SZMMX v Minister for Immigration - [2008] FMCA 1648

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMMX v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1648

MIGRATION – Review of decision of RRT – where applicant claims significant Tribunal question mistranslated – where expert evidence is not contradicted – where applicant’s response causes Tribunal to come to a view about his adherence to Falun Gong – constitutional writs granted.

Migration Act 1958 (Cth), s.425

Perera v Minister for Immigration (1999) 92 FCR 6
SZJQN v Minister for Immigration [2007] FMCA 1550
MI75 of 2002 v Minister for Immigration (2007) FCA 1212
Bugdaycay v The Secretary of State for the Home Department [1986] UKHL 3

Applicant:

SZMMX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1787 of 2008

Judgment of:

Raphael FM

Hearing date:

21 November 2008

Date of Last Submission:

21 November 2008

Delivered at:

Sydney

Delivered on:

21 November 2008

REPRESENTATION

Counsel for the Applicant:

Mr J Gormly

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made 20 May 2008 affirming the delegate's decision not to grant the applicant a protection visa.
That the Tribunal's decision be quashed.
A writ of mandamus directed to the Tribunal ordering that the applicant's application for a review of a decision of the delegate of the respondent to refuse to grant a protection visa to the applicant be heard and determined according to law by the Tribunal differently constituted.
The first respondent to pay the applicant's costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1787 of 2008

