SZMVA v Minister for Immigration
[2009] FMCA 813
•26 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 813 |
| MIGRATION – Application to review decision of Refugee Review Tribunal –whether inaccurate or deficient interpretation at Tribunal hearing such as to establish breach of s.425 of the Migration Act. |
| Migration Act 1958 (Cth), ss.91R, 425 |
| Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 SZGYM v Minister for Immigration and Citizenship [2007] FCA 1923 WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 |
| Applicant: | SZMVA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2573 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 1 June 2009 |
| Date of Last Submission: | 26 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Germov |
| Solicitors for the Applicant: | David Legal |
| Counsel for the Respondent: | Mr P Cleary |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2573 of 2008
| SZMVA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 27 August 2008, affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Iran, arrived in Australia in January 2007 and applied for a protection visa in March 2008. He claimed to fear persecution in Iran on the ground of religion, based on his conversion from the Muslim faith. He claimed that three years before his application he had attended a Christian church service in Tehran for which he was interrogated, detained for four days and summoned for violating Islamic regulations. He claimed he had been baptised in Australia in January 2008 and that he was a member of the Australian Hillsong Congregation.
The application was refused by a delegate of the first respondent who had regard to the absence of detail in relation to these claims and the applicant’s delay in applying for a protection visa.
The applicant sought review by application lodged with the Tribunal on 29 May 2008. The applicant provided supporting documents in relation to his attendance at the Hillsong Church, including a letter from a Pastor of that church dated 28 May 2008 stating that the applicant had consistently been attending weekend services since November 2007.
The applicant attended a Tribunal hearing on 23 July 2008 and a further hearing on 22 August 2008, at which time two witnesses gave evidence in support of his application, including a Pastor of the Liberty Baptist Church who gave evidence of his attendance at the Baptist Church since March 2008 and at weekly home bible study sessions.
The Tribunal Decision
In its findings and reasons the Tribunal found that there was no basis on which it could be satisfied that the applicant would have a real fear of being persecuted for his religious beliefs and activities if he were to return to Iran.
The Tribunal summarised the applicant’s claims that he was a Muslim who had become a Christian. It set out his claim that some three years earlier he had attended an Armenian Christian church in Tehran two or three times with an Armenian Christian who had provided him with a bible and a CD containing bible stories. He claimed that he had been arrested by the authorities in the vicinity of the church, that he was detained for four days during which time he was beaten and that he was released after his father provided a guarantee. He claimed he had been issued with a warning letter from the prosecution office in Tehran and that he was not able to attend church thereafter but continued to read the bible and listen to the CD.
The Tribunal also recorded the applicant’s claim that he had joined the Hillsong Church in Australia from at least November 2007. It referred to testimonials indicating that he had attended that church since that time, but also to the “new testimonial” at the hearing on 22 August 2008 that he had been attending the Liberty Baptist Church since March 2008.
The Tribunal recorded that “to ascertain whether the applicant had a knowledge of Christianity cognisant with someone who had been studying the bible since 2005”, it had asked the applicant a number of questions at the hearings. The Tribunal assessed the applicant’s knowledge in light of his claimed activities and opportunities, based on his claims that he had been studying the bible and listening to bible stories on a compact disc since at least March – June 2005, that he had started attended the Hillsong Church soon after his arrival in Australia in January 2007, that he had attended bible studies with a friend and a number of bible study conferences and prayer meetings at the Hillsong Church since at least April 2007 (and definitely from November 2007 according to the supporting testimonials) and also that he had been attending a second church, the Liberty Baptist Church and weekly bible classes convened by the Baptist pastor at the home he shared with his friend.
The Tribunal found that:
One would expect that somebody who had been extensively involved in the study of the bible for this time would have a substantial knowledge of its contents. The applicant’s knowledge of the bible was generalised and was not what one would expect of a person who had been reading the text for in excess of 3 years on a regular basis. The applicant was not knowledgeable about key tenets of the bible, such as the definition of the Holy Trinity, the symbolic meaning of baptism, key stories from the Old Testament such as Noah and the Ark or key tenets of behaviour such as the 10 Commandments. The applicant’s knowledge of the bible was rudimentary and the applicant’s knowledge base was not one that could be expected of a person who claims to have been involved in the study of the bible for an extended period of time.
The Tribunal observed that an important consideration was whether it accepted that the applicant’s conversion to Christianity was sincere. It acknowledged that in considering whether his claimed conversion was sincere it was not fatal to an applicant’s case that he did not appear to have a good knowledge of the religion to which he claimed to have converted. It addressed the fact that the applicant appeared to have taken up Christian practice in Australia some ten months after his arrival in the country. The Tribunal found however that “the applicant’s limited knowledge of Christianity, given his claimed commitment to the study of the bible”, led it to find that the applicant was not a witness of truth with regard to his claims for protection. It found that the applicant’s attendance at the Hillsong Church and his involvement with the Liberty Baptist Church had only been engaged in to strengthen his claims for protection.
The Tribunal had regard to the fact that it had tested the applicant’s knowledge of the Hillsong Church. It found that the applicant was not aware of a number of key aspects of the Hillsong Church (such as “men’s conferences”), that he gave inaccurate information in relation to the times of church services and that his evidence was inconsistent with the claim he had attended that church on a regular basis since at least November 2007. It noted that while he claimed he had been attending church services in Australia from three months after his arrival in January 2007 the supporting letters suggested he had attended from November 2007. The Tribunal also considered the additional testimonial provided on 22 August 2008 indicating an involvement with the Liberty Baptist Church. The Tribunal found that the “materialisation” of this claim some five months after the lodgement of the protection visa application was a further attempt to strengthen the applicant’s claims.
