DHM17 v Minister for Immigration - [2018] FCCA 3428

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHM17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3428

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – whether the Tribunal gave proper, genuine and realistic consideration to the Applicant’s claim – whether the s.424A of the Migration Act 1958 requirements extends to the provision of an accredited interpreter – whether the interpreter prevented the Applicant from receiving a fair hearing – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A

Cases cited:

Applicant WAWE v Minister for Immigration, Multicultural and Indigenous

Affairs (2003) 236 FCR 593

BOZ16 vMinister for Immigration and Border Protection [2018] FCA 418

BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310

CPN16 v Minister for Home Affairs [2018] FCA 872

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

MZAES v Minister for Immigration & Anor [2015] FCCA 307

MZAES v Minister for Immigration and Border Protection [2015] FCA 1133

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6

SZRMQ v and Minister for Immigration and Border Protection (2013) 219 FCR 212

Applicant:

DHM17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1581 of 2017

Judgment of:

Judge Hartnett

Hearing date:

14 August 2018

Delivered at:

Melbourne

Delivered on:

30 November 2018

REPRESENTATION

Counsel for the Applicant:

Dr McBeth

Solicitors for the Applicant:

Wimal & Associates

Counsel for the First Respondent:

Mr McDermott

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1581 of 2017

DHM17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application for judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 30 June 2017. The Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a protection (Class XA) visa (‘the visa’).
The Applicant filed his application for judicial review on 21 July 2017. The Applicant filed an amended application on 18 June 2018. The Applicant proceeds on the amended application and the grounds contained therein, numbering two. Those grounds are set out below:-
“1. The Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claim that his family home was burned down by a group targeting the family for their perceived opposition to the Taliban.
Particulars
a) The Tribunal [45] acknowledged that the applicant had made a claim in his written statement that his family home was burned down by a group targeting the family for their perceived opposition to the Taliban.
b) The Tribunal noted in its reasons that it was unclear who was responsible for allegedly burning the applicant’s family home, “due to the rambling and convoluted nature of the applicant’s statement.”
c) The Tribunal made no attempt to clarify its understanding of the claim that it recognised had been made but the Tribunal was unable to understand clearly.
d) In rejecting the applicant’s claim without properly understanding it, the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claim.
2. The applicant was deprived of a meaningful hearing to which he was entitled under s 425 of the Migration Act by reason of the Tribunal’s failure to provide adequate interpretation services to the applicant.
Particulars:
(a) The interpreter repeatedly failed to interpret fully and clearly the evidence given by the applicant during the hearing.
(b) The applicant was forced to interrupt the interpreter repeatedly to give direct evidence in broken English when he believed the interpreter had not adequately interpreted his evidence to the Tribunal.
(c) The inadequacy of the interpretation was material to the Tribunal’s finding that the applicant was not a credible witness due to “the vagueness and deficiencies in his evidence.”
The Applicant relies upon the evidence as contained in the affidavit of the Applicant’s solicitor Mr Mylvaganam Wimaleswaran affirmed on 16 July 2018, to which is annexed, a copy of the list of interpreters provided by the National Accreditation Authority for Translators and Interpreters (‘NAATI’) and a copy of the AAT guidelines for interpreters in force at the time of the Tribunal’s decision; and upon the evidence as contained in the affidavit of the Applicant’s solicitor Mr Mylvaganam Wimaleswaran affirmed on 13 July 2018, to which is annexed, a transcript of the Tribunal hearing produced by Spark & Cannon.
Additionally, the Applicant relies upon an affidavit affirmed by Mr Mohammad Ayubahmadzai on 13 July 2018, Mr Mohammad Ayubahmadzai being an accredited interpreter in the Pashto language. Annexed to his affidavit and relied upon by the Applicant as evidence is “Exhibit MMA-1”. The Applicant also relies upon an outline of submissions filed 17 July 2018.
The Applicant submits that the decision of the Tribunal is affected by jurisdictional error for one or both of the grounds set out in the Applicant’s amended application. The Applicant seeks a writ of certiorari quashing the decision of the Tribunal; a writ of mandamus directed to the Tribunal remitting the matter to be determined according to law; and that the First Respondent pay the Applicant’s costs.
The First Respondent contends that neither ground of the amended application is meritorious and that, consequently, the application to this Court should be dismissed with costs in accordance with the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). The First Respondent contends no jurisdictional error attends the decision of the Tribunal. The First Respondent relies upon an outline of submissions filed on 31 July 2018. There is also before the Court the evidence as contained in the Court Book filed by the First Respondent on 18 April 2018.

