BVH15 v Minister for Immigration
[2017] FCCA 1620
•13 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
BVH15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1620
Catchwords:
MIGRATION – Protection (Class XA) visa – standard of interpretation and translation – whether the Tribunal erred in law in failing to provide an adequate interpreting service – whether misinterpretations had an effect on the Tribunal member’s assessment of applicant’s credit – whether defects in interpretation caused a denial of procedural fairness – no jurisdictional error.
Legislation:
Migration Act 1958 (Cth), s.425
Cases cited:
BZAID v Minister for Immigration and Border Protection [2016] FCA 508
Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6.
SZGEU v Minister for Immigration & Anor [2006] FMCA 1731
SZGEU v Minister for Immigration and Citizenship [2007] FCA 261
SZGEU v Minister for Immigration [2007] HCA Trans 731SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
Applicant: BVH15
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: BRG 814 of 2015
Judgment of: Judge Jarrett
Hearing date: 11 March 2016
Date of Last Submission: 21 March 2016
Delivered at: Brisbane
Delivered on: 13 July 2017 REPRESENTATION
Solicitors for the Applicant: Esser Legal
Solicitors for the First Respondent: Sparke Helmore
The Second Respondent entered a submitting appearance ORDERS
(1)The further amended application filed on 7 December, 2015 be dismissed.
(2)The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $5,800.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANEBRG 814 of 2015
BVH15 Applicant
And
MINISTER FOR IMMIGRATION & BORDER PROTECTION First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
REASONS FOR JUDGMENT
1.By his amended application filed 7 December, 2015 the applicant seeks judicial review of a decision made by the second respondent that affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
2.The applicant’s submissions focus upon the Tribunal’s process at the hearing it conducted for the purpose of the applicant presenting evidence and making submissions to the Tribunal in support of his claims. Specifically he claims that the Tribunal did not afford him procedural fairness because of what he argues were a great many difficulties associated with the interpreter provided for his assistance and her interpretation of the proceedings. I will detail the precise complaints below.
3.The first respondent opposes the application and argues that despite some difficulties encountered during the hearing, the applicant was not denied procedural fairness.
4.The second respondent entered a submitting appearance.
5.Both parties have filed written submissions.
6.For the reasons that follow, I think that the amended application must be dismissed. Despite some difficulties associated with the hearing before the Tribunal I accept the first respondent’s submissions that the applicant was not denied procedural fairness.
Background
7.The applicant is a citizen of Guinea who arrived in Australia on 1 February, 2014 on a student visa. On 31 March, 2014 he made an application for a Protection (Class XA) visa. On 9 July, 2014 a delegate of the first respondent refused that application.
8.On 28 July, 2014 the applicant sought review of that decision by the Administrative Appeals Tribunal. On 22 July, 2015 the Tribunal convened a hearing at which the applicant could give evidence and present arguments in support of his application for review. The applicant was represented at the hearing by a migration agent and assisted by a telephone interpreter in the French and English languages.
9.The applicant claimed to fear harm on the basis of his political opinion. The applicant claimed that between 2009 and 2013 he had suffered many times. He claimed that he was a youth leader of the Union des Forces Democratiques de Guinee party in Hamdallaye and attended a stadium event in 2009 where he was stabbed and beaten, two of his friends were killed and other friends were injured. He claimed that since 2011 his companions in the party have been arrested and jailed and that his name is already with the police. He further claimed that in 2013 he was part of a march in Conarky hat was fired upon by the military. He claimed he ran away and escaped without injury.
10.The applicant claimed he was harassed and regularly received death threats from the opposing political party, Rassemblement du Peuple Guinéen. He claimed they would drop letters at his brother’s house and that he had received threatening phone calls. He claimed that as a result of the death threats he went into hiding in Sofonia. The applicant claimed that he was arrested with his brother on the way to a Union des Forces Democratiques de Guinee meeting in 2011 and was held overnight, tortured, beaten and then released the next day.
11.The applicant also claimed to fear harm on the basis of his Fula ethnicity. He claimed that the military, as well as government forces, had accused Fula people of being the reason for the tension in Guinea and that they had threated to kill all Fulas if they did not stop trying to get political representation. He claimed that if he were return to Guinea, he would be the victim of the oppressive techniques of the ruling government and its supporters.
12.The Tribunal made some adverse credit assessments of the applicant. It expressed broad concerns with the applicant’s credibility, noting the applicant’s evidence was inconsistent, evasive, hesitant and lacking in detail. It formed the view that the inconsistencies in his evidence were because he was not recounting true events, but was making up his story as he went along.
13.While the Tribunal did accept that the applicant was a member and supporter of the Union des Forces Democratiques de Guinee, it did not accept that he was a youth leader, communications leader or a high profile political campaigner or that he attended meetings or recruited, organised or trained people. The Tribunal did not accept that the applicant led, attended or was present at the 2009 stadium demonstration and massacre, that he was injured or that his friends were killed. The Tribunal did not accept that the applicant led or attended the May, 2013 protest or demonstration. The Tribunal considered that the applicant had exaggerated his political activity claims and fabricated his clams about his involvement in demonstrations.
14.The Tribunal did not accept that the applicant had suffered on many occasions between 2009 and 2013 or that he and his brother had been arrested, beaten and tortured or questioned or abused by police, soldiers or military. The Tribunal did not accept that he received death threats or that he lived in hiding or in fear of his life. It noted that the applicant’s evidence in this regard was inconsistent and lacked credibility. The Tribunal did not accept that police, military or anyone else was looking for the applicant or that he was of interest to them.
