end.
25. Notwithstanding that Kitto J described an interpreter as “a bilingual transmitter” or “a translating machine” (in Gaio v The Queen (1960) 104 CLR 419 at 430-431), interpretation is no mere mechanical exercise: see, for example, M B Shulman, “Note: No Hablo Ingles: Court Interpretation as a Major Obstacle to Fairness for Non-English Speaking Defendants” (1993) 46 Vand L Rev 175 at 177. Interpreting reliably involves both technical skill and expert judgment. See, for example, K Polack and A Corsellis, “Non-English speakers and the criminal justice system – Part 2” New Law Journal, 30 November 1990, at 1676 and Commonwealth Attorney-General's Department, Report on Access to Interpreters in the Australian Legal System, (AGPS Canberra, April 1991), par 5.2.1.
26. Perfect interpretation may, moreover, be impossible. As L Robinson observed in Handbook for Legal Interpreters (1994), p 98 “[v]ery rarely is there an exact lexical correspondence between the two languages being used.” Schulman writes (at 177):
“No matter how accurate the interpretation is, the words are not the defendant's nor is the style, the syntax, or the emotion. Furthermore, some words are culturally specific and, therefore, are incapable of being translated. Perfect interpretations do not exist, as no interpretation will convey precisely the same meaning as the original testimony.” (citations omitted.)
Nonetheless, some interpretations will be better than others, and a particular interpretation may well be less than perfect yet acceptable for the Tribunal's purposes. How bad must an interpretation be to render reliance on it reviewable error? By what criteria is the quality of an interpretation to be assessed?
(d) Standard of interpretation
27. So far as the researches undertaken for this case show, there has been no detailed consideration of the latter two questions in Australian courts. Counsel did, however, refer me to the decision in R v Tran, a decision of the Supreme Court of Canada, in which Lamer CJ delivered the judgment of the Court (constituted by himself, La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ). The right to an interpreter, which was under consideration in that case, derived from s 14 of the Canadian Charter of Rights and Freedoms (Can) (which has no equivalent in Australia). Nonetheless, the Court's analysis of the content of the right is helpful in answering the questions raised by the present case.
28. In Tran, the Court sought to define a standard of interpretation by reference to a number of criteria “aimed at helping to ensure that persons with language difficulties have the same opportunity to understand and be understood as if they were conversant in the language being employed in the proceedings.” (at 985). According to the Court (at 985), “[t]hese criteria include, and are not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness.” The criterion of continuity means that breaks in interpretation and mere summaries of a proceeding are not acceptable (at 986). That conclusion accords with the decision in Kunnath v State. An interpreter must also be, and be perceived to be, impartial. A Full Court of this Court so held in Sook Rye Son, to which I have already referred. No question arises in this case as to the contemporaneousness of the interpretation, and so the question whether, for Tribunal purposes, an interpretation must be contemporaneous is for another day. Subject to what follows, the criteria in question on this application are those of precision and competence.
29. The need for precision or, as I think it is better put, accuracy is clear enough. As Menzies J said in Gaio at 433:
“What is important is what the parties to the [interpreted] conversation say to one another and the only importance of the interpreter is to serve as an accurate means of communication between them.” (Emphasis added.)
As noted earlier, there is rarely an exact lexical correspondence but, even so, some interpretations are better than others. 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. On a petition for a writ of habeas corpus seeking judicial review of an order for exclusion and deportation against a Haitian refugee, the United States Court of Appeals for the Second Circuit said, in Augustin v Sava and Doyle at 37-38:
“Without attempting precisely to map the contours of due process in the immigration area, we think that the protected right to avoid deportation or return to a country where the alien will be persecuted warrants a hearing where the likelihood of persecution can be fairly evaluated. Since Congress intended this right to be equally available to all worthy claimants without regard to language skills, we think that an applicant for relief ... must be furnished with an accurate and complete translation of official proceedings. As a sequel to this right, translation services must be sufficient to enable the applicant to place his claim before the judge. A hearing is of no value when the alien and the judge are not understood... The very essence of due process is a ‘meaningful opportunity to be heard.’... To erect barriers by requiring comprehension of English would frustrate the inclusive aim of the UN Protocol and the intent of Congress.”
Although the above passage invokes some concepts that have no part to play in the Australian context, the central proposition concerning the requisite accuracy and completeness of the interpretation provided is plainly correct.
