CAK16 v Minister for Immigration

[2018] FCCA 2670

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAK16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2670

Catchwords:
MIGRATION – Application for review of AAT decision affirming decision of the delegate of the First Respondent – allegation by applicant that his application for a protection visa contained erroneous information caused by misinterpretation – adverse credibility findings made by AAT based upon inconsistencies between evidence given by applicant before tribunal and earlier application for protection visa – where evidence of applicant, as interpreted before AAT, given partly in first person but largely in third person – where impossible to establish whether interpreter put his own gloss upon the applicant’s answers – where lack of confidence that applicant had been afforded a fair hearing – where decision of AAT quashed.

Cases cited:

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142

Applicant: CAK16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER ROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 682 of 2016

Judgment of: Judge Egan

Hearing date:

7 August 2018

31 August 2018

Date of Last Submission: 31 August 2018

Delivered at: Brisbane

Delivered on: 19 September 2018

REPRESENTATION

Counsel for the Applicant: Mr S Hegedus

Solicitors for the Applicant: HopgoodGanim Lawyers

Counsel for the Respondents: Mr J Byrnes

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. That the decision of the Administrative Appeals Tribunal made on 28 June 2016 be quashed. 

2. That a writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine the applicant’s application for review of the second respondent's decision according to law, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.

3. That for the purpose of the Administrative Appeals Tribunal determining the Applicants’ application, that it be constituted by a different member than that who handed down the decision on 28 June 2016.

4. That the first respondent pay the applicant’s costs of and incidental to the proceedings to be taxed pursuant to Part 21 of the Federal Circuit Court Rules 2001 (Cth) unless agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 682 of 2016

CAK16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on 20 March 2013 as an irregular maritime arrival. He is almost 33 years of age.

2. On 6 June 2013, the applicant applied for a protection (Class XA) visa.

3. The delegate to the Minister refused the application for a visa by a decision dated 5 September 2014.

4. On 10 October 2014, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision.

5. The first hearing before the Tribunal took place on 21 October 2015. The applicant was assisted during the course of the hearing by a NAATI certified translator named Mr Mukherjee. During such hearing, an issue arose as to whether or not the applicant accepted the accuracy of some of the information which had been recorded in his protection visa application by his lawyers.

6. The transcript of the hearing before the AAT on 21 October 2015 appears as Annexure CPH-1 to the Affidavit of Christina Hooper, a solicitor at HopgoodGanim Lawyers, filed on 21 February 2017. On page 28 of the transcript of such hearing the member indicated that the hearing was to be adjourned on the basis that both the applicant and the applicant’s lawyer, one Mr Hannan, could investigate the assertion on the part of the applicant that the applicant’s statement in support of his protection visa application had been altered or otherwise misinterpreted so as not to accord with the applicant’s factual assertions.

7. The second hearing took place on 4 November 2015. The applicant was again assisted by the interpreter named Mr Mukherjee. The position concerning the alleged inconsistencies had been resolved to the extent that the applicant continued to be represented by his former lawyers, Mr Hannan of those lawyers appearing at the second hearing on his behalf.

8. On 28 June 2016 the AAT affirmed the decision of the delegate. The reasons of the Tribunal are to be found at Court Book 219 – 233 inclusive.

9. On 27 July 2016 the applicant filed an application for judicial review of the decision of the AAT dated 28 June 2016. The two grounds for review are as set out in the further amended application filed on behalf of the applicant on 13 October 2017.

Involvement of Interpreter

1. During the course of the second day of hearing before this court on 31 August 2018 the accuracy of interpretation was much to the fore. One Atish Barua, an accredited interpreter, was called to give evidence, and was cross-examined, concerning the role which he played in interpreting the contents of applicant’s application for protection visa documentation before its execution by the applicant. Mr Barua was present in Sydney when he participated in a telephone conference on the occasion that a solicitor called Mr Tew first received instructions from the Applicant. The applicant and Mr Tew were at that time in Mr Tew’s office in Brisbane. Mr Tew gave evidence and was also cross-examined at the hearing on 31 August 2018.

2. During the course of the hearing, close regard was had to the contents of the transcripts of the hearings conducted before the AAT on 21 October 2015 and 4 November 2015. Those transcripts were relevant because the AAT member had made an adverse credibility finding against the applicant based upon evidence given by him to the Tribunal, and it was those parts of the transcript relevant to such adverse credibility finding to which attention was directed.

3. In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 in a joint judgment of Allsop CJ, Flick and Robertson JJ at [9] – [11] it was said:

   [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?