The Tribunal considered that while the applicant was aware of some aspects of Christianity, his knowledge of the church services and other aspects of Christianity was generally limited. It did not accept that this level of knowledge was consistent with his claim to have attended church in Australia since November 2007 and to have extensively studied the bible since at least March 2005.
The Tribunal was of the view that there would have been considerable opportunity for the applicant to discuss aspects of Christianity, having attended church services and private bible studies with friends in Australia, and given the evidence of a pastor that he had been conducting bible study classes at the applicant’s home on a weekly basis. The Tribunal found that in such circumstances it would expect the applicant would have acquired a significantly greater knowledge of bible readings and the Old and New Testament than that exhibited at the Tribunal hearing.
While the Tribunal was prepared to accept that the applicant had attended Hillsong Church and the Liberty Baptist Church and religious services for some period in Australia and had acquired some basic knowledge of aspects of Christianity, it referred to s.91R(3) of the Migration Act 1958 (Cth) and found that the applicant had done so for no reason other than to strengthen his claims to be a refugee. It did not accept that the applicant had genuinely become a Christian in Australia. It found that he was not a Christian and did not practise Christianity in Iran and that it was not satisfied, for the purposes of s.91R(3), that he attended church services in Australia otherwise than for the sole purpose of strengthening his claim to be a refugee. It referred again to the fact that the applicant’s rudimentary and in some cases factually incorrect knowledge of Christianity and the bible did not accord with a person who had developed a genuine interest in Christianity in 2005 and had vigorously pursued bible study as claimed.
The Tribunal found that the applicant’s late claim about attendance at and involvement with the Liberty Baptist Church was of particular concern. It was of the view that had the applicant held a real fear of persecution in Iran for reasons of religion he would have utilised all the evidence at his disposal to convince the Department and the Tribunal of the genuineness of his claims. Its concerns were amplified by the applicant’s assertion that he thought one church would be enough and hence made no mention of the second church until the second hearing on 22 August 2008. The Tribunal considered the collation of further evidence between the hearings to be nothing more than an attempt to further strengthen the applicant’s claims for protection through activity engaged in while in Australia and that it was to be disregarded pursuant to s.91R(3).
The Tribunal did not accept that the applicant developed an interest in Christianity through an Armenian Christian contact in Iran, that he was perceived to be a practising Christian by the Iranian authorities or that he ever suffered harm in Iran as a result of his religion or for any other Convention reason. Nor did it accept that if he returned to Iran now or in the reasonably foreseeable future he would be perceived to be a member of a Christian church or perceived to be a Christian.
For the preceding reasons the Tribunal did not give any weight to the testimony provided by a witness at the second hearing who had claimed that he was a friend of the applicant who had recently returned to Iran and that when he delivered a parcel to the applicant’s parent’s home he had been pulled over by unknown persons and asked questions about the applicant and his parents.
Given that the Tribunal did not accept that the applicant had attended church services in Australia for any reason other than to strengthen his claim to be a refugee, it did not accept that he would be a practising Christian in Iran. As he had not claimed any other reason for fearing returning to Iran, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention-based reason if he returned to Iran.
The Application
The applicant sought review by application filed in this Court on 7 October 2008. The applicant was legally represented. Counsel appeared on his behalf. There is only one ground in the application. It is as follows:
The decision was made in breach of an essential pre-condition to the exercise of the power conferred by sections 414 and 415 of the Migration Act 1958 (Cth) (as amended) (“the Act”) because the Tribunal failed to determine whether the Applicant had a well‑founded fear of persecution as required by sections 36(2), 91R(1), 65(1)(a)(ii) of the Act, section 425 and sub-clause 866.211 of part 866 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
Particulars:
(a) The Applicant was a native speaker of Azari Turkish and the Farsi speaking interpreter at the hearing failed to accurately translate his responses to the Tribunal’s questions so that the Applicant was not able to present his evidence in the manner intended by section 425 of the Act.
(b) The interpreter’s difficulty in understanding the applicant was made evident several times during the hearing by exclamations in words to the effect “he’s all over the place” when referring to the Applicant’s responses to the Tribunal’s questions.
(c) The Tribunal’s questions as interpreted to the Applicant were also misunderstood by him.
(d) As a consequence of the difficulties in accurately interpreting the Tribunal’s questions and the Applicant’s responses thereto, the Tribunal was not in a position to make a valid assessment of the Applicant’s claim of having a well‑founded fear of persecution due to his religion and hence the Tribunal was unable to conduct a review as required by the Act and the Regulations.
In written submissions for the applicant it was contended generally that the Tribunal would fall into jurisdictional error if it failed to have regard to relevant considerations or made an error in the construction and application of the eligibility criteria for a protection visa. However the ground relied upon, as clarified in oral submissions, was a contention that there was a failure by the Tribunal to provide adequate interpretation services at the two hearings it conducted. This was said to constitute a failure to observe the procedures in connection with the making of the decision required by the Migration Act or Regulations, in that the Tribunal failed to afford the applicant the requisite opportunity under s.425 of the Migration Act to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 425 and Interpretation Issues
It is well established that a hearing invitation must not be a “hollow shell or an empty gesture” (see Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31]). The parties were in agreement that the test to be applied in considering the obligation on the Tribunal under s.425 of the Act to provide adequate interpretation services was that considered by the Full Court of the Federal Court in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230. In particular, as Mansfield and Selway JJ stated at [17] by reference to submissions made in that case:
… in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
The applicant relied on an affidavit of Mehrdad Khoshab, a NAATI accredited professional level translator and interpreter, sworn on 4 March 2009, annexing transcripts of each of the Tribunal hearings and addressing certain aspects of the interpretation (as discussed further below) and an affidavit of Fanola Pantelis sworn on 15 June 2009 in relation to preparation by her of the transcript and the practice she had adopted in indicating the speaker and whether what was said was translated. The transcript is primarily an English language transcript although it also contains some annotations which appear to be “corrected” translations and which identify parts of what was said at the hearings that were not translated. While Mr Khoshab did not claim in his affidavit to have made these annotations, no other source was identified and the first respondent did not take issue with the accuracy of the transcript or the annotations.
