MZZNU v Minister for Immigration

[2016] FCCA 2876

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZNU & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2876

Catchwords:
MIGRATION – Whether obligations under s.425 of the Migration Act 1958 (“the Act”) complied with – whether Applicant denied opportunity to give evidence and make submissions because of errors in interpretation – held no contravention of s.425 of the Act – whether Tribunal applied wrong legal test – held Tribunal did not apply wrong legal test – no jurisdictional error – application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Migration Act 1958 (Cth), ss.36, 425, 427

Cases cited:
BZAID v Minister for Immigration and Border Protection [2016] FCA 508
PlaintiffS297/2013 v Minister for Immigration and Border Protection(2015) 255 CLR 231; (2015) 143 ALD 553; (2015) 316 ALR 161; (2015) 89 ALJR 292; [2015] HCA 3
Prodduturi v Minister for Immigration and Border Protection (2015) 144 ALD 243; [2015] FCAFC 5
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; (2013) 139 ALD 436; [2013] FCAFC 142
SZUEW & Anor v Minister for Immigration & Anor [2016] FCCA 378

First Applicant: MZZNU

Second Applicant: MZZNV

Third Applicant: MZZNW

Fourth Applicant: MZZNX

Fifth Applicant: MZZNY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1059 of 2013

Judgment of: Judge Jones

Hearing date: 20 April 2016

Date of Last Submission: 29 July 2016

Delivered at: Melbourne

Delivered on: 10 November 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Smyth

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for judicial review filed on 12 July 2013 is dismissed.

2. The Applicants pay the First Respondent’s costs in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1059 of 2013

MZZNU

First Applicant

MZZNV

Second Applicant

MZZNW

Third Applicant

MZZNX

Fourth Applicant

MZZNY

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) dated 14 June 2013 affirming a decision of the delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant Protection (Class XA) visas (“the visa”) to the Applicants.

2. The Applicants are Sri Lankan citizens. The first and second Applicants are respectively husband and wife and they are the parents of the third, fourth and fifth Applicants. In this decision, the first Applicant is referred to as the Applicant, the second Applicant is referred to as the Applicant’s wife and the third, fourth and fifth Applicants are referred to as the Applicant’s children.

3. The grounds for judicial review advanced by the Applicants were:

   1.  The Refugee Review Tribunal did not afford me procedural fairness.

   2.  The Refugee Review Tribunal applied the wrong legal test.

4. During the course of these proceedings it emerged that the Applicants’ complaints were that they were not afforded procedural fairness at the Tribunal hearing because of the paucity of the interpretation. At the Tribunal hearing the Applicants were assisted by an interpreter in the Tamil and English languages.

5. Properly characterised (which the Applicant has not done) the issue to be determined by the Court is whether the Tribunal failed to comply with s.425 of the Migration Act 1958 (“the Act”) because the Applicants were denied an opportunity at the Tribunal hearing to give evidence and present arguments. A genuine opportunity to give evidence and present arguments was, the Applicants’ claim, not provided, because of errors in interpretation.

6. At the hearing of these proceedings, the Applicant informed the Court that he was not pursuing his second ground for review. However, in a subsequent submission after the hearing of this matter, the Applicant appears to seek to prosecute this ground of judicial review.

7. The proceedings have a long history. The matter was adjourned generally (by consent) pending the outcome of the decision of the High Court in PlaintiffS297/2013 v Minister for Immigration and Border Protection [2015] HCA 3. The matter was then set for final hearing and, upon the failure of the Applicants to attend, the application for judicial review was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. The Applicants applied to have their matter reinstated. In their application, the Applicant provided the Court with material which raised the issue of interpretation. An Order of the Court was made reinstating the application. The matter was once again listed for final hearing.

8. At the judicial review hearing, the Applicant was self-represented and assisted by an interpreter in the Tamil and English languages. The Applicant made submissions on behalf of the Applicant’s wife and the Applicant’s children. He was given further time at the conclusion of the hearing to provide written submissions. Although the Applicant was self-represented, he was assisted by the Asylum Seeker Resource Centre (“ASRC”) in the preparation of a written submission. He filed affidavits on his own behalf and by a person, who claimed to be competent in the Tamil and English languages, as well as a qualified interpreter in the Tamil and English languages. These documents focused on what was said to be errors in interpretation at the Tribunal hearing, which adversely affected the Applicant’s opportunity to generally participate in the Tribunal hearing. No doubt, because the Applicant was self-represented, the materials were presented in a somewhat ad hoc way. So as to avoid any confusion, I will list the materials before the Court, all of which have been considered by the Court in deciding the Applicants’ application for judicial review. These are:

   a)an affidavit filed by Ms Maduni  Kumarakulasinghe on 17 December 2015. Ms Kumarakulasinghe deposes she is part of the Advocacy team of Refugees, Survivors and Ex-detainees and speaks the Tamil and English languages. Annexure A to the Affidavit contains a table setting out findings of the Tribunal, the interpreted response and the actual response in Tamil;

   b)an Auscript transcript of proceedings in the Tribunal on 15 January 2013, which appears as an unmarked Annexure to the Applicant’s affidavit filed on 6 April 2016. This version appears to comprise only every second page of the transcript.  The transcript also appears as an unmarked Annexure to a second version of an affidavit of the Applicant filed on 11 April 2016.  This second version will be referred to in this judgment as the Auscript transcript and will be relied on by the Court in this judgment;

   c)an affidavit filed by the Applicant on 20 April 2016 with unmarked Annexures containing country information, copies of correspondence with Auscript Australasia Pty Ltd and extracts of what is said to be translated extracts from the Tribunal hearing by an “accredited interpreter”;

   d)three affidavits annexing translations prepared by Mr Kasynathan, who is an interpreter accredited by the National Accreditation Authority for Translators and Interpreters (“NAATI”). The first is contained as an unmarked Annexure to Ms Kumarakulasinghe’s affidavit of 11 April 2016. This does not have the NAATI stamp. The second affidavit affirmed by Mr Kasynathan and filed on 12 April 2016 has (with his stamp) an unmarked Annexure and the third affidavit filed on 15 April 2016 (with Mr Kasynathan’s stamp) has an unmarked Annexure. The Annexure to the third affidavit contains extracts of translations of the Tribunal hearing additional to those contained in the second affidavit. Apart from being stamped, the second version of the document also includes an additional fifth page relating to the interview with the delegate. The errors alleged in the interpretation at the interview with the delegate are said by the Applicant to affect the delegate’s decision. These alleged error’s will not be considered as the Court’s jurisdiction on judicial review does not extend to a review of the delegate’s decision as sought by the Applicant: Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 at [35];

   e)the second and third affidavits filed by Mr Kasynathan (save for the translations of the interview with the delegate) will be treated as the translations relied on by the Applicant and referred  to generally as the NAATI analysis in this decision; 

   f)the Applicant’s Outline of Submissions filed on 18 April 2016, prepared on his behalf by ASRC;

   g)unmarked Annexures to an Affidavit filed by the Applicant on 29 June 2016 and an Affidavit filed by the Applicant on 30 July 2016, which identifies corrections to the Affidavit filed by the Applicant on 29 June 2016. These Annexures are:

   i)alleged interpreting errors in the Applicant’s interview with the delegate, which for reasons set out above will not be considered by the Court;

   ii)written submissions on four alleged errors in interpretation at the Tribunal hearing;

   iii)translations by the NAATI interpreter (Mr Kasynathan) and the Auscript transcript extracts; and

