SZOYU v Minister for Immigration & Anor

[2012] FMCA 316

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOYU v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 316

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal misunderstood Applicant’s claims or did not apply the law correctly – whether there were errors in interpretation such that the Applicant was effectively prevented from giving evidence or that related to a matter of significance for the Applicant’s claims or the Tribunal’s decision.

Evidence Act 1995 (Cth), s.79
Migration Act 1958 (Cth), ss.36, 91X, 424A, 424B, 425

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14

Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

NAJO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507

Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1

Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358; [2004] FCA 1595

SZCOS v Minister for Immigration & Citizenship [2008] FCA 570

SZHEW v Minister for Immigration and Citizenship [2009] FCA 783

SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171

Applicant: SZOYU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 156 of 2011

Judgment of: Barnes FM

Hearing dates: 21 July, 10 October and 18 October 2011

Delivered at: Sydney

Delivered on: 19 April 2012

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 156 of 2011

SZOYU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal dated 30 December 2010 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of Lebanon, last arrived in Australia on 3 February 2010.  He lodged an application for a protection visa on 23 April 2010.  In his protection visa application he claimed he came to Australia as a visitor but that he feared returning to Lebanon as he had learned that there was a case against him based on a false accusation relating to events of 2000.  He claimed that he would be prosecuted in a Muslim city and that as a Christian he would not be in a position to protect or defend himself.  He provided the Department with a copy of a document said to be a translation of a warrant of attendance issued by the “Criminal Appeals Court of North Lebanon”, requiring his attendance at Court on 20 April 2010 to present his defence in a case lodged against him “for assault and causing actual bodily harm”.

3. The applicant also provided the Tribunal with a translation of a document said to be a Summary of Investigations dated 17 July 2000, by the Director of “Investigation Section” of the “Governorate of North Lebanon”, referring to the detention of the applicant and a number of other persons for assaulting a named person and his wife and children (referred to by the Tribunal as the police report). 

4. The delegate refused the application and the applicant sought review by the Tribunal.  He attended a Tribunal hearing on 7 December 2010. 

5. By letter dated 7 December 2010 the Tribunal invited the applicant to comment on information that the Italian government had granted him a permanent resident visa valid until at least 24 February 2013. This information was said to be relevant because he appeared to have the right to enter and reside in a safe third country where he may not have a well‑founded fear of being persecuted for a Convention reason (see s.36 of the Migration Act 1958 (Cth) (the Act)). The Tribunal asked the applicant to provide comments or a response by 21 December 2010.

6. By letter dated 18 December 2010, stamped received on 20 December 2010, the applicant sought an extension of time until 21 January 2011 to respond.  A case note dated 20 December 2010 in the Courtbook records that a Tribunal officer advised the applicant that the Tribunal member had not granted an extension of time to provide comments or information in response to the letter of 7 December 2010, but that a decision would not be made before 29 January 2010 (sic) and that “the Member would accept any submissions the applicant would like to provide up until the time of decision”.  A subsequent case note, dated 30 December 2010, recorded a correction to that case note and stated that the applicant had been advised that he had until 29 December 2010 to provide any documents he wished to be considered by the member. 

The Tribunal Decision

1. The Tribunal decision stated that the applicant had been given until 21 December 2010 to provide a response to the Tribunal's letter, that he had contacted the Tribunal seeking an extension of time to respond, but that the extension of time was refused.

2. The Tribunal set out in detail the claims made by the applicant in connection with his protection visa application, in an interview with a Departmental officer, and at the Tribunal hearing. 

3. The Tribunal found that the applicant was a Lebanese national.  It stated that it had “not pursued the matter of whether he ha[d] a right of entry to Italy, a country for which he [held] what appear[ed] to be a permanent residence visa, because it [wa]s not satisfied that [he] had a well-founded fear of persecution in Lebanon” and hence was satisfied that he could return to Lebanon.

4. The Tribunal found the applicant to be a "highly unreliable witness".  It had regard to the fact that at the hearing he had made “a number of allegations which he had not made in his Protection Visa application”.  In particular, he had claimed that “he had been detained for a substantial period in gaol in about 2000”.  It also had regard to the fact that the applicant was "unable to give other than a very confused account of his experiences in Lebanon in 2000-2001" and that this account “did not appear to have any relation to the police report of [the] incident…in which it was claimed he [had] assaulted a Muslim man who was accompanied by his wife and children”.

