Nace v Minister for Immigration - [2003] FMCA 589

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACE v MINISTER FOR IMMIGRATION

[2003] FMCA 589

MIGRATION – Application to review decision of Refugee Review Tribunal – standard of interpretation – whether lack of procedural fairness or failure to observe procedures under Migration Act constituting jurisdictional error.

Migration Act 1958

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajsingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
WAKH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 159
Minister for Immigration & Multicultural & Indigenous Affairs v Ragamanikkam (2002) 190 ALR 402
Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14
SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507
Minister for Immigration & Multicultural Affairs v Cho (1999) 164 ALR 339
W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788
NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52
Yi Gui Stone v Minister for Immigration & Ethnic Affairs [1997] 34 FCA
Soltanyzard v Minister for Immigration & Multicultural Affairs [2001] FCA 1168
Mohammed v The Ministerfor Immigration & Multicultural Affairs [2000] FCA 264
R v Tran (1994) 2 FCR 95
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759
NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2002) 195 ALR 502
NAOV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 70
Minister for Immigration & Multicultural Affairsv Bhardwaj [2002] HCA 11

Applicant:

NACE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1154 of 2002

Delivered on:

23 December 2003

Delivered at:

Sydney

Hearing Date:

7 July 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr I. Asuzu

Counsel for the Respondent:

Mr T. Lloyd

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1154 of 2002

NACE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

This is an application for a review of a decision of the Refugee Review Tribunal handed down on 18 September 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The applicant is a citizen of Uganda who arrived in Australia on 22 October 2000 to represent her country in swimming in the Paralympics. She applied for a protection visa on 24 November 2000. On 17 January 2001 her visa application was refused by a delegate of the respondent. She sought review by the Refugee Review Tribunal (the Tribunal) on 9 February 2001 and it is that review that is the subject of these proceedings.
In her protection visa application she claimed that a customer of her mother’s small retail business had recruited her to spy on persons in hotels who were suspected of planting bombs in Kampala and to report suspicious looking persons. She understood that Sam, the person who recruited her, worked for the UPDF (Uganda Peoples Defence Force). She claimed that she did not observe anyone suspicious and that she reported this to Sam each Sunday when he visited her home. She also claimed that her mother had been the subject of extortion by persons whom she suspected were members of the ADF (Allied Democratic Forces) who were fighting the government. She claimed that the family was in crisis and that she was working for the UPDF against her will and that her mother was supplying food to the ADF against her will. Her mother had told her not to return to Uganda. In her application to the Tribunal she claimed that as a woman she was a member of a particular social group in Uganda. She claimed that as she had a working knowledge of the UPDF intelligence operations her life was in danger if she returned to Uganda and as she had lost her father (who had died in 1979) she had no male figure to protect her.
The Tribunal held a hearing on 12 August 2002. In the hearing the applicant clarified that in July 1999 she had been asked to work for Sam. She suggested to the Tribunal that he worked for the ISO (Internal Security Organisation). She made an additional claim that she had been provided with a “radio” through which she was told what to do and where to go and that she was required to record conversations in the bars that she was told to visit. She claimed that she handed in tapes to the barmen as instructed and that she worked three times a week in this activity from July 1999 until February or March 2000. She also claimed that she had been given a second job by Sam in February or March 2000 to act as a female decoy, to involve herself with a man who was wanted by the government and then to poison him. She claimed that she refused this job and as a result she was threatened. Subsequently she was allowed to discontinue her surveillance work in the bar although she was warned by Sam because she refused the poisoning task. She claimed that shortly afterwards her mother’s shop was vandalised and that she and her mother had received anonymous threatening letters. She went to stay with her grandmother, but after she had been there for about three months the house was “hit” from the outside and part of it collapsed. Her mother continued to encounter difficulties in the shop. At the same time the applicant was involved in a swimming programme and from early 2000 on was training for the Paralympics. The applicant claimed that if she returned to Uganda she would be required to kill the man wanted by the government and that then she would be killed. The Tribunal put a number of inconsistencies and concerns about the applicant’s claims to her (in particular the fact that her additional claims, relating to the decoy and killing job, the attack on her mother’s shop and the threatening letters she claimed to have received, were raised for the first time before the Tribunal and were not referred to in the original application). It also raised with her its view that her claims were implausible.