Counsel for the applicant conceded that interpretation did not have to be literal or perfect, but submitted that it must not be inadequate and must not result in a mistranslation of a material matter in the sense considered by the Full Court of the Federal Court in Appellant P119/2002.
It was submitted that the standard of interpreting was a matter for expert evidence. Reliance was placed on the fact that the first respondent had not provided any affidavit evidence in conflict with that of Mr Khoshab and had accepted the accuracy of the transcript of the hearings upon which Mr Khoshab’s opinion was based. It was submitted that the effect of Mr Khoshab’s opinion was that the interpretation at both hearings was inaccurate in relation to several significant matters.
Counsel for the applicant submitted that the applicant’s ability to put his claims to the Tribunal as contemplated by s.425 of the Act was undermined by these deficiencies and that as a consequence the Tribunal did not obtain a complete and accurate account of his claims for protection. In particular it was contended that the applicant was unable to convey his knowledge of Christianity to the Tribunal properly because the Tribunal’s questions concerning Christianity were not adequately translated to him and his responses were incomplete as a result. On this basis it was contended that the Tribunal had been unable properly to assess the applicant’s claims for protection due to significant deficiencies in the interpretation at both hearings.
Counsel for the first respondent submitted that the matters relied on by the applicant did not establish that the interpretation was inadequate on either of the bases considered in Appellant P119/2002 such as to establish a jurisdictional error.
Before considering the transcripts of the hearings, it is appropriate to address the applicant’s submission that as the status or quality of interpretation was a matter for expert evidence and the applicant had produced such evidence (Mr Khoshab’s affidavit), in the absence of expert evidence to the contrary it had been established that the standard of interpretation fell below that which could reasonably be expected of NAATI accredited interpreters and that “consequently” the Tribunal had failed to discharge its statutory function as the applicant was unable to give evidence and present arguments as intended by s.425. The applicant referred to SZJBD v Minister for Immigration & Anor [2008] FMCA 1485 per Raphael FM at [8], in support of this proposition. In that case his Honour was not considering a situation where one party relied on expert evidence as to the accuracy of interpretation and the other party chose not to put on evidence of its own expert in reply, but rather what steps should be taken to enable the court to consider an allegation of apprehended bias based on the treatment of an applicant by an interpreter where such an assessment may require appointment of a court expert because “evidence as to the status of interpretation is a matter for an expert witness”.
In any event, it is not to the point that the first respondent chose not to put on its own expert in reply. While the first respondent accepted the accuracy of the transcript, the evidence of the applicant must establish the level of inadequacy required by AppellantP119/2002 before jurisdictional error is made out.
The fact that, on the applicant’s undisputed expert evidence, there were some inaccuracies in translation is not of itself determinative. Nor is Mr Khoshab’s opinion about whether the interpreters at the two Tribunal hearings met the guidelines in the RRT’s Interpreters’ Handbook such as to establish a breach of s.425. While the accuracy of interpretation of particular words and sentences is a matter for expert evidence (and Mr Khoshab’s evidence in this respect is unchallenged and is accepted), as the first respondent submitted, it is ultimately for the Court to determine whether the evidence is such as to satisfy either of the two limbs the Full Court of the Federal Court identified in Appellant P119/2002 as establishing jurisdictional error based on inaccuracies or what are said to be deficiencies in interpretation.
In written submissions the applicant relied on Mr Khoshab’s affidavit, and addressed four issues referred to in the affidavit. However in oral submissions other aspects of the transcript were addressed by counsel for the applicant. It is convenient to consider first the issues addressed in written submissions.
The impact of the applicant’s accent
Mr Khoshab’s evidence is that on listening to the Tribunal hearing tapes he immediately noticed the applicant’s Azari accent and that Azari is a dialect of Persian or Farsi “that is spoken by Northwestern Iran and in Azerbaijan whose first language is Azari Turkish” (sic). Mr Khoshab suggested in his affidavit that the interpreter mentioned to the Tribunal that the applicant’s mother tongue was Azari Turkish and not Farsi and that the interpreter “points out that the Applicant does not appear to understand her” at transcript page 42.
The applicant relied on this evidence and the part of the transcript in which the applicant’s mother tongue was discussed in support of the claim that there were deficiencies in the interpretation at the Tribunal hearings.
First, it was not submitted that the Tribunal provided the applicant with an interpreter in a language or dialect other than that requested or spoken by him. The applicant indicated in his protection visa application that he spoke, read and wrote Farsi and that he spoke English (in that order). In his application to the Tribunal he stated that he required an interpreter in “Persian”. In its first hearing invitation the Tribunal advised that an interpreter would be provided in “Farsi (Persian)”. In his response to the hearing invitation the applicant reiterated that he required an interpreter in “Persian” and in response to the question “Dialect” indicated “Iranian”. Such an interpreter was provided for each of the hearings.
This is not a case in which it has been established that the provision of a Farsi interpreter (rather than, for example, an Azari Turkish speaker) meant that the applicant was unable to give evidence and present arguments in the manner considered in SZGYM v Minister for Immigration and Citizenship [2007] FCA 1923 (and see also SZLMN & Anor v Minister for Immigration & Anor [2009] FMCA 582).
In considering this aspect of the applicant’s submissions it is necessary to have regard to the transcript and what was actually said in this respect and the context in which it occurred.