15.The Tribunal had regard to country information which indicated that the ethnic group in charge of the government in Guinea traditionally used its power to discriminate against its rivals to supress political and economic activities. While the Tribunal did accept that the applicant was Fula, it did not accept that the applicant had faced discrimination on the basis of his ethnicity because he had been educated and completed a university degree. His family had trading stores in Guinea.
16.The applicant raised a new claim after the decision of the first respondent’s delegate, namely that he was forced to pay a bribe in order to obtain a passport and leave Guinea. The Tribunal did not accept this claim as it was contrary to his written statement.
17.The Tribunal was not satisfied that the applicant had faced serious harm in the past or that he would face a real chance of serious harm should he return to Guinea. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason if he returned to Guinea.
18.By its decision dated 13 August, 2015 the Tribunal affirmed the decision of the first respondent’s delegate not to grant the applicant a Protection (Class XA) visa.
Grounds of review
19.The applicant relies upon five grounds of review. An alternative to each is an argument that the Tribunal breached s.425 of the Migration Act 1958 (Cth). Section 425 of the Migration Act provides:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
20.Where appropriate, I have addressed this alternative argument in the context of each ground or group of grounds relied upon by the applicant.
Grounds 1 and 2
21.The first two grounds of review are related and can be dealt with together. They concern the interpretation or translation of the proceedings at the Tribunal hearing. Grounds one and two are in the following terms:
1. The decision-maker fell into jurisdictional error in failing to accord procedural fairness to the Applicant at the hearing when the Applicant:
a. was not provided with a face to face interpreter fluent in the Applicant’s mother tongue of Fula;
b. instead, had to ‘make do’ at the hearing with an interpreter-
i. of the French language (not the Applicant’s preferred mother tongue of Fula);
ii. who was not present at the hearing itself to interpret for the Applicant face-to-face;
iii. who attempted to do her job by deploying a mobile telephone and not a telephone landline;
iv. who could not do her job properly because the mobile telephone connection she had with the Tribunal failed repeatedly and continuously interrupted the flow and fluency of the evidence the Applicant sought to give at the hearing
v. was severely handicapped in properly discharging her obligations because of difficulties she encountered using the mobile telephone and/or interruptions to the mobile phone service and/or communicating fluently either with the Applicant in French or with the Tribunal in English and thus as a consequence, much of the force, impact and spontaneity of the Applicant’s evidence given at the hearing was diminished and/or lost.
2. The decision-maker fell into jurisdictional error at:
paragraph 24 and/or
paragraph 27 and/or
paragraph 28 and/or
paragraph 29 and/or
paragraph 30 and/or
paragraph 31 and/or
paragraph 33 and/or
paragraph 38 and/or
paragraph 39 and/or
paragraph 40 and/or
paragraph 41 and/or
paragraph 42 and/or
paragraph 43 and/or
paragraph 45 and/or
paragraph 46 and/or
paragraph 47 and/or
in concluding that the Applicant’s evidence at the hearing was ‘vague’, ‘inconsistent’, ‘repetitive’, ‘changed’, ‘ lacked spontaneity’, ‘ lacked credibility’, ‘evasive’, ‘hesitant’, ‘lacked detail’, ‘non personal’, ‘non specific’, ‘non fluent’, ‘general’ involved ‘changing his account’, ‘changing his description of events’, ‘untruthful’ contained ‘fabricated claims’ ...... whereas in truth and in fact each and every of the above-mentioned ‘flaws in the evidence’ or ‘findings’ made by the Tribunal were the result of inferences improperly drawn by the Tribunal due to the procedural errors that were made through the inappropriate use of the interpreter used at the hearing as set out in paragraph 1 above.
22.To support his arguments, the applicant relied upon a record of the Tribunal’s hearing that had been prepared for him by his sister-in-law. It is not a transcript, although parts of the hearing purport to be transcribed, but other parts are merely summarised. The record prepared for the applicant was accepted for use in the proceedings before me as an aide memoire.
23.The applicant has exhibited to his affidavit filed 8 September, 2015 two compact discs containing an audio recording of the Tribunal hearing (described as Annexures D and E to that affidavit). The applicant’s solicitor filed written submissions that contain a schedule outlining each occasion that he claims the Tribunal failed to afford the applicant procedural fairness during the hearing. The applicant submits that with respect to each numbered issue in the schedule, the “evidentiary narrative produced by the Applicant at the hearing was caused by errors or oversights for which the Tribunal was responsible.” Alternatively, he argues, “each such numbered issue was later used by the Tribunal to support a finding that the Applicant’s evidence was dubious, lacked credibility, was inconsistent, not to be believed, or that he was fabricating evidence etc. etc. by reason of difficulties relating to the interpretation of the applicant’s evidence.” Common examples of the occasions about which complaint is made are:
a)the applicant’s narrative of evidence not being translated methodically or clearly;
b)there being no attempt by the Tribunal to ensure that the applicant understood the questions he was being asked;
c)there being no attempt by the Tribunal to clarify the applicant’s evidence;
d)the applicant losing the opportunity to answer a question due to connectivity issues with the interpreter’s telephone;
e)the Tribunal moving on to the next topic without the first question being answered; and
f)the Tribunal asking “rolled-up” questions rather than asking separate and distinct questions.
24.The applicant’s complaint that he was not provided with a face to face interpreter in his “mother tongue” has two aspects to it. First is the alleged requirement for a face to face interpreter. Second is the requirement for an interpreter in his “mother tongue”.