Tribunal decision

In its reasons for decision the Tribunal found that the applicant was not a credible witness. It found that the applicant’s claims were inconsistent at various stages including within the hearing, that they were utterly implausible and not supported by independent evidence. It accepted, on the basis of independent evidence, that there were incidents of bombings in Kampala during 1998 and 1999 which were well-documented and that the government had established a specialised police anti-terrorism squad. It rejected as utterly implausible a claim that an inexperienced young woman would be recruited as a spy as the applicant claimed. It also rejected as implausible the claim in relation to the decoy and killing job that she said she had refused to do for the ISO. It had regard to the fact that no serious harm had befallen the applicant as a result of her claimed refusal and that she had continued her regular routine of swimming training thereafter. It found such claim to be lacking in credibility and also rejected the claim that she had received threatening letters. Her claims were said to be mere assertions and were found not to be based on true incidents involving the applicant. The Tribunal found, given the stability of the present government, that any harm suffered in 1979 (the year the applicant was born) which killed her father and brothers and left her with a disability, was a one-off event.
The Tribunal was prepared to accept the claims concerning the break-in to the applicant’s mother’s shop, but found that any intimidation or extortion related to the mother’s role as a shopkeeper. It was also prepared to accept that the applicant’s grandmother’s home was knocked down or damaged in some way. However it regarded these incidents as separate and individual incidents and not as part of a series of events designed to harm the applicant or for Convention reasons.
The Tribunal was not satisfied that the applicant had suffered harm, let alone harm amounting to persecution, for a Convention reason in the past. It was satisfied that the chance that such harm would befall the applicant in the reasonably foreseeable future was remote. It was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.

This application

The applicant filed an application for review of the Tribunal decision on 14 October 2002. An amended application was filed in Court by Counsel for the applicant in which it was claimed that there was a constructive failure to exercise jurisdiction by the Tribunal on the basis of three errors. These were that:-
(1) The Tribunal was satisfied that the harm suffered by the applicant by the loss of her father in a political assassination during the Idi Amin regime in 1979 was a one-off event but failed to recognise the systematic harassment as well as the connection between the applicant’s grandmother’s house being firebombed as having a Convention effect or reason.
(2) The Tribunal having accepted as a fact the possibility that the applicant’s mother “was subjected to a degree of intimidation and extortion but relates to business rather than the applicant’s refusal to commit murder or serve ISO demands” when there was no evidence before the Tribunal that the extortion has that effect and,
(3) Failure to consider a Convention ground in that:
(a)That the Tribunal failed to consider whether the applicant had a well-founded fear of persecution by reason of being a member of a particular social group, namely young women spy in Uganda subjected to violence by the Internal Security Organisation (ISO) for refusing to undertake assignment to murder a suspect.
(b)The Tribunal failed to consider whether the Ugandan Police were unable or unwilling to protect young women spy in connection with working for the government spy network.
Other grounds related to the accuracy of the interpretation in the hearing and to the impact of the head cold and cough suffered by the interpreter. These were:
(4) Failure of the Tribunal to observe procedure required by the Act and Regs:
Particulars:
(1) The Tribunal’s purported review of the application was based on an incomplete, incompetent, uncertain and improper translation of the applicant’s evidence during the Tribunal’s hearing of the application;
(5) The Tribunal did not have jurisdiction to make the decision because it failed to conduct its review in accordance with the Act and regulations:
Particulars:
(1) The applicant because of the purported translation, did not understand the hearing, so as to effectively identify or provide relevant evidence in her native language, regarding the harm or attacks to herself, to the Tribunal during the hearing.
(6) The decision of the Tribunal was not authorised by the Act or regulations:
Particulars:
(1) The Tribunal’s hearing when it was obvious that the interpreter was not well enough due to head cold and cough, to continue with the hearing, resulted in the perception in a reasonable observer that the translation may be inaccurate.
(7) The decision of the Tribunal involved an error of law in that it failed to identify and apply the legal requirements of translation and standards of interpretation necessary to provide a lawful basis for a decision in respect of an application under the Act and Regulations:
Particulars:
(1) The decision failed to consider how the obvious difficulties in the purported translation may have affected the Tribunal’s understanding of the applicant’s case or the applicant’s failure to understand the questions put to her by the Tribunal, without reasons as to how any such deficits were remedied so as to allow the Tribunal to proceed to a decision in this case.
On the first occasion the matter was before the Court the applicant’s counsel submitted that there were inaccurate translations of what the applicant had said in the Tribunal hearing. At the same time, having produced a document described as “transcription of hearing tapes” which contained the English version of what was said in the hearing, he complained that the English version of what was said did not reflect accurately what the applicant had been trying to advance and that there was a breach of s.430 of the Migration Act 1958. He sought an adjournment to provide further information in relation to his claims of deficiencies in the hearing. An adjournment was granted.
Subsequently the applicant filed a document entitled – “(name of applicant) – interview” consisting of English translations of limited extracts from the hearing together with a certification of translation of the transcript. The respondent provided the Court with a corrected version of the original English transcript provided by the applicant. Also tendered in the proceedings was a copy of the tapes of the hearing. Both parties provided written submissions.