30. With regard to the criterion of competence, Lamer CJ said in Tran at 988:
“[I]nterpretation must be of a high enough quality to ensure that justice is done and seen to be done. This means, at a minimum, that an [applicant] has a right to competent interpretation. While there are, as of yet, no universally acceptable standards for assessing competency... an interpreter must at least be sworn by taking the interpreter's oath before beginning to interpret the proceedings... Where there is legitimate reason to doubt the competency of a particular interpreter, a court will be well advised to conduct an inquiry into the interpreter's qualifications.” (Emphasis added.)
See also R v Begum at 100-101.
31. Although Lamer CJ did not say so expressly, competency may, in the present context, relate to both the interpretation and the interpreter. An interpretation is competent if it is adequate or satisfactory when judged against the relevant standard. An interpreter is competent if he or she can provide a competent interpretation. To speak of the competence of an interpretation invites reference back to some of the criteria that have already been mentioned, such as accuracy, as well as to other criteria, some of which are mentioned below. To speak of the competence of the interpreter invites reference to the competence of the interpretation that that interpreter may be reasonably expected to provide. In assessing whether an interpreter is likely to be competent, courts and tribunals ordinarily have regard to various factors, including the interpreter's qualifications, accreditation or experience. It remains possible, however, that an interpreter, who satisfies a court or tribunal that, by reason of qualifications and experience, he or she would be likely to provide a competent interpretation, may nonetheless provide an incompetent one. Conversely, though lacking in qualifications and experience indicative of a capacity to interpret competently, an interpreter may turn out to provide a competent interpretation. The fact remains, however, that a challenge to the quality of an interpretation may fail when evidence that the interpreter was appropriately qualified is to be weighed in the balance.
(e) Did the applicant need an interpreter?
32. It might be thought that there is a question in this case as to whether the applicant actually needed an interpreter at all. If he did not, then the question of the standard of the actual interpretation at the hearing might be said not to arise. In his 30 September 1996 application for a protection visa, Mr Perera indicated that whilst Sinhalese was his preferred language, he could speak, read and write English. That statement was supported by the fact that the Court documents, for which he claimed responsibility, were written in English. Further, the transcript records about three episodes when Mr Perera gave short, non-complex answers to the Tribunal directly, not through an interpreter.
33. Against this, the fact remains that Mr Perera stated, in his protection visa application and in preparing for the Tribunal hearing, that he needed a Sinhalese interpreter. That need was, I think, confirmed at the very outset of the hearing in the following exchange:
“Tribunal: Before we start, I see you have a couple of documents there. Is there anything that you particularly plan to present?
Mr Perera: Yes.
Interpreter: This is - this paper answers - the contents represent the situation in the country, in Sri Lanka.”
Thereafter, Mr Perera gave virtually all of his evidence in Sinhalese through the interpreter.
34. In Adamopoulos v Olympic Airways SA at 77-78 Kirby P said:
“The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations at the person's own pace does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a court of law... Those who, in formal public environments, of which courts are but one example, have struggled with their own imperfect command of foreign languages, will understand more readily the problem then presented. The words which come adequately in the relaxed environment of the supermarket disappear from recollection. The technical expressions cannot be recalled, if ever they were known. The difficulties cause panic. A relationship in which the speaker is in command ... is quite different from a potentially hostile environment of a courtroom. There, questions are asked by others, sometimes at a speed and in accents not fully understood.”
35. Those observations are relevant to the situation of an applicant for refugee status who, like Mr Perera, is able to use English for some purposes, even professional purposes, but is insufficiently proficient to give evidence before the Tribunal in support of an application vital to his or her future prospects.”
In BZAID v Minister for Immigration and Border Protection [2016] FCA 508, Edelman J recently considered the interrelationship between the use of and standard of interpretation 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 errorof 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]):
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.”
In SZSUT v Minister for Immigration and Border Protection [2015] FCA 190, Katzmann J said:
“37. In some circumstances, errors in interpretation may give rise to a denial of procedural fairness; so, too, a failure to agree to a request for an interpreter in a litigant’s native language when the litigant cannot communicate or communicate effectively in English. To deny a litigant the opportunity to put his or her case, to understand the case against him or her, or to take part in the proceedings themselves is manifestly unfair. It is also a denial of the right to equal access to justice. Justice will not have been done, nor will it be seen to have been done: SZRMQ v Minister for Immigration and Border Protection (2013) FCAFC 142; (2013) 219 FCR 212 (“SZRMQ”) at [51] and following (Flick J).