   [11] That rhetorical question should not be taken as intended to encapsulate any complete evaluative principle. Fairness of the process will fall to be judged by reference to the particular circumstances. In some circumstances, the interpretation may be so inadequate as to deny the fact of any hearing. In such circumstances, it may not even be necessary to show that the errors may well have affected the decision in a real way, because there has been no hearing, to which the person was entitled.

4. It is trite that a court of review must have a high degree of confidence in the accuracy of the record of proceedings of the Tribunal whose decision is being reviewed. That is particularly so in circumstances where adverse credibility findings have been made against an applicant whose evidence at the hearings before the Tribunal was received through an interpreter and recorded.

5. In this case, the AAT at [30] found that the applicant was not a credible witness, and that he had fabricated his claims regarding a land dispute of relevance in Bangladesh involving a “Mr B”. 

6. At [22], [23] and [24] of the AAT reasons the following findings were made:

   22. The Tribunal discussed each of his claims with him in detail at the hearing. However, the applicant’s evidence as to the nature of the land dispute and the harm he and his family have suffered displayed significant inconsistencies, as set out below.

   Purchase of land in dispute

   23. The applicant provided inconsistent evidence regarding from whom his purchased the land in dispute and the relationship between Mr B and the applicant’s father. In his written statement accompanying his protection visa application, the applicant claimed his father purchase land from Mr B in around 1997 – 98 and that Mr B was his father’s ‘cousin-brother’. …

   24. As set out in the decision record, during his interview with the delegate, the applicant claimed both his father and Mr B bought the same piece of land from a man who is Hindu. The land was registered in both of his father and Mr B’s names. He told the delegate he never said his father bought the land rom Mr B. The interpreter must have made a mistake. …

7. Some relevant parts of the 21 October 2015 transcript which dealt with how the applicant’s evidence before the AAT was to be viewed is as recorded below:

   Page 7

   M: Thank you. Okay then. [CAK16], I’d like to start asking you some questions now.

   You provided a statement and a number of forms which sets out a lot of information. Are there any mistakes that you know about which you’d like to correct for me now.

   T: He saying he doesn’t know there are so many documents he doesn’t know whether there are mistakes.

   M: Well they’re your documents. And they’re the documents that you’re seeking to rely on as the reasons why you can’t return to Bangladesh.

   T: [Indecipherable] based on submission [12:50]

   M: Okay, so there’s no mistakes know about that you’re like to correct?

   T: He’s not 100% sure

   M: Well that worries me a little bit because you’ve provided this information. You should know what it is.

   T: [Indecipherable]

   Page 12

   T: He is saying that after a while, after [indecipherable] was arrested [indecipherable] they are…next thing you know…creating pressures again that the case should be withdrawn.

   M: But my point is how can a case be withdrawn? Your brother can’t say it didn’t happen. And bombing is an offence against everyone, not just your brother.

   T: His brother has told him that that’s not possible why he withdrew the case. That’s the pressure that was put on his brother to withdraw the case.

   M: So it’s a hollow threat, it means nothing.

   Hannan: Sorry to interrupt Member, as an update, just wanted to let you know that the document has been sent through.

   M: I appreciate that. Do you have any comment about that? That it’s a hollow threat. They’re asking you to do something that can’t be done so it means nothing.

   T: [indecipherable]…previously there was a bomb but this bomb again and destroy the house completely.

   Page 14

   M: Yep. Okay. You’re sure there’s no other information that you haven’t said before that you’d like to tell me now.

   T: [indecipherable]

   M: I know he’s giving you a lot more chance to see if there’s anything else.

   T: He’s been [indecipherable].

   M: Okay, because your migration agent’s submissions include lots of new information that you’ve never said before. And I’m very critical of new evidence being presented to me in that way. If you had new claims that you haven’t made before, I would put much more weight on them if they were provided to me in a statutory declaration, rather than in a narration in migration agent’s submission.

   M: That’s not something in your control. But I would expect you to be able to spontaneously tell me this new information, rather than I now have to go through and question you about all the new claims in your migration agent’s submissions.

   T: He said what is going so far is the information that he has and he thought there’d be a lot of other information he hasn’t told you about yet.

   M: Which is why I’m asking you to tell.

   T: His father was a member of the Jamaat-e-Islami party. His father brought some land from a group of Hindus people who belonged to the Hindu religion. That land was subsequently sold to some [indecipherable] people and then he left the area.

   M: Mr Interpreter I didn’t catch what you said when you said the land was sold to what people?

   T: Father brought land from a group of Hindus. [indecipherable] subsequently sold to another person who left the area.

   M: Okay.