25.As to the first aspect, the Tribunal commits no jurisdictional error by conducting a hearing for the purposes of s.425(1) of the Act with an interpreter who assists by telephone link: SZGEU v Minister for Immigration & Anor [2006] FMCA 1731; on appeal SZGEU v Minister for Immigration and Citizenship [2007] FCA 261; special leave refused SZGEU v Minister for Immigration [2007] HCA Trans 731. The applicant conceded as much.
26.As to the second aspect, the applicant concedes that he did not, through his migration agent or otherwise, ever request a Fula interpreter for the Tribunal hearing. In fact, the materials in the court book indicate that throughout the visa application process, the applicant nominated French as the language for interpretation. The first respondent draws my attention to the following evidence:
a)the applicant’s application for the visa indicated that he required a French interpreter (CB 15);
b)the applicant’s statement dated 27 March, 2014 in support of his visa application was interpreted with the assistance of a French interpreter (CB 42);
c)the application to the Tribunal indicated that the applicant required a French interpreter and did not specify that a particular dialect was required (CB 201); and
d)the applicant requested a French interpreter by way of response to the hearing invitation (CB 237).
27.To those references, I would add that in the application for review filed personally by the applicant with this Court on 8 September, 2015 he requested an interpreter in the French language.
28.In his affidavit filed in support of his application he made complaint about the French language interpreter that assisted him at the hearing. However, he does not make any complaint that the interpreter was for the French language rather than the Fula language. What he does say is that:
22. The decision making document relied heavily on my oral testimony and what the tribunal member assumed was reflective of my credibility. In the decision making document no consideration was given to the fact that my mother-tongue is in fact Fula, and that French is my second language, and that which I received my education in. Yet when answering question in relation to traumatic and personal events I was required to provide this evidence in my second language (French). This was not acknowledged in the members (sic) assessment of my oral testimony and therefore reflects a procedural unfairness, where I was not able to participate in the giving of oral evidence as others who are able to provide testimony in their first language.
29.In his amended application filed by his present lawyer, he requested, for the first time, an interpreter in the Fula language.
30.However, there is nothing in this complaint. Nowhere does the applicant swear that he was unable to understand what was required of him or what was being asked of him. On each occasion that he had the opportunity to nominate the language for an interpreter he chose the French language. He gives no evidence of any occasion where he could not understand what was being asked of him because the question asked was in the French language. Indeed, the transcript relied upon by the applicant demonstrates, at page 7:
M Sorry, sometimes I may have to put that to you in a formal manner because it’s required by the legislation.
Now, we’re obviously using an interpreter to communicate and it’s important we understand each other. Are you understanding the interpreter?
I Yes .
M All right, now, if at any time you don’t understand or want something repeated just say so and if at any time you need to take a break just say so as well. Also when you’re using an interpreter it’s important to speak in shorter bursts so it’s easier for the interpreter to interpret.
31.There is nothing in the audio recording of the Tribunal hearing, to which I have listened in its entirety, that would suggest that the applicant did not understand anything asked of him because it was asked in the French language.
32.Moreover, there is no evidence to suggest that the applicant was in any way disadvantaged because he was not able to give evidence in his first language. He asserts that is so, but there is nothing to which I have been taken that would indicate that the applicant was, in fact, disadvantaged.
33.The applicant submits that, notwithstanding the fact that his migration agent had nominated French in the review application to the Tribunal, the Tribunal was not relieved from its duty to conform to “the principles of fairness and procedural fairness”. He submits that on the day of the hearing the Tribunal could have and should have confirmed whether the interpreter was known to the applicant and vice versa and whether the applicant was content to proceed with the hearing with an interpreter of the French language. The applicant further submits that the Tribunal knew or ought to have known that the applicant was a member of the Fula ethnic group and that his mother tongue was therefore Fula, not French.
34.However, there was no such obligation upon the Tribunal. The purpose of the relevant questions on the review application is, no doubt, to give the Tribunal information upon which it might rely to prepare for a review hearing. The information was reinforced when the applicant responded to the Tribunal’s hearing invitation and reiterated his requirement for a French interpreter.
35.The applicant relies upon the dictum of Kenny J in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 at [43] to the effect:
I do not think it reasonable to expect, as the Tribunal apparently did, that a person, who is not sufficiently proficient in English to give evidence on his behalf, would make immediate complaint at the hearing about the quality of his interpretative assistance.
36.However, this aspect of the applicant’s complaint relates to him being provided with a French language interpreter, not a Fula language interpreter. He was plainly fluent in the French language. He also knew that he could make a choice about the language in which he gave his evidence. At the commencement of the hearing he could have immediately asked for the provision of a Fula language interpreter if he felt his evidence would be compromised by being given in French, but he did not do so.
37.It has been recognised in many authorities that receiving evidence through an interpreter is fraught. The applicant drew my attention to the comments of Mansfield J in Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172 where his Honour said:
43. In seeking to ascertain the facts surrounding a claim to be a refugee, an Applicant’s credit is often critical. The Tribunal’s task of identifying inconsistencies or inadequacies, when the Applicant’s evidence is being given through an interpreter, is a challenging one. The continuity of the interpretation, and its accuracy, will be critical to the Tribunal’s ability properly to form judgments on such matters.
38.In the context of the present case, three issues are revealed by the facts and the applicant’s arguments. They may be characterised as communication difficulties. The first concerns the physical means of communication - that is to say the provision of the applicant’s evidence and other statements via an interpreter who gives the English translation over a problematic telephone link. The second is the competence of the interpretation undertaken by the interpreter. The third is the effect, if any of the combination of the two problems.
