SZLDY v Minister for Immigration

[2008] FMCA 1684

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLDY & ORS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1684

MIGRATION – Application to review decision of Refugee Review Tribunal – standard of interpreting – whether the Tribunal failed to comply with s.425 of the Migration Act – whether misapplication of the Refugees Convention definition of “refugee”.

Migration Act 1958 (Cth), ss.91R, 424A, 425

Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773
M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212
Mazhar v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 188
NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 149
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1
Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZEPY v Minister for Immigration & Anor [2006] FMCA 31
SZJQN v Minister for Immigration & Anor [2008] FMCA 1550
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511
WALN v Minister for Immigration Multicultural Indigenous Affairs [2006] FCAFC 131

Applicants: SZLDY, SZLDZ, SZLEA, SZLEB, SZLEC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2451 of 2007

Judgment of: Barnes FM

Hearing dates: 18 April 2008, 6 June 2008, 23 July 2008, 26 September 2008

Delivered at: Sydney

Delivered on: 18 December 2008

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondent: Mr J Mitchell

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. That a writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the Refugee Review Tribunal signed on 22 June 2007 in matter 071386594.

2. That a writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 10 April 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2451 of 2007

SZLDY, SZLDZ, SZLEA, SZLEB, SZLEC

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicants, husband and wife and three of their children, are citizens of Lebanon who arrived in Australia on 2 December 2006.  They seek review of a decision of the Refugee Review Tribunal signed on 22 June 2007 and handed down on 12 July 2007 affirming a decision of a delegate of the first respondent not to grant them protection visas.

2. The applicants lodged an application for protection visas on 1 March 2007.  Only the applicant father (who is referred to for convenience hereafter as the applicant) made claims to be refugee.  In connection with his protection visa application he submitted a written statement in which he explained that he left Lebanon in December 2006 to visit his siblings in Australia, accompanied by his wife and three of his children.  Two other children remained in Lebanon.  He claimed that at the time he left Lebanon he intended to return, but that circumstances that occurred thereafter meant that he decided to stay because his life was at risk, he would face persecution and his rights would be taken away because of serious conflict, in particular in the area from which he came.  He sought the opportunity to give further details in an interview. 

3. The applicant claimed to fear harm because of his religion and his political beliefs.  He claimed that he owned a number of properties in Lebanon, including a petrol station.  He lived on top of the petrol station.  He claimed that his family were Sunni Muslims, but that most inhabitants of the surrounding villages were Shi’ites who supported Hezbollah.  He claimed that while he was visiting Australia his brothers had been made aware that Hezbollah wanted to take possession of his petrol station at any cost because of its central location so that they could protect the area from Israel.  They had offered his parents a large amount of money.  He claimed his brothers were told by Hezbollah that he had to return to Lebanon and sell his lease to Hezbollah.  The applicant claimed that his parents had warned him not to travel to Lebanon because they knew that should he return he would fight against Hezbollah.  He stated that he could explain the importance of the location of his petrol station as a link between Lebanon and Syria and the manner in which the area was targeted by Israel in July 2006 because of the Hezbollah stronghold in that region.

4. The applicant also claimed that he and his family were aligned with a different political movement and that he was close to a named politician, but that that person would not have any influence because the area in which he lived was dominated by Shi’ites and Syrians who backed a politician who openly supported Hezbollah.  He claimed to fear Hezbollah in North Lebanon and leftist politicians and groups and that his circumstances were unique because of the petrol station’s location on the highway between Lebanon and Syria and the importance of his business to Hezbollah.  He claimed that he was opposed to Hezbollah politics and would not be willing to release his lease to Hezbollah, but that they would force him and cause harm to him and that the government in Lebanon was unable to protect its people.  He claimed that in his area there was no stability and should he return and oppose Hezbollah and object to handing over his petrol station he would kill and be killed.  He claimed that his position as a wealthy young member of his family in Lebanon was of importance and that Hezbollah would get rid of him with the assistance of left-wing and Syrian intelligence officers.

5. The application was refused by a delegate of the first respondent on 10 April 2007.  The applicant sought review by the Tribunal. 

6. The Tribunal wrote to the applicant on 14 May 2007 under s.424A of the Migration Act 1958 (Cth). He replied on 2 June 2007.

7. On 7 June 2007 the Tribunal put country information to the applicant in relation to Hezbollah activities in North Lebanon, relations between Sunni and Shi’ite Muslims, the local politicians referred in the statement accompanying his protection visa application as well as security and state protection in Lebanon which may be relevant to his claims so that it could be discussed at the hearing. 

8. The Tribunal invited the applicant to attend a hearing on 12 June 2007.  The applicant and his authorised recipient attended.  The hearing commenced on that day.  It appears that the interpreter who had originally been booked was unavailable.  A replacement interpreter was provided.  After she indicated that she had to leave, the hearing was adjourned.  The hearing was completed on 15 June 2007. 

9. During the hearings the applicant gave further details about his claimed experiences in Lebanon and recent developments in his home region, including claiming that:

   i)his brother had won an election to the city council against a group supporting Hezbollah and this had been a source of tension;

   ii)he had been accused of being an informant of the Israelis, partly because he had served in the Lebanese army and knew a lot of details about Hezbollah;

   iii)he was not in fear when he left to come to Australia.  Despite harassment he felt that he was on top of the situation because he had money and connections.  However recently Hezbollah had become stronger and his brothers reported that his father said that Hezbollah wanted the petrol station and will take it easily or forcefully and would kill him.  He claimed that his house had been burned and that there had also been threats against his father;

   iv)Hezbollah wanted his petrol station because of its strategic position and for “a few” other reasons.  He described his opposition to Hezbollah and to the war between Hezbollah and Israel;

   v)he had spoken against Hezbollah on television and after that he felt that he was watched; and

   vi)Hezbollah had offered him $4,000 a month for his petrol station and that while he could “live like a prince in Lebanon” with that money, he would not rent the petrol station to them for that price.

Tribunal decision

1. In its reasons for decision the Tribunal outlined the claims made by the applicant in his protection visa application and the evidence given at the Tribunal hearings on 12 June 2007 and 15 June 2007.  The Tribunal summarised his evidence at the first hearing and recorded that after the applicant stated that his petrol station was in a good location, he “expressed his concerns about the translation and the hearing was adjourned” and that the hearing resumed on 15 June 2007 with a different translator.  The Tribunal recorded that it also took evidence from the applicant’s brother and wife.  This is the only reference in the Tribunal decision to the interpretation at the hearing. 

2. The Tribunal set out extracts from independent country information in relation to Hezbollah activities in North Lebanon, relations between Sunni and Shi’ite Muslims, the two local politicians referred to by the applicant in his claims and security and state protection in Lebanon. 

3. At the commencement of its findings and reasons the Tribunal stated:

   The Tribunal found the applicant not to be a credible witness.  His evidence was often non-responsive, generalised and vague and the Tribunal frequently reminded the applicant to respond to its questions.

4. The Tribunal addressed the applicant’s claims with respect to a fear of persecution in Lebanon based on his brother’s election to the council, his own involvement with politics in Lebanon and the special knowledge he claimed he acquired as a result of army service in 2000.  The Tribunal accepted the applicant’s evidence that his initial intention was to return to Lebanon after his current visit in Australia, that he did not hold a genuine fear of persecution before his visit and that it was not until his brother’s return from Lebanon that he became fearful for his safety and for the safety of his family.  It found that any difficulties the applicant may have had prior to his current trip, whether relating to politics, religion, his position in the community, his relationship with his brother, his knowledge about Hezbollah or for any Convention reason, did not give rise to a fear of persecution on his part.  It had regard to the applicant’s evidence, his migration history, his failure to seek protection prior to March 2007, his return to Lebanon after his first visit to Australia in 2005 and his initial intention to return after the current visit to Australia.  For these reasons the Tribunal found that the applicant did not have a well-founded fear of persecution prior to his current visit to Australia.

5. The Tribunal also found that while the applicant spoke of his opposition to Hezbollah, his television appearance against Hezbollah, the tension between Shi’ites and Sunnis and claimed that his house had been watched after his television appearance, whatever political views he may have expressed or however religious differences may have been perceived, he did not have a well-founded fear of persecution.  It had regard to the fact that despite his opposition to Hezbollah and his religious affiliation as a Sunni, he had remained in Lebanon until late 2006, had taken no steps to seek asylum in the past and had intended to return to Lebanon at the end of the current trip.  The Tribunal was of the view that such conduct was inconsistent with the existence of a well-founded fear of persecution. 

6. The Tribunal rejected the applicant’s claim that Hezbollah had became stronger or more apparent in recent months and that religious tensions had become more manifest since his arrival in Australia or since his brother’s return to Australia in February 2007, as there was no independent country information before it to this effect  For these reasons the Tribunal did not accept that there was a real chance that the applicant would suffer persecution because of his “express or perceived political views or religious affiliations”.

7. The Tribunal also considered, but rejected as implausible, the applicant’s claim that he was denounced as a collaborator of Israel.  It did not accept his oral explanation for why he had not previously been harmed or that he was under any threat of harm or persecution prior to his arrival in Australia as a collaborator, spy, as a holder of any special knowledge about Hezbollah or for any other reason.

8. In relation to the applicant’s claims about changed circumstances in Lebanon, the Tribunal rejected his claims that after his arrival in Australia his father had advised his brother not to allow him to return as he would be killed because he refused to give up his petrol station, that his father had been physically mistreated and questioned about him and that it was thought that he had travelled to Israel.  The Tribunal considered it implausible that the Syrian border patrol would be aware of the situation with the petrol station, irrespective of the fame or notoriety of the applicant or his family in the area. 

9. In any event, the Tribunal did not accept the applicant’s claims with respect to the petrol station being wanted by Hezbollah.  It referred to independent country information which indicated that there was no evidence of Hezbollah activities in the north of Lebanon where the applicant lived and no evidence of forced land or asset appropriation by Hezbollah in that area.  It considered the applicant’s response to that information (that he lived in the area and knew better than the report writers), but did not accept that the country information was unreliable.  Having considered the nature and range of sources consulted, the Tribunal gave preference to the independent country information and did not accept that Hezbollah or any other terrorist group forced the applicant to rent his petrol station.  Nor did it accept that as a result of his refusal to do so the applicant became a target for Hezbollah, the Shi’ites, Syrian intelligence or any other group.

10. The Tribunal found “for the sake of completeness” that it did not accept that an attempt by Hezbollah to force the applicant to rent his petrol station would amount to persecution within s.91R of the Migration Act 1958 (Cth) or that a Convention reason would be an essential and significant reason for such an attempt. It continued: “This is because the applicant stated that the Hezbollah offered him a large sum of money to rent the petrol station and that with this money he could ‘live like a king’.  While the applicant may be opposed to the renting of the petrol station to Hezbollah, the Tribunal does not consider so that in doing so he would be subjected to significant economic hardship or denied capacity to earn a livelihood.  For these reasons the Tribunal does not consider the renting of the petrol station to the Hezbollah amounts to persecution.  Further, the applicant spoke at length about the strategic position of the petrol station and while he cited many reasons for the taking of the station, he repeatedly stated that it is valuable for its strategic position and the volume of its tanks.  Accordingly, the Tribunal is of the view that it is the position and the capacity of the station that would form the main attraction to the Hezbollah and not any characteristic of the applicant.  The Tribunal does not accept that a Convention reason would be an essential and significant reason for taking the station”.

11. The Tribunal also addressed the applicant’s claim that his home above the petrol station had been burned down since his arrival in Australia.  It recorded that when it pointed out to him in the hearing that it would be nonsensical to burn the house and petrol station that Hezbollah wanted to take from him, the applicant had said that they wanted to harm him.  The Tribunal found this to be inconsistent with the applicant’s oral evidence that the Syrian border guards believed him to be in Israel and that they received their intelligence from the people of the local village.  It considered photographs of the applicant’s family home and other assets, but found that to the extent that these depicted any damage it could not be satisfied that the damage was inflicted by Hezbollah or by other terrorist groups, religious groups or any other group named by the applicant or that the damage was inflicted for any Convention reason. 

12. The Tribunal found that the applicant’s main concern appeared to be the likelihood of another conflict.  While it was unable to make any findings with respect to the likelihood of a conflict in the area of the applicant’s residence, the Tribunal did not consider that the likelihood of such conflict or the applicant’s claims about general lawlessness in Lebanon of themselves gave rise to a real chance of persecution for a Convention reason. 

13. Nor did the Tribunal accept that the fact that large noisy trucks drove past the house at night, that sometimes they did not pay for petrol or that the applicant was forced to sell petrol at night, singularly or cumulatively amounted to persecution within s.91R of the Act or that such conduct was engaged in for a Convention reason.

14. The Tribunal addressed the applicant’s claims about an attack on his father and that Syrian border guards had threatened to kill him if he returned.  It did not consider it plausible that the Syrian border guards would be aware of his circumstances and in particular of his refusal to rent the petrol station.  It did not accept that the applicant was under threat from any group, including Syrian border guards or Syrian intelligence, because no steps had been taken to perpetrate any harm upon him by such groups in the past. 

15. The Tribunal also considered the applicant’s claim that he was known as “wealthy young [family name]”.  It accepted his evidence about his income and wealth.  It also accepted that the family may constitute a particular social group.  However the Tribunal found that the applicant had not suggested that he would face persecution for reason of his wealth alone and that to the extent he claimed to fear persecution arising from membership of his family and linked to his brother’s political activities or his father’s standing in the community or any other familial links, such claims had been addressed.  It did not accept that his chance of persecution would be exacerbated by reason of his membership of his family. 

16. While the applicant had stated that he was a supporter of a politician named Mahmoud Mourad (and not Wajih El Bahraini who supported Hezbollah and Syria), the Tribunal observed that he had not suggested that he may be targeted or persecuted for reasons of his support for Mr Mourad.  It found that there was no real chance of such persecution and that to the extent that it was claimed that this may bring any harm from the Hezbollah or Syrian groups, those claims had been addressed.

17. Finally the Tribunal acknowledged the evidence of the applicant wife and the difficulties the family’s children may face in Lebanon, but found no suggestion of any discriminatory conduct giving rise to difficulties such as to amount to persecution for a Convention reason.

1. The Tribunal concluded that having considered all of the applicant’s claims singularly and cumulatively there was no real chance he would face persecution for any Convention reason if he returned to Lebanon now or in the reasonably foreseeable future.  It affirmed the decision not to grant the applicants protection visas.

These proceedings

1. The applicants sought review by application filed in this Court on 9 August 2007.  The matter was initially listed for hearing on 18 April 2008.  Counsel for the applicants filed written submissions in which it was foreshadowed that leave would be sought to file an amended application.  However on 18 April 2008 orders were made by consent that the hearing be adjourned until 6 June 2008. 

2. On 6 June 2008 former counsel for the applicants appeared for the limited purpose of indicating that his instructing solicitor’s instructions had been withdrawn that morning and therefore so had his.  Leave was granted to the legal practitioners to withdraw.  The applicants sought and were granted an adjournment. 

3. When the hearing resumed on 23 July 2008 the applicants once again had legal representation. Mr Karp, counsel for the applicants, sought and was granted leave to file an amended application in Court. He clarified that ground one, which asserted a failure to comply with s.425 of the Migration Act 1958 (Cth), related only to the first part of the Tribunal hearing held on 12 June 2007 and that grounds two and three were not pressed. The applicants relied on transcripts of the Tribunal hearings of 12 June 2007 and 15 June 2007 and, initially, the tape recording of the hearing on 12 June 2007.

4. However in the course of the hearing on 23 July 2008 counsel for the applicants sought and was granted a further adjournment to file a certified translation of the Arabic language used in the Tribunal hearing on 12 June 2007.  At the hearing on 26 September 2008 reliance was placed on this further evidence (an affidavit and report of Emile Nes Selim filed on 22 September 2008) rather than on the tape recording. 

Section 425

1. The first ground in the amended application is that the Tribunal failed to comply with s.425 of the Migration Act in that the standard of interpreting at the hearing held on 12 June 2007 was “so inadequate that the First Applicant was denied a proper opportunity to put his claims to the Tribunal.” 

2. The applicants attended the Tribunal hearing on 12 June 2007 with their authorised recipient.  On that day the Tribunal provided an Arabic (Lebanese) interpreter who was described on the hearing record as a NAATI Level 2 interpreter.  It is the standard of the interpretation by that person that is in issue.  It appears from the transcript of the hearing that this interpreter was provided at short notice to replace an interpreter who was unavailable and was booked for a limited period. 

3. In his affidavit sworn on 18 September 2008 Mr Nes Selim addressed his expertise as a translator and interpreter and the accuracy of the interpretation from English to Arabic and from Arabic to English at the hearing on 12 June 2007.  The first respondent did not challenge Mr Nes Selim’s expertise or his corrections to the transcript. I accept his evidence in relation to the accuracy of the translation.  A 12 page report in the form of a table identifying mistranslations of answers into and from Arabic in the course of the part of the Tribunal hearing that took place on 12 June 2007 is annexed to the affidavit. 

4. I note first that the applicant’s authorised recipient (who is not a registered migration agent) raised with the Tribunal the accuracy of the interpretation of the English word “persecution” during the hearing on 12 June 2007 (as discussed below).  The interpreter then advised that she had to leave.  The hearing (which had commenced at 10.45am) was adjourned at 11.45am.  It resumed, briefly, with a telephone interpreter and was then adjourned until 15 June 2007. 

5. The applicant’s authorised recipient wrote to the Tribunal on 14 June 2007 thanking the presiding member for stopping the hearing and postponing it to 15 June 2007.  While there is no evidence before the Court that the authorised recipient had formal accreditation as an interpreter or translator, he claimed in this letter that he was a NAATI accredited interpreter.  However he claimed that the applicant had been prejudiced because the interpreter at the hearing on 12 June 2007 was not capable of translating properly and the applicant had been unable to answer directly the questions put by the presiding member.  Two claimed examples of mistranslation were referred to: that the term “persecution” was translated into Arabic as “prosecution” thus confusing the applicant and that the interpreter translated the word “witnesses” as “martyrs”.  The Tribunal did not respond to this letter or refer to it at the resumed hearing or in its reasons for decision.  The hearing resumed on 15 June 2007 with a different interpreter.  No issue is taken with the accuracy of the interpretation on 15 June 2007. 

6. The applicant contended that the Tribunal had failed to meet its obligations under s.425 of the Migration Act because the quality of the interpreting at that part of the hearing conducted on 12 June 2007 was such that he was denied a genuine opportunity to present his claims. It was initially submitted that it could be inferred from the English language transcript and the tapes that there had been a number of serious problems in interpreting in the manner considered by Finkelstein J in VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723. However, as indicated, ultimately the applicant relied on the English language transcripts and on the evidence of Emile Nes Selim.

7. Counsel for the applicants contended that the difficulties and misrepresentations in the hearing on 12 June 2007 not only detracted from the quality of the hearing afforded by the Tribunal but also contributed to the Tribunal’s understanding (or lack thereof) of the applicant’s case and ultimately to its critical finding that the applicant was not a credible witness.  As set out above, the Tribunal found the applicant not to be a credible witness stating: “His evidence was often non-responsive, generalised and vague and the Tribunal frequently reminded the applicant to respond to its questions”.  Subsequent findings had regard to his evidence and rejected or found implausible aspects of his claims or explanations. 

8. While no complaint was made in relation to the standard of the interpreting at the continuation of the hearing on 15 June 2007, it was contended that that hearing did not remedy the difficulties which arose on 12 June 2007 because at the second hearing (the English language transcript of which is also before the Court) the Tribunal made no systematic attempt to go back over the ground covered at the first hearing and because (as was said to be apparent from its summary of the oral evidence of the applicant and its findings and reasons) it regarded the evidence given on the two occasions as a single body of material and did not distinguish between evidence given at the first or second hearings.  The evidence given at the first hearing was said to be part of the basis on which the Tribunal assessed the applicant’s evidence as “non-responsive, generalised and vague”.

9. It was said to be of particular relevance that despite the fact that the concept of “persecution” was not adequately communicated to the applicant on 12 June 2007, the Tribunal did not begin the hearing on 15 June 2007 with any further explanation of the Convention definition of a refugee.  Hence the applicant did not have the opportunity throughout the whole of that hearing to answer the Tribunal’s questions armed with an adequate explanation of what the Tribunal was interested in. 

10. The English language transcript of the first hearing is 15 pages long (plus a cover sheet).  Mr Nes Selim’s report details over 80 instances of differences between what was said and the translation in this hearing. The applicant did not suggest that all of these differences were of significance, but rather that there were four categories of mistranslations and omissions by the interpreter which could be seen to have led to significant misunderstandings between the applicant and the Tribunal member and the Tribunal member and the applicant.  There is some overlap in these categories, which are said to be: 

    i)that the interpretation completely misconstrued the Convention definition of refugee (in particular by rendering the term “persecution” as “sentence” or “prosecution” and “political opinion” as “any politics”);

    ii)that the interpreter mistranslated important parts of the procedural information stated by the Tribunal (in particular translating “witnesses” as “martyrs” on two occasions);

    iii)that there were material mistranslations of the Tribunal questions; and

    iv)that parts of the applicant’s answers to questions were omitted or mistranslated by the interpreter. 

1. Elements of the Convention definition

1. First (and importantly) it was submitted that the interpretation of what was said by the Tribunal completely misconstrued the Convention definition of a refugee and that this mistranslation continued throughout the hearing. 

2. After some introductory matters, the Tribunal explained to the applicant the definition of refugee and the Refugees Convention.  The Tribunal member stated at line 40 on page 4 of the transcript “Broadly there are three elements to the definition.  First you must have a fear of persecution.  Persecution has been defined by the Australian law to mean serious harm”.  This was translated by the interpreter as follows:  “There are three factors in this definition.  You must have a fear of a sentence (sic) against you.  And the definition of sentence against you (sic) is that it will harm you physically”.

3. On this and subsequent occasions the interpreter incorrectly rendered the critical term “persecution” as meaning that a “sentence” had to be passed against the applicant and provided a confusing and inaccurate translation of the explanation and the Convention definition.  When the Tribunal went on (at page 4 line 46) to explain “And it must also involve systematic and discriminatory conduct” that was interpreted as “And there should also be a discriminatory method in this sentence”.  At page 5 line 43 the mistranslation of the concept of “persecution” was repeated when the Tribunal member stated “What it means is that you must have a fear of persecution for one of the convention reasons”.  This was translated as “What it means is that you fear any sentencing in your country according to the legislation uh I mean the five legislative factors”.

4. Consistent with that misconstruction (but inconsistent both with what the Tribunal member said and with the Convention definition of refugee) on a number of other occasions the interpreter interpreted the word “persecution” as “prosecution”.  For example, the Tribunal stated (page 5 line 15) “For me to find that you are a refugee I must be satisfied that you will face persecution if you return to Lebanon now or in the reasonably foreseeable future”.  This was translated as “In order to satisfy her that you are a true refugee there should be proof that if you return to Lebanon you will be prosecuted or if you return to Lebanon in the foreseeable future you will be prosecuted”.

5. The transcript of the Tribunal hearing records that after this mistranslation an unidentified male (and it is not disputed that this was the applicant’s authorised recipient) intervened and stated “Sorry Member, can I clarify one word in Arabic.  Persecution means [Arabic: persecution] rather than judged will be [Arabic: prosecuted] you know”.  The Tribunal member did not respond to this attempted clarification.  The applicant then indicated “I didn’t understand that one” and when the Tribunal asked which part he did not understand he replied that he did not understand “anything.”  The Tribunal member again attempted to explain the definition of refugee in the Refugees Convention, referring to the Refugees Convention “which is in front of you”.  However, even if an Arabic version of the Refugees Convention was in front of the applicant, the interpretation of what the Tribunal member said differed markedly from the words of the Convention.  The applicant’s expressed lack of comprehension has to be seen in light of that fact. 

6. The interpreter continued to interpret the word “persecution” as “prosecution” throughout the hearing.  For example on page 10 of the transcript at line 5, after discussion of events in Lebanon the Tribunal stated “[Applicant] I need to know about your fear of persecution or what happened to you personally not what is happening in your village unless it has some impact on what’s happening to you”.  This was translated as “What she wants to know from you is if you fear going back to your country and being prosecuted.  She doesn’t want to know what happened in the village she wants to know what …”

7. This was not only a mistranslation but it also omitted the Tribunal’s significant qualification about the need to hear about the village events having an impact on what was happening to the applicant. 

8. The effect on the applicant of such mistranslation is apparent from his response.  Perhaps unsurprisingly, the applicant responded (line 9 page 10) “Why would I be prosecuted by the Lebanese?  My name is clean I don’t have problems with the legal Lebanese government, the government of Saniora.”  However the interpreter then mistranslated “prosecution” as “persecution”.  The applicant’s response was translated into English as “According to the Lebanese government I have no fear of persecution I have a clean name I have no problems with them at all.”  The mistranslation could be said to have made it appear that the applicant was providing a non-responsive or vague response.  It was submitted that it hindered the Tribunal’s comprehension of the difficulties the applicant was experiencing with what he understood were questions about prosecution rather than persecution.

9. The applicant then (page 10) started to explain the cause of the conflict with Hezbollah.  He claimed he was “confronting them politically”.  This was mistranslated as “I was the person that would negotiate between them”.  He referred to threats from Hezbollah and its members in the village (translated as “supporters”) and political conflict.  The Tribunal reminded the applicant (page 10 line 27) “[Applicant], I will again remind you that I need to hear about any personal fear of persecution not about the political situation in your village”.  This was translated as “She is reminding you again that she wants to hear from you about your own fear of any sentence against you, being prosecuted in your country she doesn’t want to hear about any politics and …”  The applicant responded “Any sentence against me?  Hezbollah will give me the death sentence” but this was translated as “Hezbollah is going to persecute me by giving me the death sentence”, another answer that might well seem unresponsive to the question that was actually asked by the Tribunal. 

10. As the applicant submitted, one can understand that the Tribunal might see the applicant’s translated response as non-responsive or vague, whereas in fact he was addressing the translated question about what the interpreter described as “prosecution” and a “sentence”. 

11. Subsequently (at page 11 line 31) the Tribunal asked the applicant “[Applicant] did you have any fear of persecution before coming to Australia?”  This was translated as “Did you have any fear of prosecution before coming to Australia?”.  It was to that mistranslation that the application responded “Not at all, I was very content and I didn’t care about anything or anyone”. 

12. The Tribunal then asked “So why if you have been threatened by as you say said terrorists because of your brother’s election in the council and your car has been broken, why didn’t you have any fear of persecution before you travelled to Australia?”  This was translated as “So when your car was burned down and your brother won the election why weren’t you afraid before coming to Lebanon, eh Australia”.  The applicant responded “Are you asking why I did – why I wasn’t fearful?”

13. When this was confirmed the applicant started to explain that while he was in Australia his father had told his brother that the applicant should not return to Lebanon.  The Tribunal member then stated:  “[Applicant] I don’t understand why if you have been having problems since 2000 with the terrorist groups you firstly did not travel or did not claim asylum in Australia until 2007 and did not have any fear of persecution before coming to Australia?”  Again, the concept of persecution was mistranslated and the full extent of the question was not translated to the applicant.  The interpreter stated: “She finds it strange that you had problems with those terrorist organizations in Lebanon and it’s only in 2007 that you are applying for a protection visa and you don’t have any fear at all that you will be prosecuted”.  The applicant responded by addressing whether he feared death.  The Tribunal asked him to answer the question and reiterated “Why do you say you are not fearful before coming to Australia?”.  However this was translated as “Why do you say that you are not fearful of being prosecuted?”

14. The applicant’s response appears to have been directed at the interpreter: “There is one thing, can she repeat the question for me or you repeat it for me slowly, you repeat it for me if you understand it”.  However this was translated to the Tribunal as “Can you please repeat little by little because I didn’t understand?”.

15. The Tribunal member then explained her concern that the applicant claimed he had problems with a group in Lebanon from 2000, had travelled to Australia in 2005 and had not claimed asylum and came again in 2006 and in all his statements to the Department and the Tribunal had said that he was not fearful of persecution at the time he came to Australia and was prepared to go back.  The interpreter again translated “persecution” as “prosecution.”  The Tribunal continued: “So my question is why did you not claim persecution previously and why did you plan to go back on this occasion if you had been persecuted since 2000?”  This question was translated as “Her question is if you are not afraid to be prosecuted when you returned to your country why did you not apply – uh if you are afraid of being prosecuted in your country why didn’t you apply for asylum in 2005?” (sic).  The applicant responded “Sorry, just the  last question I missed.” 

16. It was submitted that given that what the interpreter said was entirely different to what the Tribunal member said, it was understandable that the applicant asked for the question to be repeated.  It would also be understandable if the Tribunal (unaware of the mistranslation) found the applicant’s reply non-responsive.

17. Mistranslation of the concept of “persecution” also occurred in a subsequent exchange (after a discussion of the applicant’s claim that Hezbollah wanted to take his petrol station) where the Tribunal stated (at page 14 line 15) “But you also claimed that you are fearful of persecution because of your brother’s election to the council”.  This was mistranslated as “But then you said you are fearful of being prosecuted because your brother won the municipal election”. 

18. Unsurprisingly the applicant replied “I didn’t say that, what I said was it was because I was involved – first of all my brother is the president of the municipal council – I didn’t say that pay a little attention, correct that, tell her the story so she can correct it, I didn’t say that”.

19. It appears that in this response the applicant was being critical of the interpreter.  However the interpreter translated this response as “No I didn’t say that, no I didn’t say that I can start again, and I explain it to you”.  The Tribunal then repeated its question as to whether the applicant had any fear of “persecution” because of his brother’s “political involvement.”  (Again this was mistranslated as “Are you fearful of being prosecuted because your brother won the election in the municipal council?”).  This mistranslation of “persecution” as “prosecution” continued through the hearing.  Mr Karp submitted that it was little wonder that the applicant was apparently bewildered and said (transcript page 5 line 24) that he did not understand everything. 

1. In addition to the mistranslation of “persecution” as “prosecution” (and vice versa), the interpreter rendered the term “political opinion” as the much less precise “any politics” in describing the five Convention grounds (transcript page 5 line 2). 

2. Procedural information

1. The applicant also contended that difficulties with translation occurred at the start of the hearing when the interpreter mistranslated important parts of the procedural information provided by the Tribunal.  The Tribunal informed the applicant about the procedure at the hearing (page 3 line 33) and stated that she would have regard to the Tribunal file containing evidence given to the Tribunal “… and any oral evidence that you and your witnesses will give to me today”.  This was interpreted as “And there is also evidence, you will give evidence today as well as all the martyrs who are here with you”.

2. To this the applicant responded “what is martyrs?”.  This question was not translated, but responded to in Arabic by the interpreter as “the ones who will give evidence.”  The interpreter then told the Tribunal in English “Sorry I misinterpreted something” but she did not translate this for the applicant.  Another such mistranslation occurred at (page 6 line 23 of the transcript) when the Tribunal member stated “What I’ll do is I’ll ask all the witnesses to wait outside while I talk to [the applicant] and I will call you when we’re ready”.  This was translated as “She is going to ask all the ones giving evidence to go outside, the martyrs (unintelligible).  The applicant’s response to this was “it’s not martyrs, it’s not martyrs”.  This was not interpreted.  The interpreter replied [Arabic] “I know (unintelligible)” and then stated “He is making fun of me”.  The applicant then asked the interpreter “tell her what we are saying, that he is correcting in Arabic that I said and it was wrong.” The interpreter then said in English “There is one word that he is saying when I said witness I said (unintelligible) instead of witnesses and it’s very similar in Arabic, so I (transcript error: he) just missed”.

3. Although this mistake was corrected, the applicant submitted that it must objectively have been of concern to the applicant, particularly as the second such mistranslation followed shortly after the Tribunal‘s statement in relation to the need to discuss adverse information: “That does not mean that I have made up my mind about your case but it is to give you the opportunity to comment on these matters” was mistranslated by the interpreter as “That does not mean that she is not (sic) suspicious of you but she is going to give you the opportunity to prove your position”.

3. Material mistranslations of Tribunal questions

1. The applicant also pointed to a number of what were said to be material mistranslations of Tribunal questions, including the following:

   (a)     At transcript page 10 line 5 the Tribunal said to the applicant “[Applicant], I need to know about your fear of persecution or what happened to you personally not what is happening in your village unless it has some impact on what’s happening to you”.  However the interpreter’s translation of this omitted the concluding part of this question “…unless it has some impact on what’s happening to you” thus not conveying the true import of the Tribunal’s question.  The interpreter stated “What she wants to know from you is if you fear going back to your country and being prosecuted (sic).  She doesn’t want to know what happened in the village she wants to know what …”

   (b)    As described above, at transcript page 10 line 27 when the Tribunal endeavoured to clarify that it needed to hear about “your personal fear of persecution not about the political situation in your village” that was rendered by the interpreter as “She is reminding you again that she wants to hear from you about your own fear of any sentence against you, being prosecuted in your country she doesn’t want to hear about any politics and …”

   (c)In addition to the instances described above a number of other questions (at transcript page 11 line 31, page 12 lines 12, 24 and 32, page 13 line 5, page 14 lines 15 and 21 and page 15 line 29) were said to have been mistranslated and hence misconstrued as relating to “prosecution” rather than “persecution.”  This was said to have misconveyed the meaning of the Tribunal’s questions.  It was suggested that it also appeared to have caused some exasperation in both the applicant and the Tribunal member as to the nature of the questions and the apparent unresponsiveness of the applicant’s answers.

   (d)    As set out above, the question posed by the Tribunal at transcript page 12 line 37 “So my question is why did you not claim persecution previously and why did you plan to go back on this occasion if you had been persecuted since 2000?” was not translated accurately.  Not only did the interpreter refer to “prosecution” but also she translated the question as asking why the applicant had not applied for asylum in 2005 when that date was not mentioned by the Tribunal at that stage of the hearing.

2. In this respect I note that at page 13 line 5 the interpreter again referred to “2005” and “prosecution” when those words were not used by the Tribunal.  The applicant then asked the Tribunal “Can you please repeat?”  The Tribunal then asked “You have been fearful from 2000 and if you faced persecution from 2000 why didn’t you claim asylum during your last visit and why did you intend to go back after this visit?” this was translated as “If you were fearful since 2000 why didn’t you apply for asylum and why were you planning on returning to your country when your visa expires?”.  The applicant stated “There is one small thing; you are not – now I can understand exactly what she is saying but you are not clarifying the question for me.”  However this was translated to the Tribunal by the interpreter as “He’s saying that you are explaining it properly but I am not”. 

3. It is apparent that the applicant was raising with the interpreter his concern about the accuracy of the interpretation at this stage.  The interpreter then told the Tribunal: “He’s saying can he ask me a question?”.  However the applicant was told by the Tribunal that he could not ask the interpreter a question but could ask the Tribunal.  The applicant then sought clarification from the Tribunal asking “All right the honourable member is saying that in 2005 – 205 – why I didn’t apply for refugee, yes?”  The Tribunal’s clarification of this was “I’m asking you why didn’t you apply in 2005 and also why on this trip you intended to go to Lebanon if you were having problems from 2000.”  However this was mistranslated as “Why didn’t you apply for asylum in 2000 (sic) and why, after this visit were you going back after this visa expires?”  The applicants response (unsurprisingly) did not expressly address the Tribunal’s question about 2005 but only the situation in 2007.  Again this part of the transcript reveals an inaccuracy in interpretation in relation to the dates referred to by the Tribunal member followed by what could be seen as an unresponsive answer. 

4.  Applicant’s answers

1. The applicant also referred to the fact that parts of his answers to questions were omitted or mistranslated.  In particular:

   (a)At transcript page 10 line 1, while explaining events in June 2004 as part of the background to his concerns about Hezbollah the applicant stated that a named “ally of Hezbollah” had been arrested by the Lebanese army who put him into a personnel carrier along with 30 other people who caused trouble.  The interpretation of this claim omitted the applicant’s description of this person as an “ally” of Hezbollah, a fact that was said to give context to the applicant’s fear of persecution, in that he claimed that his brother was a candidate in elections who was opposed to this person. 

   (b)    At transcript page 10 line 9 the applicant’s statement that he would not be “prosecuted” by the Lebanese government (which responded to an incorrect interpretation of a question by the Tribunal member) was itself mistranslated.  In this instance the interpreter translated the response as a statement that the applicant did not have a fear of “persecution” (sic).  Thus both question and answer were said to have conveyed the wrong meaning.

   (c)     At transcript page 10 line 14 the applicant stated that he was “confronting them” (that is Hezbollah).  However this was translated as “negotiate[ing] between them” when the two concepts are entirely different. 

   (d)    At transcript page 11 line 28 the applicant’s statement that Hezbollah “can kill a person anytime without any question because there is no government to prosecute them” was mistranslated as “… no government to persecute them”, an answer which as translated was said not to make sense. 

   (e)     The applicant’s statement at page 12 line 2 that his father had sent a message from his deathbed that he should not come to Lebanon was said not to have been conveyed to the Tribunal by the interpretation, which simply referred to the brother having a letter from the father who was on his deathbed.

   (f)     It was submitted that the applicant’s answer at page 14 line 15 to the Tribunal’s suggestion that “But you also claimed that you are fearful of persecution because of your brother’s election to the council” (which was mistranslated as “But then you said you are fearful of being prosecuted because your brother won the municipal election”) was not conveyed anywhere near completely to the Tribunal in a manner that might have indicated a basis for the applicant’s concern.  The applicant said (page 14 line 18) “I didn’t say that, what I said was it was because I was involved – first of all my brother is the president of the municipal council – I didn’t say that pay a little attention, correct that, tell her the story so she can correct it, I didn’t say that”.  This statement clearly involved a direct discussion with the interpreter.  It was translated to the Tribunal as “No I didn’t say that, no I didn’t say that I can start again, and explain it to you”. 

   (g)     At page 15 of the transcript, when the applicant was asked why his difficulties with Hezbollah had become apparent now and not in the seven years since he left the army, the applicant responded “Firstly because in 2006 to 2007 Hezbollah has asked to rent my petrol station and I refuse to rent the petrol station to them and they gave me good money because the location of my petrol station is a strategic location for the region as a whole”.  The concluding part of this response was translated as “because my petrol station is a strategic petrol station for the whole village.”  This was said to be a rather different concept. 

   (h)    When the Tribunal (at page 15 line 32) asked the applicant “Do you have any fear of persecution other than arising from your petrol – from the ownership of the petrol station?”, that was mistranslated as “Do you have any fear of prosecution apart from being the owner of a petrol station?”.  The applicant endeavoured to draw attention to the possible cause of the confusion but this attempted explanation was itself mistranslated.  The applicant said “Sorry there is a mistake occurring either from what you (interpreter) or what she is saying I don’t know.  You are saying the word prosecution, the word prosecution relates to the judicial system but the word terrorism applies to a party”.  However the interpreter translated this for the benefit of the Tribunal as follows “He is saying it’s either I’m making the mistake or you are.  With persecution he is not convinced with the word I’m saying.  He is saying that persecution is always – it’s a legal term and it’s not from a terrorist or a terrorist group or organization”.  Mr Karp submitted that this translation of the applicant’s statement completely failed to explain his concern. 

2. The fact that the Tribunal member, not surprisingly, failed to understand these concerns, explains her response to what happened immediately thereafter.  It was at that point (page 15 line 40) that the applicant’s authorised recipient stated “Member, may I intervene?  With my respect to the interpreter the word persecution is not [Arabic: prosecution] in Arabic, persecution is [Arabic: persecution].  The interpreter then stated “[Arabic: persecution] sorry is oppression.  It’s not persecution”.

3. The authorised recipient then said “Prosecution [Arabic: prosecution is for the judicial system] it has to do with the government law, to be prosecuted legally by the government but persecution is a person who fears …”.

4. At that point the Tribunal member said “We don’t need to have a discussion on what persecution means”.  The authorised recipient responded “Sorry, member but it’s very important.  He misunderstood”. 

5. The Tribunal member then asked what time they were booked until and when the interpreter indicated that she had to leave as soon as possible, the Tribunal told the applicant that they would adjourn and that they would try to get another interpreter that day or perhaps might have to adjourn to another day.  This was subsequently (page 16 line 26)  explained to the applicant as an adjournment because the interpreter was a replacement who had only been booked for a short period of time.  The applicant expressed concern about delay.  The Tribunal member’s subsequent apology to the applicant about what had happened in the morning and the suggestion that they had some “problems” with the interpreters when the hearing briefly resumed at 1.05pm (with a telephone interpreter) has to be seen in this context. 

6. It was submitted for the applicant that it was clear that the Tribunal member had not understood all the mistranslations that were occurring, otherwise she would have known that there was a need to have a discussion about what persecution meant in the sense of clarifying the interpretation of that concept.  There was no acknowledgment by the interpreter or by the Tribunal member that there was a problem.  Counsel for the applicant contended that the applicant and the Tribunal member were in effect at cross-purposes during the hearing on 12 June 2007 which, according to the Tribunal hearing record, commenced at 10.45 and was adjourned at 11.45 (resuming briefly later that day with a telephone interpreter at which time it was adjourned to 15 June 2007). 

7. Counsel for the applicant acknowledged that interpretation need not be perfect and that the test for acceptable interpretation had been described as the expression in one language, as accurately as the circumstances permit, of the idea or concept that had been stated in the other language (see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [29]) or expressed by reference to whether the applicant had a real opportunity to express himself and fully answer questions put to him by the Tribunal (see VWFY at [27]).

8. It was submitted that examination of the transcript and Mr Nes Selim’s report led to the conclusion that the Arabic interpretation in the first of the two hearings failed both aspects of this test and any other test that could reasonably be advanced. 

9. The first respondent accepted the evidence of Mr Nes Selim as to the errors in interpretation in the hearing conducted on 12 June 2007 but submitted that it had not been established that the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence at the hearings or that the errors made by the interpreter were material to the conclusions drawn by the Tribunal adverse to the applicant (see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17] and WALN v Minister for Immigration and Multicultural and Indigenous [2006] FCAFC 131 at [29]).

10. It is convenient to consider first the respondent’s contentions about the context in which the acknowledged mistranslations and omissions in interpretation occurred at the hearing on 12 June 2007.  Counsel for the first respondent pointed out that prior to the first hearing the applicant was apparently provided with a copy of the definition of refugee in the Refugees Convention in Arabic and an opportunity to read that definition.  While this appears to have been the case, the interpreter’s mistranslations, in particular of the word “persecution”, did not occur only in the context of explaining the meaning of refugee in the Refugees Convention but also in questions addressing the Tribunal concerns about aspects of the applicant’s claims and in the applicant’s responses.  The mistranslation of “persecution” and “prosecution” had a clear impact on the conduct of the hearing.  It limited the applicant’s ability to give evidence effectively and the Tribunal’s understanding of what was being conveyed (and why) in response to mistranslated questions.  It can be inferred that at least some of the exchanges in which such mistranslation occurred were material to the Tribunal’s assessment of the applicant’s evidence as non-responsive, generalised and vague and hence to its adverse credibility finding. 

11. Moreover, while the first respondent pointed to the fact that the applicant agreed that he had had an opportunity to read the relevant definition from the Refugees Convention in his own language at the start of the hearing, when the Tribunal said “I understand you have had an opportunity to read the relevant definition from the convention in your own language but I will explain to you briefly what it means” this was translated by the interpreter “You might have received with your application the immigration laws and you might have read it but she will explain them briefly to you”.  Hence the applicant’s attention was not drawn to the relevant material and the discussion thereafter proceeded at cross-purposes, given the translation of the Tribunal’s questions about “persecution” as referring to “prosecution” or sentencing. 

12. As set out above, the Tribunal did not accept that there was any need to have a discussion of the concept of persecution.  I am not satisfied on the material before me that the Tribunal understood or accepted that an error in the translation of “persecution” was occurring in the manner that is now clear from Mr Nes Selim’s evidence.  This is consistent with the fact that the Tribunal did not provide a fresh explanation of the Convention definition of refugee at the start of the resumed hearing on 15 June 2007.  The transcript of that hearing is also before the Court.  It is the case that some way into the hearing on 15 June 2007 (transcript of hearing on 15 June 2007 page 10 line 35) the Tribunal member referred to the fact that as she had explained at the previous hearing that the word “persecution” was defined as serious harm and must involve systematic and discriminatory conduct.  The Tribunal went on to summarise the requirements of the Refugees Convention and the meaning of persecution, but did so by reference to what she had said at the previous hearing.  Also this explanation focused on one aspect of what had been described in some detail at the start of the first hearing (the requirement that persecution must involve serious harm and systematic and discriminatory conduct).  The Tribunal member did not provide the applicant with a further complete explanation of the Convention definition of refugee. 

13. Counsel for the first respondent observed that the applicant had requested and was provided with an Arabic interpreter, notwithstanding that he spoke some English.  This was said to be apparent from the fact that after the Tribunal indicated that the hearing on 12 June 2007 had to be adjourned because the interpreter had to leave, the applicant stated that he spoke English. 

14. However the applicant’s claim “I speak English” must be seen in the context in which it occurred – in the resumed hearing on the afternoon of 12 June 2007, at which a suitable time for continuation of the hearing was being arranged with the assistance of a telephone interpreter. 

1. It is relevant to note that at the end of the morning hearing (transcript page 16) (after the Tribunal member stated that they did not need to have “a discussion on what persecution means”, she had asked “What time are we booked until?” to which the interpreter responded “I have to leave ASAP but …”.  The Tribunal member (who had not acknowledged that there was any difficulty with the standard of interpretation) then advised the applicant the interpreter had to leave (transcript page 16 line 19) so they would try to get another interpreter or might have to adjourn until another day.  At that point the applicant expressed concern about the postponement of the hearing (transcript page 16 line 22).  He explained (without reference to his English language ability) that he did not want an adjournment as he had children in Lebanon, he was going to be deported, the bombing was near the area where his children were and that he was very anxious and exhausted, had been waiting for the interview for a while and was living on his nerves. 

2. The Tribunal then explained that the reason for the adjournment was that they could not proceed without an interpreter, that the interpreter who had been booked had been unable to come for medical reasons and that the interpreter present had only been booked for a short time. 

3. When the hearing resumed that afternoon the Tribunal advised of a new hearing time.  While the Tribunal apologised for what had happened that day it referred only to “some problems” with the interpreters.  The Tribunal did not acknowledge any interpretation difficulties, notwithstanding the past attempts by the authorised recipient to raise this issue and the queries in that respect by the applicant.  When the member asked the telephone interpreter to “hold on for a moment” the applicant then said “I speak English”.  After a discussion with the applicant’s authorised recipient the Tribunal indicated it would end the hearing and the applicant stated (in English) “… my problems, you know, you’re very good.  We’ll see you Friday and thanks for your time” (transcript page 18 line 34). 

4. Counsel for the first respondent did not suggest that it could be inferred from the applicant’s statement that he spoke English, that he understood all that was said, but rather than an inference could be drawn that there was not an entire breakdown in communication such that the applicant was not able adequately to present his claims in the whole of the hearing over both 12 and 15 June.  However this places excessive emphasis on a statement made in the context of a discussion of when the adjourned hearing would resume. 

5. The fact that in the context of a discussion of when the hearing would resume the applicant indicated “I speak English” is not such as to support the inference contended for by the first respondent, given the applicant’s otherwise consistent use of an interpreter (in both hearings) and the impact of mistranslations on his understanding of Tribunal questions.  For example, it is apparent from Mr Nes Selim’s report that when questions about persecution were mistranslated as relating to prosecution, the applicant’s answers addressed the issue of prosecution.  The fact that he appeared to see a difficulty with the interpretation did not overcome the impact of that difficulty on his ability to present his claims.  I note that there was no suggestion in the applicant’s protection visa application that he spoke, read or wrote English and that he requested an Arabic interpreter in his response to the hearing invitation. 

6. It was submitted that it was also relevant that from the start of the hearing the applicant had a person present to assist him (his authorised representative) and that that person had highlighted the error with the Tribunal during the course of the hearing in relation to the interpretation of the meaning of persecution, as had the applicant.  However the presence of the authorised recipient who, as outlined above, tried unsuccessfully to alert the Tribunal to the mistranslation of persecution, did not overcome the impact of such mistranslation. 

7. The first respondent contended that during the hearing on 12 June 2007 it was apparent that the applicant was aware there was an error in translation in that (at page 13 line 29) the interpreter said to the Tribunal “He’s saying that you are explaining it properly but I am not” and then “He’s saying can he ask me a question”.  This was not an accurate translation.  What the applicant said was “There is one small thing; you are not – now I can understand exactly what she is saying but you are not clarifying the question for me”.  As noted above, the Tribunal’s question had been “You have been fearful from 2000 and if you faced persecution from 2000 why didn’t you claim asylum during your last visit and why did you intend to go back after this visit” but this was translated as “If you were fearful since 2000 why didn’t you apply for asylum and why were you planning on returning to your country when your visa expires?” 

8. While the applicant’s conversation with the interpreter does indicate that he thought that there was some difficulty with the interpretation and that he had some understanding of what the Tribunal member was saying, it is also clear that he was nonetheless indicating a dependence on the interpreter to clarify questions of the Tribunal and to translate his responses. 

9. Counsel for the first respondent also pointed to the exchange at page 15 of the transcript of the Tribunal hearing where the interpreter told the Tribunal “He is saying it’s either I’m making the mistake or you are.  With persecution he is not convinced with the word I am saying.  He is saying that persecution is always – it’s a legal term and it’s not from a terrorist or a terrorist group or organization”.  Again, this was not an accurate translation by the interpreter of the applicant’s comment “Sorry there is a mistake occurring either from what you (interpreter) or what she is saying I don’t know.  You are saying the word prosecution, the word prosecution relates to the judicial system but the word terrorism applies to a party”.  This clearly reveals confusion on the part of the applicant.  While it indicates that he was aware that there may be a mistake on the part of the interpreter, it does not establish that the applicant understood what was being said as a whole by the Tribunal or that he had a meaningful opportunity to correct any mistranslation of his responses.  Moreover it is clear that the Tribunal did not appreciate the nature or extent of the mistranslations. 

10. It is notable that the applicant’s concern about the distinction between “persecution” and “prosecution” arose where a question was asked by the Tribunal “Do you have any fear of persecution other than arising from your petrol – from the ownership of the petrol station?” (page 15 line 32) which the interpreter translated as “Do you have any fear of prosecution apart from being the owner of a petrol station”.  It is hardly surprising that the applicant at that point raised an issue about whether the word “prosecution” was a mistake.  It is also relevant that he indicated that he did not know whether it was an interpreter’s mistake or a mistake by the Tribunal member.  Further, when the “unidentified male” (who, it is agreed, was the applicant’s authorised recipient) attempted to intervene and explain the distinction between the words persecution and prosecution the Tribunal member appears not to have understood the issue in question, indicating that they did not need to have a discussion on what persecution meant, notwithstanding that the authorised representative tried to reiterate that it was important and that the applicant had misunderstood.  It was at that point that the Tribunal adjourned the hearing because the interpreter had to leave, but there is no indication that the Tribunal member understood or took into account in the resumed hearing or in its reasons for decision the concern about interpretation raised by the applicant and his authorised representative (as distinct from the fact that the replacement interpreter was only booked for a short period of time as explained to the applicant).

11. I have had regard to the fact that when the hearing resumed with the assistance of a telephone interpreter on 12 June 2007 the Tribunal member apologised to the applicant about what happened that morning and said that “We’ve had some problems with the interpreters”.  However this does not establish that the Tribunal member was clearly attuned to what had happened at the first hearing.  Read in context it cannot be inferred that this indicates more than that the Tribunal member was aware that the booked interpreter was unavailable and that the second interpreter had been only booked for a short period of time, hence necessitating an adjournment, notwithstanding the applicant’s wish that the hearing not be adjourned. 

12. Counsel for the first respondent suggested that the Tribunal member was aware, or that it should be inferred that the Tribunal member was aware, that the relevant interpreter during the hearing on 12 June 2007 was only a NAATI Level 2 interpreter (as indicated on the copy of the Tribunal hearing record contained in the Court Book) and that this was relevant in indicating an awareness on the part of the Tribunal that there were difficulties with the interpretation.  However it is not apparent that the Tribunal was aware of the extent and impact of the mistranslations and omissions. 

13. The first respondent contended that the applicant had not pointed to any findings to which the interpretation issues were material, other than the Tribunal’s general conclusion about credibility, non-responsiveness and vagueness.  However this was a critical part of the Tribunal’s decision, relevant not only to the assessment of the nature of the applicant’s credibility but also to its assessment of specific claims which it did not accept or rejected as implausible. 

14. The first respondent also submitted that (contrary to the applicant’s contention) there were a large number of non-responsive answers during the course of the second hearing in relation to which there was no evidence of any problems in translation (in particular in relation to the Tribunal’s enquiry as to why the applicant did not apply for a protection visa until 2007).  It was submitted that the Tribunal’s finding as to non-responsiveness may have been taken from either or both hearings, as the applicant’s evidence was non-responsive at both hearings and the conclusion of non-responsiveness was available based on the applicant’s testimony at both hearings, irrespective of any errors in interpretation. 

15. It was submitted that the matters covered at the first hearing were traversed again and more extensively, but that the applicant nonetheless demonstrated the same non-responsiveness at the second hearing.  It was contended that this would suggest that the non-responsiveness was not due to interpretation difficulties, but to the fact that the applicant could not provide cogent testimony that addressed the Tribunal’s concerns. 

16. It was said to be apparent from the transcript of the first hearing that in relation to the substantive claims made by the applicant a number of “rudimentary details” were properly translated, properly understood and properly answered.  The discussion of those claims was said to have occupied only some seven pages out of a transcript of 16 pages.  On this basis it was suggested that the real exploration of the applicant’s claims occurred at that second hearing, so that it could not be said that the Tribunal’s findings were affected by material errors as those findings were based predominantly upon what occurred at the second hearing.  It was submitted that the applicant had attended two hearings of considerable length and it could not be said that he was effectively prevented from giving evidence. 

17. The first respondent contended that the Tribunal had implicitly acknowledged the errors in the interpretation by trying to clarify the definition of refugee and persecution during the course of the second hearing.  Attention was drawn to page 10 of the transcript of the second hearing at point 30 where the Tribunal member referred to the fact that at the previous hearing she had referred to the requirements that had to be satisfied and then summarised those requirements.  However the limitations of this explanation and my lack of satisfaction that the Tribunal acknowledged or was aware of the errors in interpretation are discussed above. 

18. As counsel for the applicant conceded, it is possible for the impact of inadequate interpretation to be corrected.  The applicant submitted that for this to happen there must necessarily be an acknowledgement on the part of the Tribunal that there had been difficulties in interpretation and that in this case there was no such acknowledgement.  Rather the first hearing was cut short only because the interpreter had to leave.  It was submitted that although the Tribunal was in some respects warned about interpretation difficulties, the mistakes were not repaired by what occurred thereafter. 

19. An express acknowledgement that interpretation difficulties existed may not always be essential.  If, for example, in its reasons for decision a Tribunal only set out and had regard to evidence at a later hearing in which all issues were canvassed, the impact of inadequate interpretation may be overcome.  However that is not what occurred in this case.  While there was an acknowledgement in the Tribunal reasons for decision that the applicant expressed his concern about the translation prior to the adjournment, the Tribunal drew no conclusions in relation to those concerns.  As set out above, the Tribunal’s later reference to the concept of persecution in the Refugees’ Convention referred back to the explanation at the first hearing and did not overcome the earlier difficulties.  The fact that the applicant attended two hearings of considerable length is not of itself conclusive.  It is necessary to consider whether the impact of the admitted mistranslations and omissions in the first hearing was overcome by what occurred in the second hearing. 

20. As conceded by counsel for the first respondent, it is difficult to disentangle matters discussed at the second hearing and the first hearing.  In its reasons for decision the Tribunal recounted the evidence given at both hearings as a whole.  It did not suggest that it in any way discounted what occurred at the first hearing. 

21. Insofar as reference was made to the fact that the applicant had a representative at the hearing, his attempts at interjection were not acted upon by the Tribunal.  Moreover, while issues discussed at the first hearing were also canvassed at the second hearing, the Tribunal dealt with the evidence as a whole, so that what happened at the first hearing in that sense affected what happened at the second hearing and the decision overall. 

22. While the first respondent submitted that the Tribunal’s finding of non-responsiveness was taken from the second hearing and not the first hearing, as indicated, the Tribunal did not seem to appreciate the extent of the difficulties in interpretation on 12 June 2007.  Hence it is not surprising that there was no consideration of this issue in the Tribunal reasons for decision.  In its reasons for decision it set out the evidence from both hearings and referred to repeating questions at both the first hearing and the second hearing when summarising the applicant’s evidence at hearing.  This suggests the finding of non-responsiveness had regard to the evidence at both hearings.  Moreover, the Tribunal’s apparent perception of the applicant’s earlier non-responsiveness can be seen as impacting on the manner in which it conducted the resumed hearing on 15 June 2007 and its assessment of the evidence given at that hearing. 

23. I accept that as the first respondent contended, there were significant parts of the second hearing in which there were responses by the applicant that could be seen as non-responsive.  For example, the Tribunal questioning at the second Tribunal hearing (page 5 line 20 to page 6 line 20) in relation to the applicant’s claim that he had attacked Hezbollah on television could be seen as a part of the hearing in which the Tribunal questions were not answered by direct responses but rather by reference to what the applicant wanted to say.  The Tribunal member repeated questions and sought clarification of responses.  Similarly, when the applicant answered a question about Hezbollah in the north of Lebanon by referring to the situation in the south (page 6 line 45 to page 8 line 5) the Tribunal member reiterated that she was talking about the north of Lebanon. 

24. Subsequently the Tribunal member asked on a number of occasions why the applicant thought the taking of his petrol station by Hezbollah amounted to persecution and reiterated her need to be satisfied that this amounted to persecution, notwithstanding the applicant’s claim about an offer of generous remuneration.  As the first respondent contended, it appears that in this part of the hearing the Tribunal member was endeavouring to obtain an answer to this question and the responses were not satisfying it.  I accept that it would have been open to the Tribunal to characterise this aspect of the applicant’s evidence as non-responsive.  It culminated in a comment by the Tribunal member (at page 12 line 15) that the applicant should just try to answer the question and a subsequent reminder to the applicant to try to answer the questions and a statement that he was not answering her questions and (at page 13 line 30) “[applicant] you’re not answering my questions.  I’m asking you very specific questions and you’re giving me really broad answers about the political situations which appear to have very little bearing on what you are telling me about yourself”.  After further discussion (at page 13 line 34) the Tribunal indicated that she was not sure if the applicant was again answering her question and (at page 17 line 12) stated again “You’re not answering my question”. 

25. However this incident and the fact that part of the applicant’s evidence in the second hearing may have contributed to the Tribunal’s finding of non-responsiveness does not mean that the non-responsiveness in the first hearing based on interpretational difficulties was not a material contribution to the Tribunal’s finding that the applicant’s evidence was “often” non-responsive, generalised and vague.  This is not, on all the evidence, such as to persuade me that I should infer that the Tribunal member was appraised or aware of difficulties associated with the interpreter services at the first hearing and did not draw an adverse inference as to the applicant’s responsiveness during the course of the first hearing. 

26. Whether or not a finding of non-responsiveness may have been open based on what occurred at the second hearing, the Tribunal’s account of the applicant’s evidence referred to a number of occasions on which the Tribunal repeated its questions in the first hearing (as well as at the second hearing).  Even if the substance of the applicant’s claims was addressed in the second hearing, the Tribunal found the applicant not to be credible and that his evidence was “often” non-responsive.  This finding was not said to be confined to his evidence at the second hearing.  The Tribunal also had regard to the fact that it frequently reminded him to respond to its questions.  The fact that some (indeed the majority) of these reminders occurred in the second hearing, does not satisfy me that the reminders at the first hearing, which occurred in the context of mistranslations, were not taken into account by the Tribunal or that the errors made by the interpreter at the hearing on 12 June 2007 were not material to these conclusions, notwithstanding that there were aspects of the second hearing consistent with the Tribunal’s credibility conclusion. 

1. The Tribunal’s finding that the applicant was not a credible witness was material to its conclusions on his factual claims as well as its finding that it preferred the independent country information to his evidence, particularly in relation to his claim that there was no forced appropriation by Hezbollah in his area.  Had the applicant been found to be credible the Tribunal may have taken a different approach to this and other issues.  I am satisfied that the reasons the applicant was found not to be credible arose at least in part because of the difficulties with translation in the hearing on 12 June 2007.  The applicant and the Tribunal were at cross-purposes for much of the time.  It appears that each of them did not know what the other was talking about on occasion.  In those circumstances it is hardly surprising that the Tribunal member would think that the applicant was obfuscating and being non-responsive so that what occurred in the first hearing as a result of the mistranslations and omissions by the interpreter affected the Tribunal’s conclusions. 

2. I am satisfied that the applicant has demonstrated that the errors made by the interpreter were material to the conclusions of the Tribunal adverse to the appellant as discussed in P119/2002 at [17]. I note that the first respondent referred to WALN (at [41]) in support of the proposition that a mistranslation does not necessarily have the effect of effectively preventing an applicant from giving evidence and having his case comprehended. In that case the mistranslations were not detailed in the judgment. While Nicholson J found that the mistranslations had not materially challenged the progress of the Tribunal hearing or occasioned the applicant’s evidence to become unresponsive or incoherent, in contrast in this case there was an express finding of non-responsiveness by the Tribunal.

3. The test whether interpretation errors gives rise to jurisdictional error has been expressed on the basis that the applicant must establish that the standard of interpretation at the Tribunal hearings was so inadequate that the applicant was effectively prevented from giving evidence at the hearing (see for example Perera at [38] – [42]; Mazhar v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 188 at [33] and Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at [27]). Other cases have considered whether errors made by the interpreter at the Tribunal hearings were material to the conclusions of the Tribunal adverse to the applicant (see for example Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 at [25]; Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168 at [18]; NAUV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1319 at [42] and WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [63ff]). On either basis I am satisfied that the applicant has established jurisdictional error.

4. I note that there can be a breach of s.425 if an applicant is deprived of the opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review” even if the Tribunal is unconscious of the reason for that occurring (see SZJQN v Minister for Immigration & Anor [2008] FMCA 1550 at [19] and cases cited therein). The transcripts of the Tribunal hearing on 12 June 2007 and 15 June 2007 and Mr Nes Selim’s report on the interpretation are such as to show that the interpretation on 12 June 2007 was so incompetent that the applicant was effectively prevented from given his evidence at that part of the hearing in the sense considered by Kenny J in Perera at [39]. When one takes into account the hearing as a whole (on both 12 June 2007 and 15 June 2007) it cannot be said that the applicant received a fair hearing given the possible impact on the conduct of the second hearing of the Tribunal’s views about the applicant’s evidence at the first hearing (see VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 at [27]).

5. The mistranslations and omissions by the interpreter were of “significance, or at least of potential significance, to the outcome of the case” (M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212 per Gray J at [51]) given their direct relevance to the critical credibility finding. I am satisfied, reading the Tribunal decision as a whole, that the errors made by the interpreter had a material influence on the reasoning of the Tribunal in relation to the applicant’s credibility. Hence there has been a jurisdictional error consisting of a failure to comply with s.425.

Whether misapplication of the Convention definition

1. The other ground relied on in the amended application is ground four which is as follows:

   In so far as the Tribunal’s decision was based on a conclusion that the harm which the First Applicant feared was not motivated by a Convention reason, it involved a misapplication of the Convention definition of a “refugee”. 

   Particulars

   (a)    The Tribunal considered that the taking of the First Applicant’s petrol station would not constitute persecution for a Convention reason because Hezbollah had offered him a large sum of money.  This analysis ignored the fact that the proposed transaction was not a consensual one, and the First Applicant would be harmed if he refused the “offer”. 

   (b)    The Tribunal considered that the taking of the First Applicant’s petrol station would not constitute persecution for a Convention reason because Hezbollah wanted the station for its position and capacity rather than because of any characteristic of the First Applicant.  In doing so the Tribunal (i) wrongly assumed that the existence of practical motives for the taking excluded the need to consider any possible Convention reason, and (ii) failed to consider whether the First Applicant’s property was selected wholly or in part because of his membership of a particular social group, or for some other Convention reason. 

2. In its reasons for decision the Tribunal did not accept the applicant’s claims with respect to his petrol station being wanted by Hezbollah.  However it engaged in an alternative analysis on the basis that the applicant’s claim about Hezbollah seeking to obtain his petrol station was true.  The Tribunal considered that an attempt to force the applicant to rent his petrol station would not constitute persecution because Hezbollah was said to have offered him a large sum of money for it.  On this basis it concluded that while the applicant may be opposed to renting the petrol station to Hezbollah, this would not involve significant economic hardship or deprive him of the ability to earn a livelihood. 

3. It was contended that both limbs of the Tribunal’s analysis of whether the harm feared amounted to persecution for a Convention reason involved error.  The applicant submitted that the Tribunal’s approach ignored the fact that the applicant had stated that he vehemently opposed the deal and that Hezbollah threatened to kill or harm him if he did not agree.  Hence it was said that the harm that he faced was not simply the compulsory acquisition of his property for compensation but rather that he was being forced to choose between being killed and agreeing to a transaction that was contrary to his deeply held political beliefs and opposition to Hezbollah.  This was said to constitute a case of potential persecution as considered in Applicant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473, on the basis that while the applicant could avoid being physically harmed by taking the money and renting the petrol station, any decision to do so would be driven by fear of that harm and would be contrary to his political beliefs.

4. It was also submitted that the Tribunal’s reasoning that any harm would not be inflicted for a Convention reason because Hezbollah wanted the station for its position and capacity rather than because of any characteristic of the applicant erected an erroneous dichotomy between expropriation for pragmatic and self-interested reasons and harm inflicted for a Convention reason.  It was submitted that it was necessary to determine whether in the individual case a Convention ground (such as the applicant’s ethnicity or religion) co-existed with a pragmatic reason such as a target’s wealth as considered in “extortion” cases such as Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73 at 85 – 87 [46] – [50] and SZEPY v Minister for Immigration & Anor [2006] FMCA 31 at [14] – [16].

5. It was contended that the same consideration applied in a case where the feared harm involved being forced to part with property.  It was said that the Tribunal erred in that it did not reject the applicant’s claims that he was opposed to Hezbollah and belonged to a different religion from its supporters, but failed to consider whether those factors played any role in Hezbollah’s decision to take over his property.

6. However, as the first respondent submitted, the Tribunal did not accept the applicant’s claims with respect to the petrol station being wanted by Hezbollah or that as a result of his refusal to rent the petrol station he became a target for Hezbollah or any other group. Had there been no breach of s.425, on the basis that no error was suggested in relation to this reasoning any error in the alternative reasoning of the Tribunal would not be such as to invalidate the Tribunal decision.

7. Moreover, as counsel for the first respondent contended, the Tribunal clearly focused on the fact that any appropriation of the applicant’s petrol station would not be for reasons of “characteristics of the applicant” but rather because of its strategic position and capacity.  In so doing it was not erecting a dichotomy between expropriation for pragmatic and self-interested reasons and harm inflicted for a Convention reason, but was basing its conclusion that a Convention reason would not be an essential and significant reason for taking the station on the applicant’s own material and testimony as it was obliged to do (see Applicant S395/2002 at [1]).

8. However as ground one has been made out, the matter should be remitted to the Tribunal for reconsideration. 

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  18 December 2008