   iv)an Affidavit sworn or affirmed by the Applicant on 29 June 2016 deposing that when he agreed to remove a ground for review he was not legally advised and wants it reinstated.  The only ground he can be referring to is his abandonment (at the Court hearing) of the second ground specified in his application for judicial review filed on 12 July 2013 which is as follows, “The Refugee Review Tribunal applied the wrong legal test.” I find this application of the Applicant vexing. At all times he has only complained to the Court about the question of interpretation and his assertion he was not afforded procedural fairness. I have examined the contents of his affidavit. Setting aside his complaints about the interview with the delegate, which I will not consider, the other issues raised are his complaints about the continuing effects from being brutalised when he was rounded up by the Trincomalee Sri Lankan security personnel in 2006 (at [2] to [7], [20] to [23]), further commentary about the errors in translation, which are the subject of his earlier submissions and then a further complaint about the data breach on his family. I also note that in the written submission prepared on his behalf by the ASRC, there are no written submissions regarding this second ground. I am at a loss to understand how this relates to the Applicant’s second ground of judicial review. However, so that it cannot be said that I have not turned my mind to this ground and the issues raised by the Applicant in his affidavit, I will deal with these matters at the end of this judgment; and

   h)the First Respondent’s written submissions filed on 16 March 2015 and 18 April 2016 and the First Respondent’s Draft Supplementary Submission filed on 29 July 2016.

9. Together, the NAATI analysis and submissions identify interpretation errors said to have been committed before the Tribunal. The Applicant’s Outline of Submission identifies what it submits are four of the significant discrepancies in translations. At final hearing, the Applicant, when invited to explain what he saw as the problems with translation identified only one of the alleged errors. This relates to the failure of the interpreter to translate “position” into Tamil (see [35] and [36] below). I have grouped the alleged errors under headings which relate to the claims the Applicants made. I have treated these as the factual basis of the Applicant’s argument as to the deficiencies of the translation of his evidence to the Tribunal.

Claims to Protection Obligations

1. The Applicants applied for protection visas on 11 July 2012. Each of the Applicant and the Applicant’s wife made distinct claims to be owed protection obligations, whereas the Applicant’s children relied on their status as members of the family unit.

2. The Applicant claimed that, if he returned to Sri Lanka in the reasonably foreseeable future, he would face a real chance of serious or significant harm at the hands of the Sri Lankan authorities and others on account of, among other things, his imputed political opinion of opposition to the Sri Lankan government and his Tamil ethnicity (CB 51 to 54 and CB 81 to 84). In this regard, he claimed that:

   a)he had had a friend named Mr S who had been a member of the Liberation Tigers of Tamil Eelam (“the LTTE”);

   b)in 2006, the Sri Lankan authorities arrested, detained and beat him, because they suspected that he was a member of the LTTE;

   c)while detained, he was questioned about his involvement in the LTTE and about Mr S;

   d)after his release, the Sri Lankan army continued to pursue him and, as a result, he and his wife decided to leave Sri Lanka;

   e)they then resided in India for approximately six years before travelling to Australia in 2012; and

   f)in 2008, he learned that Mr S had been shot by the Sri Lankan authorities (CB 81 to 84).

Tribunal decision

1. The Tribunal did not accept the Applicant’s claims regarding his relationship with Mr S and Mr S’ association with the LTTE (CB 254 at [37]). The Tribunal found the Applicant’s evidence regarding his association with Mr S inconsistent. The inconsistencies identified were between the evidence given at the time the Applicant made his application for the protection visa, the evidence given at the interview with the delegate, the evidence contained in his statutory declaration provided to the Tribunal and his evidence given at the Tribunal hearing (CB 254 at [37] to [39]). Ultimately, the Tribunal found his claims about his relationship with Mr S had developed over time. The Tribunal did not accept the Applicant’s explanation for the discrepancies in his evidence (CB 255 at [42]). The Tribunal also found the “applicant’s evidence regarding (Mr S’) alleged association with the LTTE be to be vague, lacking in detail and inconsistent” (CB 255 at [41]). The Tribunal found (CB 255 at [42]):

   “Based on the inconsistencies and discrepancies in the applicant’s evidence and his limited knowledge of (Mr S) alleged role in the LTTE, the Tribunal does not accept the applicant’s claimed friendship or association with (Mr S). The Tribunal does not accept that (Mr S) was a member of the LTTE or that the applicant either spend time with (Mr S) socially or that he was forced to perform any task or requests for (Mr S) such as transporting people…. The Tribunal therefore does not accept that the applicant participated in a Pongu Tamil program possibly in 2004 or that the applicant transported parents of fallen LTTE members to martyrs day event in November 2004”

2. Relevantly, the Tribunal did not accept the Applicant’s claim regarding the death of Mr S in 2008. It found (CB 255 at [43]):

   The Tribunal therefore does not accept the applicant’s claims regarding [Mr S’] death in 2008. The Tribunal also found the applicant’s evidence in the hearing regarding the circumstances of [Mr S’] alleged death vague and confusing. In the hearing, when asked about the circumstances of [Mr S’] death, the applicant claimed that before “‘they’ took and enquired him and sent him back and while playing cricket with a group of other people, in front of everyone, they called him back and in front of everyone, and kept bombshells in his whole body and killed him”. In contrast, in the applicant’s statutory declaration attached to his protection visa application he claimed [Mr S] was required to report to police every day for thirty one days and then he would be free and on the last day of signing he was shot dead after he had signed, while playing cricket. Whilst the Tribunal notes the applicant’s statutory declarations received on 3 June 2013 and 11 June 2013 in which he sought to clarify his evidence regarding the circumstances of [Mr S’] death and the fact that his knowledge is based on what he was told by others, the Tribunal does not accept the applicant’s evidence in the hearing is consistent with what he originally claimed allegedly happened to [Mr S] and as such the Tribunal does not accept  that [Mr S] was killed as the applicant claimed.

3. As a result of these findings, the Tribunal did not accept that after Mr S’ death, the Applicant’s mother was visited by the authorities. The Tribunal also noted that the Applicant had never mentioned, prior to the hearing, the claim that his mother had been visited by the authorities and the subsequent warning from the authorities given to the Applicant, through his mother (CB 256 at [44]). 

4. In light of these findings, the Tribunal did not accept the Applicant had been detained as a suspected LTTE member.  The Tribunal also noted that, whilst previously the Applicant had alleged to have been hospitalised for three days, at the hearing he claimed it was only for two days.  The Tribunal also found the evidence about the treatment required by the Applicant was implausible (CB 256 at [45]).

5. The Tribunal referred to the inconsistency at the hearing between the Applicant and his wife, as to whether or not he entered the house before going to the hospital (CB 257 at [46]). The Tribunal noted the inconsistency in the Applicant’s evidence, as to the period after his release from hospital and whether he stayed for any period of time at his home (CB 257 at [47]).

6. Given the discrepancies, the Tribunal was satisfied that the Applicant was of no interest to the authorities, including the Sri Lankan army (CB 257 at [49]).

7. The Tribunal did not accept the Applicant’s, or his adviser’s explanation about the inconsistencies. It is clear that the Tribunal was influenced by what it found which were “numerous significant discrepancies” (CB 258 at [50]). Relevantly, the Tribunal said (at [51]):

   “… The Tribunal also finds that the adviser’s reference to misinterpretation and misunderstanding between the interpreters, the applicant and the agent in regard to the applicant’s evidence about his involvement with the LTTE to be unsubstantiated and as such, on the basis of the evidence before it, the Tribunal does not accept this statement. …”

8. While the Tribunal accepted that the Applicant and his family left to reside in India in 2006, it did not accept that they did so because the Applicant had been targeted by the authorities (CB 258 at [52]).