Background

In paragraph 21 of the Statement of Decision and Reasons of the Tribunal (‘the Decision Record’), the Tribunal noted that the Applicant claimed to be a citizen of Pakistan who was born on 1 September 1991 in Bara in Khyber Agency. This is in the federally administered tribal agency (‘FATA Pakistan’). The Applicant described his ethnicity as Pathan (Afridi tribe) and his religion as Sunni Muslim. According to his protection visa application he lived in Nola, Khajori Bara in Khyber Agency from November 2002 to August 2009 and in Khawaja town, Pajjagi Road, Peshawar from August 2009 to July 2012. He also resided in the United Arab Emirates as a child. The Applicant completed 16 years of education and claimed to be fluent in Urdu and English and can speak and read Pashto. He described his occupation before coming to Australia as a “student sales representative”. He worked as a sales representative for Tariq Fabrics in Peshawar from August 2010 to August 2011. He departed Pakistan legally on 23 July 2012. As noted in the delegate’s decision, made 19 July 2013, the Applicant arrived in Australia on 24 July 2012 as the holder of a student (Class TU) (Subclass 573) visa. That visa was in effect until 30 August 2015. The Applicant lodged his protection (Class XA) visa application on 6 December 2012.
The Applicant presented his claims in his protection visa application; in a departmental interview he attended on 21 February 2013; in his submissions from advisors to both the Department of Immigration and Border Protection (‘the Department’) and the Tribunal (including post-hearing submissions); in a statutory declaration made by the Applicant submitted to the Tribunal; and at his Tribunal hearings on 4 December 2013 and 4 November 2016, as noted by the Tribunal in paragraph 22 of the Decision Record.
The reference above to the two Tribunal hearings arose in the context of the Applicant applying for review of the delegate’s decision of 19 July 2013 to the then Refugee Review Tribunal (‘the First Tribunal’) within the relevant timeframe. On 24 April 2014 the First Tribunal affirmed the delegate’s decision. That Decision Record is contained in the Court Book. The Applicant subsequently applied for judicial review of the First Tribunal’s decision. While he was unsuccessful in this Court, he was successful on appeal in obtaining relief to set aside the First Tribunal’s decision and for the Tribunal to reconsider his review application according to law.[1]
[1] MZAES v Minister for Immigration & Anor [2015] FCCA 307; MZAES v Minister for Immigration and Border Protection [2015] FCA 1133.
The Applicant then appeared at a hearing before the Tribunal (differently constituted) on 4 November 2016 where he was represented by Ms Germov of Counsel (‘the Tribunal hearing’). The hearing record records that the interpreter, Ahmad Jamal Mian (of Ethnic Interpreters, Melbourne) (‘the interpreter’) was not accredited under NAATI.
On 18 November 2016, the Applicant’s authorised representative submitted further materials on behalf of the Applicant, including the post-hearing submission referred to in paragraph 8 above. In that submission, Ms Germov of Counsel made, relevantly, the following observation:-
“[The Applicant’s] difficulty in recalling events undoubtedly makes the Tribunal’s task of assessing his claims more difficult and account for the haphazard way in which his claims were presented from initial application, including his rambling, almost incomprehensible personal statement. Although [the Applicant] was represented by a migration agent, the representation was far from ideal and that particular agent was suspended … for a period of time.
[The Tribunal member] put to him that his claims were not as detailed at the hearing as in his previous statements and that [the Applicant had] not provided consistent information. [The Applicant] responded that he is trying to recall events over the past three years since he initially applied for protection and that it was hard for him to remember things as he was living under constant stress without any family support. The UNHCR handbook advises decision-makers not to overly focus on inconsistencies, especially when mentally disturbed persons are involved…”[2]
[2] Court Book, 321.
On 30 June 2017 the Tribunal affirmed the delegate’s decision.

The Applicant’s claims

The Tribunal noted, in paragraph 26 of the Decision Record, that attached to the Applicant’s protection visa application was an extremely lengthy and detailed statement expanding on the Applicant’s experiences in Pakistan and his claims for protection. That statement canvassed the Applicant’s circumstances in his home region in Pakistan and his personal situation and that of his family, to support his contention that he faced serious harm in Pakistan which gave rise to a well-founded fear of persecution for reasons recognised under the Refugees Convention.
In particular, as noted by the Tribunal in paragraphs 23 to 25 of the Decision Record, the Applicant claimed in his protection visa application that he left Pakistan because he feared being killed. He feared that he would be kidnapped and tortured because of his opposition to the Taliban, as he was a member of the village peace committee. He claimed to be against the politics and religious ideas of the Taliban. He claimed to be mentally disturbed due to the situation in Pakistan. He had seen many people killed and beheaded he claimed. The Applicant claimed that he had been kidnapped and suffered degrading treatment, torture and punishment from the Taliban who kidnapped him. He claimed to have, from the start, refused to join the Taliban and been against them. He claimed the government could not provide protection, as they could not save themselves from the Taliban. He claimed that there was no police protection and sometimes the police worked with the Taliban. He claimed the police were corrupt. He made further and other claims, as summarised by his Counsel, Ms Germov, in her post-hearing submission to the Tribunal of 18 November 2016 including that:-
a)the Applicant and his family were supporters of the Awami National Party (‘ANP’) and opposed to Islamic extremists. His family helped organise meetings and promote political ideology and rights in Bara. The Applicant himself was active in the student wing of the ANP, the Pukhtoon Student Federation (‘PSF’). The Applicant was involved in the village peace committee and acted as a bodyguard to a local imam to protect him against attacks from Mangal Bagh and Lashkar e Islam (‘LEI’);
b)in 2006 or 2007 the Applicant was kidnapped by the LEI and was imprisoned and beaten by his captors and only released after his uncle paid a ransom;
c)in 2009 and 2012 members of the Applicant’s family were killed by the LEI. Dr [NK] had his throat cut along with six other people in 2009 and another cousin was shot while trying to escape in June 2012. A third cousin disappeared in 2011 or 2012. The Applicant’s family suspected that the disappearance of the Applicant’s cousin was caused by the Pakistani military;
d)the LEI terrorised the Applicant’s village for several years and the Applicant obtained a student visa to escape. There is enmity between ANP supporters and groups such as LEI and LEI had forced people in the Applicant’s village to mount LEI Islam flags on their houses. People were forbidden from dancing or listening to music. The Applicant was fined by the LEI for having music on his mobile phone and for dancing at a relative’s wedding in Peshawar;
e)the LEI would distribute notices demanding men join them to fight for them or pay money to fund their activities and a failure to obey the call-up notices or to pay the money would often result in whole families being kidnapped. The Applicant’s uncle sent the Applicant and his family away to Peshawar to get away from the local area. He also paid money to the LEI;
f)the Applicant gave information to the Pakistani army when they came to the Bara area and asked him to identify locals who supported the LEI. While he willingly did this, it also exposed him to reprisals from the LEI;
g)the Applicant’s family were forced to close their pharmacies due to threats from the LEI and move from Bara to Peshawar;
h)the Applicant’s great uncle, a disc jockey, promoted education for women and played music and quizzes which aroused the ire of Islamic extremists in the area.