5. In relation to the document purporting to be a summons for his arrest in 2010 in relation to the criminal matter involving the Muslim man and his family the Tribunal also had regard to the fact that “the applicant was unable to provide any credible explanation about how or when he had obtained [this] document”.  The Tribunal was of the view that the “document itself appear[ed] to be lacking in some essential information for such a document, such as where the applicant [wa]s to present himself to answer the summons” and that it did “not appear to be dated”.

6. It also had regard to the fact that on his own evidence the applicant had been resident in Chekka in Northern Lebanon, the district from where the summons purported to have been issued, not only from 2000 until 2004, but also from 2006 to 2008, without incident.  He had also claimed that he “returned to Chekka after he had spent some months in Italy in 2009, and again stayed there for some months without incident before he left for Australia in 2010”.  The Tribunal found it "highly implausible that several years [had] lapsed without incident in the applicant's home town and that as soon as he departed for Australia a summons was issued by the local authorities”.  On the evidence before it, the Tribunal did not accept that this document was a “genuine summons” and gave it no weight.

7. The Tribunal also found that at the hearing the applicant had given a “very confused account of the events which he claimed took place between about 2000 and 2004” that was “so confused and implausible that the Tribunal reject[ed] most of it as a fabrication”. 

8. On the other hand, the Tribunal found that the police report dated 17 July 2000 was “very detailed, logical and plausible in its description of an incident in 2000 in which the applicant was allegedly involved”.  The Tribunal accepted that the applicant had been “involved in a criminal assault in his home town around 2000” and that the police had arrested him as a result.  It observed that “[p]art of the applicant's account at the hearing seem[ed] to be plausible and…consistent with the police report, such as the fact that the applicant and his friends, then aged about 22, had fights with young Muslim men who came to the local beach”.  The Tribunal accepted that, given the sectarian nature of Lebanese society, “a component of [such] conflict was the fact that the applicant was Maronite Christian and the rival gang was Muslim”, and that a “fair reading of the police report indicat[ed]…that there was some police concern about the local gang warfare taking on aspects of sectarian violence”.  However it also had regard to the fact that the report did “not indicate that there was bias against the applicant” and that it “would appear that one of [his] friends admitted to previous assaults against Muslims coming to Chekka”.  The Tribunal found on balance that there was “nothing in the report to suggest that the applicant was arrested for reason of his religion, rather than for the criminal reason of assault”.  The Tribunal found “on the evidence before it that the applicant in 2000 was arrested on a criminal charge, and not for the Convention reason of religion or any other Convention reason”.

9. The Tribunal considered, but did not accept as credible, “the applicant's account at the hearing of what appear[ed] to be another incident entirely, relating to a fight in his town in which he was not involved, but about which he chose to give evidence, and which [had] allegedly resulted in him and his friends being detained and physically harmed because they were Christian”.  On the evidence before it, the Tribunal was “not satisfied that the applicant was ever arrested or detained for a Convention reason, or…ever seriously harmed for a Convention reason in the past in Lebanon”.

10. The Tribunal “considered whether there [wa]s a real chance the applicant [would] be persecuted if he return[ed] to Lebanon in the foreseeable future”.  It addressed the applicant’s claims that if he returned to Lebanon he would be “prosecuted as a result of the summons he [had] received” because there was “a new Muslim minister who want[ed] to punish and prosecute Christian people”, that such prosecution would be “persecution because of the severity of the accusation” and that if he went to court he would be “physically harmed by Muslims because he [was a] Christian, and Muslims wish[ed] to avenge themselves against Christians”. 

11. However, the Tribunal rejected these claims.  It did not accept that the purported summons submitted by the applicant was genuine for the reasons given.  It therefore rejected his claim that he would be arrested and prosecuted if he returned to Lebanon.  The Tribunal stated that in making this finding it had “not only taken into account the finding that the alleged summons document [wa]s not genuine, but also the fact that the applicant [had] lived in Chekka for several years, including some months before he came to Australia, without encountering harm of any kind, or any suggestion that the incident which took place in 2000 was not entirely finished”.

12. Finally, the Tribunal “considered the applicant's more general claims that Muslims [we]re out to seek revenge against Christians in Lebanon” and that he was at risk of serious harm for that reason.  It referred to the US State Department Report on Human Right Practices 2009, published in March 2010, which it had discussed with the applicant at the hearing.  It found there was “no evidence in that report of serious harm being done to individual Christians by Muslims in the recent period” and that the government was a coalition of Christians and Muslims which by law comprised both Muslim and Christian members of Parliament.  It had regard to the fact that the applicant had “lived in Lebanon for several years, at least since 2000-2001, without encountering serious harm from anybody”, as well as the absence of any evidence from him that he held any strong political opinions.  On the evidence before it, “the Tribunal [wa]s not satisfied that there [wa]s a real chance that the applicant [would] be persecuted in a Convention sense for a Convention reason if he return[ed] to Lebanon in the foreseeable future”.

This Application

1. The applicant sought review by application filed in this court on 1 February 2011.  The application contains two generally expressed and unparticularised claims:  that the Tribunal “misunderstood” his claims and that it “did not apply the law correctly”.  The applicant did not file written submissions prior to the hearing date.  However he attended the hearing and sought for the first time to rely on extensive written submissions raising a wide variety of issues, including a contention that a jurisdictional error arose out of the conduct of the Tribunal hearing.  It became apparent that he took issue with the Tribunal account of what occurred at the hearing.

2. The directions hearing in this matter had been conducted by a registrar without an interpreter (notwithstanding the applicant's indication on his application that he required an Arabic interpreter).  I accepted that there may have been some confusion on the part of the applicant (who speaks some English) about the need to file a transcript of the Tribunal hearing and adjourned the hearing to enable the applicant to file a transcript of the Tribunal hearing and written submissions.

3. Subsequently the applicant filed an affidavit of his sister (referred to as Dr S, having regard to the provisions of s.91X of the Migration Act) annexing a transcript of the Tribunal hearing. Dr S is a post-doctoral fellow who attested that she was “competent in English + Arabic languages” and that she had “completed the transcript” of the Tribunal hearing with her comments (the “Applicant’s Transcript”). 

4. The first respondent filed and relies on an affidavit of Monica Rogers, a translation project co-ordinator and translator in the employ of Translationz, a professional translation service, transcribing the English dialogue in the Tribunal hearing, and an affidavit of Rania Soufi, a NAATI accredited Arabic to English translator in the employ of Translationz, who transcribed and translated the Arabic dialogue in the Tribunal hearing.  Taken together, the annexures to these affidavits, constitute the Respondent’s Transcript.  None of the deponents of the affidavits were required for cross-examination.  Each of the parties filed further written submissions.

5. It emerged that the main ground relied on by the applicant related to the adequacy of the interpretation at the Tribunal hearing.  I have considered this issue below but it is convenient to consider first the grounds in the application and other matters addressed in the applicant’s submissions.

Whether the Tribunal misunderstood the applicant’s claims

1. The general contention in the application that the Tribunal misunderstood the applicant's claims is not made out.  This ground did not particularise any respect in which the Tribunal was said to have misunderstood the applicant's claims.  It is apparent from the Tribunal's decision that it approached the applicant's application in a careful manner.  It identified weaknesses in his claims which it raised with him and attempted to clarify his claims, albeit it found aspects of his evidence to be confused. 

2. It appears from the written submissions filed by the applicant in court on 21 July 2011, that the applicant disagrees with the Tribunal conclusions and that it is on this basis that he contends that the Tribunal misunderstood what he contended was his credible explanation.  Such a claim seeks impermissible merits review.  As expressed, this ground is not made out. 

3. To the extent that this is a contention that the Tribunal misunderstood the applicant’s claims because of inadequate or incorrect interpretation at the hearing it is considered below. 

Whether any error in relation to the extension of time request

1. The unparticularised ground in the application that the Tribunal did not apply the law correctly is not made out. Insofar as this may be taken to refer to the Tribunal's decision to refuse the applicant’s request for an extension of time to respond to the s.424A letter, s.424B(2) of the Migration Act requires that an applicant respond to an invitation issued pursuant to s.424A within the period specified in the invitation. Under s.424B(4), the Tribunal may extend the time for a response, but it is not obliged to do so. Section 424B(4) is as follows:

   If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period (emphasis added)

2. The applicant’s protection visa application was made in April 2010. The Tribunal s.424A letter, dated 7 December 2010, gave the applicant until 21 December 2010 for comments or responses. The applicant’s request for an extension of time dated 18 December 2010 was generally expressed, referring to the Christmas break and people being on holidays. The applicant did not raise with the Tribunal the specific matters that he now seeks to assert in relation to obtaining further documentation from Italy. The Tribunal gave consideration to the applicant’s request but refused the extension of time. It was open to the Tribunal in all the circumstances to determine not to grant an extension of time. It has not been established that there was any lack of procedural fairness on the part of the Tribunal.

3. The Tribunal's failure to grant the applicant an extension of time to respond to the s.424A letter has not been shown to involve jurisdictional error. It is apparent from the material before the court that the Tribunal considered the applicant’s request for an extension of time to provide a response to the information that he had an Italian permanent residence visa. It is also apparent that the applicant was already aware of this issue which had been raised with him by a Departmental officer in August 2010. In any event, the Tribunal made no findings based on this issue. It has not been established that the Tribunal fell into jurisdictional error in failing to give the applicant an extension of time to reply to the s.424A letter.

Whether the Tribunal was obliged to make inquiries or to “get back to” the applicant or to give him additional time to provide evidence

1. The applicant contended that at the hearing the Tribunal member had told him that she would make inquiries about his visa status in Italy, that she would get back to him in the next couple of weeks and that he would have the opportunity to provide additional documentation for his case.  He claimed that as he did not hear from the Tribunal he had no opportunity to provide additional documentation, such as a letter his sister was said to have written in 2001 which he said provided corroboration of his claims, information about the situation in Italy and another document he claimed he was still trying to obtain.

2. A comment in the Applicant’s Transcript at p.20.4 appears to suggest that the applicant did not receive a letter from the Tribunal at or after the Tribunal hearing. 

1. First, it is apparent from the transcript of the Tribunal hearing that at the conclusion of the hearing the Tribunal member told the applicant she had a letter for him. This is clearly a reference to the s.424A letter. The member continued (Respondent’s Transcript p.21.33 – 21.37):

   I mentioned to you earlier in the hearing that I'd do what I could to find out about the status of that permanent residence and whether it can be revoked by anybody.  So I'll make those enquiries and let you know about the results of the enquiries I make and you’ll have the opportunity if you read through that letter to give me some information in writing within a couple of weeks.

2. The Tribunal did not state or imply that the applicant would have the opportunity at some indefinite time in the future to provide information. Rather, the member stated that he would have the opportunity to provide information in response to the s.424A letter within the period provided for in such letter.

3. The Tribunal member subsequently reiterated to the applicant that he would have the opportunity, when responding to the s.424A letter, to “include anything else that [he] might want to say” (Respondent’s Transcript p.21.45 – 21.46). 

4. The applicant wrote to the Tribunal on 18 December 2010 in response to the letter he received on 7 December 2010 (the date of the hearing). There is no substance in the submission that the Tribunal failed to provide a copy of its s.424A letter to the applicant at the hearing. Further, insofar as reliance was placed on the letter from the applicant’s sister tendered in these proceedings, that letter was not before the Tribunal and does not go to show any jurisdictional error on the part of the Tribunal.

5. The Tribunal member did not tell the applicant that she would get back to him in the next couple of weeks after the hearing and that he would then have the opportunity to provide any additional documentation for his case. Rather, she indicated that when responding to the letter under s.424A of the Act that had been given to him he would have the opportunity to provide additional documentation and, indeed, to include anything else that he might want to say. He was afforded that opportunity.

6. The Tribunal member did state generally (Respondent’s Transcript at p.21.33 set out above) that she would make inquiries about the applicant's permanent residence [in Italy] and would let the applicant know about the results of the enquiries.  However this statement was almost immediately clarified as follows (Respondent’s Transcript p.21.39 – 21.41):

   So I'll get back to you if I find out any information about whether that permanent residence in Italy can be revoked.  Because if you have permanent residence in Italy then as far as the law goes in Australia, you can go back to Italy.  Ok? (emphasis added)

7. In this way the Tribunal member made it clear that further information would only be provided to the applicant for comment if the Tribunal found any information about whether permanent residence in Italy could be revoked.  However, as is apparent from the Tribunal's reasons for decision, the Tribunal did not make its decision based on whether or not the applicant had a right of entry to Italy because it was not satisfied that he had a well-founded fear of persecution in Lebanon. 

8. In these circumstances it cannot be said that the Tribunal was under an obligation to pursue any foreshadowed enquiries in relation to the applicant’s right to reside in a third country.  Nor, given that the Tribunal had explained to the applicant that it would only get back to him if it found any information about whether permanent residence in Italy could be revoked, has it been established that the Tribunal fell into jurisdictional error by failing to contact the applicant further after the Tribunal hearing.  It cannot be said that any practical injustice is apparent in circumstances where the issue of residence in Italy was not relevant to the Tribunal decision or that the Tribunal erred in failing to make inquiries about a critical fact the existence of which was easily ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.

9. Further, contrary to the applicant’s submissions, the Tribunal's remark at the hearing that if the applicant had permanent residence in Italy then as far as the law went in Australia he could go back to Italy, did not involve an acceptance by the Tribunal of his claim that he had a fear of persecution for a Convention reason in Lebanon.  Rather, the Tribunal was putting to the applicant a potentially dispositive issue. 

Bias Issues

1. Insofar as the applicant reiterated his claim to be a refugee on the basis that he had a serious fear of returning to Lebanon, he seeks impermissible merits review. 

2. He also claimed that he was upset because the Tribunal made a finding that he was a highly unreliable witness.  He contended that such a finding was harsh and tough.  However findings as to credibility are findings for the Tribunal par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). The Tribunal’s findings were open to it for the reasons that it gave on the material before it.

3. Insofar as the applicant may be seen as raising an allegation of actual or apprehended bias, that is not made out on the evidence before the court.  Neither actual bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 or apprehended bias assessed from the perspective of the reasonable informed lay observer (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17) is made out. The applicant’s general disagreement with the merits of the Tribunal decision does not demonstrate predetermination or a closed mind on the part of the Tribunal (SZCOS v Minister for Immigration & Citizenship [2008] FCA 570).

4. Some of the comments on the Applicant’s Transcript of the Tribunal hearing discussed further below may also be seen as asserting bias on the part of the Tribunal.  I have considered these and all the other contentions of the applicant as a whole in light of both the Applicant’s Transcript and the Respondent’s Transcript. 

5. For example, the applicant took issue with the fact that the Tribunal member was said to have spoken in a very loud voice.  The CD of the Tribunal hearing was not in evidence before the court.  This claim is not made out.  In any event, it is well established that having regard to the fact that the Tribunal operates in an inquisitorial manner, even vigorous questioning of an applicant does not of itself constitute bias (see NAJO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356).

6. The applicant specifically took issue with an exchange that occurred when he was asked if he was afraid of being arrested by the Lebanese authorities.  The applicant responded “Not Lebanese authorities.  The Muslims” (Respondent’s Transcript p.7.21).  The Tribunal responded (Respondent’s Transcript p.7.22 – 7.24):

   TM: No look.  Muslims can’t arrest you. 

   A: Ma’am with all due respect…

   TM: They can’t arrest you.  We’re talking about a court of law.

7. The Tribunal clearly expressed some scepticism about the applicant's evidence that he was not afraid of being arrested by the Lebanese authorities, but rather by "the Muslims".  However the Tribunal also went on to give the applicant the opportunity to explain this aspect of his claim.  This exchange does not establish that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Jia Legeng at [72]) or that a properly informed, fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the issues. The fact that the Tribunal was (as in NAJO) plainly sceptical of the applicant’s claims at times and took what may be seen as a vigorous approach in testing them does not establish that it approached its task with a closed mind or that it may be so perceived from the perspective of a reasonable observer properly informed as to the nature of the proceedings, matters in issue and conduct of the Tribunal (Ex parte H at [28]).

8. The applicant also submitted that the Tribunal's finding that the Police Report dated July 2000 (which he provided) was logical and plausible in its description of an incident in 2000 demonstrated that the Tribunal member was biased.  There is nothing to establish bias or contradiction in the Tribunal's approach to the Police Report provided to it by the applicant which it accepted as an accurate account of an incident in 2000 in which the applicant was allegedly involved.  The fact that the delegate had considered that there were some credibility issues with that report does not demonstrate bias and contradiction on the part of the Tribunal.  Insofar as the applicant submitted that the Tribunal had made contrary findings about the genuineness of the report, that has not been established. 

9. Nor is bias established because the Tribunal accepted the genuineness of that document, but not the purported summons.  The applicant took issue with the Tribunal’s conclusion in this respect based on certain features of the summons document.  This does not establish jurisdictional error on the part of the Tribunal.  In particular, insofar as the applicant submitted that the summons included the location of the court, it is notable that the translation of the document provided to the Department simply referred to Republic of Lebanon, Ministry of Justice, and recorded that it was issued by the Criminal Appeals Court of North Lebanon.  It did not give any location other than "before this Court" for the applicant to attend at the time and on the date specified.  The Tribunal raised with the applicant its concern about the genuineness of this document in the course of the Tribunal hearing.  He had the opportunity to make submissions in this respect.  It was open to the Tribunal to take the approach that it did to the document purporting to be a summons for the applicant's arrest for the reasons it gave. 

Other Issues

1. The applicant submitted that it was for the Tribunal to investigate the genuineness of the summons.  The Tribunal is not under an obligation to inquire into the authenticity of documents (see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358; [2004] FCA 1595). No contact details were provided and the applicant did not request such an inquiry. The Tribunal did not undertake to make an inquiry. While a failure to inquire may in some circumstances give rise to jurisdictional error, it has not been established that this is a case in which there was a critical issue the existence of which was easily ascertained such as to give rise to any duty to inquire in the sense considered by the High Court in SZIAI.

2. The applicant sought to provide the court with an explanation for the limited detail in his protection visa application.  It appears that he intended to address the Tribunal's finding that he had made late claims about a number of matters not mentioned in his protection visa application (in particular that he had been detained in gaol for a substantial period in 2000) and also about what allegedly occurred after the 2000 incident.  However the Tribunal’s findings in that respect were open to it on the material before it.  The fact that the applicant now provides an explanation for not having included claims in his protection visa application does not establish jurisdictional error on the part of the Tribunal.

3. The applicant also took issue with the Tribunal’s finding in relation to his credibility.  Credibility findings are matters for the Tribunal par excellence (see Durairajasingham).  Further, contrary to the applicant's contention, the Tribunal did not find him to be a highly unreliable witness solely because he did not mention in his protection visa application that he was detained for a substantial period in gaol in about 2000.  As set out above, the Tribunal took into account a number of matters in making its adverse credibility finding.  Its findings were open to it for the reasons it gave on the material before it.

4. Insofar as the applicant expressed concern about the delegate's decision, the decision under review in these proceedings is the Tribunal's decision.  The applicant's disagreement with the conclusions or findings of the delegate does not establish jurisdictional error on the part of the Tribunal.

5. More generally, the applicant submitted that his case was not properly investigated.  This misunderstands the role of the Tribunal.  It is for the applicant to put his case before the Tribunal and for the Tribunal to determine whether it is satisfied on the evidence before it that he meets the criteria for a protection visa (Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187]).

6. The applicant took issue with the Tribunal's failure to accept that he was arrested because he was a Christian and belonged to a particular social group of Christians and that this was for a Convention reason or reasons.  The Tribunal considered whether or not it was satisfied that the applicant had been arrested for reason of his religion, but found on the evidence before it that the applicant was arrested in 2000 on a criminal charge, and not for the Convention reason of religion or for any other Convention reason.  Further, the Tribunal did not accept as credible the applicant's account at the hearing of what appeared to be another incident which allegedly resulted in him and his friends being detained and physically harmed because they were Christian.  As the Tribunal did not accept the applicant's account of such an event, the issue of the reason for such detention did not arise for consideration.  Again, such findings were open to the Tribunal on the material before it for the reasons that it gave and merits review is not available in this court. 

7. The applicant expressed disagreement with the independent country information cited and relied on by the Tribunal.  The weight to be given to items of independent country information is a matter for the Tribunal.  The applicant's disagreement with that information does not establish jurisdictional error on the part of the Tribunal.  The applicant took particular issue with the Tribunal's reliance on aspects of information in the US State Department Country Report on Human Rights Practices having regard to other material in that report in relation to issues such as whether there was a functioning justice system in Lebanon.  However, having regard to the fact that the Tribunal did not accept that the applicant had ever been arrested or detained for a Convention reason or seriously harmed for a Convention reason in the past and rejected his claim that he would be prosecuted if he returned to Lebanon, it was not necessary for the Tribunal to address such issues in its findings and reasons.  The fact that it raised such information with the applicant in the course of the Tribunal hearing is not indicative of jurisdictional error. 

8. The applicant also raised an issue in relation to whether he had a right of entry to Italy.  However his written submissions addressed the decision of the delegate.  As set out above, the Tribunal did not pursue the issue of whether or not the applicant had right of entry to Italy as it was not satisfied that he had a well-founded fear of persecution in Lebanon.  No jurisdictional error is apparent in this respect.

9. In these proceedings the applicant sought to rely on a document which he said was a letter written by his sister in 2001 to the Immigration Department in Beirut and to a local Member of Parliament in Australia, describing the applicant's situation and seeking assistance.  However, as the applicant acknowledged, he did not provide this document to the Tribunal.  There can be no jurisdictional error by the Tribunal in failing to take into account what the applicant now sees as potentially corroborative material which was not before it. 

The Tribunal Hearing and Interpretation Issues

1. The applicant initially appeared to raise a concern about what occurred in the Tribunal hearing on the basis that the Tribunal’s account of the hearing in its reasons for decision was not a complete account of what occurred.  As indicated, he was then given the opportunity to file a transcript of the Tribunal hearing and to clarify the basis for his claims in that respect. 

2. The applicant filed an affidavit sworn by his sister, Dr S, annexing a transcript of the Tribunal hearing, which, as explained in the affidavit, also contained her comments and views that the Arabic/English translation was inaccurate or misleading.  The first respondent filed two affidavits annexing transcripts which taken together provide an account of all the English at the hearing and also the interpreter's translation of dialogue from Arabic to English.  Insofar as the applicant took issue with the fact that identical copies of the Respondent’s Transcript were annexed to each of the affidavits of the Translationz interpreter Ms Soufi and the coordinator Ms Rogers, that is explained in Ms Rogers’ affidavit.  Ms Rogers attested to the accuracy of the transcript of the English words on the recording of the Tribunal hearing to the extent that she was able to ascertain them.  Ms Soufi attested to the accuracy of the English translation of the Arabic words contained on the recording to the extent she was able to ascertain them.  The Respondent’s Transcript includes page and line references. 

3. Insofar as the Applicant's Transcript annexed to the affidavit of Dr S included comments as to what the applicant meant by his evidence and, in particular, regarding inferences the court ought to draw about the Tribunal's state of mind, it has not been established that this is admissible as opinion evidence (see s.79 of the Evidence Act 1995 (Cth)). However, I have had regard to these comments as submissions made on the applicant's behalf.

4. To establish jurisdictional error on the basis of interpreter error or the standard of interpretation it must be shown that the standard of interpretation at the Tribunal hearing was so incompetent that the applicant was prevented from giving his evidence or that errors in interpretation were material to the Tribunal’s conclusions (see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [38] and [45] and Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230).

5. The applicant asserted that his transcript showed numerous errors of translation and that even the Respondent’s Transcript revealed interpreter error.  It was said to be apparent that the standard of interpretation was so incompetent that he was prevented from giving his evidence or that there were material errors of interpretation. 

6. As an evidentiary matter, the applicant bears the onus to establish such interpreter error on the balance of probabilities (see SZJBD v Minister for Immigration & Anor [2009] FCAFC at [73]). The Minister was prepared to accept that the applicant's sister was competent to give evidence of the English translations of words spoken in Arabic. However, the first respondent relied in part on a transcript, including interpretation, by a NAATI accredited Arabic to English translator in the employment of a professional translation service provider. Ms Soufi’s specialised knowledge based on her training, study and experience qualifies her to give opinion evidence under s.79(1) of the Evidence Act of the English translations of words spoken in Arabic as set out in the Respondent’s Transcript.

7. The Minister’s acceptance of the competence of Dr S to give evidence of the English translations of words spoken in Arabic does not mean that where there are differences in the transcripts the Applicant’s Transcript should be preferred.  Dr S’s evidence is that she is “competent” in the English and Arabic languages (although there is no basis given for this claim) and that she “completed the transcript for RRT with [her] comments”.  The applicant’s submission to the effect that the Respondent’s Transcript is “wrong” is not made out on the evidence before the court.  Rather, on the evidence before the court, on those occasions where the applicant asserts that an error is disclosed by the Applicant’s Transcript but the error asserted is not disclosed by the Respondent’s Transcript the applicant has failed to discharge the onus of establishing that there was such an error. 

1. Insofar as the applicant appeared to submit that the interpretation was less than perfect and did not always convey precisely the same meaning as his testimony, it is important to bear in mind what was said by Kenny J in Perera in relation to the role of an interpreter and the standard of interpretation.  As her Honour pointed out in Perera at [26] “[p]erfect interpretation may…be impossible” and “a particular interpretation may well be less than perfect yet acceptable for the Tribunal’s purposes” (emphasis added).  Thus the Full Court of the Federal Court stated in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 at [66]:

   It follows from the fact that interpretation is not merely a mechanical exercise that there will be some words, of which `house arrest' may be an example for which there is no perfect translation: Perera per Kenny J at [25] - [26]. 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.

2. Relevant to the submissions made by (or for) the applicant, as Kenny J stated in Perera at [29]:

   Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, 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.

3. Kenny J suggested that criteria such as continuity, precision, impartiality, competency and contemporaneousness may be relevant in assessing interpretation.  As in Perera, the criteria of particular relevance in the context of a Tribunal hearing are precision (or accuracy) and competency (Perera at [28] – [29]). No issue is taken with the impartiality of the interpreter.

4. In this case the interpretation occurred in the context of a Tribunal hearing which was, as the Tribunal stated, conducted mainly in English, in which language the Tribunal (and the delegate who conducted the entire interview in English) found the applicant to be “quite fluent”.  There was, however, no submission for the Minister that the applicant had no real need for an interpreter.  It is apparent that the Arabic language interpreter was available throughout the Tribunal hearing to assist the applicant when he saw it as necessary.  No issue was taken about the qualifications of the interpreter. 

5. It is also relevant to note that no complaint was made about the standard of interpretation to the Tribunal or until well into these proceedings.  Issue is now taken with the standard of interpretation, particularly on some occasions where the applicant gave evidence in Arabic which was then translated into English. 