9. Having regard to its findings about the Applicant’s claims of past harm, the Tribunal was not satisfied that, upon any return to Sri Lanka in the reasonably foreseeable future, the Applicant would face a real chance of serious or significant harm as a result of any claimed profile imputed to him (CB 258 to 259 at [52] to [54] and CB 261 at [60]). The Tribunal otherwise did not accept the Applicant’s claims that, merely by reason of his status as a Tamil, he would face, upon return to Sri Lanka, a real chance of serious or significant harm (CB 259 [53] to [54] and CB 261 at [61]).

10. The Tribunal also considered the Applicant’s claim to fear harm in Sri Lanka on account of his status as a failed asylum seeker. The Tribunal did not accept that, in this regard, the Applicant would face a real chance of serious or significant harm in Sri Lanka (CB 260 at [56] and CB 261 at [62]). In so doing, the Tribunal had regard to country information, including information which had been the subject of submissions made by the Applicant’s representative.

11. Having regard to the Applicant’s claims individually and cumulatively, the Tribunal did not accept that the Applicant faced a real chance of being persecuted, because of his Tamil ethnicity or an imputed political opinion as a suspected LTTE member or supporter due to his alleged relationship with Mr S. Nor did the Tribunal accept that he faced a real chance of persecution as a failed asylum seeker or because of his illegal departure from Sri Lanka in 2006. The Tribunal was not satisfied that the Applicant satisfied the criteria in s.36(2)(a) of the Act. The Tribunal also considered the Applicant’s claims to fear significant harm upon return to Sri Lanka pursuant to s.36(2)(aa) of the Act. On the evidence before it, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm. The Tribunal therefore found that the Applicant did not satisfy the complementary protection provisions of the Act.

Statutory Provisions and Relevant Principles

1. Section 425 of the Act provides:

   425  Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)  Subsection (1) does not apply if:

   (a)  the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b)  the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)  subsection 424C(1) or (2) applies to the applicant.

   (3)  If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

2. Section 427(7) of the Act provides:

   427  Powers of the Tribunal etc.

   …

   (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.

3. In BZAID v Minister for Immigration and Border Protection [2016] FCA 508, Justice Edelman referred to and summarised the authorities with respect to interpretation at Tribunal hearings and the obligation under s.425 of the Act as follows:

   49.Section 425(1) obliges the Tribunal (subject to exceptions not relevant here) to invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. As Hayne, Kiefel and Bell JJ said in Minister for Immigration & Citizenship v Li (361 [60]) concerning a similar provision, its purpose “is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review”. That purpose is complemented by s 427(7) which provides as follows:

   (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.

   50.In Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6, 19[29], Kenny J said of an earlier version of s 425 that:

   Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.

   51.That statement has been described as the “seminal” statement in this area and has been applied to s 425 in its current form: SZOYU v Minister for Immigration and Citizenship [2012] FCA 936[29] (Jacobson J).

   52.The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, “Working with Interpreters: Judicial Perspectives” (2015) 24 JJA 207. The relevant principles are summarised below:

   (1)interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;

   (2)whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;

   (3)in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;

   (4)where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;

   (5)where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;

   (6)where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;

   (7)if an 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.

   53.The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (215 [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.

4. I respectfully adopt his Honour’s summary of the principles. I would also add that the extract from Chief Justice Allsop’s judgment in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142, the following extract (at [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 Health115 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?

Ground 1 Procedural Fairness - Alleged Deficiencies in Interpretation

1. It is not a proper approach in deciding whether errors in interpretation amount to a breach of s.425 of the Act to merely identify individual errors in translation, without regard to the context in which they appear and the whole of the proceedings. This has, however, been the way the Applicant (assisted by others) has tended to put his case. The approach I have adopted below is to first consider the errors identified by the Applicant in the context in which they appear in the Auscript transcript and then to consider the whole of the process of the Tribunal hearing.

The Applicant’s relationship with Mr S, Mr S’ Association with the LTTE and Mr S’ death

1. The Applicant submits in his written submission filed on 18 April 2016 (prepared on behalf of him by the ASRC) that his association with his friend, Mr S, the circumstances surrounding Mr S’ death and his alleged involvement in the LTTE, were all important matters to the overall impression gained by the Tribunal of the Applicant and the ultimate findings made: SZUEW & Anor v Minister for Immigration & Anor [2016] FCCA 378. It is argued that (at [24] to [25] of the Applicant’s submissions):

   24. The poor quality of the interpreting in important respects affected and interfered with the applicant’s right to a fair hearing and adversely impacted upon his credibility. The assessment of credit was clearly, based on the structure of the Tribunal’s decision, a cumulative assessment and it cannot be said that the errors made in the translation may not have impacted upon the overall assessment of the applicant’s truth and reliability.  As was stated in SZRMQ, when credit is the principal issue 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’: at [10].

   25. The applicant contends that when all the mistranslations and errors are considered against the Tribunal’s reasons, read as a whole, the process was not a fair one.

Claims and Evidence Regarding Mr S

1. The errors in interpretation identified by the Applicant arise firstly out of the evidence given by him at the Tribunal hearing regarding his relationship with Mr S and Mr S’ involvement in the LTTE. The evidence begins at T11.39, after the Tribunal Member asks the Applicant who does he fear he will be harmed by if he were returned to Sri Lanka and why. The Auscript transcript reads as follows (T11.39 to T11.46):

   MS MULING:  Yes.  And why would they want to harm you or kill you, as you say?

   THE INTERPRETER:  His wife’s brother was working – was a politician.  Okay.  Sister’s husband’s brother because they have…..

   MS MULING:  Okay.

   THE INTERPRETER:  Okay.  He was working for LTTE in a political sense.

2. The Applicant submits that the actual interpretation from the NAATI analysis was:

   Ms Muling:  Yes.  And why would they want to harm you or kill you, as you say?

   Interpreter (Tamil): 

   You are being asked… why would they kill you… look for you and kill you?

   Applicant:

   Interpreter (Tamil)

   My wife’s brother was working for the politician

   WHEN I WAS IN SRI LANKA, A COUSIN (TRANSLITERATED WORD IN TAMIL “MACHAAN”) OF MINE CALLED [S].  HE WAS WORKING IN THE POLITICAL WING.

   Interpreter (Tamil):

   Wait a little.  Say things bit by bit otherwise I will forget.

   Applicant:

   NOT WIFE’S BROTHER.  MY ELDER SISTER’S (TRANSLITERATED WORD IN TAMIL “AKKA”) HUSBAND’S YOUNGER BROTHER.

   Interpreter (Tamil):

   So he was in a position of authority? 41:02

   Applicant:

   Interpreter (Tamil):

   He was working in the Liberation Tamil Tigers in a political sense.

   HE WAS DOING POLITICAL WORK WITH THE LIBERATION TAMIL TIGERS

3. I see no difficulty with the translation. The interpreter translated what appears as a somewhat confused exchange between the interpreter and the Applicant, into an answer that correctly conveyed the Applicant’s evidence. This is that Mr S (who was his brother-in-law’s brother) was working for the LTTE in the political sense. As the Minister points out the nature of the relationship of the Applicant with Mr S was clearly appreciated by the Tribunal Member when she soon after said (at T12.7), “What was your brother-in-law’s brother’s name?”, to which the Applicant responded, (Mr S).

4. I agree with the Minster’s submission that the fact that there was some discussion between the interpreter and the Applicant in the source language, with the interpreter saying something like “please slow down” or “please repeat” or “say things bit-by-bit”, does not compromise the interpretive exercise in circumstances where the answer was translated accurately and the Tribunal Member understood the answer the Applicant was intending to convey.