The Tribunal findings

The Tribunal, in its consideration of the Applicant’s claims and evidence, as that consideration relates to ground one of this judicial review application, made the following observations and findings as set out in paragraph 45 of the Decision Record:-
“The Tribunal notes in the applicant’s detailed statement he claimed that his family home in Terah was destroyed by either Ananul Islam or Lashkar-e-Islam. Due to the rambling and convoluted nature of the applicant’s statement, the Tribunal is unclear as to who was responsible for allegedly burning the applicant’s family home because the applicant and his family are against the Taliban people. The applicant made no mention in the hearing about this particular claim. While the Tribunal accepts as plausible that the applicant’s family home may have been destroyed due to fighting that occurred in that area, it does not accept that he and his family were specifically targeted because they were perceived to be against Taliban people.”
Otherwise, the Tribunal noted in paragraph 64 of the Decision Record that it had:-
“…serious concerns about the credibility of most aspects of the applicant’s claims. The vagueness and deficiencies in numerous aspects of his evidence leads the Tribunal to find the applicant is not a witness of truth.”
The Tribunal found, further, in paragraph 68 of the Decision Record, relevantly, that:-
“…the Tribunal does not find the Applicant a reliable witness and does not accept that his claims regarding his past experiences in Pakistan, and those of his family, are credible.”
The Tribunal noted, in paragraph 65 of the Decision Record, that it had regard to the medical reports before it, being a record from Edwin Kleynhans, a psychologist, dated 27 March 2014 which provided that the Applicant was diagnosed as suffering from Post-Traumatic Stress Disorder and that his appearance and difficulty in elucidating his claims appropriately during the hearing held on 4 December 2013 with the First Tribunal was affected by his illness; and the more recent assessments of the Applicant made by Patrick Newton, clinical and forensic psychologist, and Dr Simon Kennedy, clinical and forensic psychologist. The Tribunal noted the following from Mr Newton’s report dated 21 January 2017:-
“Diagnosis and Severity
33. My observations of [the Applicant] during clinical interview did not indicated [sic] that he was suffering a level of psychological distress and impairment sufficiently intense to warrant the diagnosis of a mental disorder. In the context of the distortion and other problems evident from his psychological testing, the credibility of [the Applicant’s] self-reports is at best questionable. Even taking his reports at face-value, however, while he reports some symptoms suggestive of a history of Post-Traumatic Stress Disorder he neither reported a sufficiently broad range of symptoms to warrant diagnosis nor did he manifest the level of distress and impairment necessary to warrant the diagnosis of the condition. If one accepts that the diagnosis reached by Mr Kleynhans in 2014 was valid at that time, then the results of this examination would suggest that the condition is now ‘in remission’. To be clear, [the Applicant] would not, in my opinion, currently meet criteria for PTSD.
34. Similarly, [the Applicant] reported depressive symptoms that are not sufficiently intense to meet diagnostic criteria for a Major Depressive Disorder. In my opinion they are better accounted for on the basis of lifestyle factors (such as long work hours and cultural dislocation) than the presence of a mental disorder per se.
35. Finally, there is no indication to suggest that [the Applicant] suffers a significant impairment on his memory or cognitive functioning. No such impairment was evident across nearly three hours of clinical interviewing and the results of psychological testing suggest that his self-reports of his memory problems are unlikely to be accurate.
36. To be clear, I do not believe that it can be established with the requisite level of confidence that [the Applicant] suffers any active mental disorder at this time.”
The Tribunal also noted Dr Simon Kennedy’s report, dated 30 March 2017, which stated that the primary issues identified from the mental status examination of the Applicant reflected issues that were specific to issues of anxiety and depression and that there was no indication of a psychotic disorder or a major mental health disorder. The Tribunal noted, in paragraph 66 of the Decision Record, that:-
“Dr Kennedy states that the applicant’s functioning is sound and that he functions in the average range of intellectual abilities. Further, there were no insight or judgement problems, memory and concentration difficulties, orientation or perceptual difficulties. The applicant’s thought processes were organised.”
The Tribunal accepted that the Applicant had suffered from anxiety-related symptoms and some depressive symptoms, but as the Tribunal did not accept significant aspects of the Applicant’s claims were credible, it did not accept that the Applicant’s condition was related to his claimed experiences in Pakistan. The Tribunal said further, relevantly, at paragraph 67 of the Decision Record:-
“... in light of the reports from Mr Newton and Dr Kennedy, the Tribunal does not accept the Applicant’s ability to participate in the hearing was comprised [sic] by either any mental health issues, or other medical problems he has experienced such as bacterial infections as detailed in the hospital file that was submitted to the Tribunal. The Tribunal does not accept on the evidence before it that the credibility issues discussed above, especially in relation to significant aspects of the applicant’s claims are due to any memory difficulties the applicant may be experiencing or mental health issues he may be suffering from now or in the past. The Tribunal does not accept the discrepancies or inconsistencies identified by the Tribunal are due to any medical issues the applicant is experiencing.”

While the Tribunal was prepared to accept that the Applicant and his family may be supporters of the ANP and may be opposed to various extremist groups operating in their area of Pakistan, including Mangal Bagh, LEI and the Taliban, the Tribunal did not accept it as credible that the Applicant was a member of the ANP or the PSF. The Tribunal also found the Applicant’s claims to have been involved in the peace committee, or to have been a bodyguard, not credible. The Tribunal found the Applicant’s family was not engaged in any political activities and had no political profile. The Tribunal found the Applicant was not kidnapped and did not receive threatening notices from LEI, the Taliban, Mangal Bagh or any other extremist groups for any of the reasons he claimed. The Tribunal found the Applicant and his immediate family had not been targeted by LEI, the Taliban or any other extremist groups and extremist groups were not now looking for the Applicant:-
“either because they want one young man from each family or because he was always their target because he and/or his family rose up against them, his brother was working for an NGO, they were taking food from UNHCR or they are moderate, as [the Applicant] claimed in his statement attached to his protection visa application”.[3]
[3] Decision Record, 69.
The Tribunal noted, in paragraph 71 of the Decision Record, that while the First Tribunal found the Applicant faced a real chance of serious harm if he returned to his home area in Khyber Agency and also in Peshawar where he lived for several years before coming to Australia, the Tribunal found that the independent country information before it, and which it put to the Applicant, suggested that the security situation had changed somewhat in both the Applicant’s home areas. The Tribunal went on to consider the independent country information before it that supported the Tribunal’s view and which included the Department of Foreign Affairs and Trade assessments and said at paragraph 74 of the Decision Record:-
“The Tribunal notes the applicant’s response to this information was that it was right but the Taliban is still not finished and still have the capacity to target. The applicant referred to information he could provide about sleeper cells. The Tribunal accepts that there continues to be a level of generalised violence in Khyber Pakhtunkhwa due to military operation targeting militants, as well as the ongoing presence of militants and extremists in the area, albeit on what appears a much smaller scale. However, taking into consideration the applicant’s accepted profile, and that of his family, which is essentially that they are supporters of the ANP and were not members of either the ANP or PSF and have not engaged in any activities in support of the party, or been of interest to Lashka-e-Islam, the Taliban or any other extremist groups for any reason including the various reasons advanced by the applicant which have been discussed above, and the country information it put to the applicant, the Tribunal does not accept that the applicant faces a real chance of serious harm or real risk of significant harm from Lashka-e-Islam, the Taliban or any other extremist groups if he returned to Peshawar. Nor does it accept, for the reasons discussed above, that the applicant faces a real chance of serious harm or a real risk of significant harm from the military or the authorities because he originated from Bara or belongs to the Afridi tribe or for any other reason.”
The Tribunal concluded that the Applicant was not entitled to a protection visa, the Applicant not meeting the refugee criterion in s.36(2)(a) of the Act or the alternative criterion in s.36(2)(aa) of the Act. It thus affirmed the delegate’s decision.