38. There may be cases, as Allsop CJ observed in SZRMQ at [11], where the interpretation is “so inadequate as to deny the fact of any hearing”. There may be cases where the failure to provide an interpreter demonstrates, or the deficiencies in the interpreting are such as to indicate, that the Tribunal has failed to comply with s 425 of the Act. Section 425 requires the Tribunal in a case such as this to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That invitation must be “real and meaningful”: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [57]. In some cases the interpreting may be so incompetent that the applicant is effectively prevented from giving his evidence: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 50; (1999) 92 FCR 6 at [38] (Kenny J).
39. But not every case which raises questions about the quality of interpreter services will give rise to an error of this kind. It will always be necessary for the aggrieved party to put before the reviewing court evidence to show that there were material errors in the interpretation so that a miscarriage of the decision-making process has occurred: Soltanyzantd v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18] (Spender, Lee and Tamberlin JJ at [18]); SZRMQ at [17] (Allsop CJ).”
The Minister has filed a Further Outline of Submissions which addresses, firstly, the transcript of the second Tribunal hearing during which the Applicant’s father was called to give evidence and secondly, the post-hearing submissions made on behalf of the Applicant by the RILC. With respect to the transcript itself, the Minister submits:
“8. A careful reading of the transcript of the second day of the hearing reveals that the Tribunal checked with the Applicant’s father that he did not have any problems understanding the interpreter (transcript page 5, lines 30/31), that there were problems with the reliability and faintness of telephone connection throughout the call, and that the following exchanges occurred in relation to what was being said by Applicant’s father in oral evidence:
8.1 Transcript page 7 lines 41/42, where the Applicant interposes that “my sister didn’t fall in love, like my father said. She was converted by a lecturer when she was studying in college.”
8.2 Transcript page 8 line 43, where the interpreter says that he cannot understand a Thai address given by the Applicant’s father.
8.3 Transcript page 10 line 7, where the interpreter did not get the proper name of the money lender.
8.4 Transcript page 13 at line 16, where the interpreter says he can only hear bits and pieces of the witness’s response.
8.5 Transcript page 15 at line 13, where the interpreter asks the Applicant’s father to repeat what he had said.
8.6 Transcript page 21 lines 25/26, where the interpreter says he could not understand the second sentence spoken by the witness.
8.7 Transcript page 29 at lines 1/30 where the Applicant’s then representative raised specific examples of where the Applicant did “not believe that his father understood the interpreter entirely, and the interpreter did not understand the father back”, namely:
8.7.1 That the Applicant considered that his father had said that he didn’t know much about visas (and associated processes), rather than that he didn’t know the details about applying for a protection visa.
8.7.2 That the interpreter did not understand the second sentence (referenced at 10.3 above) concerning whether or not the first wife of the Applicant’s father would be harassed by Raj.
8.7.3 That the gang that the Applicant’s father said Raj belonged to was called “04” rather than “number 4”.”
With respect to the post-hearing submissions made on behalf of the Applicant, the Minister argues as follows:
“13. Contrary to the written submissions of the applicant’s then representative (referenced at sub-paragraph 9.5 above), it was the applicant’s father who was asked “Do you have any problems understanding the interpreter so far?” (transcript page 5 lines 30/31), and replied he could understand.
14. Similarly, there were not multiple times when the interpreter said words to the effect of “I didn’t get the rest of that sentence” – this happened once (referenced at sub-paragraph 8.6 above). The Tribunal then repeated her question, and the applicant’s father explained why he had gone to Thailand, leaving his partner in Malaysia (transcript p 21 lines 28/39).
15. The three occasions when the Tribunal had to repeat or rephrase question were occasioned by a poor telephone line (transcript p 8 line 21, and p 13 line 16), and the one occasion when the interpreter said that he did not understand the second sentence (transcript p 21 lines 25/26) as addressed at paragraph 14 above.
16. The applicant’s father was not simply asked whether the alleged loan shark had an “association” with anyone else in his family (transcript p 23 lines 1/2), but was earlier asked “Does anyone in your family have any other connection with Raj?”, to which he responded “I do not know that others have got any connection, but there is no connection” (transcript p 12 lines 1/2).