39.I will address the competence of the interpretation first. Whether inadequate interpretation means that a hearing has not been fair depends on the circumstances of the case. A perfect interpretation, if one could ever be achieved, is not necessary: Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6. What is required is that “the essential elements that were being conveyed by the appellant (applicant) were received by the Reviewer.”SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [90].
40.The first respondent submits that, in the absence of a transcript of the French portions of the hearing, it is not safe for the Court to draw the inference that any part of the translation was defective. I accept that submission. To conclude that there has not been a fair hearing because there has been misinterpretation or mistranslation requires the Court to be satisfied that misinterpretation or mistranslation has in fact occurred. In the absence of evidence of a competing translation so that one might compare what the interpreter said with what the applicant said, it is difficult to conclude that there has been a mistranslation or misinterpretation.
41.The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s.425 are well established. Edelman J summarised these in BZAID v Minister for Immigration and Border Protection [2016] FCA 508 at 52 as follows:
(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.
42.But here, there is no evidence of any misinterpretation or mistranslation. There are assertions of such by the applicant in his affidavit filed in support of his primary application. In that affidavit, written with the assistance of his sister-in-law in the English language, he says:
11. The decision maker regularly refers to my oral testimony as hesitant, vague and lacking spontaneity. However no reference is made in the decision make document to the continued difficulties experienced with the interpreter, which resulted in my testimony being frequently interrupted, and was incorrectly interpreted on multiple occasions. This is evidence of a jurisdictional error in which relevant information was ignored and resulted in erroneous findings with regards to my credibility and the facts relating to my protection application. It also denied me judicial fairness, as my oral testimony was not correctly interpreted.
…
18. On at least six occasions there was evidence that the interpreter did not accurately translate what was being said. One example of this is the detailed response I gave regarding my Father’s interest in politics to which I responded in French “Au faite mon papa, lorsque j’étais enfant il était âgé. En ce moment qu’il était la il y avaint qu’un seul parti politique, qui était le parti de Sekou Toure, dont les gens disaient c’était la dictature. Tout le monde se méfiait de parler l’affaire de politique.” The translation provided by the interpreter was "So when my Dad was young he was interested in politic”. At this point I tried to interrupt the interpreter and stated no, in an effort to correct her. She continued to speak and said "but when he was old he wasn’t. It was not the time to be engaged in politics” (Annexure C & Annexure D - Time Stamp 36:00 CD 1 ). The correct translation of the statement above is in fact "when I was young, my father was old. At that moment there was one political party which was the party of Sekou Toure, and people said he was a dictator. Everyone was afraid to talk about politics”
19. On another occasion when I was speaking about my friend, Mamadou Djouma that died next to me at the 2009 protests, the interpreter stated his name incorrectly and said “Mamadou was killed and died next to me” (Annexure C & Annexure D - Time stamp 54:54 CD 2). This again evidence that the translations provided was not always accurate, and yet my credibility was consistently questioned by the decision maker in the decision-making document on the basis of how I answered questions. There was a jurisdictional error in ignoring relevant material by the decision maker, who failed to note that the name that was interpreted was incorrect. An interpreter who continued to incorrectly interpret important details contributed to hesitation and cautiousness on my part as I provided further oral testimony. The impact of multiple incorrect interpretations on my testimony was not taken into account and therefore has lead (sic) to a jurisdictional error resulting in erroneous findings. This also contravenes the principals of natural justice as outlined in the Migration Act (1958).
20. Similarly when discussing the death threats I received the interpreter incorrectly interpreted what I said, which resulted in a jurisdictional error of ignoring relevant information which lead to a mistaken conclusion by the decision maker. The tribunal member stated in the decision making document that I was ‘hesitant and evasive and was making up my story as I went along’.
43.The applicant’s evidence raises some interesting questions. On its face, the applicant knew that what he was saying was being misinterpreted, yet he did not raise that with the Tribunal. There is no evidence that he raised it with his migration agent. The applicant argues that nothing should be drawn from that because, as Kenny J said in Perera at [43]:
It is relevant that the applicant made timely complaint about the quality of the interpretation. I do not think it reasonable to expect, as the Tribunal apparently did, that a person, who is not sufficiently proficient in English to give evidence on his own behalf, would make immediate complaint at the hearing about the quality of his interpretative assistance. In my view, a complaint is timely when made, as in this case, within two days of the hearing and well before the Tribunal’s decision.
44.Whilst the applicant was not challenged on his evidence before me, in the absence of some independent evidence that establishes the misinterpretations about which he now complains, I do not accept that his evidence to the Tribunal was misinterpreted. The applicant’s evidence, if it is accepted at face value establishes that he understood the French and English languages well enough to know that what he was saying was being misinterpreted. A timely complaint about the misinterpretation of his evidence could have been made to the Tribunal. Yet he made no complaint about that until after the Tribunal made its decision. I am not satisfied that he was without the means to communicate his concerns to the Tribunal. He was represented by an agent (who presumably he could communicate with) and his command of English is demonstrated by his ability to affirm, without the need for an interpreter, his affidavit filed on 8 September, 2015. Indeed, in paragraph [22] of its reasons, the Tribunal recorded that it was clear that the applicant understood some English as he attempted to answer questions before they were interpreted.
45.But incorrect translation or interpretation aside, as the decision in Perera (above) explains, the question is whether the interpretation before the Tribunal was so incompetent that the applicant was prevented from giving his evidence. As explained by Allsop CJ in SZRMQ (above):
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.