SZMMX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This case raises the difficult question of the extent to which an apparent error in interpretation can so affect a hearing that an applicant can claim that he was not provided with the opportunity to appear and present arguments relating to the issues arising in relation to the decision under review as required by s.425 of the Migration Act 1958 (the “Act”).
The applicant is a citizen of China who arrived in Australia on 7 December 2007 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 13 December 2007. On 10 December 2007 the delegate decided to refuse to grant such a visa and the applicant applied for review of that decision from the Refugee Review Tribunal on 10 January 2008. The Tribunal held a hearing on 19 March 2008 which the applicant attended with the assistance of a NAATI Level 3 interpreter. On 20 May 2008 the Tribunal determined to affirm the decision not to grant the applicant a protection visa and that decision was handed down on 10 June 2008.
The applicant claims to be a person to whom Australia owed protection obligations arose out of his adherence to Falun Gong. He told that he had been practising Falun Gong since 1988, although he had stopped doing so some time after 1999 after the crackdown. He claimed that he was arrested in December 2002 and that in March 2004 he was "kidnapped on the street while he was distributing materials about Falun Gong” and was arrested and sent to detention. He travelled to Australia on a tourist visa as part of a tour which went also to New Zealand where he spent a few days before returning to Australia when he left the tour group and made his application.
The applicant has provided the court with a transcript of the hearing before the Tribunal and also an affidavit from Li Chen, another Mandarin interpreter with a NAATI Level 3 qualification. The area in which the applicant says that the interpretation of the Tribunal's questioning went astray was a small one. At [T10] the Tribunal begins to question the applicant about his practice of Falun Gong. He asked questions about where, when and how often the applicant practised both in China and in Australia, but most of the questions and responses relate to his practice in China.
At [T11] there commences a series of questions.
“T: So tell me what you do to practice Falun Gong?
A: So when I practice I thought about the truthfulness, benevolence and forbearance in my mind and the wheel of the law was spinning which is Falun, it is spinning so all this is to -
Interpreter: The Chinese word, so all this was to convert a person and myself is converting myself as well.
T: But when you practice now, what do you actually do besides think about these things, what else do you do to practice?
A: I don't understand your question.
T: When you go to practice Falun Gong you think about these things but do you do anything else to practice your Falun Gong?
A: Here in Australia?
T: Anywhere? When you practice Falun Gong either in China or Australia, what do you actually do?
A: I just think about the truthfulness, benevolence and forbearance.
T: But don't you do anything physically?
A: Yes. We practice the other Falun Gong and also, we have also to think about, we should keep the wheel of the law spinning to and you've got to be kind to other people, you've got to be honest to other people.
T: On the Falun Gong website they tell me there are five main exercises that Falun Gong practitioners perform. Can you tell me anything about those five main exercises?
A: So you want me to tell you the names of this or show you how to do it?
T: Tell me the names of the five main exercises, do you know those?
The responses which the applicant gave to these questions were very significant to the Tribunal. At [CB 87] the Tribunal says:
“The Tribunal asked the applicant what he does to practice Falun Gong. He said that he thinks about truthfulness, forbearance and nobleness of the mind and the wheel spinning. He does this to convert himself and others. The Tribunal asked him what else he did/does to practice apart from thinking about these things. The applicant said that 'I just think'. The Tribunal asked him if he does anything at all physical to practice Falun Gong. He said that he practises Falun Gong and keeps the wheel spinning. The Tribunal asked the applicant about the five main Falun Gong exercises and referred him to the information on the Falun Gong website which indicates that practitioners perform these exercises. The applicant named these exercises but had difficulty remembering the name of the last exercise although he finally did so. The Tribunal told the applicant that it considered that if he had been practising Falun Gong from 1988 or 2002 he would know the names of the exercises; he said normally he just does the exercises and does not worry about what they are called. The applicant drew the Falun Gong symbol for the Tribunal and said that it spins around.”
In its findings and reasons at [CB 89] the Tribunal also deals with these matters.
“The Tribunal does not accept on the evidence available to it that the applicant was/is a genuine Falun Gong practitioner, and/or that he is engaged in genuine Falun Gong practice/activities in either China or Australia. The applicant made a reasonable drawing of the Falun Gong symbol at the hearing and the Tribunal accepts that he knows the Falun Gong symbol. The Tribunal considers however that if the applicant were a genuine Falun Gong practitioner who had practised during 1998 and then from 2002, including after he came to Australia in 2007, he would have been able to describe to the Tribunal what he did to practice Falun Gong and name the main exercises that he does when he practices Falun Gong more easily than he did at the hearing; it took prompting from the Tribunal for the applicant to talk about the main Falun Gong exercises and it took him time to name the last/fifth main exercise. Although he did name the exercises in the Tribunal's view he did not do this in the manner of someone who had practised Falun Gong for the time he claimed. The Tribunal does not accept his explanation for this is reasonable, given his claimed experience as a Falun Gong practitioner, namely, that he could not name the exercises as he did not worry about the names but just did the exercises. The Tribunal accepts that he has learned to do the Falun Gong exercises but does not accept that he learned to do these exercises because he was/is a Falun Gong practitioner.”
It is in this context I must look at the alleged failure to translate. At paragraph 4 of Ms Chen's affidavit, she says this:
“(4) At 40.10 of the recording I heard the Tribunal ask in English:
So tell me, what do you do to practice Falun Gong?”
I heard the interpreter translate this question to the applicant in Mandarin as:
You tell me what you do when you practice Falun Gong. [emphasis added].
(5) In this translation there was no sense of a question as to what constituted the practice of Falun Gong, or that was done in order to practice Falun Gong. Rather the expression “when you practice” used by the translator carried a meaning of “while you practice….” or “in the course of your practice….”. The translation did not indicate that the Tribunal sought information as to what constituted the practice of Falun Gong.
(6) The applicant's reply responded to the question in Mandarin:
“ I thought about the truthfulness, benevolence and forbearance in my mind and the reel of law was spinning which is Falun, it is spinning so all this is to…”
(7) In the applicant's response in Mandarin he did not use the expression “when I practice”. This was added in the English interpretation of his response by the interpreter.”
The applicant submits that the questioning of the applicant as to what he did "to practice" Falun Gong, coming after a series of questions which were more general in their context, required the Tribunal to make it clear to the applicant that it was no longer asking general questions about practice but a specific question about what the practice was. He argues that what the Tribunal intended to convey was a request for a description of exercises and that it was not translated or understood in that way.