5. The Tribunal Member then asks the Applicant about Mr S’ association with the LTTE: T12.31. The Auscript transcript of the evidence given by the Applicant is set out below (T12.31 to T14.39). The interpretation which the Applicant alleges is incorrect or misleading is formatted in bold:

   MS MULING: So can you tell me about [Mr S’] association with the LTTE?

   THE INTERPRETER: He was – he liaised with the people and used to …. people if there was a need. He used to get him to take those people in the transport if they had to go for a meeting or something, so he has to take all these people to that meeting.

   MS MULING: So when did you start having to go everywhere that he told – they told you to go or – and do all these things for [Mr S]? When did you start doing that?

   THE INTERPRETER: Around 2004 they had a sort of a peace arrangement. At that time everybody gathered together. Since then it started.

   MS MULING: So did [Mr S] hold any position with you in the LTTE?

   THE INTERPRETER: He doesn’t know his position but he – the people used to respect and ask suggestions and help from him. If there is any – any legal ….. issues they used to go to him.

   MS MULING: Do you know when [Mr S] became a member of the LTTE?

   THE INTERPRETER: He only came to know around 2004 when – after that peace treaty, that he is actually working for LTTE. Until then he didn’t know.

   MS MULING: So until 2004 you didn’t have much association with [Mr S]?

   THE INTERPRETER: He used to talk and stay but he never used to go around with him.

   MS MULING: But did he always live in your area?

   THE INTERPRETER: He used to go away for 10 days and come back and keeps – he keeps doing that. And then he used to ask him, he said, “I have just been out somewhere.”

   MS MULING: So what happened in 2004? If up until then you used to just talk to him, what happened in 2004 to make you – make him take you places and do things?

   THE INTERPRETER: Basically he used to ask him to drop those people to the meeting at different schools and different places – meeting places. And because they used to have a checkpoint and they needed an ID and other information, because – and these people are new people so they had to use him. And when he asked them why do you do so, and he said that’s the way does he do it.

   MS MULING: So what people did you take to the meetings and different places?

   THE INTERPRETER: Those people, he doesn’t really know who they are because every time a different group of people used to go. So he doesn’t know. And every time the names are different so he doesn’t really know what – who they are and what they are.

   MS MULING: Were they LTTE people?

   THE INTERPRETER: It could be because he said that they used to show the ID card and that they had the LTTE ID cards.

   MS MULING: So did you ever attend the meetings that you would take these people to?

   THE INTERPRETER: Sometimes he used to stand and listen what they are telling but most of the time he stays outside. And they call – when the meeting is finished they call him and then he just picks them up and drops them back.

   MS MULING: So did [Mr S] attend these meetings?

   THE INTERPRETER: He sat in all in the meetings.

   MS MULING: So the meetings that you would sometimes stand and listen at the back, what would they discuss at these meetings?

   THE INTERPRETER: They used to discuss about that they shouldn’t harm their own members. They shouldn’t trouble them in any way. And ….. they asked them to listen to what was the message they are giving. It’s sort of counselling.

   MS MULING: How often did you take people to these meetings?

   THE INTERPRETER: Every weekend they used to take them.

   MS MULING: And over what period of time?

   THE INTERPRETER: Sometimes he goes in the afternoon and comes back in the evening or sometimes it may take two days or three days, and every weekend.

   MS MULING: So from when did you start doing this and up until when? Over what period? How long did you do this for?

   THE INTERPRETER: Until – from 2004 till 2006 he had – he was forced to do it.

   MS MULING: For two years?

   THE INTERPRETER: Yes.

   MS MULING: Did you have to do anything else other than take people to these meetings?

   THE INTERPRETER: They only gave him that job and they said if you don’t do this one then your family will be in great trouble. So because of the pressure he had to do that, just that job.

   MS MULING: So who asked you to do this?

   THE INTERPRETER: [Mr S] actually told me to.

6. The Applicant submits that these errors in interpretation led the Tribunal to make adverse findings about the Applicant’s evidence regarding his relationship with Mr S; namely, that it was vague and lacking in detail (CB 244-255 at [41]). In particular, the Applicant submits the Tribunal’s finding that the Applicant “did not know if (Mr S) held a position within the LTTE ” is not one that can be made because of the errors in translation.

7. The first error identified by the Applicant is in relation to the exchange which is transcribed as follows (T12.44 to T13.3):

   MS MULING:  So did [Mr S] hold any position with you in the LTTE?

   THE INTERPRETER:  He doesn’t know his position but he – the people used to respect and ask suggestions and help from him.  If there is any – any legal… issues they used to go to him.

8. The NAATI analysis records that the exchange between the interpreter and the answer given by the Applicant was:

   INTERPRETER:  What position did [Mr S] have in the LTTE?  What was he? [The English word ‘position’ is used and not translated into Tamil.]

   APPLICANT:  If you say “position” (uses English word) we do not know it in those terms.  But when he goes the people would come to him and they would talk well and speak and they will go… and this is how it was… if there was some inquiry he would go.  I used to transport him there and therefore I know.

9. The Applicant submits that the error was caused by the interpreter failing to translate the word “position” into Tamil and the Applicant not understanding what the English word “position” was in the context that was meant in the questioning. The Applicant submitted at the judicial review hearing that because the word “position” was not translated into Tamil, the evidence he gave was not that he did not know what position Mr S held in the LTTE, but rather that he did not know what the word “position” meant. Because he did not know the meaning of the word, he was not in a position to answer the question. In his affidavit sworn on 29 June 2016 and contained as an Annexure to an affidavit filed on the same date, the Applicant deposed  (at [18]):

   “The word in Tamil that we usually use in this context is “Pathavi” but at that time I only knew “Position” in English in the context of physical positions that we adopt when carrying out a physical action… It caused me a great deal of confusion and made it difficult to provide a clear answer.”

1. The Applicant submits that he has consistently stated that Mr S was working in the “political wing” of the LTTE in his statutory declaration application and the RRT (sic) interview. In his statutory declaration dated 11 July 2012, the Applicant said that Mr S “was involved in the political wing of the LTTE and responsible for the recruitment of new LTTE members.” (CB 83). The Applicant claims that the evidence he gave at the Tribunal hearing was consistent with his claims in his statutory declaration. However, this consistency was not apparent, because of the error in interpretation.

2. I am satisfied that the Applicant gave evidence that Mr S was involved in the political wing of the LTTE and this was adequately conveyed by the interpreter, as Mr S working for the LTTE in a political sense.

   
   

   The NAATI record reveals the Applicant’s evidence was confusing about Mr S’ precise position. The Applicant gave evidence variously that Mr S was working in the political wing of the LTTE, was working in the LTTE in a political sense and that Mr S was doing political work for the LTTE (see [30] above). It is not apparent that the Applicant gave evidence in Tamil that Mr S was responsible for the recruitment of new LTTE members. The question becomes, was this because of the failure of the interpreter to translate the word “position” into Tamil?

3. The Minister concedes that conceptually there may be a disjunct between not knowing the notion of a position “in these terms” and simply not knowing what it meant. However, the Minister contends that the Tribunal Member was asking about Mr S’ role or function and that it was apparent from the answers that the Applicant understood that and was able, intelligibly, to give an answer to that question. The Minister accepts that the Applicant’s answer that he “used to transport [Mr S] there” was not translated into English. However, it is argued that, when regard is had to the whole of the transcript relating to the Applicant’s association with Mr S, the Member would have understood (as this evidence was given in later parts of the transcript), that the Applicant’s evidence was he used to transport Mr S.