46.Accuracy of interpretation is not merely a function of supplanting one word from one language with a corresponding word from another language. Indeed, such a task is often impossible. Translation, or perhaps interpretation, is much more complex than that. Determining whether interpretation or translation services have been competent is simply not a matter of determining whether there have been inaccuracies. As Kenny J explained in Perera at [41]:
What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter: cf Gonzales v Zurbrick 45 F.2d 934 at 936-37; United States v Urena 27 F.3d 1487 at 1492 (10th Cir 1994); Acewicz v US Immigration and Naturalization Service 984 F.2d 1056 at 1062.
47.Thus, in the context of a case where there were errors of translation and in which common law rules of procedural fairness applied Allsop CJ explained the relevant inquiry as follows:
10. … 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.
(my emphasis)
48.That the Chief Justice has used the word irregularity in that passage demonstrates that the principles discussed by his Honour extend beyond cases that involve clearly inaccurate interpretation or translation. Those principles help focus on the other two matters I identified in paragraph [38] above – the reliability of the telephone link and the cumulative effect of the connectivity issues and the use of an interpreter by that telephone link.
49.The applicant relies upon 19 specific instances which he says demonstrates that the hearing by the Tribunal was unfair. Some of those deal with the way in which the Tribunal questioned the applicant and others relate to the way in which the interpreter performed her role. Yet others relate to the interpreter’s poor telephone connection. I have addressed each of those instances in the table below set out in conformity with the applicant’s solicitor’s schedule.
CD 1
| Time | Issue | Nature of Problem | My Observations |
| 1. 27.00 – 31:40 | Timing of joining party Reason for joining party these Connection between political activism and death of the President | The narrative dealing with these issues were not translated methodically or clearly. Discussion between the Tribunal and the Interpreter caused the narrative to be confused. The Tribunal does not go back to clarify narrative. Tribunal is forced to remind the Interpreter of the Interpreter’s role. Interpreter does not interpret the narrative bit-by-bit. | The applicant’s evidence was translated methodically and clearly, in my view. The Interpreter interrupts applicant so she can translate his evidence in parts – or “bit-by-bit” as the applicant phrases it. The narrative is not, in my view, confused. |
| 2. 33.20 – 33.54 | Other political parties active at the time | The narrative dealing with these issues were not translated methodically or clearly. Tribunal does not later return to these issues to clarify. | At 33:00 the applicant had to correct the interpreter’s translation of a political party name. That demonstrated that the applicant was able to understand what the interpreter was doing and was able to intervene when he thought it necessary to do so. The Tribunal seemed satisfied with the applicant’s answers so no clarification was seemingly needed |
| 3. 34.49- 38.16 | Father’s involvement in politics; when it occurred, whether father may have been involved in politics but without knowledge of applicant | Answers given via interpreter are garbled and confused; no attempt by Tribunal to ensure applicant understood the question. When the answers are nonresponsive, the Tribunal makes no attempt to clarify what the witness meant. Unresponsive answers are left unexplained. The Tribunal does not pick up the narrative bit-by-bit. Furthermore the Tribunal allows long un-translated narrative. | It is not clear what point the applicant is attempting to make here. There is nothing in the recording to suggest that the applicant did not understand the question. I do not understand what the applicant means by “The Tribunal does not pick up the narrative bit-by-bit.” But it is tolerably clear that the Tribunal understood the applicant’s claims. There is no suggestion in his submissions that the Tribunal misunderstood his claims or did not deal with all of them. Further, the Tribunal asked the applicant the very clear question: “so as far as you know your father was never involved or interested in politics?” The applicant answered: “Yes” |
| 4. 40.30-44.53 | The applicant’s role in the party; what activities he undertook as a party member; and the timing of those activities | Evidence given by the applicant is not translated. Tribunal does not insist on the narrative being translated bit-by-bit. Tribunal seeks no clarification from the Interpreter of what she means by the English word ‘manifesting’. Evidence is not coherent; interpreter has to stop and start. Tribunal makes no effort to clarify the nature of the evidence given or return to areas of narrative that are confused. | I am not satisfied that evidence given by the applicant is not translated. Translation is not a one-for-one correlation. Evidence from a person competent to give it is necessary before one could conclude that the applicant has given evidence that has not been translated. The Tribunal does not appear to insist on the narrative being translated bit-by-bit, but again there is nothing remarkable in that. Given the nature of the translation exercise, it is equally open that the evidence was not amenable to translation “bit-by-bit”. |
| 5. 46.30- 48.15 | Where Applicant was living when he joined the party, and his activities in 2008 and 2009. | Evidence is incoherent. Applicant has difficulty in understanding the questions. When the answer given appears to be unresponsive to the question asked, no attempt is made by the Tribunal to clarify answers or to confirm the applicant understood the question asked. | Whilst some unresponsiveness is apparent from the recording of the tribunal’s hearing, overall the evidence on this topic is understandable. |
| 6. 48.15- 54.50 | Confusion about lack of documentation corroborating the applicant’s membership of the party and the confusion about the general prevalence of forged or fraudulent official documents in Guinea. | Tribunal failed to make it clear that unless the applicant produced the evidence the Tribunal wanted about his membership of the party, this would diminish the strength of his case based on persecution arising from political belief or membership of a party. (Furthermore, if the Tribunal was minded to refuse the Application on the grounds of lack of corroborating evidence, this warning should have been made clear at this point in time). The confusion was added to by the Tribunal not making it clear whether the Tribunal believed the applicant’s membership card was genuine or just another forged Guinean document. | The Interpreter had to clarify the term “prevalence” with the Tribunal. It is clear that the Tribunal put to the applicant its concerns regarding the prevalence of fraudulent documents in Guinea. |