Ground One

As clarified by her Counsel, the applicant claimed that the Tribunal failed to make findings as to whether it accepted her claims that events in 1979, when her father and brother were killed left her with a permanent injury and that her grandmother’s house was hit while she stayed with her. It was also submitted that the Tribunal erred in regarding these events in isolation and that the conclusion that this harm was not for Convention reasons was contrary to the material before the Tribunal.
However the Tribunal did not ignore the applicant’s evidence concerning the events of 1979. It did describe her references to harm in 1979 as “oblique and unpursued” but, on the basis that such harm had occurred, found that these were one-off events, not connected to the events which formed the basis of the applicant’s claimed fear of persecution. These findings were open to the Tribunal on the evidence before it for the reasons it gave. The applicant did not claim that the 1979 events were linked with the more recent events other than in an oblique way and in the sense that she had no father to protect her. Similarly the Tribunal conclusion in relation to the absence of a connection between the applicant’s claims concerning her work for the ISO and her grandmother’s house being “hit” was open to the Tribunal. The claims in this regard were made for the first time at the hearing, were extremely vague and did not necessarily demonstrate any link. It accepted that the wall was damaged and that part of the house fell down. It cannot be said that the Tribunal neglected these claims or failed to take into account the integers of the applicant’s claims. It was open to the Tribunal to conclude that the incident concerning the grandmother’s house was unrelated.

The Tribunal rejected much of the applicant’s evidence on the basis that she lacked credibility. Credibility is a matter for the Tribunal par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajsingham (2000) 168 ALR 407. The adverse credibility finding was open to the Tribunal on the material before it (Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 552 and 559). The applicant’s claims in this respect seek merits review which is not available in the Court.

Ground Two

It was submitted that there was no evidence to support the Tribunal findings that :
Given the gravity of urban bombings, the appeal for public assistance and the number of internal security forces available to the Ugandan Government, the Tribunal rejects the applicant’s claim that she was secretly recruited in order to spy on two Muslim men suspected of planting the bombs. It is utterly implausible that an inexperienced young woman would be used in the fashion which she suggested.

It was submitted that the applicant’s claims were substantiated by the fact that there was independent evidence as to instances of bombing in Kampala. However the applicant’s argument that her claims were supported by her evidence and by independent evidence, does not establish that there was no evidence to support the conclusions made by the Tribunal. (See WAKH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 159 at [14]-[16] and Minister for Immigration & Multicultural & Indigenous Affairs v Ragamanikkam (2002) 190 ALR 402). In reaching the conclusion that the applicant’s claims that she would be recruited to spy were implausible, the Tribunal took into account evidence in relation to bombing in Kampala in 1998 and 1999, but also had regard to independent evidence in relation to the nature and extent of the government response to those bombings, including the establishment of a specialised police anti-terrorism squad. It referred to the gravity of the bombings, the appeal for public assistance and the number of internal security forces available to the government in determining that it was implausible that an inexperienced young woman would be recruited by the ISO as claimed. It cannot be said that there was no evidence to support the Tribunal findings or that all the available evidence (the applicant’s claims and the evidence of bombing in Kampala) pointed to the contrary. Further, it put its concerns that her claims were implausible to the applicant (and the reasons for such concerns) and had regard to her comments in response to such information. The Tribunal considered the applicant’s claims and its conclusions in this respect were open to it. Nor is it established that the Tribunal conclusions were illogical or that the Tribunal failed to consider rationally the evidence before it.
Further, and contrary to the submissions of the applicant, the Tribunal considered the intimidation and extortion suffered by the mother but concluded that it related to her business and was not part of a series of events designed to harm the applicant or for a Convention reason. These findings were open to it on the material before it. The applicant’s claims concerning the extortion of her mother were contradictory and inconsistent with any connection with the applicant’s claims relating to her work for the ISO. According to the applicant her mother feared that those responsible for the extortion were connected with the ADF (opponents of the government and therefore of the ISO). The claim that the mother’s shop was vandalised was made for the first time at the hearing. The only evidence connecting it with the applicant’s claimed refusal to accept the second job was temporal. It was open to the Tribunal to find that there was no connection.

Ground 3

In the application for review by the Tribunal the applicant had claimed that as a woman she formed part of a particular social group in Uganda. She repeated her claims of spying for the UPDF and added that the fact that she had lost her father meant that she had no male figure to protect her. In the amended application it was contended that there was a particular social group of “young women spy in Uganda subjected to violence by the Internal Security Organisation (ISO) for refusing to undertake assignment to murder a suspect” or alternatively “young women spy” or possibly “young inexperienced women spies in Uganda”. It was submitted that it was open to the Tribunal on the material before it to conclude that women (such as the applicant, her mother and her grandmother) were members of a particular social group but that it had failed to consider this aspect of the applicant’s claim (Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14). It was submitted that there were aspects of systematic harassment against the applicant as a woman amounting a failure by the State of Uganda to discharge its responsibilities to protect women. On this basis it was suggested that the applicant was a member of a particular social group and that the State was not willing to provide effective protection as it was the persecutor or turned a blind eye to the persecution.

Insofar as this submission claim relates to a claimed social group of young women spies, the Tribunal did not fail to consider this aspect of the applicant’s claim. Rather it rejected it because it did not believe that the applicant was or had ever been a “young woman spy”. It did not accept the applicant’s evidence in relation to this aspect of her claim to be credible. Given this finding it did not need to consider the question of whether the Ugandan police were unable or unwilling to protect young women spies working for the government spy network because the applicant was not such a young woman spy and therefore did not need to avail herself of any such protection.
As to the suggestion that the particular social group to which the applicant belonged was “women”, the applicant’s claim as presented to the Tribunal was not that she feared persecution because she was a woman but because she had involuntarily worked for the ISO and had refused the decoy and killing job. There was no basis on the evidence before the Tribunal for concluding that the applicant feared persecution in Uganda because she was a woman. The applicant relied on the decision in Khawar but this was a case involving an applicant who claimed to fear domestic violence from her husband in circumstances where the State would not provide effective protection. While women may constitute a particular social group this was not the basis for the applicant’s claims to the Tribunal.

Grounds 4 to 7

The interpretation

In grounds 4 to 7 in the amended application the applicant takes issue with the standard of interpretation and the impact of the interpreter’s head cold and cough on the conduct of the Tribunal hearing held on

12 August 2002. It was submitted that there was a breach of s.425 of the Migration Act and that the applicant was denied procedural fairness in the conduct of the hearing and in the failure of the Tribunal to adjourn. It was also contended that the Tribunal failed to make a bona fide attempt to exercise its power. It is convenient to consider all of the circumstances surrounding the hearing and the conduct of the review to determine whether there was a jurisdictional error. As summarised in the respondent’s supplementary submissions the applicant’s claims in this regard are essentially:
b)That the interpretation at the Tribunal hearing was inadequate:
i)The interpretation was said to be “incomplete uncertain therefore incompetent and improper”;
ii)The interpreter failed to interpret “accurately”;
iii)The interpreter “was not feeling well”;
iv)The Tribunal should have invited the applicant to tell of any difficulties with the interpreter;
v)The interpretation was “deficient in material form”.
c)The Tribunal erred by failing to grant an adjournment in the circumstances, and
d)The Tribunal’s decision was infected by jurisdictional error because,
i)it failed to observe a procedure, namely, the giving of a hearing under s.425 of the Migration Act 1958; and
ii)it denied the applicant procedural fairness.
In support of these claims the applicant relied on what was described as a transcription of hearing tapes which contained the English used in the hearing. This document was not accompanied by any affidavit as to preparation of such document. Also relied on was a document described as – “[name of applicant] interview” which was described as observations by a person who claimed in an accompanying “certification” of translation of the transcript to be fluent in spoken and written Bantu languages (in this case Luganda). The applicant was granted an adjournment of these proceedings to allow her to file a translation of the Lugandan used in the hearing by a qualified translator who was available to be cross-examined. However no affidavit was sworn by the translator and he was not available for cross-examination on the date to which the proceedings were adjourned. Apart from claiming to speak and write in Lugandan and English the translator gave no indication as to what qualifications he has in interpreting the Lugandan language. Further, the document is not a complete translation of the whole of the hearing but rather of limited extracts from the hearing. Nonetheless, as the respondent withdrew objections to this material, I have considered the contentions of the applicant on the basis that the English translations contained in the interview document are accurate translations.
The respondent tendered a transcript of the Tribunal hearing on which corrections had been made to the version submitted by the applicant. This was accompanied by an affidavit by the person who had listened to the tapes and corrected the transcript. In addition a copy of the hearing tapes was provided to the Court by the respondent. Having had the benefit of reading the two versions of the English transcript and listening to the tapes of the hearing I am satisfied that the amended version submitted by the respondent is a more accurate rendition of the English used in the hearing. This was not disputed by the applicant.
It was claimed that the fact that the interpreter “was not feeling well”, and appeared to have a cold and coughed or sniffed at times was such as to establish that there was a breach of s425 or a lack of procedural fairness by the Tribunal. However the applicant’s own documentation (the so-called “observations”) noted the interpreter’s “competency in the English language” and “the interpreter’s capability to translate while sniffing and coughing during the interview”, although it was suggested in this document and also in the transcript of the hearing tape that the interpreter’s head cold affected the clarity of her voice. There were a considerable number of indecipherable portions on the hearing tapes but it is not clear that these are so attributable to the interpreter’s symptoms. While it is the case that the interpreter did appear to be affected by a head cold and certainly sniffed on occasion throughout the hearing I am not satisfied on the evidence before me that there is any indication that the fact that the interpreter had a head cold actually interfered with the interpretation or that the fact that the interpreter was unwell establishes any breach of s.425 or lack of procedural fairness. The Tribunal did recognise that the interpreter had a cold but it has not been established that the Tribunal or a reasonable observer would have believed that the quality of the interpretation was affected by the cold.
I do not accept, as was submitted by the applicant, that to continue the hearing irrespective of the interpreter’s claimed ill-health amounted to a denial of procedural fairness. There was no “refusal” to adjourn. There was no application for an adjournment and nothing occurred in the hearing to indicate difficulties with the interpretation or a need for the Tribunal to grant an adjournment (see SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377 and see NAHF [2003] FCA 140 at [36]).
It is also relevant to the complaints about the standard of interpretation that the Tribunal member advised the applicant as follows:
Now we’re going to talk to each other today with the assistance of our professional interpreter but you let me know if you think you are having trouble in expressing yourself or in understanding me.
The applicant responded “ok” to this suggestion which was also translated by the interpreter. The complaint that the Tribunal did not invite the applicant to tell of any difficulties with the interpreter is not made out. In her protection visa application the applicant claimed proficiency in speaking, reading and writing English as her first language. Despite this, the applicant in this instance had sought and was provided with a hearing which was postponed at her request and was also provided an interpreter as requested. At no time during the hearing did the applicant suggest that she had any difficulty with the interpreting or interpretation generally or that she perceived any impact on the translation of the interpreter’s cold or that she had any difficulty understanding the interpreter.
There remains, however, the general issue of the competency of the interpretation. The obligation to invite the applicant to a hearing to give evidence and address the Tribunal concerns has been interpreted to extend to an obligation to provide an applicant with a competent interpreter. It is necessary to consider whether the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence.
I have had regard to the well-established principles in relation to the standard of interpretation required in the context of a Tribunal hearing. As Kenny J stated in Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [29]:
Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first flight interpreter, the interpretation must, nonetheless, expressing one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.
I have also considered the applicant’s complaints about the interpretation and the conduct of the hearing (including the interpreter’s cold) more generally in assessing whether there was any lack of procedural fairness. It is necessary to determine the scope and content of the requirements of natural justice in the particular factual circumstances of the case (see Lindgren and Stone JJ in NAFF/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 at [31]). The concern of the law is as Gleeson CJ stated in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2002) 195 ALR 502 at [37] to avoid “practical injustice”. Procedural fairness in this context requires that the applicant be given a reasonable opportunity to present her case to the Tribunal and to answer any information in the possession of the Tribunal (see NAOV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 70 at [32]. The applicant was invited to and did attend the hearing (cf Minister for Immigration & Multicultural Affairsv Bhardwaj [2002] HCA 11). She did not request an adjournment. It must however be considered whether the invitation was a “hollow shell” or “empty gesture” (Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31] and whether the applicant was able adequately to give evidence and present argument to the Tribunal. The provision of an inadequate interpreter may amount to a denial of procedural fairness constituting jurisdictional error if it is established that the applicant was unable adequately to present her case and answer any information in the possession of the Tribunal.
The applicant pointed to a number of claimed errors in interpretation. However it is not every error in interpretation that will amount to a denial of procedural fairness. A particular interpretation may be less than perfect (see Perrera at [26]) but still be such as to avoid practical injustice. The views of Kenny J in Perrera as to the appropriate standard of interpretation for a Tribunal hearing have been adopted and applied in many subsequent cases in relation to s.425. They also provide appropriate guidance for a consideration of whether there has been a lack of procedural fairness. As Her Honour suggested, criteria such as continuity, precision (or accuracy), impartiality, competency and contemporaneousness may be relevant (see R v Tran (1994) 2 FCR 95). Accuracy and competence are of particular relevance.
Insofar as possible on the evidence before me I have considered the standard of interpretation taking into account factors such as the responsiveness of interpreted answers to questions asked, the coherence of those answers, the consistency of one answer with another and with the rest of the applicant’s case and any evident confusion in exchanges between the Tribunal and the interpreter (Perera at [41]). Considering the English transcript as a whole there are virtually no instances of non-responsiveness. The answers recorded in English are coherent and internally consistent. There is no evidence of significant confusion in exchanges between the Tribunal and the interpreter.
I have regard to the fact that although the applicant claimed to understand and speak English she stated that she needed an interpreter and gave most of her evidence in Lugandan through the interpreter. There were a number of matters complained of by the applicant. First it was complained that the interpreter could not interpret the English word “information”. There is no evidence as to the meaning of the words used by the interpreter in place of the word information. In such circumstances no mistranslation can be inferred from the observations submitted by the applicant. It is then complained that English words from the member “decision will be made based only on compassionate or humanitarian grounds” were not translated and the interpreter commented to the applicant that she could not translate what the member said. However it is apparent from the transcript as corrected by the respondent and from the hearing tapes that what the Tribunal in fact said in English was “I am not able to make decisions that are based only on a compassionate or humanitarian ground”. If this statement was mistranslated (and I cannot be satisfied that it was given the incorrect English relied on by the applicant), or if it was not translated, no practical consequences or practical unfairness followed as it was not a matter that was relevant in the Tribunal decision. The applicant also complains that the English word “persecution” was “translated” as “persecution”. The respondent submitted that there was no evidence that this was an erroneous translation as it would be equally explicable on the basis that there was no equivalent in Lugandan. Whether or not this is the case (and again there is no expert evidence before the Court in that regard) it is of more significance that the Tribunal went on to describe at some length the meaning of persecution and, when it was indicated that the applicant did not understand (at page five) repeated the explanation of the meaning of the concept.