   T: He said the land was sold to two parties. One party was his father and the other party was someone else. A gentleman called Rosul Biswas. Rosul Biswas was a member of the Awami League and was a powerful man. And that happened in 1997 or 1998. Subsequently [indecipherable] came to power when [indecipherable] came to power in 2000 this fact wasn’t discussed.

   Page 16

   T: He did take possession of the land but then subsequently when he decided that it might be a problem then he started assessing that there should be written documentation or there should be [indecipherable] to support the fact that he, for the purchase of the land.

   M: Yes, but I am putting it to you that is different to things that you have said in the past. In the past you said that your family farmed the land.

   T: He is saying two months later after [indecipherable] bought the land he came in possession of the land, because whenever they went to farm the land they were threatened by Mr Rosul Biswas so they are not able to go back to that land, or access that land.

   Page 17

   M: Yes, [CAK16] we have been going for a little while. Let’s have a break because you need to listen carefully to my questions and talk about the things that I am asking you about and not just keep repeating the same thing all of the time.

   M: Alright so just have a break for five minutes, clear your mind and when we come back please concentrate on my questions okay?

   T: [indecipherable]

   M: Is there any particular reason?

   T: [indecipherable]

   M: Yes

   T: [indecipherable]

   M: Yes alright. Okay so I will come back at 20 to 3. The hearing is adjourned at 2.33pm.

   The hearing is resumed at 2.46pm. I received the fax from your migration agent which has the Police report.

   M: Can you just remind me of your brother’s name?

   T: [indecipherable]

   Page 19

   M: When was your father beaten after he won the court case?

   T: In 2008 was [indecipherable] raid his home…

   M: I asked when was he beaten? Before we had the break I already gave you the very strong suggestion that you start listening carefully to my questions and answering my questions. If you don’t answer my questions I begin to wonder why? One reason could be that Mr Interpreter is not interpreting accurately but I have no reason to think that that is the case here. Another reason could be that you are not understanding the question. If that is the case please let me know I don’t understand your question. You have already done that earlier in the hearing when you told me that you did not understand. Another reason could be because you don’t want to answer my question. And then I begin to worry why don’t you want to answer my question. So it is really important that you concentrate, listen to what I am asking and please respond to what I am asking and don’t talk about something else. You have just said that after your father won the court case, Mr Biswas tortured your father and beat him up. When did that happen?

   T: He said that his father was not beaten up.

   M: You just said that he was. You said that he was tortured and beaten up.

   T: He said that when his family was tortured and at that stage his father under pressure gave up four, half of that total area of the land.

   M: Was your father beaten?

   T: His father was not beaten. There were threats and his father was not able to leave home often but [indecipherable]. His father was not beaten.

   M: Explain though why a minute ago you said they beat your father?

   T: It might have been a mistake on his part. He said that he was never processed what was the answer.

   M: I am not it explains why you say they beat your father. Anyway we will move on. I am still trying to understand what you mean by your father surrendered half of the land to Mr Biswas after your father won the court case. I am not asking you why he did it? I am asking you what you mean?

   Page 20

   T: He’s saying that [indecipherable]

   M: That is not true. You were given the opportunity to raise your political activities when you had your first interview when you arrived in Australia. You were given the opportunity to raise your own political activities when you prepared your statement supporting your application for your protection visa. You got another opportunity to discuss it when you had your interview with the visa officer. And you got another opportunity to discuss it at the beginning of this hearing when I said is there anything new that you would like to tell me that you had not raised before. So I don’t agree with you that you have not had an opportunity to raise it before. But then I get this submission from your migration agent which raises a number of new claims about your own previous political activity. Why didn’t you raise that in your earlier claims?

   T: He is not sure what you mention about his past political activities. Are you referring to something that was asked in the last interview or is it in relation to something that happened previously?

   Page 32

   M: Okay. So I invite you to comment or respond about that and you and request additional time if you need it.

   T: He is saying there was never any relationship between Mr Rosul Biswas’ family and his father and his family.

   M: I’m sorry Mr Interpreter but I didn’t hear you clearly.

   T: There wasn’t a very good relationship between Mr Rosul Biswas’s family and his father and his family.

   M: Okay that’s now what I am talking about. I am talking about who had control of the land. You told me during your first hearing that Mr Biswas had control of the land from very early on and your family weren’t able to use the land. During your interview with the visa office you said that Mr Biswas and your family both used the land up until around 2008.

   T: He is saying that five years after the land was possessed it was under the control of Mr Rosul Biswas, they were never able to, they never had any access or control over the land.

   M: Okay, so why did you tell me the visa officer that up until 2008 your family were using the land?

   T: He is saying that because Mr Rosul Biswas was a powerful man who never let this gentlemen’s family have any access or control over the land.

   M: My question is why did you say something different to the visa officer?