17. The applicant’s then representative’s contention that Sri Lankan Tamils more readily understood Indian Tamils than vice versa relates to lay Sri Lankans and Indians (or in this case Malaysian nationals), but interpreters are professional linguists, who are experienced in providing interpreting services to clients with a range of different dialects. The transcript of the hearing reveals a wholly intelligible flow of questions and answers. The only occasion that the applicant – whose critique of the interpreter might be expected to be limited by the same dialect issues as the applicant’s then representative claimed was suffered by his father – interposed was to correct his father’s own statement about the genesis of his sister’s relationship with her Muslim husband, as referenced at sub-paragraph 8.1 above.
18. In relation to the three points raised by the applicant’s representative at hearing (summarised at sub-paragraph 8.7 above):
18.1. the difference between the gang being named “04” and “number 4” is of no import. It is not necessary, or perhaps even possible, to achieve a perfect interpretation: Perera v Minister for Immigration and Multicultural Affairs.
18.2 When the interpreter said that he did not understand the second sentence of the applicant’s father’s reply, the Tribunal repeated its question and obtained a rational reply to her question.
18.3 The applicant’s father’s degree of knowledge about visas in general or protection visas in particular did not bear upon the Tribunal’s view that given the community he had lived and worked amongst in Australia, ignorance was not a credible explanation for not having made a protection visa application given that he had lived in Australia for 5 years.”
(Footnotes omitted)
In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, Mortimer J said, with respect to the proper approach of this Court to a consideration of the merits of the substantive case, when deciding whether to exercise its discretion under sub-s.477(2) of the Act:
“62. As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
63. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
64. I agree, respectfully, with the observations of Wigney J in SZTES in two particular respects. I note an appeal from his Honour’s orders was dismissed: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158.
65. First at [82] to [85], Wigney J sets out the need for careful distinction in an assessment of the prospects of grounds of review between grounds that are hopeless and destined to fail, and those which are properly described as weak. As his Honour says at [84], in the latter case it will seldom be appropriate to refuse to extend time. Certainly, in my opinion it is inappropriate to require an applicant, in effect, to establish that her or his grounds of review will succeed. The point was made more than 20 years ago by French J in Seiler [1994] FCA 878; 48 FCR 83 at 98:
In deciding to allow time to be extended, I have not taken into account the merits of the application. It was fully argued on the merits in any event. In the circumstances, it would be artificial to import into the consideration of the extension of time some assessment of the likelihood of the success of the application. The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it. In the event, and for the reasons outlined, I propose to grant the necessary extension of time. (Emphasis added)”
Bearing in mind the caution that the Court must exercise in ensuring it does not engage in an exercise traversing the merits of the substantive proceeding in the detail which might occur at final hearing, I am satisfied as to the following:
a)the Applicant’s father’s evidence was evidence which was central to the Applicant’s claims for protection;
b)the Applicant’s representative made two requests (one by telephone and one by correspondence) to the Tribunal that the Tamil interpreter to be made available at the hearing on 29 May 2015 be a Malay Tamil interpreter, to assist the Applicant’s father give evidence, and not a Sri Lankan Tamil interpreter. There is no evidence that this request was responded to;
c)the Court Book does not contain a Tribunal attendance and running sheet record in relation to the 29 May 2015 hearing;
d)the Tribunal’s decision record discloses that, whilst the Tribunal accepted some of the father’s evidence, by and large it found inconsistencies between the Applicant’s and the father’s evidence, and was also critical of the father’s evidence being at times vague;
e)the Tribunal’s rejection of the Applicant’s claims central to his claim for protection centred around its adverse findings regarding the Applicant’s credibility, inconsistencies between the Applicant’s and the father’s evidence and its criticism of parts of the father’s evidence as vague;
f)there is no evidence before the Court about whether the interpreter made available by the Tribunal on the day of the second hearing was a Sri Lankan Tamil or Malay Tamil interpreter. The Applicant says this was the case and this is not disputed;
g)at the commencement of the second hearing, the Tribunal member did not inquire of the Applicant’s father (who appeared by telephone) what his native language was;
h)the Tribunal member did ask the Applicant’s father at the commencement of the second hearing, “Do you have any problems understanding the interpreter so far?” (T5.30). However, at this stage, the Tribunal member had only referred to limited basic procedural matters and not the substance of the Applicant’s claims;