A general complaint that the applicant made a lengthy statement that was impossible to translate, again does not establish any error in translation as such a bald complaint does not establish that the idea of what the applicant said was not communicated to the Tribunal. Nor does the fact that the interpreter asked the member to repeat what she had just said establish an inadequacy in interpretation. On the contrary, it indicates that the interpreter was endeavouring to provide an accurate translation. It is also complained that the interpreter interpreted the words “safe houses” as “silent houses”. However the transcript of the relevant portion of the Tribunal hearing (at page 18) is indecipherable at one point in relation to the description of houses. While it is the case that subsequently it is stated that the applicant’s mother told her that there were houses called “silent houses” where people were put and never seen again, it is clear that the concept of people being taken somewhere and not being seen again was communicated to the Tribunal. In the Tribunal reasons for decision the Tribunal recorded the applicant’s claims (from the protection visa application) that her mother had referred to “safe houses/hidden government houses where people just disappear”. If there was any mistranslation of this concept I am satisfied that it did not mislead the Tribunal and was not in any way material. The complaints about the sniffing of the interpreter and coughing have been referred to but they do not establish that any mistranslation or inadequate translation occurred at the relevant points.
As to the specific allegations of mistranslated answers, the first of these (at page 17) contains a translation of an amount of money which the interpreter translated as “he promised her to be paying her $200 … ah $200,000 so she can do that job for him …” whereas it was submitted that the correct translation was 20,000 to 200,000 (not $20,000 to $200,000). However from the Tribunal reasons for decision it is apparent that even if the expression “dollars” were used, the Tribunal understood that the applicant’s claim was that she had been offered 200,000 shillings (which the Tribunal described as about US$100 at current rates).
As to the other claimed mistranslated responses of the applicant, it is the case that the interpreter, contrary to the preferable practice, did not use the first person when interpreting and her responses often began “She is saying” and continued in this form throughout. Nonetheless it is not apparent that any confusion was caused by this approach.
There is an inaccuracy on page 25 of the transcript. The applicant’s version of the English is that the applicant was told that with the radio provided that “she could catch the voices from 800 metres”. The respondent’s corrected version corrects this to 300 metres. It is apparent as a matter of common sense that either version is a mistranslation. The applicant suggests the correct translation is 3 metres. However, there is nothing in the Tribunal reasons for decision to suggest that the Tribunal relied on the claimed mistranslation of the distance over which the radio “could record conversation.” The Tribunal considered the claim that the applicant was given a radio (and the word radio is used in the applicant’s observations of what was said in the hearing) but understood that it was not a radio in the sense of a transistor radio. It was not clear whether the applicant herself used that term or whether the interpreter thought it was the most appropriate translation. The applicant’s translation suggest that the applicant did use this term, but the Tribunal reasons for decision make it clear that the Tribunal understood that the applicant was given equipment in the nature of a tape recording device which would record conversations and was to be handed to the bar owner when the applicant left the bar. The Tribunal noted the applicant’s claim that the equipment was supposed to catch voices at a distance of 300 metres (which is consistent with the respondent’s translation of the hearing tapes) but did not rely on this aspect of the applicant’s claims. In particular, in rejecting the applicant’s credibility no reliance was placed on any claim that the applicant had equipment that could pick up conversation at 300 metres. The error was not material.
The applicant also complains that at page 33 the interpreter mistranslated the applicant’s claim that she ran away to her “grandmother’s” house as “grandfather’s” house. However it is apparent from a comparison of the two versions of the transcript that the applicant did in fact claim that she ran away to her grandmother’s house (not her grandfather’s house as suggested by the applicant in the original transcript). This is clear not only from the transcript but also from subsequent references to the applicant’s claims. It is clear from the Tribunal reasons for decision that the applicant’s claim in this respect was properly understood. It was also claimed that there was a mistranslation of the applicant’s answer to a question (at page 40) as to what would happen to her if she went back to Uganda. While the translation of what the applicant said is not a precise rendition of what she said were her fears (as recorded in the “interview” document) it is clear that the essence of her fear was said to be a fear that because of her recruitment in relation to the killing of the unnamed man she feared that if she returned to Uganda she would be killed. Again nothing turns on the alleged deficiencies in translation as it is apparent from the Tribunal reasons for decision that the Tribunal’s concern was with the credibility of the underlying claim that the applicant had been recruited to kill a man in Uganda. As it did not accept that the applicant was asked to form a relationship with an unknown man and then kill him, the precise detail of what the applicant claimed to fear on her return to Uganda based on this claim was not a matter of any significance.