Consideration

Ground one

In his personal statement to the Department and as set out at page 44 of the Court Book, the Applicant included, relevantly, the following:-
“We came under the area of Lashkar-e-Islam group. As I mentioned above that we have also a home in Terah so for this reason Ansarul Islam sent a message to come to your Terah home. But due to our education, business and Lashkar-e-Islam pressure on us I did not go there and they destroy my home in Terah and still noticing us(by people) to come there give us fine and become our fighter. [M]any of friend ask me that they were joining this group because they want to take revenge from people. [T]hey are so powerfull that they have spies from every home and killed many people only due to speaking against lashkare islam. Mangal Bagh started burning Ansarul Islam people houses in Bara and Ansarul Islam started burnt houses of Mangal Bagh people so we can’t do anything because we are not with any of these groups. I and my family are against these Taliban people. Our houses are burnt because we are against them.”
(Errors in Original)
As set out in paragraph 15 above, the Tribunal acknowledged at paragraph 45 of the Decision Record that the Applicant had made a claim in his written statement “that his family home in Terah was destroyed by either Ananul Islam or Lashkar-e-Islam”. The Applicant did not further mention that claim during the hearing before the Tribunal.
The Applicant argues that the Tribunal committed jurisdictional error by the Tribunal failing to “mention the claim or seek clarification of it during the hearing”.[4]
[4] Applicant’s submissions filed 17 July 2018, 9.
The Applicant contends that the Tribunal noted, in its Decision Record, that it had not been able to understand exactly what claim the Applicant was making “due to the rambling and convoluted nature of the Applicant’s statement”.[5] The Applicant contends it was incumbent upon the Tribunal to clarify the claim, and its failure to do so meant the Tribunal had not performed its statutory task by not giving “proper, genuine and realistic consideration” to the claim that the Applicant’s home had been destroyed by a particular militant group on the basis of his family’s perceived opposition to the Taliban. Further, the Applicant argues that the Tribunal purported to perform its task in an adversarial, rather than inquisitorial, manner.
[5] Decision Record, 45.
The Minister contends that the Tribunal properly understood the nature of the Applicant’s claims to engage Australia’s protection obligations that he was targeted by LEI, Mangal Bagh, Tehrik-i-Taliban and any other extremist parties because of his anti-extremist opinion and opposition to them and because of his political opinion. Indeed the Tribunal set out those claims in paragraph 31 of the Decision Record. The Court accepts that the Tribunal understood very clearly the nature of each and every of the claims made by the Applicant, including each integer of each claim.
Furthermore, the Court finds, the Tribunal, in a well-reasoned Decision Record, considered and disposed of each of the claims made by the Applicant in a manner open to it on the evidence before it. The claim made by the Applicant with respect to the destruction of his home, as identified in the Tribunal’s Decision Record at paragraph 45, was an instance of past harm put forward by the Applicant as evidence in support of his general claims, all of which were considered by the Tribunal. As identified by the Tribunal, no claim was made with tolerable clarity about the consequences arising from the destruction of the home, as identified in the Tribunal’s reasons at paragraph 45. [6]
[6] BOZ16 vMinister for Immigration and Border Protection [2018] FCA 418, 13.
The Tribunal was not under any duty to make further enquiries of the Applicant in relation to this part of his statement, particularly, as submitted by Counsel for the First Respondent, when the issues on review were the credibility of the Applicant’s claims generally. The Court finds that the Tribunal did all that it was required to do in respect of this matter.
In the alternative, the Minister contends that if there was a specific claim advanced in this context concerning a risk of harm arising from the destruction of the home identified relevantly before the Tribunal, which the Court finds there was not, this claim is relevantly subsumed within findings of greater generality at paragraphs 68, 69 and 70 of the Decision Record.[7]
[7] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 91; Applicant WAWE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 47.
The Court accepts that alternative contention were there any necessity to do so.