| 7. 55.00- 1.06.16 | Death threats generally; how they were delivered, where they were delivered; the timing of the threats; whether all the threats were in writing; where was he living when the threats were made; relevance of the Presidential elections to the timing of the threats; why Ismaila no longer has in his possession the written death threats | No attempt made by the Tribunal to ensure that applicant really understood the questions asked, particularly when answers given appeared to be unresponsive to the question asked. The Tribunal improperly made use of a ‘rolled up’ question; and did not allow the applicant to answer components of the rolled up question sequentially or methodically. The ‘rolled up’ question was as follows: ‘So tell me about the first threat, was it by phone or letter? What did it say? Where did you get it? No attempt was made by the Tribunal to follow-up all the elements of that question, nor was there follow-up as to whether the applicant understood the rolled up question. | At 57:26 the Interpreter interrupted the applicant so she could interpret the complex answer of the applicant “bit-by-bit” At 1:00:00 there are recorded discussions between the Tribunal and the Interpreter in which the Interpreter wished to clarify with applicant in French. The Tribunal reminds her that that is their job and her job is just to translate. In my view, there was nothing impermissible about the questions asked by the Tribunal. The recording reveals that the Tribunal did seek some clarification from the applicant where it was necessary. |
| 8. 1.06.16 | Drop out occurs just when the applicant is trying to explain why he did not keep the death threat letters | Because of the drop out coming when it did, the applicant lost the opportunity to explain exactly why he did not keep the letters. Instead, the Tribunal asks applicant, after the drop out, where he was living. Because of this interruption, the applicant has no real chance to develop the point about why he did not report the letters to a person or persons in authority. | It is apparent from the audio recording that the applicant had finished explaining why he did not keep the letters. |
| 9. 1.09.40- | Death threats by telephone Timing and origin of death threats by telephone, the influence of elections on the timing of threats. | No attempt by Tribunal to clarify timing and origin of the threats: evidence is garbled and confused. Tribunal fails to take charge of proceedings to ensure that the interpreter has clear questions that are asked bit-by-bit and the Tribunal fails to take charge of the interpretation process to ensure answers given are clear and responsive and given bit- by-bit. No attempt is made to ensure answers are responsive therefore suggesting that Ismaila may not have fully understood the question. | The applicant’s assertions about this passage of evidence are not correct. The applicant was being non-responsive to the questions and the Tribunal member says, for example: “I’m asking when the last threat was received and you’re not answering my question” |
| 10. 1.14.20- | Going into hiding while receiving death threats; narrative is unsatisfactory as there are long narratives in French that appear not to be translated, or else appear to be summarised since the narrative was not translated bit-by-bit | Tribunal does not take control of the questioning and answering to ensure manageable and digestible questions are put to the applicant, so the same can be methodically and clearly answered by the applicant. The Tribunal moves from topic to topic without clear and precise answers having been given. | Again, this passage of the evidence is unremarkable. There is no evidence to suggest that the interpretation or translation was incomplete or in accurate. It is not the Tribunal’s responsibility to not move on in the process if the applicant has not given “clear and precise” answers. It is the applicant’s obligation to present his case as he sees fit and for the Tribunal to assess that evidence for the purposes of its decision. |
CD 2
| 11. 1.19- 2.40 | Again there is a drop-out of the Interpreter’s mobile phone which cuts off the applicant’s narrative of the evidence and the thread of this part of his evidence is lost. | The applicant’s evidence about why a policeman happened to be present on the street is abruptly cut short and the Tribunal thereafter ignores the partly-answered question, because, instead, the Tribunal intervenes with another different question concerning arrest documents and never returns the question of why the arrest occurred at the road-block. | The recording demonstrates that the Interpreter seemed to have finished interpreting before telephone dropped out |
| 12. 9.40 – 9.57 | Again there is a drop-out of the Interpreter’s mobile phone which cuts off the applicant’s narrative of the evidence. | Although in this instance the thread of the question is not lost, nevertheless this is yet another interruption to the flow of evidence which happens because the Interpreter is not present at the hearing and the mobile phone connection is inadequate. | The recording shows that the Tribunal re-asked question once the telephone had reconnected. The question was then answered and translated. There is no indication that the applicant was not permitted to say all that he wished to say. |
| 13. 13.58 | The applicant’s evidence is interrupted by the Tribunal who does not seem to hear that the answer give to the question is incomplete | At this point the Tribunal has asked the important and pivotal question of why the applicant believes it is unsafe to return home. It seems as if he going to provide more detail as to why he believes he would be a target notwithstanding the intervening 5 years between 2010 and 2015. | The recording reveals that at the conclusion of his answer, the Applicant does go to say something (I am not sure in English or French) which is not translated - the Tribunal speaks over the top of him |