i)although the Tribunal member informed the Applicant’s father that he should give his evidence in short sentences and wait for the interpreter to interpret everything she said, she did not inform him that, if he did not understand what was being translated by the interpreter, he should let the Tribunal member know. In its decision record, the Tribunal noted that “at no time did the witness himself raise any concerns about the interpreting” (CB 204 at [130]);
j)the Applicant did interpose once to correct the interpretation made by the interpreter (second hearing, T7.35 to T8.10), and his representative identified at the end of the hearing, three other points in the evidence given, which he believed were not adequately translated. There are two ways in which this might be viewed. Firstly, that the interpretation in relation to that specific evidence was wrong and may give rise to an inference that there were other errors in the translation. Secondly, that these were the only occasions at which the Applicant himself or his representative on his behalf believed the interpretation was inadequate;
k)in her decision record, the Tribunal member stated that she was “satisfied that steps were taken to ensure a suitable interpreter was organised for the scheduled hearing upon receipt of the Applicant’s request for a ‘Malay Tamil’ interpreter 27 May 2015” (CB 204 at [128]). The Tribunal member did not, however, explain what steps were taken to ensure a suitable interpreter was organised; and
l)in her decision record, the Tribunal member addressed the Applicant’s identification of misinterpretation and found that they were either minor discrepancies or that the evidence was “properly interpreted” (CB 204 at [131]). The member did not explain the basis for her finding that evidence was “properly interpreted”.
I agree with the Minister’s submission that the Applicant not only failed to file any submissions with respect to his first ground of review before the second hearing in these proceedings, but that no evidence has been filed from an adequately qualified interpreter attesting to the identified inadequacies or inaccuracies in the translations made at the second Tribunal hearing.
However, having regard to the matters set out in paragraph [49] above, I am not able to say with confidence that the application for judicial review has little or no prospects of success, or is not sufficiently arguable. I am satisfied that it is arguable, that the opportunity the Tribunal was obliged to give the Applicant to give evidence, extended to an opportunity to the Applicant’s father to give evidence with the assistance of an interpreter in his own language. I am satisfied, therefore, that the Applicant has an arguable case. Whether or not the Applicant’s father was actually denied an opportunity to give evidence, such that it resulted in or led to a material unfairness, cannot be decided by the Court without further evidence produced by the Applicant at final hearing.
Having regard to the limited delay, the Applicant’s explanation for the delay and my finding that the Applicant’s substantive case is arguable, I am satisfied that it is in the interests of the administration of justice to allow the Applicant an extension of time in which to make his application for judicial review. I will so order.
I am mindful of the observations of the Full Court in AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68, regarding the duty imposed on judges where a litigant is unrepresented: see [37]-[42]. It may be argued that the Applicant has had every opportunity to make good his case for judicial review. However, I am not satisfied that he appreciates the very exacting requirements required of him, which emerge from the authorities referred to earlier, to make good his substantive case. In circumstances where I have found his substantive case is sufficiently arguable, to proceed immediately to final hearing would not allow the Applicant a fair opportunity to prosecute his case.
For the Court to proceed to determine his application for judicial review, the Applicant will need at the very least to file and serve, before a final hearing, sworn affidavit(s) which:
a)contain or have annexed to it/them a translation in English by a competent or accredited interpreter of the evidence his father gave at the second hearing before the Tribunal on 29 May 2015; and
b)contain or have annexed to it/them a translation in English by a competent or accredited interpreter of the translation provided by the interpreter at the second hearing before the Tribunal on 29 May 2015 to the Applicant’s father of the Tribunal member’s questions.
It may be, that the Applicant can, in addition, locate an interpreter or other linguistic expert, who can, by sworn evidence, explain the differences which the Applicant asserts exist for a native speaker in the Malay Tamil or Sri Lankan Tamil languages.
I appreciate that this may seem burdensome to the Applicant, but he needs to understand that the success of his substantive case may well depend on the provision of documents, and at least those documents referred to in paragraph [54].
I have decided that it is appropriate for the Court to refer the Applicant to a Registrar of the Court pursuant to r.12 of the Federal Circuit Court Rules 2001 (Cth) for referral for pro bono legal assistance to Justice Connect, which administers the Victorian Bar’s Pro Bono scheme, for the provision of pro bono representation for the Applicant.
Conclusion
For the reasons set out in this judgment I make the orders above.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 28 July 2016
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