Ground two

The Applicant argues that the requirement in s.425 of the Act to invite an Applicant to a hearing to give evidence and present arguments on issues arising from the decision under review extends to a requirement that an interpreter be engaged to ensure that an Applicant who is not sufficiently proficient in English can communicate his evidence as accurately as possible to the Tribunal.[8]
[8] Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, 24.
The Tribunal engaged a Pashto interpreter to assist the Applicant to give evidence and present arguments in accordance with s.425 of the Act. It is not disputed that the Tribunal hearing record indicates that the interpreter appointed by the Tribunal was not an accredited interpreter at any level. At the time of the hearing, the Tribunal had a preference for NAATI level 3 accreditation for interpreters.[9]
[9] Affidavit of Mylvaganam Wimaleswaran dated 16 July 2018, annexure “MVV-9”, AAT Guidelines for Interpreters.
The essence of this ground is that the quality of the interpretation provided during the hearing was so poor that the Applicant felt compelled to answer the questions posed by the Tribunal in English as best he could himself because he was dissatisfied with the interpreter’s performance. The Applicant relies upon the evidence of Mohammad Ayubahmadzai (‘the expert’) to support a conclusion that there were “a significant number of errors made by the interpreter”, the “most significant” of which are identified in annexure “MAA-1” to his affidavit.[10]
[10] Affidavit of Mohammad Ayubahmadzai affirmed 13 July 2018, 3.
The Applicant also relies upon the fact that the interpreter was not accredited by NAATI to support an inference that the “standard of interpretation was likely to be inadequate”.[11] The Applicant submits it is further apparent from the affidavit of the expert, that at the Tribunal hearing the interpreter repeatedly gave inaccurate, incomplete and sometimes incoherent translations of the questions that were put by the Tribunal to the Applicant, and of the Applicant’s evidence to the Tribunal. The expert identifies 23 such instances of inadequate interpretation. The Applicant argues that each of these instances supports the conclusion that the Applicant was denied a hearing under s.425 of the Act insofar as he was not able to give evidence and present arguments on the issues arising on the review. Further, the fact that the Tribunal repeatedly made findings in its Decision Record that certain elements of the Applicant’s oral evidence were “vague”, “limited”, or “unpersuasive” demonstrated that the substance of the Applicant’s oral evidence and the manner in which it was conveyed in the hearing were material to the Tribunal’s reasoning and to the findings it made.
[11] Above n 4, 21.
When giving consideration to this ground, the Court is assisted by the decision of BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310 (‘BZAID’) where Edelman J (as his Honour then was), identified the legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s.425 of the Act. Before turning to that authority, the Court has firstly had regard to the decision in SZRMQ v and Minister for Immigration and Border Protection (2013) 219 FCR 212 (‘SZRMQ’) wherein, at paragraph 9, Allsop CJ observed:-
“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.”
In BZAID (2016) 242 FCR 310 Edelman J said at paragraphs 50 to 52, the following:-
“50. In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [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 at [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) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, “Working with Interpreters: Judicial Perspectives” (2015) 24 JJA 207. The relevant principles are summarised below:
(1) interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;
(2) whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;
(3) in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;
(4) where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;
(5) where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;
(6) where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;
(7) if an error of interpretation or translation leads to a material adverse ﬁnding, the unfairness of the hearing will often be self-evident;
(8) however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.”
In paragraph 53 of BZAID (2016) 242 FCR 310 Edelman J observed that point number eight in paragraph 52 “emphasises the focus on process,” referring thereafter to what Allsop CJ said in SZRMQ (2013) 219 FCR 212, as described in paragraph 37 above.
It is a matter for the Court to consider whether each of the mistranslations that occurred still managed to convey the substance of the Applicant’s evidence, even when the translation was only a summary of the evidence. In the matter before him, Edelman J concluded that:-
“… when the sheer number and substance of the mistranslations and omissions are considered as a whole in light of the issues before the Tribunal, a conclusion of a denial of procedural fairness is inevitable.”[12]
[12] BZAID (2016) 242 FCR 310, 3.
In arriving at that conclusion Edelman J stated in paragraph 56 of that decision:-
“The exercise is not one of a word for word comparison between that translation and the words spoken by the interpreter.”
It would be an error to adopt that course because, as Edelman J said:-
“… no translation can ever be precise. Most sentences require an exercise of evaluative judgment in the process of translation. That is the process of interpretation.”[13]
[13] Ibid, 56.
Edelman J further noted in paragraph 57 of that decision that:-
“The errors and omissions in the translation must be assessed in the entire context.”[14]
[14] Ibid, 57.
There will be a denial of procedural fairness required by Division 4 of Part 7 of the Act if, when all of the errors and defects are considered as a whole, and in light of all of the circumstances of the Tribunal hearing, the Court would be satisfied that they:-
“… might reasonably have led to an adverse finding. This is not a conclusion that the errors and defects in the interpretation process did lead to an adverse finding.”[15]
[15] Ibid, 113.
Counsel for the First Respondent took the Court to the transcript of the hearing as annexed to the affidavit of Mr Mylvaganam Wimaleswaran, affirmed 13 July 2018, to provide context to those matters said to be significant errors in the interpretation by the interpreter, which the Applicant argued rendered the Tribunal hearing not fair and one which did not provide the Applicant with a proper opportunity to be heard. It was argued such mistranslations could have made a difference to the outcome for the Applicant.
The Minister contends that the Applicant has failed to demonstrate, in all the circumstances, that the hearing under s.425 of the Act was unfair, having regard to the principles enunciated by Edelman J in BZAID (2016) 242 FCR 310 above.[16]
[16] Ibid.
The Court accepts the transcript of the hearing is the best evidence of what was said in English during the course of the hearing to the extent that there is any difference between the words attributed to the interpreter (spoken in English) by the expert and the words recorded in the hearing.
In carrying out the necessary evaluative assessment the Court notes that, at the outset of the hearing, one of the matters about which the Tribunal advised the Applicant pertained to the role of the interpreter in the hearing. The Tribunal said:-
“… The interpreter is here only to interpret what I say and what you say and may not provide any advice or make any suggestion, either to you or me, about your claim. Please let me know now or at any stage during the hearing if you are having any difficulty understanding the interpreter.
The interpreter will also let me know if they are having any trouble understanding you. I suggest we speak in short sentences, stopping frequently so Mr Interpreter doesn’t have to memorise too much. Okay? So as I explained, all I’m going to do is ask you some questions.
The Applicant (direct): yes.” [17]
[17] Affidavit of Mr Mylvaganam Wimaleswaran affirmed 13 July 2018, Annexure MW-7, page 4, 25- 35.