| 14. 16.00-21.50 | During this segment, the Tribunal, as is required by legislation, in a formal manner, is required to ‘put’ potentially adverse information to the witness in much the same way as a barrister is obliged to put an alternative version of facts to a witness under the rule in Browne v Dunn. While no objection with the single proposition is taken to this ‘puttage’ per se, objection is taken to the way the puttage was addressed to the witness when the witness relies upon an interpreter. | Instead of a series of propositions being addressed to the witness, one-by-one, and immediately asking the witness to agree or disagree with the single proposition put, a number of propositions were put sequentially but the witness was not asked at that time, one-by-one, whether he agreed to that particular proposition. The modus operandi that should have been adopted, especially when the Tribunal is relying upon an interpreter, is as follows: ‘I put this proposition to you. Do you understand the proposition? Do you agree or disagree with it?’ Then the interrogator should move to the next question and put the next proposition, and follow up in the same way. It is submitted that advancing a sequence of propositions in the way adopted by the Tribunal was a serious error which was bound to lead to difficulties. In this case the witness merely restated he was a member of the UFDG party without in any way realising that he was supposed to respond to each and every of the propositions formally ‘put’. | The recording demonstrates that the Tribunal member breaks up propositions so the interpreter can translate “bit- by-bit”. The Tribunal asks if the applicant understands and tells him it would like his response. The Tribunal is not obliged to put anything to the applicant. The rule in Brown v Dunne does not apply: Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Anor; ex parte Applicant SJ 5412002 (2003) 201 ALR 437 at [55]-[56] |
| 15. 24.39 | This is one of a number of instances where the Tribunal accepted without further explanation the word, ‘manifesting’ in the transitive sense. This is not a proper English usage and it not at all clear what it means and what the correct English word is when this wrong word is used. | This is a further example of the Tribunal’s lack of attention to detail and proper process. The word is misused repeatedly and the interpreter should have been asked for a better translation of whatever it was that was meant by the witness in the French language. | Later in the recording (at 30:44), when the Tribunal used the word "protest" the interpreter translated it to "manifestation”. Some difficulty is apparent here - either the Applicant was finding the right word for what he was trying to say or the interpreter was having difficulty translating the word he was using so he was trying to rephrase. |
| 16. 34.00-35.01 | Again there is a drop-out of the Interpreter’s mobile phone which cuts off the applicant’s narrative of the evidence. | The result is that the important question of whether the applicant attended other demonstrations remains unanswered. At this point, there is a long narrative in French which is never interpreted and is completely lost. While this particular interruption does not appear to be a lengthy one in real time, it is nonetheless significant, because instead of pursuing this important question, as a result of the dropout, the Tribunal ignores it completely and goes on to a different subject altogether, namely the country information of what occurred in May 2013. The more correct action that should have been taken by the Tribunal is to have returned to the original question ‘Did you go to any other demonstrations’, and allow the witness to give a full and complete answer. This was never done and the evidence was lost for all time. | The applicant answered before the phone dropped out but the interpreter did not get the chance to translate. When the phone was reconnected, the Tribunal rephrased the question and the applicant answered the rephrased question. |
| 17. 1.01.34 | Such was the strain on the Interpreter arising from the prolonged job of interpreting, and doing so using a mobile telephone, that the Interpreter had to ask for a break. | The fact that the Interpreter had to ask for a break in proceedings and said she had never had to interpret for such a long period using a mobile phone must call into question the quality of her work prior to asking for a break. It is difficult to be confident (a) that she was doing a satisfactory job prior to requesting a break and (b) that she was fully comfortable using a mobile telephone to interpret for such a prolonged period. | At 55:01 the interpreter interrupts the applicant so that she can translate bit-by bit. The interpreter asks for a break, but in the absence of some evidence to suggest that there was any inaccuracy in the translation, it is not difficult to be confident that the interpreter was doing a satisfactory job. |
| 18. 1.03.15 – 1.06.39 | Although the Tribunal articulated the nature of concerns the Tribunal entertained about the credit of the Applicant, and the ‘holes’ she sees in the credibility of the Applicant, it is questionable as to whether the Tribunal, in the circumstances, has conducted itself in such a way that the Applicant was actually give a fair and real opportunity to address and then to reply to each of the concerns in a way that was methodical, sequential and complete. | There appears to be long stretches of narrative in French that are not translated bit-by-bit into English at this point. The period of time taken up in the French language exceeds the ‘corresponding’ time taken to interpret that material in English. It is possible the interpreter has summarized the evidence and has ‘edited’ what has been said rather than the simultaneous interpretation that is required in such cases. Leaving that issue to one side, it also seems that the procedure at the hearing was not properly managed because the Tribunal in ‘rolling up’ in a few sentences, the basis of the Tribunal’s concerns about credit and consistency the Tribunal has made it difficult for the Applicant to meet every point of concern with a cogent and considered answer. This is especially so when the interrogated party needs to rely on every word being interpreted, which of itself, makes continuity of thought much more difficult. More help in addressing each individual and separate concerns about credit would have been more helpful, fairer and less of a memory test. | Only at the beginning are there long stretches of narrative without translation - then the interpreter translates bit-by-bit. There is nothing to suggest that the untranslated passages are important. There is no alternative translation before the Court indicating what it was that the applicant said and how it was important to the task of the Tribunal. |
| 19 1.15.30 | In response to the Tribunal’s question, the Applicant said he wanted to be sure the Tribunal had understood everything properly and specifically at that time the Applicant gave the Tribunal the chance to revisit parts of the evidence that may have given rise to concern. | It is noted that in spite of the numerous errors and oversights it alleged by the Applicant the Tribunal committed, the Tribunal felt sufficiently confident in its own modus operandi not to avail itself of the opportunity to clarify important issues, particularly this set out in these Submissions. |
50.In BZAID (above) Edleman J observed at 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.
51.Bearing his Honour’s words in mind, taking into account the specific occasions to which my attention is drawn by the applicant and, in the absence of a reliable transcript, having listened to the whole of the hearing recordings as I was invited to do by the applicant’s solicitor, I am not satisfied that the Tribunal’s hearing was unfair in the way in which the applicant alleges, or at all.