The evidence of Ms Chen is uncontradicted and that includes her assessment in paragraph 5 of her affidavit that the translation did not indicate that the Tribunal sought information as to what constituted the practice of Falun Gong. The subtle difference is the use of the word "when" instead of the word "to" that was used by the Tribunal and this could have set off the confusion in the applicant's mind which prevented him from providing the Tribunal with the answers that it sought.
The failure of the applicant to provide those answers prior to being given more and more specific requests was the ground upon which the Tribunal concluded that the applicant was not a genuine Falun Gong practitioner. As Mr Gormly, who appeared for the applicant, succinctly put it, a small navigational error of one degree can mean a very large deviance from an intended route over a long period. This does, at first, seem a small error but it appears to have had very significant and probably unintended consequences.
It is the respondent's case that firstly there is no evidence that the applicant was confused or misled by the impugned quotation to which the applicant would respond:
"It was not my confusion, it was the Tribunal's because I answered the question that had been put to me through the translator, which was not the question that the Tribunal put to me in English."
Secondly, the respondent argues that it was not a gross error and was not an error that a significant effect upon the decision. The respondent points to the questions that followed the impugned one. In particular, the two questions:
“T: When you practice Falun Gong either in China or Australia, what do you actually do? and
T: But don't you do anything physically?”
And it is here that the court is faced with its most difficult task.
The authorities on interpretational problems must relevantly start with Perera v Minister for Immigration (1999) 92 FCR 6 where Kenny J described the role of the interpreter at [24] :
"The right to a hearing is a vain thing if the [applicant for refugee status] is not understood.":Gonzales v Zurbrick (6th Cir 1930) 45 F 2d 934 at 937. In this country, the function of an interpreter in courts and tribunals is to convey in English what has been said in another language (and vice versa). The function of an interpreter in the Tribunal (as in a court) is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication: See Gradidge v Grace Brothers Pty Ltd (1988) 93 FLR 414 at [425] per Samuels JA. An interpreter provides the means of communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end.”
At [29] his Honour also said:
“As noted earlier, there is rarely an exact lexical correspondence but, even so, some interpretations are better than others. Whilst the interpretation at a Tribunal hearing need not be at the very higher standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.”
I think it is now accepted that an error in interpretation is not required to be an error interpretation throughout a hearing but can be an error in interpretation that takes place in the hearing that has a significant effect upon the decision; SZJQN v Minister for Immigration [2007] FMCA 1550; MI75 of 2002 v Minister for Immigration (2007) FCA 1212.
In this particular case I am prepared to infer from the transcript that the applicant did have difficulty in comprehending the questioning of the Tribunal. I do not blame the Tribunal for this. I would also draw the inference from the way in which the Tribunal expressed its views about the responses by the applicant at [CB 87] and [CB 89] as extracted, that the first question that it asked:
“So tell me what you do to practice your Falun Gong?”
was question directed to obtaining information about the physical activity that forms an integral and essential part of the Falun Gong procedures. The uncontradicted evidence of Ms Chen is that the translation given to the applicant of that question did not indicate that the Tribunal sought information as to what constituted the physical activity that constituted practice of Falun Gong.
Mr Mitchell argues that this is a gloss by the witness upon the other translation. But she has been put to the court as an expert and not cross-examined. I am prepared to accept that her evidence is as deposed to. Thus the response given by the applicant to that question, which did not involve any reference to physical matters, is understandable. What is the effect of the subsequent questions? The first question after the impugned one was not understood by the applicant and it was repeated. That question was likewise not clearly understood because the applicant then asked whether the Tribunal was referring to Australia (or presumably China) and the Tribunal repeats it. The applicant then repeats his answer about truthfulness, benevolence, and forbearance, but makes no mention of physical matters.
To the Tribunal, who did not have the benefit of the transcript and was not aware of the mistranslation of its first question, it could well seem that the applicant was prevaricating and from that prevarication it could well come to a view that the applicant was lacking in credibility as to his knowledge and previous practice of or adherence to Falun Gong. The Tribunal could well come to the view that it was only after it had prompted the applicant that he began to give the responses that the Tribunal felt should have been given initially. The original misunderstanding may also have caused the Tribunal to pass over the applicant's offer to demonstrate the exercises and to ask instead for the applicant merely to name them. Had the applicant been given an opportunity to demonstrate the exercises, the Tribunal may have been more convinced that he was a genuine adherent.
The respondent made reference to the decision of the delegate at [CB 39], in which the delegate said:
“The applicant displays no knowledge of the practice or concepts or history of Falun Gong or the Falun Gong movement in his submission, nor any intensity or further or passion that could be expected from such a claimed long time devotee of the movement who has actively promoted the practice for which he has served two lengthy terms of imprisonment/detention.”
The respondent argues that this would have placed the applicant on notice of the requirement to provide details of his practice of Falun Gong before a Tribunal, but I note that the comments were made without interviewing the applicant and on the basis of the short attachment to his PVA found at [CB 28], I do not believe that this finding of the delegate would have indicated to the applicant that he was required to respond to the particular question of the Tribunal by demonstrating exercises or describing them.
It is a very fine line which one has to draw in cases of this nature, but one must always be conscious of the purpose for which the Tribunal was set up and possible dangers inherent in the making of the wrong decision. The applicant made serious claims as to his fear of persecution should he return to China and the Tribunal accepts that there are concerns about the treatment of genuine Falun Gong practitioners in that country; Bugdaycay v The Secretary of State for the Home Department [1986] UKHL 3.
In those circumstances, it is my view that it is best to err on the side of caution and to conclude that in this case the translation error established by the applicant placed the Tribunal on a course which, continuing Mr Gormly's metaphor, resulted in it ending up at the wrong port. I propose, therefore, to grant the applicant the constitutional writs he seeks and would make the following orders:
(i)A writ of certiorari directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made 20 May 2008 affirming the delegate's decision not to grant the applicant a protection visa.
(ii)That the Tribunal's decision be quashed.
(iii)A writ of mandamus directed to the Tribunal ordering that the applicant's application for a review of a decision of the delegate of the respondent to refuse to grant a protection visa to the applicant be heard and determined according to law by the Tribunal differently constituted.
(iv)The first respondent to pay the applicant's costs assessed in the sum of $5,000.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: