MZXPV v Minister for Immigration
[2008] FMCA 1225
•1 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXPV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1225 |
| MIGRATION – Review of RRT decision – procedural fairness – access to interpreter – quality of interpreter – whether misinterpreting affected hearing. |
| Migration Act 1958 (Cth), s.424A |
| Perera v Minister for Immigration [1999] FCA 507; (1992) 92 FCR 6 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | MZXPV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 439 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 3 March 2008 |
| Date of Last Submission: | 5 May 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 1 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Knowles |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Horan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That a writ of Certiorari issue quashing the decision of the second respondent made on 16 March 2007.
That a writ of mandamus issue requiring the second respondent, differently constituted, to hear and determine the application according to law.
The respondents pay the applicant’s costs fixed at $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG439 of 2007
| MZXPV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is an Ethiopian citizen of Oromo ethnicity. The applicant applied for a protection visa on 19 June 2006 on the basis that should he return to Ethiopia, he would be persecuted by virtue of his Oromo ethnicity and support and membership of certain political organisations.
The applicant claims that he was a member of the Oromo Liberation Front (the ‘OLF’) and the Coalition for Unity and Democracy (the ‘CUD’). He further alleges that as a result of this membership, he has been detained and mistreated on four occasions by the Ethiopian authorities and has learned that his name had been placed on a government hit list.
On 12 September 2006, a delegate of the Minister refused to grant the protection visa. The delegate did not accept that the applicant was a member of the specified political organisations. On 21 September 2006, the applicant applied to the Tribunal for review of that delegate’s decision.
The application was heard before the tribunal on 6 December 2006. At the request of the applicant’s solicitors, an Amharic interpreter was present for the applicant at the hearing. At the conclusion of the hearing, the applicant’s solicitors expressed concerns about the quality of the interpreting during the hearing. On 16 March 2007, the Tribunal affirmed the delegate’s decision
In the Tribunal’s decision, the Tribunal held that it did not accept that the applicant was a member of the OLF nor the CUD. It said:
The applicant's evidence about the way the OLF operated was unsatisfactory. He said that it was secret and that it did not have an office, but meetings took place in cafes where the participants spoke in their own language. The applicant was not able to describe, beyond this, the hierarchy or other organisation aspects of [the OLF’s] operations in Addis Ababa, how decisions were made, communicated and carried out. Contrary to the submissions made after the hearing, the expectation of the applicant to be able to describe the OLF's organisation was conveyed both at the interview and at the hearing, even if the necessity of working through an interpreter made clarification of the question a laboured process. It is clear that the applicant eventually understood that the tribunal was not asking about the OLF's office building. Furthermore, his claim that it met by having "secret" meetings at cafes was difficult to accept: a meeting held at a cafe is not secret. The applicant was unable to explain in any realistic detail how money raised in Addis Ababa was conveyed to the OLF. His claim that he passed information to the Oromo people about Ethiopian armed forces’ military plans was also very difficult to accept -- any information that was available on either the public record or grapevine would be passed by radio or other telecommunications, and not by letter. The applicant did not persuasively explain these strange aspects of his evidence.
…
His description of the election campaign and its organisation was vague and formulaic. The credibility of the claim was also affected by the fabrication of his claims concerning the OLF.
…
It has considered the submission concerning the applicant’s distress in describing the conditions of his detention, however this is outweighed by the Tribunal’s serious concerns about other aspects of his evidence as detailed above.
On 11 April 2007, the applicant applied to the Federal Magistrates Court of Australia for judicial review of the Tribunal’s decision. The applicant’s contends that the Tribunal’s decision should be set aside on the basis that:
a)The Tribunal failed to comply with s.425 of the Migration Act as the interpreting at the hearing was inadequate;
b)The Tribunal failed to address the applicant’s claim that he was a member of the CUD; and
c)The Tribunal failed to comply with s.424A of the Act.
Ground (a) – Failure to comply with s.425
The applicant submits that the tribunal failed to comply with s.425. Relevantly, s.425 states:
…
(7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.
The applicant relies on the evidence of Ms Sofia Abdulkader Mohamed, an interpreter with a NAATI Level 2 accreditation for interpreting the Amharic language. In her affidavit, Ms Mohamed details 58 instances of translation errors or indistinct transcription, although only 55 were pressed (numbers 36, 37 and 40 were conceded). There is also the evidence of the solicitor for the respondent, who listened to the transcript and provided a table of corrections, mostly where the transcription service typed ‘(indistinct)’. Some of the more significant alleged errors include:
No. Transcript Reference Translation in transcript Correct translation 8 Page 7, lines 10-11 Actually he came – hidden (indistinct) he has hidden somewhere but he came secretly to visit us Unless he comes to visit we have no way of knowing his whereabouts 9 Page 7, lines 41-42 After he joined, actually. He’s my youngest brother. I want him to go to school, but I saw him, he joined the…. He told us after je joined. Because he is my youngest I would rather see him finish his education and have a good future. 10 Page 8, lines 3 -5 1986, Ethiopian calendar. Ethiopian calendar, sometimes there is 11 months – 12 months plus we’ve got the 13th month of the year. Just (indistinct) approximation. 1986. 19 Page 12, lines 1 -3 I am already interest to be a member of OLF, and also of my brother, younger bother Behailu I was expecting he didn’t want to talk to me about OLF but his friend helped me decide to be a member My brother Behailu’s friend, my brother is younger than me and is scared of me, so his friend approached me. In my heart, I joined 20 Page 12, lines 8-9 Ethiopian calendar, 1988, European calendar, 1996, 95, 1995 Ethiopian calendar 1988 22 Page 12, lines 28-29 There is and exactly an office which is publicly open. It is a secret, the secret is done and all the job is done in a secret way Everything is done very secretly. There is no legal office in Addis Ababa 24 Page 12, lines 43-44 Actually, we talk like normal people who, you know, making an appointment to see each other for going out and we talk to each other and we just go out. We speak to each other on the phone and make an appointment to see each other. 28 Page 13, lines 35-37 Actually we collect money among us, you know, like, among the member, and we send that money to the people who are in bush outside the country, which is fighting against the government People who speak the same dialect and share the same views collect the money and send it to them
Interpreter asked the client: Who are you sending money to?
Those who are fighting
29 Page 13, lines 41-43 We got someone who cannot contact us who comes and take the money to the border area for the fighters and we don't really talk on the phone we just send, you know, communicate in a letter. There is someone who takes the money and brings back a message because it is very hard to have contact by phone. 32 Page 14, lines 13-16 When we are from the media, we are like the government, we will have a memo for this, our OLF members in the border side, when he get information about, like, attacking them on the other side, this side - when we get information which the government, who is in the city will get for opposition leaders. The government will announce on the media that they will attack here and there. We also pass new information as well. 34 Page 14 line 43 to page 15 line 1 Like I said, writing on a letter. We got someone who is bringing news for information from the rural part, rural area and come to us and take the news to them by letter actually Like I said before there is someone who delivers money and brings back a letter 42 Page 18, lines 18-22 Actually, the government, they acted on a thousands of association more than 5,000 and 10,000 people are detained by the government, which have suspicion, and when (indistinct) exactly, you know when they make certain of the people who are the member, then they take action – you know, detention – otherwise you will be detained for whole life There are between 100,000 – 200,000 people in detention simply for being Oromo. If the government has any kind of evidence, those people will be detained for life. 44 Page 19 line 11 Exactly after the election was (indistinct) After the election 45 Page 19 lines 30-32 Because I was doing a campaign for our organisation, passing a pamphlet to the people and, you know, taking people on my car and putting some (indistinct) on my car. That's why they detained me. I was displaying campaign posters on my car as well as delivering flyers and recruiting new members. 49 Page 21, lines 26-28 Actually, Pastor Tsehay is the leader. The rest is all in the same level, who is doing the movement of the Woreda 15 area. There’s another campaign for another area but this is led by Pastor. Pastor Tsehay was representing our area in the election, everybody else was campaigning to get him elected.
The applicant submits that reading these errors both separately and cumulatively demonstrates that the interpretation was imprecise and incompetent. As a result, the applicant was unable to place his claims before the tribunal and thus the requirements of s.454 were not met.
Significantly, there appears to be no clearly incorrect translation (whilst Item 22 appeared incorrect, clarification of the English speaking part of the transcript resolved this). Item 24 is a small variation by the interpreter, however it made the answer far less responsive to the question: ‘How would you contact each other?’ Item 32 is an example of a straightforward answer being translated into a long sentence that appears unresponsive, even meaningless, despite an appropriate response by the applicant in his own language. In Item 34, not only is the translation poorly constructed, but it omits the reference to money. Item 42, whilst showing a similar thrust, does not accurately translate the answer of the applicant.
In Item 44, the interpreter added precision to the answer. However, when later asked how long after the election the applicant said 3 weeks (see T19.26), leading to an inconsistency due to the interpreting. This issue was the subject of a notice under s.424A on 7 February 2007, and then relied upon by the tribunal member who noted in the decision:
Asked about any other occasions he was detained, the applicant said he was detained after the election in 2005. Asked when he was detained, the applicant said it was immediately after the election. Then he said it was not immediately after the election but three weeks later.
At the hearing before the tribunal, the interpreter was qualified as a NAATI level 2 interpreter in the Amharic language. It is the policy of the Tribunal to ensure that interpreters are accredited to Level 3; however, there is no evidence to show that such an interpreter was available. The applicant has also used the same interpreter previously when preparing his statutory declaration dated 30 November 2006.
Ms Mohamed has had the opportunity to listen to the tapes on 3 occasions, and that as such her role is substantially different to that of the interpreter providing contemporaneous interpretation during the hearing. The court should not expect a perfect translation from an interpreter: see Perera v Minister for Immigration [1999] FCA 507; (1992) 92 FCR 6 at [29].
The Tribunal cautioned the applicant at the beginning of proceedings in relation to the role and ability of the interpreter. The relevant section of the transcript reads as follows:
TRIBUNAL: … The interpreter is here only to interpret what we say. She does not provide advice or make suggestions either to you or to me about your case. You need to let me know now or at nay stage during the hearing if you have trouble understanding the interpreter or if you have any concerns about the interpretation.
APPLICANT: (indistinct)
TRIBUNAL: Do you have any objection to using this particular interpreter for the hearing?
APPLICANT: No.
I note, however, the comments of Kenny J in Perera that:
37 Naturally enough, the Tribunal must decide, in the first instance, whether an interpreter is called for and whether a reliable interpretation is being made: cf R v Johnson (1987) 25 A Crim R 433 at 440 per Williams J. In the present case, as already noted, the Tribunal specifically declined to accept that an incompetent interpretation had been made. The Tribunal's opinion on the matter cannot be conclusive, however, because, as we have seen, whether or not the applicant was afforded an opportunity to give evidence as s 425 of the Act required is a fact on which the jurisdiction of the Tribunal depended: cf Potter v Melbourne and Metropolitan Tramways Board [1957] HCA 43; (1957) 98 CLR 337; R v Blakeley; ex parte Association of Architects etc of Australia [1950] HCA 40; (1950) 82 CLR 54 at 97-98 per Kitto J; R v Coldham; ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415 at 429 per Deane and Dawson JJ and The Returned & Services League of Australia (Victoria Branch) Inc (Pascoe Vale Sub Branch) v Liquor Licensing Commission and Another [1999] VSCA 37 at para 19 per Phillips JA. In any event, unless the Tribunal member was fluent in the relevant language,… it is difficult to see how the Tribunal could be confident that its evaluation of the interpretation was sound. The Tribunal, like a reviewing court, must ordinarily rely on extrinsic considerations to form that view, as for example, the interpreter's oath, the interpreter's qualifications, any statement by the interpreter as to his or her capacity or experience, any indication from the interpreter or the witness that interpretation is beyond the particular competence of the interpreter, and the course of the evidence, including its coherence and the responsiveness of answers to questions asked...
In this case, the tribunal member in the decision referred to the difficulties of interpreting, saying:
For the applicant it was contended that his hearing was not a fair one because of poor interpreting. While acknowledging the mentioned cases in which the interpreter had difficulty with dates, and the examples of questions or answers not being interpreted ideally, the tribunal was not persuaded that the standard of interpreting was generally so poor as to vitiate the hearing. It was also submitted that the applicant has always had difficulty articulating his claims. This may be the case, but it is not a situation which persuasively explains the precise inconsistencies and gaps in his evidence.
I note that poor interpreting may go not only to specific errors, but also to credibility. As Kenny J said in Perera:
49 A witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation. … It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness: cf Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178-9; Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 at 479 and Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 537 and 552-3.
The respondent has submitted that the above evidence can be dismissed either because the errors were not significant to the Tribunal’s understanding of the applicant’s claims or the Tribunal’s ultimate decision, or that the translations provided were substantially correct.
In this case, the applicant raised his concerns about the interpreter at an early stage. Importantly, the case largely turned upon the credibility of the applicant. When reading the answers the interpreter provided, it is easy to obtain the impression that the applicant is without a clear version of events, constantly trying to create credible answers. If, however, one reads the answers correctly interpreted the impression of the applicant is quite different – it becomes one of relatively straightforward answers that are coherent and rational. On at least one issue, the poor interpreting created an apparent inconsistency that caused the tribunal member to make an adverse finding against the applicant on an issue of credit. It is apparent from the reasons that this influenced the outcome of the proceedings.