The issue of the applicant’s accent arose when the Tribunal was questioning him about his knowledge of the bible. It asked him what his favourite story was from the Old Testament (transcript page 41). The applicant replied that he had only read the New Testament (and no issue is taken about the translation of either the question or answer). At that point the interpreter told the Tribunal that she was using the “standard words”. The Tribunal member asked the applicant “So the bible contains the old testament and the new testament. Does Hill Song (sic) look at the old testament as well?” (transcript page 42). This question was, according to the transcript, correctly translated.
However the interpreter then said to the Tribunal “I am having difficulty here member – would you allow me to ask the question again?” (transcript page 42). The Tribunal member then said (and again this was accurately translated) “Alright (sic) what I will do interpreter is okay sir I said what is your favourite story from the old testament and your answer was that I haven’t read the old testament”. Again, this was accurately translated, but the interpreter continued (transcript page 42):
I am having difficulty with this word, member – the terms I am using is the standard word for the old testament in Farsi language – what i know from this man is that his mother tongue is not Farsi his mother tongue Azari Turkish – I know that language now people from that background sometimes have difficulty with Farsi because their mother tongue is something else – what I am worried here I am using the standard word in Farsi for old testament – but I think the applicant here does not comprehend what I am saying and I am lost how to do this.
The applicant submitted that this indicated that the interpreter herself stated that the applicant did not appear to understand her. However when considered in context it is clear that the interpreter first told the Tribunal member that she was having difficulty with interpreting a question in a manner she believed that a Persian from an Azari Turkish background would understand and asked if she could ask it again. The interpreter explained to the Tribunal that she was concerned that the applicant may not understand the Farsi words for “old testament”. However, there is nothing in the transcript provided by the applicant to indicate that the applicant said anything to the interpreter to indicate a lack of understanding of the concepts “old testament” and “new testament”. Moreover, even if it was the case that the applicant did not understand the Farsi words for “old testament” and “new testament” (and there is no evidence from the applicant in this respect), in the hearing the Tribunal then proceeded to address any possible lack of comprehension by explaining to the applicant what he meant by the Old Testament, as follows (transcript page 42):
Tribunal:Alright (sic) – the bible has two stories in it – the old stories – they are called the old testament and there’s the new stories – they are called the new testament.
According to the transcript this was translated accurately. The Tribunal went on to explain that one of the Hillsong beliefs was that the bible was God’s word, that it was accurate, authoritative and applicable to their everyday lives and that Hillsong believed that the whole bible, that is both “the old stories and the new stories”, were all God’s word. Again, this was accurately translated. At that point the Tribunal asked “[s]o what is your favourite old story from the bible?” (transcript page 43). The applicant responded “[t]he old story is about David and the life of David. David is like of the descendants of Jesus Christ”. No issue was taken about the accuracy of the translation of this response or of the following discussions about the story of David and the applicant’s inability to explain who Goliath was in response to a Tribunal question. Seen in context and having regard to the applicant’s responses there is no indication that the applicant, as an Azari Turkish speaker, did not understand or appear to understand the interpreter or the Tribunal.
There was no “deficiency” or inadequacy in the standard of interpretation arising from the fact that the interpreter and the Tribunal clarified the manner in which the Old Testament should be described and the Tribunal then rephrased the questions it put to the applicant. As Kenny J pointed out in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [25] – [26] and the Full Court of the Federal Court observed in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [66] per Lee, Hill and Carr JJ:
… It follows from the fact that interpretation is not merely a mechanical exercise that there will be some words … for which there is no perfect translation. … However, the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.
I am satisfied that the approach adopted was sufficient to permit the concepts being translated to be communicated. No error is apparent in the interpreter raising this issue with the Tribunal and the Tribunal then clarifying the question by rephrasing the concepts it used.
Failure to translate applicant’s response
The next aspect of the hearing relied on in written submissions is an exchange on page 50 of the transcript (which was towards the end of the first Tribunal hearing). After a discussion of the meaning of baptism (in relation to which no issue was taken about the interpreting or translation) the Tribunal member asked the applicant: “You have no problem in understanding this interpreter have you”. Importantly that question was asked in the following exchange (transcript pages 49 – 50):
Tribunal:What is Baptism?
Translation
Applicant:You become clean.
Tribunal:What do you mean by that?
Applicant:You become a new Christian.
Tribunal:What do you mean by the meaning of Baptism it actually has a symbolic meaning in the bible.
Translation
Applicant:It means that John baptised Jesus to show him to the people. There is this water from God and you clean yourself with it you cleanse yourself with it and then baptism belongs to Christianity.
Tribunal:Okay thank you. What do you think will happen to you sorry please continue.
Applicant:It is to show people what baptism is all about it is for cleansing if somebody becomes baptised he comes shiny his heart will be open inside.
Tribunal:Okay. Thank you. You have no problem in understanding this interpreter have you.
Translation
According to Mr Khoshab’s affidavit and the transcript, the applicant then responded in Farsi, “I did have problems…”. This response was not interpreted. Instead, the Tribunal continued (transcript page 50):
Tribunal:Farsi is your language isn't it.
The interpreter then remarked to the Tribunal:
Interpreter: Excuse me he didn't answer that question.
The transcript continues:
Tribunal:Sorry, sorry.
Translation
ApplicantNo. No.
Tribunal: No. Thank you.
Applicant:I thought you asked me if I could speak.
Tribunal:No, no no, sir.
Applicant:And I have mentioned that I have problems.
This exchange does reveal a degree of confusion. The evidence of Ms Pantelis, who transcribed the hearing tapes, is that at this time “the interpreter, Applicant and RRT Member are speaking over each other and it is difficult to make out what was being said and what was being translated to the Applicant and to which specific question or comment from the RRT Member he was responding”. She confirmed that the Tribunal question “You have no problem in understanding this interpreter have you” was translated into Farsi but that the applicant’s response “I did have problems” was not translated into English. She also confirmed that at times the applicant used the words “Yes” or “No” in English after the interpreter translated the Tribunal member’s question.
However, importantly, the Tribunal referred to the issue again, in asking immediately thereafter:
Tribunal:So no problems with the interpreter – that is good to know.
This was translated, before the Tribunal confirmed: “100% understand”. Again, this was translated and the applicant responded “of course”.
Had there not been this subsequent clarification, there might have been some strength in the applicant’s contention that a critical response had not been translated for the Tribunal. However, whether the interpreter’s remark that the applicant did not answer “that question” was a reference to the question about what the applicant thought would happen to him, or to whether he understood the interpreter or to whether Farsi was his language, and whether the applicant’s statement that he “did have problems” was a response to the question about what he thought would happen to him or to the question about his understanding of the interpreter, the exchange on page 50 of the transcript demonstrates that the Tribunal was aware there may have been some confusion. Critically, the issue of whether the applicant had any problems with the interpreter was clarified by the Tribunal with the applicant who agreed ultimately that there was no problem with the interpreter. The applicant’s reply “of course” was clearly in response to the question as to whether he “100%” understood the interpreter and had no problems with the interpretation. Moreover the Tribunal then returned to the (unanswered) question about what the applicant thought would happen to him if he returned to Iran.
The applicant contended that there was considerable confusion in what was being communicated at this point in the hearing. However while I accept that there was some initial confusion arising from the first part of this exchange, it is apparent that ultimately the issue of the applicant’s understanding of the interpreter was clarified.
It has not been established that the applicant had such problems with understanding the interpreter that he was not afforded a meaningful invitation to the hearing or that his level of understanding was not addressed by the Tribunal, given the subsequent clarification. This aspect of the hearing does not, in context and having regard to the whole of the transcript, go to show a breach of s.425 of the Act.
I note that there is no evidence from the applicant in these proceedings to suggest any general or particular lack of understanding of the interpreter. Moreover, as indicated, there is no suggestion that the Tribunal provided the applicant with an interpreter in the wrong language or dialect. Further the Tribunal decision was not based on anything that was said by the applicant on page 50 of the transcript but rather on its examination of the applicant’s knowledge of Christianity, which it found to be quite poor, and also on its significant concerns about the applicant’s late claims to have attended the Liberty Baptist Church. None of those issues were touched on in this part of the hearing. The issue about the applicant’s understanding of the interpreter was clarified and the applicant does not point to any error in this part of the hearing that was material to the conclusion reached by the Tribunal that the applicant did not have a well-founded fear of persecution for a Convention-based reason.
No failure to comply with s.425 arises from the fact that the hearings were conducted with the assistance of Farsi interpreters or based on the applicant’s understanding of the interpreters.
Interjections and untranslated remarks by the interpreter
It was next submitted that on occasion the interpreter made “interjections” that were not translated to the applicant and that had these been translated the applicant would have been aware that his responses were not understood by the interpreter and he could have elaborated further on his answers or requested the Tribunal to adjourn to obtain another interpreter who could properly understand him.
Such an “interjection” appears on page 45 of the transcript. Issue is taken with the fact that in translating the applicant’s words the interpreter made a remark “I think he is back to Moses again”. Again this must be seen in context. At page 44 of the transcript the Tribunal had asked the applicant if he could tell it the story of Moses. The applicant started to do so. The Tribunal asked the interpreter to clarify the pronunciation of a word the interpreter used (which, it emerged, was “Pharoah”). After this exchange between the Tribunal and the interpreter and before any further question was asked of him, the applicant stated “Pharoah was worshipping the idols and (interpreter says) I THINK HE IS BACK TO MOSES AGAIN – he became a shepherd, then God had a relationship with him – connected with him. And opened a way for him to be able to pull out the slaves from there”.
It is clear that considered in context, in this remark the interpreter was seeking to provide clarification. Even if this was not necessary or appropriate, it is not such as to establish that the standard of interpreting or the conduct of the interpreter was such that the applicant was not afforded the meaningful invitation required under s.425 of the Act. It is apparent that the Tribunal understood the applicant’s evidence as demonstrated by the fact that it then asked him about details of this bible story. There is nothing in the transcript to suggest that the applicant’s response was not understood or was misinterpreted by the interpreter.
The other un-translated “interjection” complained of occurred at page 48 of the transcript, when the Tribunal asked the applicant “… what is the Holy Trinity?” and the interpreter said to the Tribunal member “I will use the Farsi word because i know what it is but I have extras doubt that he would understand but I will go both if you don’t mind”.
The Tribunal member agreed. In context, it is apparent that as explained by the interpreter at page 47 of the transcript the interpreter used both English and Farsi in an endeavour to ensure that the applicant understood certain biblical or religious terms or names. The fact that this exchange was not translated for the applicant is not indicative of jurisdictional error.
Not every exchange between the Tribunal and interpreter has to be translated to an applicant. In Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 at [51] Kenny J found no basis to require that any oral communication between the Tribunal and an applicant’s advisor be translated contemporaneously and pointed out that the obligation under the Migration Act was to provide an interpreter for a person “to give evidence for the purposes of communication between the Tribunal and that person”.
Moreover there is nothing in the Tribunal’s reasons for decision to suggest that the Tribunal regarded these un-translated exchanges with the interpreter as evidentiary material or as affecting the way a claim was being made by the applicant (see Appellant P119/2002 at [19]). These exchanges do not establish that the applicant’s responses were not understood by the interpreter, but rather that the interpreter was endeavouring to ensure that the Tribunal’s questioning was understood by the applicant. No issue is taken with the accuracy of the manner in which the interpreter went on to explain the concept of the Holy Trinity in Farsi or otherwise.