Thereafter, at no point in the hearing did the Applicant or his authorised representative, a barrister, indicate that the Applicant had any difficulty or problem (including mistranslation and/or omission) with the interpretation, or the interpreter. Following the conclusion of the hearing, the Applicant made post-hearing submissions through his Counsel. No complaint was made in those post-hearing submissions about the quality of the interpretation services provided during the hearing.
The Court notes further that the Applicant indicated to the Tribunal during the course of the hearing that he was fluent in Pashto, could understand and speak “a little bit of” Urdu and that he could “understand English and speak” English.[18]
[18] Ibid 8, 24.
The Tribunal hearing commenced at 10.03am; was adjourned at 11.30am; resumed at 11.41am; was adjourned at 1.27pm; resumed at 1.48pm; was adjourned at 2.50pm; resumed at 2.56pm; and concluded at 3.13pm. This was a total of four and a half hours sitting time. The transcript of the hearing runs to 94 pages. The expert gave some 23 examples of specific errors alleged when compared to the transcript of hearing. The First Respondent contends that such errors, if found, do not demonstrate either individually or as a whole that there is any failure by the interpreter at the hearing to convey “the substance of what is said” or “the essential elements that were being conveyed” by the Applicant in the circumstances. In this regard, the Court is mindful that it is necessary, to find, in order to establish jurisdictional error, that there is materiality in the errors of interpretation that caused the decision-making process to miscarry such that the Applicant was not given a proper opportunity to be heard.[19]
[19] CPN16 v Minister for Home Affairs [2018] FCA 872, 79.
The Applicant did not undertake a full transcript interpretation by the expert to support the Applicant’s argument about the significance of the errors. In those circumstances, the Court cannot evaluate and assess whether there are any further mistranslations of crucial aspects of the Applicant’s evidence or erroneous omissions in the Applicant’s evidence by way of the interpretation which, when regarded singly and as a whole, and in context, impacted upon the Tribunal’s conclusions. Nor can the Court assess nor find whether any information or instructions from the Tribunal conveyed to the Applicant were misinterpreted in a way that affected the hearing beyond those alleged errors referred to in exhibit “MAA-1” of the expert’s affidavit. The transcript of hearing is the only evidence as to the totality of the hearing.
The transcript of hearing records on page 6 the following exchange between the Tribunal and the Applicant:-
“Tribunal member: Okay. Were you living with relatives?
Applicant: Yes, at that time I was with my relatives. They were very nearby to me, the relatives.
Tribunal member: But you weren’t living – you lived near your relatives, not with your relatives?
The Applicant: One place it was you can say.
Tribunal member: Because you’ve just claimed in your evidence that you were living at your uncle’s address in Peshawar. Is that correct?
The Applicant: So thinking that, it was nearby, close by. It wasn’t also living there, but in (indistinct)- - -
The Applicant (direct): Can I explain to her, like – if I stuck, I will just get help from him.
Tribunal member: Okay. So you want to speak in English to me directly?
The Applicant: Only this, just this.
Tribunal member: Okay. That’s fine. Is that all right, Ms (Indistinct)?
Ms ……: Yes
Tribunal Member: Yes
The Applicant: This one.
Tribunal member: Yes, sure, and if you need help, please ask the interpreter.
The Applicant: No, I just (indistinct) I just wanted to explain this.
Tribunal member: Okay. Go ahead.
The Applicant: Yes. Like I mean it’s not like – we are not living under the same wall, like the same place or same...
Tribunal member: It was the same compound like---
The Applicant: The land of the area, the village, yes, same.
Tribunal member: Well, the village is larger than a compound. A village is an area. A compound might have a few houses.
The Applicant: Few houses (indistinct).
Tribunal member: A big walled area or like linked to each other?
The Applicant: Linked to each other, yes.
Tribunal member: Is that the sort of situation?
The Applicant: Yes.
Tribunal member: Okay. So you were living in a compound or houses sort of connected to each other which was your uncle’s address. Is that right?
The Applicant: Yes.”
The evidence of the expert is that the following is the correct translation of the above dialogue:-
“The Tribunal: Were you living with your relatives?
Interpreter: Relatives, with them, where was it?
The Applicant: Yes, we were with them, we were living close-by to them at the time.
The Applicant: We were living with them like, we were living close to them.
Interpreter: (Speaking in Pashto to the interviewee and says), Right, like they were very close to you?
The Applicant: Yes.
Interpreter: They were very nearby to me, the relatives.
The Tribunal: You were living near your relatives, not with your relatives?
Interpreter: That your relatives, you were with them or you were close to him, in one place or close from him?
Tribunal: One place means it’s one village, in a village.
Interpreter: One place, you can say.
The Tribunal: Because you just claimed in your evidence that you were living at your uncle’s address in Peshawar, is that correct?
Interpreter: Why do you say that you were living at your uncle’s home.
The Applicant: Okay, house means that we are living within on parameter, we were close to each other in one place.
Interpreter: So thing is that it was nearby close-by wasn’t, I wasn’t living there, but uncle place, but it was close…
The Applicant: (Interrupting the Interpreter and speaking in English saying) Ahh, can I explain to her?
The Tribunal: Okay, you want to speak in English directly to me?”[20]
[20] Above n 10, annexure “MAA-1”, 1.
In the Court’s view the above does not demonstrate, in the context of the entire hearing, and the consideration by the Tribunal of the Applicant’s various claims which the Tribunal clearly understood and dealt with, how the presentation of the Applicant’s case has been or could have been adversely affected by the above translation errors.
The Applicant engaged in a similar process of speaking both directly and indirectly to the Tribunal a short time later during the hearing as follows:-
“Tribunal member: Can you tell me why it is that you fear going back to Pakistan?
The Applicant: First of all is that against the Taliban’s ideology or extremism in Islam.
The Applicant: (Direct) Can I explain by myself and if I got something wrong then I will....
Tribunal member: Yes, if that’s what you prefer to do.
The Applicant: The reason is like my (indistinct) opinion and (indistinct) them from the start and as my political opinion on National Party. They’re always opposing them, like we always oppose (indistinct) and what they are imposing on us like form of Islam or---
Tribunal member: So who do you feel will harm you if you go back?
The Applicant: (through interpreter) (indistinct).
Tribunal member: Both of whom? Who?
The Applicant: (indistinct) Islam or (indistinct) Taliban. We’ve got many extremist parties in Pakistan.
…
Tribunal member: And these various different extremist groups, why would they want to harm you in particular? Can you just tell me?
The Applicant: I will explain.
Tribunal member: Right.
The Applicant: Like I said in my statement, we like opposing them from the start and like my family be involved against them and (indistinct) and we are also the member of our (indistinct) party which is – like opposes all these extremist groups and they are like we are..
The Applicant (through interpreter): So the thing is since then we never accept their ideology and we were against them. So the main reason is the – and we never agreed with them.”[21]
[21] Above n 17, page 11, 5-14.
Nothing turns on this. The speaking directly and otherwise through the interpreter was a process adopted by the Applicant and accepted by the Tribunal, throughout the hearing. The Court finds it is not open, as proposed by the Applicant, to infer that the Applicant was motivated to give evidence in English at discrete junctures, as a consequence of the alleged poor quality of interpretation. Indeed, the Court more readily infers that there were other reasons why the Applicant was motivated to give English at discrete junctures, which included the Applicant’s ability to converse in English. Further, to the extent the Applicant relies upon the opinion of the expert as to the reasons why the Applicant spoke in English himself, those matters are, as submitted by the First Respondent, entirely outside the purported expertise of the expert. Importantly, however, and additionally there is no factual basis for the opinions propounded by the expert.
The Court accepts the First Respondent’s submission that the Applicant’s reliance on the absence of the NAATI accreditation of the interpreter to bolster an inference of inadequacy in the quality of interpretation, is not an inference that should be drawn in the circumstances, having regard to the matters outlined in these reasons which lead the Court to be not satisfied that there were material errors in the interpretation, and, further, to be not satisfied that omissions of the kind identified in CPN16 v Minister for Home Affairs [2018] FCA 872 (‘CPN16’) arose.
As Kerr J stated in CPN16 [2018] FCA 872 at paragraphs 64 to 65:-
“64. … the pool of NAATI level 3 interpreters is not unlimited and their use in proceedings in the Tribunal is not the legal test for the validity or invalidity of a hearing required under s 425 of the Act.
65. … The absence of NAATI accreditation may be relevant to the Court’s entitlement to draw inferences about the adequacy of a translation but I accept.. that an interpretation is not established to be inadequate merely upon proof that the interpreter held no such accreditation.”
The Court must be satisfied that the hearing was fair and just, having regard to all the circumstances. When the Court looks to the transcript of the hearing, which provides the context of the totality of the hearing, and the selected examples as contained in “Exhibit MAA-1” to the affidavit of Mr Mohammad Ayubahmadzai, the Court’s assessment is that as a whole the process adopted by the Tribunal, and that which occurred throughout the Tribunal hearing, was fair.
The Court notes that in BZAID (2016) 242 FCR 310, there were “a multitude of defects, errors and omissions caused by the process of translation and interpretation”.[22] Here, the specific errors pointed to by the Applicant were not material enough to cause an unfairness in the hearing. They were insignificant mistranslations and in some instances alternative translations. At page 8 of the transcript the following exchange occurs between the Tribunal and the Applicant:-
[22] BZAID (2016) 242 FCR 310, 56.
“Tribunal member: Right. Did you work at all in Pakistan?
The Applicant: Medical kind of. I worked in a medical field. It was a medical store.
Tribunal member: What was your job?
The Applicant: So the thing is people bring some prescription and then I got ready the medicines for them over the counter.
Tribunal member: Did you work as a chemist or a pharmacist?
The Applicant: No, it wasn’t like a chemist.
Tribunal member: So it was more like a salesperson?
The Applicant: Yes.
Tribunal member: All right. And what was the name of the shop or the medical store?
The Applicant: The shop was in my father’s name or my brother’s name.
Tribunal member: Okay. In your protection visa application it mentioned that you were a sales rep for Tariq Fabrics in Peshawar. Is that right?
The Applicant: I didn’t say anything in that (indistinct)
Tribunal member: I think in the form C of your application form that was filled out and it says, “From Australia 2010 to August 2011 you worked as a sales representative at Tariq Fabrics, shop 67B Orix Rise, Green Towers (indistinct) Peshawar.” That’s what’s in your application form.
The Applicant: So is that in a student visa or is that in..
Tribunal member: There you go. Ms (indistinct) is showing you. That’s your protection visa application.”
The translation as provided by the expert is, by contrast, as follows:-
Interviewer: Did you work at all in Pakistan?
Interpreter: In Pakistan had you worked?
Interviewee: So, I had worked in the medicine store.
Interpreter (to the Interviewee in Pashto): okay, DAWAEE? (the Interpreter seems to have problem understanding the meaning of the word DAWAEE).
Interviewee: (Dawaee, Dawaee) medicine, medicine, I have worked in medicine.
Interpreter (in Pashto to the interviewee): Okay.