It is complained that the interpreter interpreted the member’s reference to bombing in Kampala in April 1998 as April 1988. However this does not accord with the transcript provided by the applicant and it is clear from the Tribunal reasons for decision that it properly understood that the bombings in Kampala had occurred in April 1998.
The complaint that the English word “research” could not be translated by the interpreter is not accompanied by any explanation of what it was that the interpreter said instead of “research” and does not establish any error.
Finally it is claimed that the applicant’s answer as to a question as to whether she would be safe if she went back to Uganda was translated inadequately. One of the difficulties with comparing the transcript with the claimed correct version of the response is that part of the hearing tape is indecipherable. There is, however, a difference between the answers given by the applicant and the version in the observations submitted by the applicant. The applicant’s Counsel submitted that from this mistranslation the Court could conclude that the whole transcript was in some way inadequate. The transcript records that the applicant responded as follows:
Interpreter:
She is saying she’s scared of her situation, because the first place they used her first because she is a handicapped person. She is a poor person and she doesn’t have anywhere to go that’s why they don’t value any handicapped person. They didn’t value her and that’s why they’re using her, put her everywhere so nobody (indecipherable) nobody could (indecipherable) as she is doing something but they are using her. She is saying when she heard about coming to Australia she was (inaudible).
Member: “Sorry ?”
Interpreter: When she heard about coming to the Olympics she did whatever she could to make sure she’s on the standard that she can swim, because all those people she was working with here they didn’t know she was working with Sam. They didn’t know the pressures she was on so she was trying to make sure she just to get out from that place, and they tried to find … to do something for herself.
The applicant suggested that the correct interpretation of this response was as follows:
As I had explained to you that ISO had been instrumental in wanting to force me to do their duty deeds to which I refused due to the moral responsibility I have to my self. And these organisations use people to do bad things depending on how desperate their victim is, I mean they know my family situation and the fact that I lost my father in the circumstances of that incident, it would not be the same if my father was alive. And there is nobody to stop them if they decided to get rid of me to avoid revealing a plot to assassinate the man by poisoning later in the future.
Well and the person I was supposed to poison is still alive and the problem which my mother later found out was that a plot was hatched to kill me so as to stop information of the plot to kill the man by me poisoning him. Then the news would reveal who the plotters are including Sam.
So I can’t be protected because of the above reasons.
The comments above in relation to the claimed mistranslation of the answer to the question as to what would happen to the applicant if she returned to Uganda also apply to this aspect of the hearing. First the complete translation into English is indecipherable. Second the absence of a specific reference to the ISO is immaterial as the Tribunal was aware of this aspect of the claim and the claimed association of Sam with the ISO. More importantly, there is nothing in the Tribunal reasons for decision to suggest that it relied on any mistranslation of this part of the applicant’s oral evidence. The Tribunal understood the nature of the applicant’s claims. It rejected her claimed involvement with the ISO for reasons which were open to it. It has not been established that any mistranslation is such that the applicant was effectively prevented from giving evidence or that the errors were material to the conclusions of the Tribunal adverse to the applicant.
Finally the applicant asserted (in the observations) that at one point in the interview the interpreter made a statement to the member (sic) in the Bantu language meaning “the night takes the poor” in translation of a question “So you weren’t doing any further work for Sam after March 2000?” It appears to be suggested that the applicant’s response referring to the family’s receipt of anonymous threatening letters was unresponsive. However the applicant’s response, as with other responses throughout the hearing, was responsive to the question asked. Further, the applicant’s answers are consistent with each other throughout the hearing and address the issues raised by the questions. There is no evidence of any confusion in exchanges between the Tribunal and the interpreter.
It is clear that the translation is less than perfect. In addition to the use of the third person there is the difference between particular responses of the applicant as translated by the interpreter on pages 40 and 47 of the transcript and the applicant’s version of those responses.
The applicant’s claims that the translation was incomplete, incompetent, uncertain, improper, deficient and inaccurate are based not on a translation of the whole of the hearing but on complaints about particular aspects of the hearing. As the applicant’s Counsel submitted in oral submissions it would be appropriate to have regard to the “totality of the facts” but the totality of the facts are not before the Court in the form of a proper translation of the whole of the hearing. The applicant invited the Court to draw inferences about the standard of interpretation throughout the hearing based on the limited material before the Court. However, in the absence of a complete translation it is not possible to determine whether there were errors other than those suggested which were material to the conclusions of the Tribunal adverse to the applicant (see Soltanyzard v Minister for Immigration & Multicultural Affairs [2001] FCA 1168 at [18]). Although evidence of an inaccurate translation of particular aspects of a hearing may, in a case where the translation relates to critical issues, be such that an inference should be drawn that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence, this is not such a case. (See Pererav Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [38] to [41] and Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17] – [18]).
As I indicated, in determining whether there was a denial of procedural fairness or a breach of s.425 it is appropriate to consider whether any departure from the standard of interpretation (even on the basis submitted by the applicant) related to matters which were significant for the applicant’s case and the Tribunal’s decision. Some of the areas identified by the applicant involve incorrect, less than perfect or incomplete interpretation. However, having regard to the reasons for the Tribunal decision, I am not satisfied that any departures from the proper standard of interpretation were in any way significant to the applicant’s case or to the Tribunal decision (including in particular its assessment of the applicant’s credibility or reliability). It is clear from the Tribunal reasons for decision that the Tribunal understood the applicant’s claims.