Mistranslation
The next issue relied on in the applicant’s written submissions is the one clear mistranslation identified by Mr Khoshab. It occurred at the start of the second Tribunal hearing (transcript page 52) and again at transcript page 58. The interpreter at the second hearing appears to have confused the word “Baptist” in the name “Liberty Baptist Church” with the ceremony of Baptism at the Liberty Church. It was submitted that this confused the applicant as to whether the Liberty Church was being referred to or the Hillsong Church.
At page 52 the Tribunal said to the applicant:
Tribunal:Prior to walking into the hearing I have just been given a document from Liberty Baptist Church.
This was interpreted in Farsi as, “Prior to arriving here, I was given documents in relation to your Baptism ceremony in Liberty Church”. This is clearly incorrect. However in the ensuing discussion between the Tribunal and the applicant, there is no evidence of any misunderstanding of the Tribunal’s questioning about the applicant’s attendance at the Liberty Baptist Church since March 2008 and why this claim had not been mentioned by the applicant prior to the second hearing on 22 August 2008.
First, the Tribunal was referring to a document submitted for the applicant. The member went on to refer to the fact that the document was “[a]dvising that you have been attending that church since March this year”. This was accurately translated, as were the Tribunal questions about the absence of any reference to that church in the material the applicant had put before the Department and the fact that there was no mention of “that church” at the hearing on 23 July 2008. The Tribunal explained that it would have to ask questions about this. It also put to the applicant that he had given the impression at the last hearing that he was a member of the Hillsong Church and a regular attendee at that particular church.
After some discussion of preliminary issues and of a possible witness, the Tribunal discussed the applicant’s claims about what had occurred in Iran, about attending the Hillsong Church in Australia and then turned again (transcript page 56) to ask him about the document handed to the Tribunal member prior to the second hearing. It is apparent that this is the document dated 21 August 2008 from a pastor of the Liberty Baptist Church attesting to the applicant “coming to our church since March 2008” and regularly attending Sunday morning services and Friday evening home bible study. The letter referred to the applicant’s bible study, and to the fact that he had been baptised on 27 January 2008 in another church and supported his claim.
The Tribunal clarified (transcript page 57) that the document that it was asking the applicant about was the document from the Liberty Baptist Church handed to it at the start of the hearing. This was not mistranslated. The Tribunal explained its concern that in the statement accompanying the applicant’s protection visa application he had claimed he had attended the Hillsong Church since February 2008 (although he had subsequently corrected that to November 2007) and that a supporting document from a pastor of the Hillsong Church had stated that he had been attending that church since November 2007, had been baptised in January 2008 and had regularly attended weekend services until the time of the letter of May 2008.
The Tribunal put to the applicant that at the last hearing he had been asked about how often he went to church and he had said “one day a week”, then “sometimes more than once a week” but “normally one day a week” and that he sometimes “attended some Hill Song (sic) conferences” (transcript page 58). At that point the Tribunal said: “Sir, can I just ask you why you have made no mention of the Liberty Baptist Church until this morning -” (transcript page 58). This was again mistranslated by the interpreter who said in Farsi, “Why you have not mentioned about your Baptism in Liberty Church?”.
However the Tribunal continued (transcript page 58 – 59): “Given that this says you have been attending since March 2008” (again clarifying that this was a reference to the letter from the Liberty Baptist Church). The applicant responded: “I thought that maybe there is no need I mention both church but I was going to this one as I was attending classes at this church. This witness was teaching me.”
It is apparent that both the applicant and the Tribunal member clearly understood that the Tribunal’s concern was nothing to do with baptism, but rather was with the failure by the applicant to have mentioned, prior to the second hearing, his claims about his attendance at the Liberty Baptist Church.
Hence, notwithstanding that there was such a mistranslation, it is not such that an inference should be drawn that this confused the applicant as to whether the Liberty Baptist Church was being referred to or the Hillsong Church. It is not, either alone or in conjunction with the other matters raised by the applicant, such as to establish that the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence. Nor has it been shown to be an error that was material to the conclusions of the Tribunal adverse to the applicant.
Inadequate translation of Tribunal questioning
In written submissions the applicant also contended, without reference to specific instances in the transcript but by reference to the affidavit of Mr Khoshab, that the applicant’s ability to put his claims to the Tribunal as contemplated by s.425 was undermined by “deficiencies” in interpreting at both hearings. It was submitted that as a consequence the Tribunal did not obtain a complete and accurate account of the applicant’s claims and that he was unable to properly convey his knowledge of Christianity to the Tribunal “because the Tribunal’s questions concerning Christianity were not adequately translated to him and his responses were incomplete as a result”. This general contention of inadequate translation of questions concerning Christianity is not made out by reference to the matters addressed in the written submissions. Nor, as discussed below, do the other matters addressed in Mr Khoshab’s affidavit or in oral submissions establish a failure to comply with s.425.
Other “deficiencies” in interpretation
In oral submissions counsel for the applicant addressed other aspects of the Tribunal hearings on the basis that highlighted portions of the transcript indicated other “deficiencies” in interpretation. I have considered all of the matters raised by the applicant and the transcripts of the Tribunal hearings, but I am not satisfied that the Tribunal fell into jurisdictional error in the manner contended for by the applicant.
First, Mr Khoshab pointed to a number of other instances through the hearing where the interpreter was said to have failed to interpret to the applicant discussions and exchanges in English between the Tribunal and the interpreter.
Counsel for the applicant submitted that this failure had to be seen in a context where the applicant did not have the benefit of representation and hence was not aware that there were issues, or of the nature of the discussion between the Tribunal and the interpreter. For example, in addition to the instances discussed above, reliance was placed on an exchange (transcript page 13) where the interpreter asked the Tribunal to ask the applicant not to talk while the interpreter was talking, as then the interpreter would not get whatever he said while she was talking.