(In English to the interviewer) Medical, medical kind of. I worked in medical field.
Interviewee: Store.
Interpreter: It was a medical store.
Interviewer: And what was the name of the shop, the medical store?
Interpreter: What was the name of the medical store?
Interviewee: It might have been on my father or brother name, can’t remember.
Interpreter: (In Pashto to the interviewee): No what was the name of the shop?
Interviewee: I told you, it may have been on my FATHER or BROTHER’S name!
Interpreter (in Pashto): Right. (in English to the interviewer) The shop was in my father or my brother’s name.
Interviewer: In your visa application for protection, it is mentioned that you were working as a sales rep for Tariq Fabrics in Peshawar, is that right?
Interpreter: She says you had worked from sales rep that in Tariq Fabrics.
Interviewee: No, I didn’t say that in my application.
Interpreter: I didn’t say anything in that introduction visa.
Interviewee: I can’t remember if I said that in the application (The interpreter hasn’t interpreted the last sentence from the interviewee).
Interviewer: In form C, it’s an application form that was filled out.
Interpreter: The application form, form C, it may be in there.
Interviewer: And it says from August 2010 to August 2011 you worked as a sales representative at Tariq Fabrics, shop 67B at Orakzai, Green Tower,... Peshawar, that is what is in your actual application form (the interpreter hasn’t interpreted the last sentence from the interview).”[23]
[23] Above n 10, annexure “MAA-1”, 2.
Whilst the expert notes that the last sentence from the interviewer above has not been interpreted by the interpreter, the context for that exchange was the Applicant’s representative providing a copy of the document being directly referred to, to the Applicant. What actually occurred was that the Applicant was shown the relevant document.
At page 11 of the transcript of the hearing the following exchange occurred:-
“Tribunal member: Can you tell me why it is that you fear going back to Pakistan?
The Applicant: First of all is that against the Taliban’s ideology or extremism in Islam.
The Applicant (direct): Can I explain by myself and if I got something wrong, then I will---
Tribunal member: Yes, if that’s what you’d prefer to do.
The Applicant: The reason is like my (indistinct) opinion and (indistinct) them from the start and as my political opinion on National Party. They’re always opposing them, like we always oppose (indistinct) and what they are imposing on us like form of Islam or---
Tribunal member: So who do you feel will harm you if you go back?
The Applicant, through interpreter: (indistinct).
Tribunal member: Both of whom? Who?
The Applicant: (indistinct) Islam or (indistinct) Taliban. We’ve got many extremist parties in Pakistan.
Tribunal member: So it is only the various extremist parties in Pakistan that you fear will harm you or is there anyone else other than these different extremist groups?
The Applicant: I can’t remember other than---
The Applicant (direct): I will explain, like there was a group in fear, but I think they’re no more in (indistinct) and like the TTP and (indistinct) they all have like many extremist groups and they just all (indistinct) Pakistan so they have the same ideology or extremist or working together.
Tribunal member: And these various different extremist groups, why would they want to harm you in particular? Can you just tell me?
The Applicant: I will explain.
Tribunal member: Right.
The Applicant: Like I said in my statement, we like opposing them from the start and like my family be involved against them and (indistinct) and we are also the member of our (indistinct) party which is – like opposes all these extremist groups and they are like we are---
The Applicant (through interpreter): So the thing is since then we never accept their ideology and we were against them. So the main reason is the – and we never agreed with them.”
The interpretation provided by the expert, as to only a part of the above, is as follows:-
“Interviewer: So is it only these various extremist parties in Pakistan that you feel will harm you or there is anyone other than these different extremist groups?
Interpreter: Okay, this “extremist” parties, she says there’s other groups there that can pose a threat to you harm you?
Interviewee: I can’t recall others.
Interpreter: I can’t remember other than…
Interviewee (in English): No, just a minute! I will explain...
Interviewer: So these various different extremist groups, why would they harm you in particular, can you tell me?
Interpreter: Okay, she says, these “extremist” groups, why they would harm you, why are you their target?
Interviewee: So as I have written in my.. I will tell this myself.
Interpreter (in Pashto): Okay (then the interviewee start speaking in English).”[24]
[24] Ibid 3.
The expert gave as an example of another alleged misinterpretation, being the following:-
“Interviewer: Were you a member of the ANP?
Interpreter: Are you member of that ANP?
Interviewee: I see, she asked me if I was in ANP?
Interpreter (in Pashto): yes.
Interviewee: In college it’s PSF.
Interpreter: So, you mean, if I was a member yes, so we have PSF Uni (He meant university).
Interviewee: No, just a minute!
Interpreter (in Pashto): Okay (then the interviewee begins to explain what he wanted to say in English).”[25]
[25] Ibid 4.
The transcript of the hearing as to the above evidence is as follows:-
“Tribunal member: Were you a member of the ANP?
The Applicant: So you mean if I was a member? Yes. And we have PSF.
The Applicant (direct): I will say myself, I was like a member of PSF. So it’s like a (indistinct) for my initial ANP, so it’s like the same. The only difference, PSF is like in college (indistinct) it’s like a student organisation…
Tribunal member: Yes, I understand.
The Applicant: (indistinct) a school organisation which..
Tribunal member: So you were a member of the PSF, the student organisation? Were any of your family members, members of the ANP?
The Applicant (through interpreter): Yes, they were, too.”[26]
[26] Above n 17, page 12, 16.
A further exchange highlighted by the Applicant in the transcript of the hearing is as follows:-
“Tribunal member: And when did you become involved in this peace committee?
The Applicant: The thing is it was since day 1 because all family members were all there so – so one person has to be – to go from the family – chosen.
Tribunal member: So were you chosen by your family to be involved in a peace committee.
The Applicant: So there’s always the one at the family and I was the young and I was there at that time, so – but...”[27]
The expert’s interpretation of this passage is as follows:-
[27] Ibid page 22, 25.
“Interviewer: When did you become involved in this peace committee?
Interpreter: When will you be “involve” in that peace committee?
Interviewee: So we were involved in it right from the beginning as they required a member from each family.
Interpreter: The thing is that since day 1 all family members were there, so..
Interviewee: No, one person was required from each family.”[28]
[28] Above n 10, annexure “MAA-1”, 5.