52.The applicant was given an appropriate opportunity to put his case before the Tribunal. Whilst the process was not perfect, it did not need to be. It is not suggested that the Tribunal has misapprehended any of the applicant’s claims or that it did not deal with each of the claims upon which he relied.
53.The difficulties identified by the applicant do not lead to the conclusion that the Tribunal did not discharge the obligations cast upon it by s.425(1) of the Act as the applicant contends. Grounds one and two of the amended application for review reveal no jurisdictional error.
Ground 3
54.This ground is in the following terms:
3. The decision-maker fell into jurisdictional error in paragraph 22 in concluding that ‘the standard of interpreting at the hearing was competent and reasonable’ whereas in truth and in fact the substandard level of interpreting constituted procedural unfairness to the Applicant by reason of the facts set out in paragraph 1 above.
55.For the reasons I have explained above, I am not satisfied that the standard of interpreting at the hearing was not competent or reasonable. The standard of the interpreting at the Tribunal hearing did not lead to the applicant being denied a fair hearing or to the Tribunal failing to discharge its obligations under s.425(1) of the Act. This ground reveals no jurisdictional error.
Ground 4
56.This ground is in the following terms:
4. The decision-maker fell into jurisdictional error by making the following procedural errors with respect to the management of the interpreter at the hearing:
a. not having the interpreter present at the hearing;
b. allowing interruptions to the evidence given via the interpreter;
c. attributing flaws in the way the evidence was given as going to the credibility of the Applicant, whereas the flaws the way the evidence was given was due to the inappropriate and clumsy use made by the Tribunal of the interpreter;
d. descending into agreement and disentation (sil. dissention) with the interpreter about how to interpret the evidence;
e. by failing to notice, within the published reasons that during the course of the hearing itself, there were numerous problems and errors made, that were likely to have derived from the clumsy use of the interpreter as set out in paragraph 1.
57.I have dealt with these issues above, particularly in the context of the each individual complaint made by the applicant in his 19 item schedule.
58.The applicant also argues that the Tribunal was in error by not referring to and making comment upon the difficulties associated with the interpreter giving evidence on the telephone. However, there was no obligation, statutory or otherwise, for the Tribunal to discuss those issues in its reasons for decision. The Tribunal’s failure to note those issues in its decision is not a jurisdictional error, nor indicative of such an error by the Tribunal. This ground of review reveals no jurisdictional error.
Ground 5
59.The fifth ground of review pressed by the applicant is in the following terms:
The decision-maker fell into jurisdictional error particularly in paragraphs 49 and 50 by failing properly to review, evaluate and enquire into the origin and authenticity of documents lodged by the Applicant.
60.Paragraph 49 and 50 of the Tribunal’s decision appear as follows:
49. The tribunal has considered the documents provided. However, they are inconsistent with his written claims he was a youth leader and inconsistent with his hearing claims he was communication leader from 2010. Further, while one letter refers to threats being received from the opposing parties, no details are provided. As well the letters make no mention of his attendance at the 2009 stadium massacre event or the 2013 demonstrations, which are key claims and events. Further, there is no mention of his claimed arrest. Further, there was no mention of his claimed connection to the leader of the party. The tribunal considers the omissions are odd given the applicant’s claims he had been key leader, well known and involved in leading and being part of these key demonstrations.
50. Further, the tribunal was concerned at the late provision of the UFDG letters, which were not provided with the application, but after the hearing. Given the tribunal concerns about the inconsistencies in the letters with the applicant’s evidence, the inconsistencies in the applicant’s evidence, the late provision of the documents, and prevalence of fraudulent documents in Guinea (as confirmed by the applicant), the tribunal places no weight on the UFDG letters.
61.The applicant, by his oral submissions, submitted that paragraph 50 reveals jurisdictional error in that the finding is not based on any evidence. However, paragraph 50 contains no finding by the Tribunal. It is an explanation by the Tribunal as to why it was not going to give certain evidence no weight.
62.The applicant submits that the prevalence of fraudulent documents in Guinea was not the subject of “judicial notice” and that the Tribunal was required to engage in “forensic enquiry or exploration if it was going to dismiss the authenticity of a document”. Two observations can be made about this submission. First, the tribunal made no finding about the authenticity of the documents in question. It simply said it would give them no weight. Second, the Tribunal is not a judicial body and therefore no question of judicial notice arises. The Tribunal may inform itself of matters as it sees fit. It had information before it that suggested that fraudulent documents were prevalent in Guinea. It put that to the applicant and he agreed.
63.It is for the Tribunal to determine the weight to be given to the information before it. Moreover, I accept the first respondent’s submissions that:
a)the Tribunal’s findings on the evidence cannot be said to be unreasonable in any legal sense;
b)the Tribunal was under no duty to make further inquiries in relation to the letters; and
c)there was no obligation to hold a second hearing in relation to the letters which were submitted in support of an extant issue.
64.In my view the first respondent’s submissions that the Tribunal did consider the applicant’s claims, discussed its concerns in relation to his role with the Union des Forces Democratiques de Guinee and provided the applicant with the opportunity to provide further evidence after the hearing are accurate. However, the Tribunal was not satisfied on the basis of the material presented that his claims were genuine and it affirmed the decision under review. That course was plainly open to it.
Conclusion
65.The applicant does not establish that the Tribunal’s decision is affected by jurisdictional error. In my view, the hearing conducted by the Tribunal was fair to the applicant and the Tribunal did not disregards its obligations under s.425(1) of the Act.
66.The amended application filed on 7 December, 2015 must be dismissed with costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 13 July, 2017.
Date: 13 July, 2017
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