4. Having regard to the relevant parts of the transcript, I am satisfied, notwithstanding the failure of the interpreter to translate the word “position” into Tamil and any confusion the Applicant may have experienced because of this, he proceeded to intelligibly provide evidence regarding the respect with which Mr S was held and the activities Mr S engaged in on behalf of the LTTE, including attending meetings and acting in an advisory capacity for Tamils. It is to be noted that at the commencement of the exchange, the Applicant’s evidence was that Mr S was working in the LTTE in the political sense (see [29] above). The Tribunal Member was entitled to explore with the Applicant what he meant by this. It does not seem to me that the Applicant took the Member to be referring to a physical position adopted by Mr S. This is because the Applicant’s evidence in response to the question about the “position”, was directed to Mr S’ role or his activities associated with the LTTE.  The Applicant was given the opportunity to give evidence on Mr S’ role. The Applicant was at large to expand or limit the evidence he gave as he chose. The evidence he gave was sufficiently translated by the interpreter. I am not satisfied that the Applicant’s failure to give detailed evidence about the role and responsibilities of Mr S within the LTTE (including that he recruited new members) arose from the failure of the interpreter to translate the word “position” into Tamil.

5. The second error identified by the Applicant in relation to the exchange which is transcribed is as follows:

   MS MULING: So from when did you start doing this and up until when? Over what period? How long did you do this for?

   THE INTERPRETER: Until – from 2004 till 2006 he had – he was forced to do it.

6. The NAATI analysis records the exchange between the interpreter and the answer given by the Applicant as:

   INTERPRETER:  From what year did you start and how many years did you do this?

   APPLICANT:  This was until 2006; that is, during the truce before the fighting broke out.  Till 2006 they compelled me to do this work, it was because of the compulsion that I was doing it.

7. It is not clear, as no submissions were made about this identified error in translation, what relevance this has to the fairness or otherwise of the Tribunal hearing.

8. I am satisfied that although this particular exchange in the NAATI analysis was translated imprecisely, it is evident from the context in which that exchange took place, that the Applicant had already made the Tribunal Member aware that it was not until 2004 that he became aware of Mr S’ association with the LTTE and commenced performing tasks for him: see T13.5 to 13.19. I agree with the Minister that the actual evidence given by the Applicant in Tamil comprised three elements: a time period, the substance of which was translated; the notion of being forced or compelled, which was translated; and the fact that the time period was “during the truce”, which the Minister accepts was not translated.  However, this failure could not be regarded as fatal, as the Applicant had already conveyed, by evidence, that there was a truce: “around 2004 they had a sort of a peace arrangement” (T 12.41) and “he only came to know around 2004 when – after that peace treaty” (T 13.7).

9. Having regard to the totality of the evidence before the Tribunal, I agree with the Applicant that the Tribunal’s finding that “he did not know if (Mr S) held a position within the LTTE” (at [41]) is a finding adverse to the Applicant and can be seen as part of the Tribunal’s overall conclusions as to his credibility. However, it is evident from the decision record that the Tribunal made other adverse findings, independently of this one, which contributed to its overall conclusion about the Applicant’s credibility. Firstly, it found that “the applicant’s evidence regarding (Mr S’) alleged association with the LTTE to be vague, lacking in detail and inconsistent.” In my opinion, it was open to the Tribunal to find that the Applicant’s evidence on this matter was vague and lacking in detail. As I have earlier stated, it is apparent that the Applicant understood he was being asked about the role Mr S played in connection with the LTTE. On the face of the transcript he freely gave his evidence on this point which the Tribunal found (as it was entitled to do) was vague and lacking in detail. It was further open to the Tribunal to find that the evidence, as a whole, about Mr S’ association with the LTTE was inconsistent.

10. The Applicant submits, once again, to this Court that there were reasonable explanations for any inconsistencies and that this was set out in the submissions made by his migration agent. As noted earlier, the Tribunal did not accept these explanations. The Court will not interfere with these findings, as this would simply involve the Court engaging in impermissible merits review.

11. The next error in translation identified by the Applicant is in relation to the evidence given by the Applicant about the circumstances of Mr S’ death in 2008. The exchange is at T 23.21-30 in the Auscript transcript:

    MS MULING:  And so do you know the actual circumstances of [Mr S’] death?

    THE INTERPRETER:  He went back and he was actually play cricket that day with other group of people and before that they took him and inquired him and they sent him back.  And then he was playing cricket with a group of people, they called him back and in ….. of everyone they kept – what’s it called – the bomb shells or something in the whole body and they killed him.  The whole body….. killed him and he – they went back to his mother and….. mother and they said, “This is – go call your son this is what’s going to happen to your son as well.”

12. The NAATI analysis records that the correct translation of this exchange should have been (question omitted):

    INTERPRETER:  Do you know the circumstances of his death?  How did he die?  For what reason?  What happened?

    APPLICANT:  It was said that as soon as he went back they called him and questioned him.  After questioning they had told him “OK, there is no problem, go and be there”.  It was said that while he was playing cricket in the cricket ground, with all the boys watching, in the middle of the road they shot him all over his body.  Shot him all over the body (inaudible).  They had gone to our home and told my mother, ask your son to come and had told her that her son’s position was the same.

13. The Applicant’s first complaint is that the interpreter translated the Tribunal’s question into three questions, thus causing confusion on his part. I do not accept this submission. All that occurred was that the interpreter translated the Tribunal Member’s question and enlarged on it, by directing the Applicant to elements that may be relevant to the question of the circumstances of Mr S’ death. Further, the Applicant’s answer does not disclose any confusion as it is directed to the circumstances of Mr S’ death.

14. The next complaint is that the interpreter failed to translate correctly the Applicant’s evidence given in Tamil, that Mr S was shot dead. The Applicant submits that the reference to “bomb shells” in the translation into English rendered the account given to the Tribunal Member vague and confusing.

15. The Minister submits that each of the elements of the Applicant’s evidence given in Tamil was adequately translated. I agree that the first aspect of the evidence, that when Mr S returned to Sri Lanka, he was interviewed by the authorities and then released, was translated.  Another aspect of the Applicant’s evidence was that on the day in question he was playing cricket, was translated.  However, I do not accept the Minister’s submission that the next aspect of the Applicant’s evidence that he was shot all over his body was translated, inelegantly but sufficiently that its sense was conveyed. This is because of the treatment of the Applicant’s evidence as disclosed in the Tribunal’s decision record.

16. In its decision, the Tribunal records the Applicant’s evidence relevantly as “‘they took and enquired and him sent back and while playing cricket with a group of other people, in front of everyone, they called him back … and kept bombshells in his whole body and killed him” (the full extract is set out in [13] above). This record of the evidence is then contrasted by the Tribunal, in the same paragraph, with his evidence given in his statutory declaration attached to his protection visa application, where he claimed Mr S “was required to report to the police every day… for 31 days and then he would be free… on the very last day of signing he was shot dead after he signed but while he was playing cricket” (CB 82). The Tribunal then finds that the Applicant’s evidence in the hearing is not consistent with what he originally claimed allegedly happened to Mr S and as such it did not accept that Mr S was killed as the Applicant claimed (CB 255 at [43]). It is not clear from this reasoning whether the inconsistency the Tribunal identified is related to the evidence regarding the conditions placed on Mr S upon his return to Sri Lanka (reporting every day for 31 days and then he would be fine) or how he was killed; that is, shot dead or killed by bomb shells in his whole body.

17. The Applicant submits that the evidence he actually gave in Tamil is more consistent with his earlier statutory declaration than what is suggested by the interpreter’s translation of the answer at the Tribunal hearing.

18. The Applicant’s evidence at hearing, that Mr S was shot dead, was more consistent than the translation about the “bomb shells”. However, the Applicant’s evidence was not consistent with his evidence in his statutory declaration regarding the reporting conditions. The Applicant submits that the significance of this error becomes apparent in the following paragraph of the Tribunal’s decision record, where (CB 256 at [44]) the Tribunal states, “The Tribunal therefore does not accept that after (Mr S’) death the authorities went to the applicant’s mother and told her to call her son and tell him that this will happen to him as well.”

19. I agree that the introductory words to this paragraph suggest that this finding follows from the Tribunal’s earlier adverse credibility findings. However the paragraph must be read as a whole. Paragraph [44] (CB 256) is as follows:

    The Tribunal therefore does not accept that after [Mr S’] death the authorities went to the applicant’s mother and told her to call her son and tell him that this will happen to him as well. The Tribunal notes the applicant made no mention of this alleged visit to his mother from the authorities in his statutory declaration attached to his protection visa application. While the applicant claimed in the hearing, when the Tribunal put to him that there was nothing about this visit in his statutory declaration, that is was written and he had mentioned this, the Tribunal notes that there clearly is no reference to this particular claim. The applicant subsequently claimed in the hearing he gave all the information and when it was read to him he did not come across it but because he does not know English he does not know what happened. The Tribunal refers to the fact the applicant’s statutory declaration has an interpreter’s declaration confirming that the contents of the declaration had been interpreted to the applicant and it had been signed by him as true and correct. As such, the Tribunal does not accept the applicant’s explanation. The Tribunal has taken into consideration the applicant’s statutory declarations received on 3 June 2013 and 11 June 2013 in which the applicant asserted that he was advised not to include details that he was threatened by the authorities after Mr S’ alleged death in his original statutory declaration and asked to only mention the important incidents and not go into detail. The Tribunal finds this somewhat inconsistent with the explanations the applicant provided during the hearing for the absence of the information from his statutory declaration attached to his protection visa application. The Tribunal also finds it implausible that neither the applicant or his adviser would appreciate the importance of this particular claim in the context of the applicant’s alleged fear. The Tribunal therefore does not accept the applicant’s claims regarding Mr S’ alleged return to Sri Lanka, his death and subsequent warning from the authorities given to the applicant.

20. Read as a whole, it is clear that the Tribunal also gave significant weight to the inconsistency between the Applicant’s evidence given at the Tribunal hearing and his earlier evidence contained in his statutory declaration about subsequent events after Mr S’ death. The Tribunal did not accept the Applicant’s explanation for the inconsistencies and concluded, “The Tribunal therefore does not accept the applicant’s claims regarding (Mr S’) alleged return to Sri Lanka, his death and subsequent warning from the authorities given to the applicant.”

21. I am not satisfied that the error in interpretation regarding how Mr S was killed: shot all over the body, compared to bomb shells all over the body – was cumulatively significant in the Tribunal’s findings that it did not accept that the army subsequently searched for him. In my opinion, it was the inconsistencies in the Applicant’s evidence over time, which independently caused the Tribunal to not accept this claim.

Arrest and Brutalisation of Applicant by Authorities in 2006 in Round Up

1. The Applicant alleges there were errors in translation, which adversely affected his opportunity to give evidence to the Tribunal in relation to his claim that in 2006 the he was arrested in a round up by the CID, the army and the Karuna group, that he was beaten unconscious and after he was collected by his wife from the hospital, the authorities came to his home asking questions about Mr S and, when he left his home, made threats of harm to his wife to elicit from her further information about his whereabouts.

2. The evidence begins at T16.17 after the Tribunal Member asks the Applicant whether he ever experienced any harm in Sri Lanka before he left for India. The Auscript transcript of the evidence given by the Applicant is set out below (T16.17 to T18.47). The interpretation which the Applicant alleges is incorrect is in bold and the translation from the NAATI analysis is inserted immediately after:

   Auscript Transcript

   MS MULING:  Look, did you ever have any – did you ever experience any harm in Sri Lanka before you left there in – and went to India?  Can you tell me what happened?

   THE INTERPRETER:  They actually…… in Rwanda.  They hit him and bashed him and took him into the cell – put him in the cell and they didn’t do any inquiries.  They hit him…. they hit him in the back of his head and he was unconscious.  After he was in the cell then he got up and he became conscious he was in a room, he doesn’t know….. cell, but they started asking him, “Do you belong to the…..?”  And he doesn’t know if that was the police or detective or…

   NAATI Analysis

   APPLICANT:  Firstly the Sri Lanka military and police caught me in a round up.

   INTERPRETER:  Then?

   APPLICANT:  They caught me assaulted me and took me and put me in a cell.  They did not question me.

   After that… I can’t remember very well… I had been hit with a bat… they hit me on the back of the head with a bat... and after that I was not conscious.

   After that when I awoke, I was in this… also akka (addressing the interpreter as “akka” i.e. “Elder sister” in Tamil) I can’t remember very well… After I awoke… it appeared to me that I was in a cell.  Then someone asked me are you an LTTE person?  What do you do?

   INTERPRETER:  Did the Police ask you?

   APPLICANT:  If he is police… who he was… I cannot remember very well… but inside this (inaudible) there could have been someone assisting the intelligence department.  I believe they would have interrogated me because at that time the police didn’t interrogate me.  Police didn’t catch me and interrogate me.  After hitting me and taking me it ends there.

   (Applicant’s emphasis)

Auscript Transcript

MS MULING:  Can you remember when this happened in 2006?

THE INTERPRETER:  He doesn’t know the month.  Before he left India – left India.

MS MULING:  And where were you at the time that you were rounded up?

THE INTERPRETER:  ….. police station.

MS MULING:  But when you were actually rounded up where were you?

THE INTERPRETER:  Close to the police station.

MS MULING:  Were you the only person that was rounded up or was there others there with you?

THE INTERPRETER:  He was alone.

MS MULING:  Can you just tell me what he said…. clarify.

THE INTERPRETER:  Okay.

MS MULING:  Thank you.  So – hang on, when you were actually rounded up – tell me what he said first?

THE INTERPRETER:  He said he was rounded up.  He was alone when they rounded him up.  Then he repeated the same thing that he was in the cell and he was unconscious and he didn’t know what happened.

MS MULING:  So only you were taken to the police station and not anyone else?

THE INTERPRETER:  When he got up he thinks it was only me.  When he got up he was in the cell and they asked him a question and then they sent him out to his wife.

MS MULING: So you were in a cell by yourself?

THE INTERPRETER: When he got up he wasn’t completely conscious, he couldn’t see properly, so he doesn’t really know whether there were any people in the cell or not. He only was able to listen to what they say.

NAATI Analysis

INTERPRETER:  Were you alone in the cell?

APPLICANT:  I can’t remember very well because I was hit on the head… I couldn’t see very much with my eyes… images were wavy.  This is why when someone came down and questioned me I wasn’t in a condition to answer.  For that reason I didn’t know if there were people around me, if people were there or not.

Auscript Transcript

MS MULING: So can you remember what time it was that you were rounded up?

THE INTERPRETER: Morning.

MS MULING: And what time – when were you released?

THE INTERPRETER: He thinks it should be around 6 o’clock it was the dark outside. His wife and mother picked him up and they took him in the – in an auto to the hospital. Army didn’t take him and nobody took him to the hospital.

MS MULING: And so whilst you were in the police station you say they questioned you. What did they ask you?

THE INTERPRETER: Are you …..

MS MULING: Did they ask you anything else?

THE INTERPRETER: Where does your ….. He was in the situation ….. he couldn’t answer and so they just sent him off. In those days – and at that time usually what happens is if the police catches the people and then releases them without any inquiry then it’s certain that they’re going to shot and kill them.

MS MULING: Were there any conditions attached to your release?

THE INTERPRETER: There was two questions they ask and they left. They didn’t put any conditions.

MS MULING: How did your wife know when and where to pick you up from?

THE INTERPRETER: Sorry?

MS MULING: How did your wife know when and where to pick you up from?

THE INTERPRETER: Maybe someone on the street might have informed her.

MS MULING: If they suspected you were LTTE why would they release you only after a few hours in detention?

THE INTERPRETER: The reason what they usually do is first – they – according to the thing is they catch a person he has to be alive in the station, they can’t kill in the – in the cell. So once they release him and then shoot – shot him and then kill them then they can say that somebody else has killed him …..

MS MULING: So from the police station you went to hospital is that what you’re saying?

THE INTERPRETER: Police station ….. come home.

MS MULING: So you went home before you went to the hospital?

THE INTERPRETER: They went home and then they didn’t stay and drop him at home they took him straight to the hospital ….. So he went past home and - - -

MS MULING:  So did you enter your home?

THE INTERPRETER:  They took him to the house to pick up the money and then they took him from there to the hospital that’s what happened.

NAATI Analysis

INTERPRETER:  Did you go to your home that day?

APPLICANT:  This is… because my head was all confused I… the auto went – it went home because it was necessary to get money, wasn’t it?  They would have gone home too.  We went there and did not get down.  They went after that and straight from there took me to hospital.

(Applicant’s emphasis)

MS MULING: Did you get down into your house?

THE INTERPRETER: No, he wasn’t …..

MS MULING: And which hospital did you go to?

THE INTERPRETER: …..

MS MULING: And what treatment did you receive?

THE INTERPRETER: They kept ice block. They gave him some tablets too. He doesn’t know the name.

MS MULING:  How long were you in hospital for?

THE INTERPRETER:  Two days.

NAATI Analysis

INTERPRETER:  How many days were you in hospital?

APPLICANT:  Two days… I was there about two days.

1. The Applicant’s complaints about these errors in translation appear to relate to the Tribunal’s findings that his evidence regarding his hospitalisation and injuries were inconsistent with his earlier evidence and also with the evidence of his wife. These findings were (CB 256 at [45] and [46]):

   45. As the Tribunal does not accept the applicant’s claims regarding his association with [Mr S], the Tribunal does not accept the applicant was detained as a suspected LTTE member, beaten unconscious and questioned about [Mr S] either by the police, army or whoever these people might have been. The Tribunal notes the applicant consistently claimed he was hospitalised for three days following this alleged incident, however in the hearing he claimed it was only for two days. The Tribunal notes when it put this inconsistency to the applicant in the hearing he claimed he could not remember how many days he was in hospitalised and just estimated. The Tribunal does not accept the applicant would not be able to recall in the hearing the number of days he spent in hospital particularly when he has previously consistently claimed a particular number of days. The Tribunal also found the applicant’s evidence regarding his treatment during those two or three days to be inconsistent with the period of hospitalisation he allegedly had. The Tribunal finds it implausible the applicant would require hospitalisation if he had been treated simply with an ice-block and some tablets. The Tribunal notes it was only when it queried if he received any further treatment that the applicant also claimed he was given an injection. The Tribunal has taken into consideration the applicant’s response to the Tribunal’s section 424A letter dated 14 May 2013 in which he claimed he actually could not remember his length of stay in hospital because he was so badly injured and that he was relying on the applicant wife’s knowledge of what happened. However, given the other concerns the Tribunal has expressed not only in relation to this particular claim but regarding other central aspects of the applicant’s story, the Tribunal does not accept the applicant’s explanation.

   46. The Tribunal also notes that according to the applicant’s evidence in the hearing he claimed that he went to hospital straight from the police station, only stopping at home to get money but he stayed in the auto and did not enter the house. Yet in the applicant wife’s statutory declaration attached to her protection visa application she claimed she had tried to give the applicant some food but he could not eat and was crying out in pain when he tried to eat and when she looked she saw that his head was cut so she took him to the hospital and he stayed there for three days. She reiterated this in the hearing, stating that she took her husband home from the police station but he could not speak and was in a poor state so she took him to the hospital. She stated that the applicant husband was home for two to three hours before they went to the hospital. The Tribunal has taken into consideration the applicant’s response to the Tribunal’s section 424A letter dated 14 May 2013 regarding the inconsistency between his and the applicant wife’s evidence in respect of what transpired after the applicant’s alleged release from detention however the Tribunal does not accept that the applicant’s clarification of what happened explains the discrepancy identified in their evidence.

2. The Applicant’s submission, reflected in his affidavit sworn 29 June 2016, is that the Tribunal failed to appreciate the effects of his traumatic experience when he was beaten by Sri Lankan authorities. He points to the fact that the interpreter failed to translate the many times the Applicant said that “he did not remember”, that “he did not recall” or that “he was confused”. The effect of the failure to translate the Applicant’s evidence regarding his memory and confusion was, the Applicant argues, that it caused the Tribunal Member to assume that what he was relaying to the Tribunal was what he clearly recalled. He further argues that the failure of the interpreter to translate the word “about”, regarding the days he spent in hospital, conveyed the impression that his clear evidence was that he spent two days in hospital and not three, as he earlier claimed.

3. The Minister submits that the essential parts of the evidence the Applicant sought to give in relation to the round-up and being beaten by the authorities were:

   a)that he had been caught in a police “round up” and put into a police cell, though the police did not question him;

   b)that he had been physically assaulted by being hit in the back of the head, which had rendered him unconscious;

   c)that when he awoke he was in what he thought was a cell; and

   d)after he woke up, he was asked about his affiliations, after which the incident ended.

4. The Minister argues that each of these matters was translated to the Tribunal, as appears.  The Minister concedes that it is clear that the interpreter was using a degree of licence in conveying the Applicant’s evidence, rather than endeavouring to put it word-for-word or phrase-for-phrase. It is equally clear that nothing of substance was omitted.  Thus, it is submitted, such errors or deficiencies as may be perceived were therefore also non-substantive. I agree with this submission.

5. In respect of the translation of the Applicant’s response to the question whether he was alone in the cell, the Minister submits that the answer contained a number of elements.  One was that he was not, at the time, able to perceive or remember things with clarity.  I agree that in context, there is no difference between his not being “completely conscious” and his “not being able to remember very well”.  The next is that the images he could see were wavy, which, I agree, is not substantively different than saying that he couldn’t see properly.  The next is that he did not know if there was anybody around, which was also conveyed.  The Minister accepts the interpreter did not translate the Applicant’s evidence that he was not in a condition to answer questions.  However, it is, in my view, correctly argued that this evidence was translated a short time later, so that any ambiguity or gap in that regard was promptly cured. At T 17.39 the interpreter translated the Applicant’s evidence that “he couldn’t answer.”

6. In respect of the translation of the Applicant’s response to the question whether he entered his home after he was released, the Minister submits that although the answer is somewhat confusing, it makes plain that the key elements of the Applicant’s answer were conveyed at hearing:  that, following the brutalisation incident, the Applicant’s account was that he went (or was taken) home to get money, and from there went (or was taken) to the hospital.  Accordingly, once again, such errors or differences as may exist between the two versions are non-substantive.

7. Turning first to the complaint by the Applicant that the interpreter failed to convey his evidence that he was in hospital for about two days. This error cannot be said to have misled the Tribunal. This is because, later in the Auscript transcript the Applicant, when put on notice by the Tribunal Member about the inconsistencies, responded as follows (T25.32):

   THE INTERPRETER: He says that he was at the hospital and he wasn’t really – he doesn’t really remember how many days and days and time and all the thing, so he only said that as an estimate.

8. I have already found that the Applicant’s evidence that he was not able to remember and was not able to answer questions was sufficiently conveyed to the Tribunal member.

9. The Tribunal’s decision record reveals that the Tribunal understood the Applicant’s evidence that he was so badly beaten he could not recall his length of stay at hospital (at [45] of the decision record, extracted at [61] above). The fact is the Tribunal simply did not accept, as plausible, the Applicant’s evidence of the severity of the assault, given his medication was an “ice-block and some tablets”. This finding, in my view, disposes of the Applicant’s complaint that his evidence that he could not recall (because of his injuries) was not translated. The fact is the Tribunal did not accept the Applicant was detained and beaten. The Tribunal referred to the Applicant’s post-hearing submission about the impact of the alleged injuries on his recall. It simply did not accept the explanation.

Groups from whom the Applicant Feared Harm

1. The next area in which the Applicant claims the interpretation from Tamil to English was deficient, was in the exchange about whom the Applicant feared would harm him on return to Sri Lanka.

2. The Auscript transcript (T 11.34-37), is as follows:

   MS MULING:  And who do you fear would harm you or shoot you?

   THE INTERPRETER:  Sri Lankan government – yes, Sri Lankan army, government, police.  Also there’s a group called … gang.

3. The exchange recorded in the NAATI analysis, is:

   TRANSLATION [of question]:  Who will shoot you, who will cut you up (inaudible)?

   APPLICANT:  Sri Lankan government, the army, the Sri Lankan police and if not these, a collaborating group.

4. The Applicant submits that he has always claimed that he feared harm from the Karuna group. In his statutory declaration submitted with his application for the visa, he said (CB 83):

   19. I believe if I return to Sri Lanka I would be at a real risk of facing serious harm by the Sri Lankan government. I fear the CID and the Karuna group. They are all part of the government.

5. The Applicant submits that in the written submission made on his behalf dated 17 July 2012, country information was included, which supported his fear of the Karuna group and the fact that the Karuna group is collaborating with a Tamil paramilitary group (CB 127 to 130). The Applicant points out that in that submission, reference was made to a decision of the Tribunal (dated 7 April 2011), which referred to a Human Rights Watch study of abduction and extortion in Sri Lanka. This study stated amongst other things, “The military and police frequently use native Tamil speakers, often allegedly to be Karuna group or EPDP members, to identify and at times apprehend suspected LTTE supporters. In several cases reported to Human Rights Watch, family said that they were first visited and questioned by the military, and then, usually several hours later, a group of Tamil-speaking armed men came to their house and took their relatives away” (CB 129)

6. The Applicant submits there is no ambiguity in the reports of risks of harm and that the interpreter’s error in stating that the Applicant said he fears “gangs” diminishes, and in fact erases all traces of the real meaning of the Applicant’s consistent statement of fear of persecution by the State through proxies (or collaborating groups), like the Karuna group, a Tamil paramilitary group.

7. The Minister concedes that the question is not precisely the same.  I do not agree with the Minister’s submission that it was translated well-enough that its substance was obviously understood. I do not accept the Minister’s argument that the difference between a “gang” and a “collaborating group” is inconsequential.  I accept that the Applicant intended to convey a collaborative group with the government and not a gang.

8. This claim was considered by the Tribunal (at CB 259 at [55]) as follows:

   The Tribunal also noted the applicant’s adviser in the same submission referred to independent country information regarding the activities of Tamil paramilitary groups such as PLOTE, TMVP and EPDP and the vulnerability of Tamils residing in the north and east and people perceived as wealthy and those suspected to have links with the LTTE at a higher risk of being targeted. The Tribunal notes the despite being invited to raise all reasons for why he fears harm the applicant did not articulate in the hearing a fear of any of these paramilitary groups and has not claimed to have experienced any problems in the past from these groups either because of his Tamil ethnicity or for any other reason. The Tribunal has found, for the reasons provided above, that the applicant did not and was not suspected of having links with the LTTE, therefore the Tribunal does not accept that he would be at risk of being targeted by paramilitary groups for this reason, on his return to Sri Lanka. The Tribunal does not accept on the information before it that simply being a Tamil from the east would result in the applicant facing a real chance of persecution from these groups on his return to Sri Lanka, now or in the reasonably foreseeable future. 

9. It may be said that the Tribunal’s observation that the Applicant did not articulate at hearing a fear of the Karuna group is misconceived, because of the failure to translate the phrase “collaborative group”. However, read fairly, the particular paragraph deals with this claim by noting the Applicant had not claimed he had experienced harm from them in the past. Most significantly, the Tribunal found, because of its earlier finding that the Applicant did not and would not be suspected of having links with the LTTE, the Applicant was not at risk of being targeted by such groups.

10. I have considered the whole of the process before the Tribunal. I am satisfied that, although, the interpretation was at times imperfect, it was sufficient to convey the evidence the Applicant sought to give. The questions and responses given proceeded, on the whole, smoothly. There are no apparent disjuncts between the questions and answers. The Applicant’s answers, evident in the Auscript transcript and NAATI analysis, are responsive to the questions. I have considered each of the particular errors in translation identified by the Applicant. Each does not contribute cumulatively to the Tribunal’s adverse credibility findings. There is, apparent, other independent and significant considerations, which led to the Tribunal to reject the Applicants’ claims.

11. Consequently, I am not satisfied the Applicant was denied procedural fairness.

Ground 2 – Wrong Legal Test

1. The Applicant has not identified what legal test which it is asserted was wrong.

2. I have considered the whole of the Tribunal’s decision record and find no error on this basis.

3. In his affidavits filed on 29 and 30 June 2016, the Applicant raises certain matters which I will now consider.

4. The first issue is the Applicant’s alleged injuries from being brutalised in 2006. The Applicant’s complaint is partly about how the International Health Medical Services has treated his injury. Partly, it is directed to the stress he experienced at the hearing. Having read the Auscript transcript, I can see no evidence of this. He describes the Tribunal Member’s questioning as “relentless”, which he experienced as traumatic and after which the Applicant’s wife collapsed.

5. I do not accept the Tribunal Member’s questions were relentless. Generally, they were short questions, covering relevant matters. The Applicant was put on notice about the Tribunal’s concerns at the hearing. Furthermore, the Applicant was given opportunity to respond in writing to concerns raised by the Tribunal after the hearing. On 14 May 2013, the Applicant was invited to respond to information (CB 216 to 219). The Applicant’s migration agent responded on the Applicant’s behalf. Attached to the submission were further statutory declarations from the Applicant and Applicant’s wife (CB 230 to 234).

6. The Applicant’s next complaint is that he and his wife were only given a limited time in preparing their statutory declarations attached to their visa applications. The Applicant submits this issue was raised by their migration agent in the post-hearing submission. This issue was considered by the Tribunal (at [50], CB 258). The Tribunal found the limitations in the process did not explain the significant inconsistencies in evidence. This complaint in reality seeks to engage the Court in impermissible merits review.

7. The Applicant also complains about the impact of the data breach, in 2014, on his family and the imperfections in the community detention process. None of these are matters relevant to this judicial review.

Conclusion

1. I find that the Applicant was not denied procedural fairness in the conduct of the Tribunal hearing. I am satisfied that the obligations under s.425 of the Act were met.

2. I find that the Tribunal did not apply the wrong legal test.

3. Accordingly, I find the Tribunal did not engage in and its decision was not affected by jurisdictional error.

4. For the reasons set out in this judgment, the application for judicial review is dismissed with costs.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date:     10 November 2016