The generally poor quality of the interpreting, coupled with the interpretation at Item 44, demonstrate that the applicant did not have a proper opportunity to put his case. He made complaint early, obviously recognizing the impact the interpreter was having on his case. Despite the tribunal member referring to issues relating to interpretation, on at least one item the quality of interpretation led directly to a finding against the applicant. As a result, the applicant has made out this ground.
Ground (b) – Failure to take into account CUD membership
It was claimed before the Tribunal that the applicant was a member of the CUD and as a result was detained for 3 weeks in September 2005. It was claimed that the applicant joined the CUD ‘around the end of 2004 because I was approached by Pastor Tsehay Tedesse’.
The Tribunal rejected the applicant’s claim that the applicant campaigned for Pastor Tsehaye and the CUD. While the Tribunal rejected the applicant’s alleged campaigning efforts in 2005 and subsequent detention, it did not make any explicit finding as to whether the applicant was specifically a member of the CUD (whereas with respect to the OLF it stated ‘The Tribunal does not accept that the applicant was a member of the OLF’).
Whilst the Tribunal did not make a specific finding as to whether the applicant was a member of the CUD, its other findings appear to have disposed of this issue. The claim that the applicant was a member of the CUD was linked directly with his claim that he was involved in the election campaign of Pastor Tsehay. His involvement was explicitly rejected by the Tribunal:
The Tribunal does not accept that the applicant campaigned for Pastor Tsehaye and the CUD.
…
It follows that the Tribunal does not accept that the applicant was detained in connection with the CUD or the 2005 election.
The Tribunal, earlier in its decision refers to the CUD, as part of ‘the major opposition coalition in Ethiopia.’ The tribunal went on to find that the applicant ‘had not been detained before and has no connection with the OLF or the opposition.’ (emphasis added)
I therefore dismiss this ground.
Grounds (c) and (d) – Failure to comply with s.424A
The applicant submits that the Tribunal failed to provide the applicant with notice as required by s.424A. This ground arises out of the Tribunal’s finding that it did not accept the applicant’s claims that he had been detained in 2001 and 2004.
In correspondence to the applicant, the Tribunal gave notice that:
In your [the applicant’s] protection visa application you said the six month detention was in 2001. But in a letter dated 24 August 2004, your adviser said this occasion was in 2004. However, you repeated in your interview that it was 2001. Yet in the Tribunal hearing you said it was in 1996 (1989 in the Ethiopian calendar).
The applicant’s representatives responded, stating that the applicant had been ‘almost entirely consistent’ with the dates, except for one instance caused by the stress of the hearing.
The Tribunal, in its decision, noted that the applicant was prompted with the dates at his interview, and that as such it was questionable to say that he had always otherwise been consistent. The prompting allegation was not the subject of a s.424A notice.
Section 424A(3)(b) provides that the section does not apply to information that the applicant gave for the purposes of the application. The applicant’s advisor requested that the tribunal listen to the tape of the interview in a letter dated 23 February 2007. It is also apparent in information provided by the applicant’s solicitor in the form of a table setting out the evidence of dates that there was prompting. Again, this was information provided by the applicant for the hearing. As a result it appears that the material is material that the applicant provided for the purpose of the hearing.
In any event, it appears that the prompting simply affected the quality of the evidence, and was not information that ‘would be the reason, or a part of the reason, for affirming the decision that is under review’: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [15] to [21].
I therefore find that the third ground is not made out.
The applicant also argues that a separate s.424A notice ought to have issued with respect to a statement made at his initial interview that it demonstrated an expectation that he would be able to describe the organisational structure of the OLF. This ground relates to the finding by the tribunal member at p.17 of the decision that:
Contrary to the submissions made after the hearing, the expectation of the applicant to be able to describe the OLF's organisation was conveyed both at the interview and at the hearing, even if the necessity of working through an interpreter made clarification of the question laboured process.
The applicant argues that "the expectation" said to have been" conveyed... at the interview" was information that was not provided by him for the purpose of the hearing and should therefore have been the subject of a notice under the section.
It appears to me that this ground fails for the same reasons as the previous ground, it was not mentioned in the table prepared by the applicant's solicitor. It was, however, the subject of a request that the tribunal consider the interview, in the applicant's solicitor's letter, and in any event not a reason for refusing the application is discussed by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [15] to [21].
As I have found that the applicant has made out his first ground, it is therefore appropriate to issue constitutional writs to quash the decision and require the matter to be heard according to law.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Robin Smith
Date: 1 September 2008
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