There is however nothing in this exchange to establish that the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence or that errors were made that were material to adverse conclusions of the Tribunal.
In Appellant P119/2002, similar issues were raised. The Court stated at [19] – [20]:
The translation of the Tribunal hearing now indicates those things said in English and not interpreted into Farsi, the translation of those statements said in Farsi and not interpreted into English, and those things interpreted into or from Farsi which may or should have been differently interpreted. The very substantial part of the hearing before the Tribunal appears to have been fully and accurately interpreted. There are parts where the appellant's adviser or the interpreter and the Tribunal had discussions in English which were not fully interpreted to the appellant, but they generally concerned timing or procedural matters or comments upon material. There is nothing to suggest the Tribunal regarded those discussions as evidentiary material. There are a few passages where the interpreter has sought to clarify with the appellant an answer, and only the clarified answer has been interpreted into English. Those occasions do not show the clarified answer, as interpreted into English, was inaccurate or incomplete. On a few occasions the interpreter asked the Tribunal to clarify or restate the question so he could interpret it to the appellant. They did not result in the question to the appellant being misinterpreted. The strong overall impression is that the interpreter generally fully and accurately interpreted what the Tribunal said to the appellant, and what the appellant said to the Tribunal. In reaching that view, regard has been had to the table of matters presented by senior counsel for the appellant of claimed irregularities in the interpretation at the Tribunal hearing.
It is clear from that translation that the interpreter experienced some difficulties in translating what the appellant was saying. The interpreter said as much. The interpreter told the Tribunal member that the appellant was `all over the place and I cannot interpret that way'. It would appear from the context that this was a comment that the appellant was talking in parts of sentences, and not completing the sentences. The interpreter also said that `I have to have a sentence - something I understand and can interpret. Now if someone is just giving bits, bits, bits and it is not a proper sentence it is all over the place...'. There is nothing before us to suggest that these difficulties were not real difficulties that any interpreter would have faced. They appear to have been prompted by the appellant's manner of answering questions. There is certainly nothing that would suggest that these difficulties showed that the interpreter was inaccurate or unreliable. Indeed, it would seem that the interpretation was generally fair and accurate. The interpreter, during one such exchange with the Tribunal, told the appellant that he was having difficulty interpreting the appellant's answers because his words `have a special flowing and is up and down'. But the transcription as noted above, generally accurately records in English what the appellant said in answer to questions.
The same may be said in this case. The exchanges between the Tribunal and the interpreter generally concerned procedural matters or were comments on material and there is nothing to suggest that the Tribunal regarded such exchanges as “evidentiary material”. On occasion the interpreter in this case sought to clarify with the Tribunal a question or clarify with the applicant an answer and only the clarified part was interpreted. This does not establish that such clarified questions or answers were inaccurate or incomplete. As in Appellant P119/2000 the fact that the interpreter asked the Tribunal to clarify or restate a question so she could interpret to the applicant “did not result in the question being misinterpreted” (Appellant P119/2002 at [19]).
Particular issue was taken with the fact that at one point (transcript page 30) the interpreter said to the Tribunal (and this was not translated) “I am sorry member, what I have noticed through all this hearing is that your applicant has great difficulty to express himself – he is just all over the place – I am having difficulty with that too. I have to be honest”. To this the Tribunal said to the applicant (and this was translated): “It is very important to listen very carefully to the questions that helps a lot”.
As in Appellant P119/2002 it is apparent from the transcript that the interpreter experienced some difficulty in translating what the applicant said. The evidence before the Court does not establish that the interpreter was inaccurate or unreliable.
This aspect of the hearing has to be seen in the context of what preceded the interpreter’s remark. The Tribunal had been questioning the applicant about the fact that he claimed he had received a warning letter in September 2005 and had obtained his passport in May 2006 but did not leave Iran until January 2007. The Tribunal asked the applicant if he had any trouble in applying for his passport. His reply was as follows (transcript pages 29 – 30)
Applicant:They hadn’t report it as yet. I had no difficulty receiving my passport.
Tribunal:What do you mean they hadn’t reported it as yet – what do you mean by that.
Applicant:They hadn’t reported it to the passport office about my problems if I had a problem I wouldn't be able …
It was at that point that the interpreter made the comment about the applicant being “all over the place”.
The Tribunal, quite properly, endeavoured to remind the applicant of the need to respond to the specific questions being asked. As in Appellant P119/2002, such difficulties do not establish that the interpretation was not generally fair and accurate. On the contrary, considering the transcripts as a whole, the overall impression is that both interpreters generally fully and accurately interpreted both what the Tribunal said to the applicant and what the applicant said to the Tribunal. As in Appellant P119/2002 the “very substantial part” of both hearings appears to have been fully and accurately interpreted.
It was also contended that the applicant’s evidence was confused in relation to dates and months (transcript pages 18 and 20). However this does not demonstrate any interpretation errors, but rather that it could be said that the applicant’s evidence was confused. Such confusion has not been shown to be attributable to deficiencies in interpretation.
Mr Khoshab’s affidavit also drew attention to absence of translation of the interpreter’s remark (transcript page 35):
Interpreter: Member you can realise all the way through you can hear him talking while I am talking.
This was clearly a request that the Tribunal raise this issue with the applicant (of the kind discussed in Appellant P119/2002 at [19]), to which the Tribunal responded to the applicant (and this was translated):
Tribunal:Yeah, it is very difficult sir for the interpreter to do her job today. … Because when she is talking to me to translate what you are saying in Farsi you keep talking to her.
The Tribunal then said again, “Sorry listen”, to which the interpreter stated “He is too excited”. It would appear that there may have been some continued talking at this point, because the Tribunal continued (transcript page 36):
Tribunal:Listen, you need to calm down. … Okay otherwise there is that real thing that I am worried about called accuracy being compromised.
Clearly in this exchange the Tribunal was trying to ensure that the applicant did not deprive himself of the opportunity to convey his claims to the Tribunal by failing to listen to questions and by speaking over the interpreter thus making it difficult to ensure that all that he said was interpreted. There is nothing in this exchange to suggest that the Tribunal member was expressing concern that accuracy was being compromised. Rather, he was raising a legitimate concern that accuracy could be compromised if the applicant continued to talk over the interpreter.
Consistent with the difficulty the interpreter was experiencing (and similar to what occurred in Appellant P119/2002) the interpreter remarked again (transcript page 38), after the applicant appeared to have some difficulty responding to a question about the concept of a “connect group” within the Hillsong Church, “I am just having difficulty with this member. Your applicant is all over the place. He cannot give me a proper sentence to put it to you. I have to ask him to repeat this please”.
Again this is unexceptional. The interpreter was explaining why she had to ask the applicant to repeat himself. The Tribunal then endeavoured to assist by rephrasing the question. Rather than revealing any failure of interpretation, this exchange indicates that both the Tribunal and the interpreter were at pains to ensure that the applicant had the opportunity to give evidence and address issues relevant to the review of the delegate’s decision.
Another aspect of the hearing referred to in Mr Khoshab’s affidavit shows an attempt by the interpreter and the Tribunal to clarify precisely what it was that the applicant was trying to communicate. At page 38 of the transcript, after the Tribunal asked the applicant about some of the free courses that Hillsong offered, the interpreter told the Tribunal: “The answer that I am getting here gives me the impression that he didn't get your question right because he said those people go to university courses and I am not entitled to university courses”.
The interpreter not only translated what the applicant said, but also alerted the Tribunal to a possible difficulty. At that point the Tribunal stated, “Alright (sic) excuse me sir I am going to ask that question again” and proceeded to do so, explaining that on the Hillsong website it stated “if you would like to get more involved with Hill Song church we offer some courses free of charge and they are only for people who live in the Sydney area”. The Tribunal continued: “So all I am asking sir in the time that you have been attending Hill Song have you attended any courses and what was the names of the courses?”. This was translated accurately and the applicant responded “I haven’t attended these courses” (transcript page 39). This exchange does not demonstrate a misunderstanding or interpretation difficulties such as to constitute a breach of s.425 in either of the senses considered in Appellant P119/2002.
Mr Khoshab’s affidavit took issue with the fact that the interpreter was said to have “advised” the applicant on how to answer questions in statements such as “listen to what the member says” or “pay attention to what the member is saying”. However such remarks occurred in situations where the interpreter had translated a question which was not answered and then had to repeat the question. This does not reveal interpretation difficulties or inadequacies or “advice” on how to answer questions that would give rise to any concern about the Tribunal’s obligations in relation to the conduct of the hearing. Further, contrary to the applicant’s submission, the fact that the interpreter told the Tribunal (transcript page 29) that there was no literal translation for an Arabic term “Mamnou – ol khorouj” used by the applicant, but explained its meaning, is not indicative of “difficulties” such as to raise concern about the adequacy of the interpretation. There is no suggestion that the interpreter’s explanation of this term in English was incorrect.
Further, the submission that the Tribunal did not seem to be getting through to the applicant and that interpretation inadequacies could be inferred from this is not made out. Insofar as there was said to be a “mismatch” between the Tribunal’s questions and the applicant’s answers, in the absence of evidence of relevant mistranslation it has not been established that this was attributable to inadequate or inaccurate interpretation. It is apparent that in almost all respects the idea or meaning of the Tribunal’s questions was adequately conveyed to the applicant by the interpreters in each of the hearings as were his responses. There are a few instances where the interpreter sought to clarify a word or concept with the applicant and then sought to explain that clarification to the Tribunal. This does not show that the clarification as interpreted was inaccurate or incomplete or that questions to the applicant were misinterpreted (see Appellant P119/2002 at [19] – [20]).
Nor has it been established that the Tribunal was struck by incoherent responses to its questions in such a way as to demonstrate that this was attributable to inadequate interpretation. In fact the Tribunal was clearly alive to any possible interpretation problems and sought and obtained clarification where it perceived a problem or where the interpreter raised the possibility of a problem.
As set out above, the Tribunal’s decision was based on its consideration of the applicant’s knowledge of Christianity and its concerns about his late claims to have attended the Liberty Baptist Church. These were the matters that were central to its decision. It has not been established that the interpretation was so inadequate that it could be said that the applicant was effectively prevented from giving evidence at the Tribunal hearing on these or other material matters.
It is apparent that the Tribunal was able to understand the claims made and evidence given by the applicant. It has not been established that there was any misapprehension of any claim or evidence given. Nor can it be said that any single error identified (such as the mistranslation in relation to “Baptist” and “baptism”) was, considered in context and in light of the manner in which the hearing continued thereafter, material to the conclusion reached by the Tribunal that the applicant did not have a well-founded fear of persecution for a Convention reason. Nor has it been established that the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence or presenting arguments as required under s.425.
Insofar as the applicant seemed to contend that because Mr Khoshab expressed concern about the professionalism and standard of the interpreter, that established an inadequacy that constituted a failure to comply with s.425 of the Act, such a claim is not made out. Nor is it determinative or to the point that the first respondent did not choose to put on its own expert evidence in reply. The applicant must establish the level of inadequacy required by Appellant P119/2002 before jurisdictional error has been established. He has not done so on the material before the Court.
The applicant has failed to establish either of the two limbs of the test in Appellant P119/2002, or that in any other way there were interpretation “deficiencies” such as to give rise to a breach of s.425 of the Migration Act.
As no jurisdictional error has been established on the basis contended for by the applicant the application should be dismissed.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 26 August 2009
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