A possible area in which there was some misunderstanding (although not shown to have arisen from interpretation difficulties) was that at some point the applicant suggested that things would have been different if her father was alive. However this appears to relate to the consequences for her in Uganda if her claims were accepted and, as indicated above, the Tribunal did not accept that her claims were credible and rejected her application on this basis. It is also clear that the Tribunal was aware that the applicant had referred to harm occurring in 1979 which killed her father and brothers and allegedly left her with a disability. It found that 1979 was the year in which the Tanzanian army had invaded Uganda to unseat President Idi Amin but concluded that as the current government was stable it was satisfied that harm of the sort suffered in 1979 was a one-off event. Similarly insofar as the applicant says that her claim to fear persecution was based on her membership of a particular social group being women it is clear as mentioned above that her claim was based on acceptance of her claims of spying and being recruited and refusing to poison someone and that the relevance of her status as a woman (or young woman spy) only arose if those claims were accepted so that it was relevant to consider the consequences for her as a woman without a father to protect her. As the claims were not accepted, if the passages on page 40 and 47 (relating to consequences for the applicant if her claims were true) were mistranslated as suggested, they are not material.
Hence the claimed departures from the requisite standard of interpretation were not critical to the presentation of the applicant’s case and did not influence the Tribunal in its reasonings and findings that it made. (See to the same effect in relation to s.425: W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788 at [28] to [31] and see NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 at [23]). The Tribunal conclusions were based upon its conclusion that the applicant had not suffered harm let alone harm relating to persecution for a Convention reason in the past, in particular that it rejected the claims that the applicant had ever been signed up by ISO or worked as a surveillance operative for Sam or been asked to form a relationship with an unknown man and then kill him. It made these findings for reasons which it gave which were open to it on the material before it. The alleged incompetent interpretation of particular parts of the hearing did not bear upon these conclusions. There is nothing to support a conclusion that the Tribunal would have come to a different decision in the absence of such alleged errors.
Insofar as it was submitted by the applicant that if there had been a better interpreter she could have put her case in a different way, there is no evidence the applicant was misled in any way by the interpreter or that she would have put her claims differently. Furthermore, while the Tribunal findings rested on its views of the applicant’s credibility, I am not satisfied that those views can be seen as “infected” by doubts caused by interpretation inadequacies. In essence it was the implausibility of the applicant’s claims that led the Tribunal to the conclusions that it reached. On balance, having considered the evidence before me I am not satisfied that the interpretation was such that the applicant was unable adequately to give evidence and present argument to the Tribunal or indeed that the alleged errors might have led the Tribunal to view the reliability of the applicant’s evidence differently (cf W284). It has not been established that the interpretation was so incompetent that the applicant’s right to give evidence was compromised or that any departure from the required standard of interpretation related to a matter of significance or influenced the Tribunal in its reasoning and findings that it made. It has not been shown on the balance of probabilities that the interpretation provided was incompetent in significant respects (Yi Gui Stone v Minister for Immigration & Ethnic Affairs (unreported Federal Court, Hill J, 28 June 1996). The evidence does not establish material errors in the interpretation of the applicant’s statements or a miscarriage in the decision-making process (see Soltanyzard v Minister for Immigration & Multicultural Affairs [2001] FCA 1168 at [17] to [19]).
No breach of s.425 has been established. While there may be distinction between s.425 and what Sackville J has described as the “full range of natural justice requirements” (see The Minister v Cho (1999) 164 ALR 339 and also see Mohammed v The Minister [2000] FCA 264 but note that the impact of s422B on the interpretation of the provisions in Division 4 of Part 7 is yet to be determined), on the evidence before the Court I am not satisfied that there has been a denial of natural justice or lack of procedural fairness arising from the standard of interpretation or any other aspect of the Tribunal procedure and decision. It has not been established that there was a failure to observe any statutory requirement or a disregard of a fundamental limitation arising by necessary implication from s.425 or from any other provision of the Migration Act. In initial oral submissions Counsel for the applicant also raised s.430. There is nothing in the material before the Court to suggest that the Tribunal failed to comply with s.430.
The applicant’s written submissions also addressed the question of State protection, suggesting that there had been direct State involvement in the matters complained of by the applicant consisting of non-investigation of extortion suffered by the applicant’s mother, “hitting” the applicant grandmother’s house and threatening the applicant “You’re digging a grave for yourself”. It was claimed that the applicant was unable to obtain police protection in relation to such matters and that this constituted selective or discriminatory treatment of her as a woman. However as the Tribunal did not accept the applicant’s claims, the question of whether the State was able or willing to protect her did not arise. Further the Tribunal considered the applicant’s claims in relation to damage to her mother’s shop and to the grandmother’s house, but regarded these as separate and individual incidents and not as part of a series of events designed to harm the applicant or for a Convention reason.
There was also a complaint that there was corroboration of the applicant’s claims in relation to the fact that her grandmother’s house was hit in the fact that there was independent evidence of bombings in Kampala. However, the evidence of bombings in Kampala in 1998 is not corroborative of what was claimed in relation to her grandmother’s house which was that it was knocked or damaged in some way from the outside. Further the bombings in Kampala were against the government and can in no way be seen as corroborative of the claim by the applicant.
As there is no jurisdictional error the application must be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 23 December 2003