As can be seen above, the Applicant’s response to the Tribunal question as to when he became involved in the peace committee was that:-
“The thing is it was since day one because all family members were all there so - so one person has to be - to go from the family-chosen.”[29]
This response does not feature in the expert’s account at all. The substance of what it was the Applicant was saying in his native language was however conveyed by the exchange as detailed in the transcript of the hearing. There is no material difference to what has been conveyed between what is said by the Applicant in the transcript, and what the interpreter says in summary in relation to that aspect of the evidence.
[29] Above n 17, page 22, 26.
The Tribunal understood the Applicant’s claim that he had been kidnapped by reference to the evidence that he had given during the course of the hearing. No minor errors in interpretation disturbed this understanding as was the case with each of the Applicant’s claims.
During the course of the hearing the Tribunal was providing, for the Applicant, a summation about various issues which went to inconsistencies in the Applicant’s evidence. In context, the Tribunal gave the Applicant the opportunity to respond to those matters of concern to the Tribunal in respect of particular claims made by him arising out of the fact that his evidence was not as detailed, and sometimes inconsistent, with what he had previously claimed.
The Tribunal very clearly wanted to raise concerns about the inconsistency in the Applicant’s evidence with the Applicant and provide an opportunity for the Applicant to respond. The Applicant did so directly about the matters which caused the Tribunal concern. The transcript of hearing records the following:-
“The Applicant (Direct): Member, like think about inconsistency. It’s after three years and I can’t copy and paste the statement, so I have gone through all the courts and all these tribunal things, so I can’t remember too many things at the same time. It’s a long time ago, like, the time I remembered that thing, but I can’t remember everything, like. I’m not saying like there is no threat from Mangalbar to my uncle or Khalid, but I can’t remember everything like this.
I have been through all these stresses and things, so – and especially I have been to court and don’t know what to do and all these things. So it’s very hard for me to remember everything and especially when I’m alone, like I have no support from anyone or like things. So it affects me. I can’t remember.”[30]
[30] Ibid page 70, 26.
Thereafter, the Tribunal engaged in a discussion with the Applicant as to evidence in relation to his mental health, saying to the Applicant:-
“… So I’m just wondering can you tell me a bit more about your health and whether you’re still seeing anyone in relation to those concerns or the issues you had previously?”[31]
The Applicant replied and engaged in a fulsome and direct discussion. In reading the totality of the transcript and the various exchanges between the Tribunal and the Applicant, many of which show the Applicant to have an understanding of English and a capacity to speak English, context is provided to the errors in translation singled-out by the Applicant. In the Court’s assessment, there was not an “incredibly poor quality” of interpretation which deprived the Applicant of an opportunity to put his case and which forced him to put his case as best he could in his own limited English, as claimed by the Applicant. Rather, even in combination, any translation errors or omissions did not, in all the circumstances of the hearing, cause a denial of procedural fairness required by Division 4 of Part 7 of the Act. This was also in respect of errors in translation which occurred in the consideration of country information by the Tribunal as conveyed to the Applicant, and the Applicant’s responses. That country information went to the improved security situation in Peshawar and a consideration of internal relocation which was not ultimately a feature of the decision of the Tribunal. For the most part, the Applicant engaged in a direct dialogue with the Tribunal showing a clear understanding of what it was the Tribunal was asking him to respond to. It could not be said that such errors and/or omissions might reasonably have led to an adverse finding when looking to the findings of the Tribunal both in this area and as a whole.
[31] Ibid page 70, 40.
For the above reasons the application will be dismissed.

I certify that the preceding seventy- four (74) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 30 November 2018