   T: He doesn’t recall whether or not he said it.

   M: Right. I’m putting it to you that you did.

1. Having read the above excerpts from the transcript, it became apparent that throughout such transcript of 21 October 2015 there had been in large part a departure from the usual practice of the interpreter conveying the answers of a witness in the first person – namely, the answers recorded as having been given by the applicant through the interpreter were in most part recorded as having been given, and received, in the third person. Answers commencing “he says” or “he thinks” were recorded as having been given, rather than answers in the first person such as “I say” or “I think” or “I did”.

2. The transcript of 4 November 2015, when similarly examined, revealed that the same recording of answers largely in the third person had taken place, though to a slightly greater extent.

3. The relevance of the above is that in circumstances where even the Tribunal member had raised the possibility of misinterpretation, and otherwise expressed concern about whether the applicant was correctly understanding questions Mr Mukherjee was interpreting to him, serious questions arise as to why some answers were given in the first person, but otherwise mostly were given in the third person.

4. Was the interpreter consistently putting his own gloss upon what the applicant had said to him when providing an answer to the Tribunal member? Was the interpreter providing a fair summary of what the applicant’s answer really was? Or was the interpreter answering questions from his own perspective, based upon what the interpreter believed to be what the applicant really intended to convey, and if so, were such answers an unacceptable embellishment or otherwise inaccurate on important questions going to issues of credibility which may have influenced the Tribunal member in making the adverse credibility findings he did. There is no way of knowing.

5. The issue as to whether or not the giving and recording of answers which took place before the Tribunal was fair or not, was only peripherally addressed by the AAT member in one line on page 19 of the transcript when the member said that there was no reason to believe there was any misinterpretation.  He did not amplify on his reason for having come to that view. That was said notwithstanding that throughout the transcript, answers were provided but recorded as being “indecipherable”. Also, the member was recorded as continually having sought clarification as to whether the giving of unresponsive answers by the applicant was intended to be the evidence of the applicant or not. 

6. On the question of the extent of the departure from normal practice in the recording of answers in the first person, an even closer examination of the transcripts for each hearing day revealed the following first person, third person and “indecipherable” statistics: 

   Transcript dated 21 October 2015

Number	%
Total No. of Answers	207	100
“Indecipherable” recorded as Answer	16	8
Answered in 1st Person	64	31
Answered in 3rd Person	127	61

Transcript dated 4 November 2015

Number	%
Total No. of Answers	99	100
Recorded as “Indecipherable” in Answer	1	1
Answered in 1st Person	26	26
Answered in 3rd Person	72	73

1. The above statistics are important because they establish that:

   a)As to the hearing on 21 October 2015, at least 69% of answers (Indecipherable and Third Person) were not recorded as having been given in the first person.

   b)As to the hearing on 4 November 2015, at least 74% of answers (Indecipherable and Third Person) were not recorded as having been given in the first person.

2. At no stage did the Tribunal member seek to rectify the above demonstrated position, notwithstanding that the applicant in his evidence had squarely raised the issue of his having been misinterpreted, at the outset, in respect of the contents of his protection visa application documentation.

3. When misinterpretation is a live issue in a matter, great care ought to be exercised by a decision maker to ensure that the receipt of evidence through an interpreter unquestionably reflects the actual evidence given, and in this case, given by the applicant.

4. Because of the magnitude of the departure from the usual practice of evidence being received in the first person, this court is unable to have confidence that the applicant’s evidence as recorded in the transcript is a proper reflection of the evidence which the applicant actually intended to give at the hearings before the AAT. Nor is the court confident that the Tribunal member was not influenced in his decision making process by inaccurate evidence, the product of that flawed hearing process.

5. In the light of the above, it cannot be found that the provision of answers largely in the third person might not have led the Tribunal member to fall into error when making an adverse credibility finding against the applicant, so leading to the affirmation of the decision of the delegate. Nor could it be found that the non-recording of answers otherwise described as “Indecipherable” might not have so led the Tribunal member to fall into error.

6. The applicant had no command of the English language. He asserted that he had been disadvantaged because of that language problem by having incorrect information recorded in his application for a protection visa. Should uncertainties associated with the recording of his answers before the Tribunal be overlooked. In all of the circumstances, and in the interests of fairness, they should not.

7. Having complained about misinterpretation at the earliest stage of his application for a protection visa, and having squarely put that issue before the AAT, the applicant was entitled to a fair hearing before the Tribunal in all respects. That included the proper recording and consideration of answers to questions put to him. The court has no confidence that that has been done.

8. The Tribunal fell into error in the circumstances of this particular case and its decision ought to be quashed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 19 September 2018