6. As in Perera, the issue is whether the material relied on by the applicant is sufficient to make out his case that the interpretation before the Tribunal was so incompetent that he was prevented from giving his evidence or that there was a departure from the standard of interpretation relating to matters which were significant for his case and the Tribunal’s decision.

7. The solicitors for the first respondent helpfully prepared detailed tables addressing alleged errors and comments in the Applicant's Transcript.  The Applicant's Transcript does not bear line numbers, but the approximate points at which it identifies claimed errors are identified in the Minister's submissions. 

8. I have considered each of the matters raised individually and as a whole, and I have borne in mind the submission of the applicant to the effect that the Tribunal's conclusion that his evidence at the hearing was a very confused account of events between 2000 and 2004 was in some way attributable to interpreter inadequacy or error. 

9. However, for the reasons that follow I accept that, as submitted for the first respondent, when regard is had to both the Respondent’s Transcript and the Applicant’s Transcript it has not been established that the standard of interpretation was so incompetent that the applicant was prevented from giving his evidence or that there were material departures from the requisite standard of interpretation. 

Comments in the Applicant’s Transcript

1. The applicant raised concerns about the interpretation at various stages in these proceedings.  It is convenient to consider first the comments appearing in the Applicant's Transcript.  Insofar as these comments purport to provide a further explanation for what the applicant intended to say, they go only to the merits of the applicant's claim and do not disclose any jurisdictional error in the Tribunal's decision.  Many of the comments do not relate to the standard of interpretation and some seek impermissible merits review.  As set out above, I have had regard to these comments as submissions. 

2. I note first that there are differences between the Applicant’s Transcript and the Respondent’s Transcript, not only as to the correct translation of Arabic, but also in relation to the English spoken at the hearing.  For example, in the course of questions about where the applicant was living and working in Italy, the Tribunal asked the applicant about his claim that he had lived in the south of Italy and worked in both Rome and Milan.  According to the Applicant’s Transcript the Tribunal asked (at p.7.7) :

   I don’t understand if you were living in the South who (sic) did you work in Rome and Milan?  Quite a long way away.

   In contrast, according to the Respondent’s Transcript (at p.8.52 – 8.53) the Tribunal asked:

   So what was the Rome and Milan thing?  I don’t understand if you were living in the South, how you were working in Rome and Milan?  Quite a long way away.

   Such differences do not go towards demonstrating jurisdictional error.  Relevantly, the applicant’s response (in English) was (Respondent’s Transcript at p.8.54 – 8.55):

   Yeah if you are a manager, all you need to do is collaborate with the company by internet.  We used to sell equipment to the Middle East and stuff [reference to “staff” in Applicant’s Transcript p.7.8] like that.

   In the Applicant’s Transcript (at p.7.8) the following comment was added by Dr S:

   Comments: He meant he was working from home using the computer for a company who was based in Milan even though he was living in Monterotondo in Rome.  Because it was working from home, he was also able to get another job in Rome as a receptionist

   As indicated, such comments misconceive the nature of judicial review.  This is not a rehearing.  Merits review is not available in this court. 

3. There are several differences of substance between the transcription of English in the Applicant’s Transcript and in the Respondent’s Transcript, some of which are set out further below.  In particular, there are several omissions from the Applicant’s Transcript of English words, phrases and sentences included in the Respondent’s Transcript and some apparent errors in translation (or possibly typographical errors) in the Applicant’s Transcript (such as the word “staff” instead of “stuff” in the applicant’s answer recorded above).  I am not satisfied that the applicant has established that his transcript is an accurate transcript of the English spoken at the Tribunal hearing in all respects.

4. Turning to interpreter issues, several of the specific concerns raised by the applicant can be seen as premised on the incorrect assumption that the interpretation must be “perfect” (cf Perera).  For example, the applicant took issue with the accuracy of the translation of his response (p.9.6 of the Applicant's Transcript and p.10.21 of the Respondent’s Transcript) when the Tribunal raised with him the fact that the Department had a few problems with the document said to be a summons.  The applicant suggested that the summons could not be forged because it had a government seal.  The Tribunal started to put its concerns to the applicant about that document by stating (Respondent’s Transcript p.10.31):

   Yes, well, even so it doesn't say anything about where you could go, or ...

5. The translation of what the applicant then said in Arabic in each of the Applicant's and Respondent’s Transcripts is substantially the same.  On the applicant's version he first addressed the interpreter directly and then the Tribunal, as follows (at p.9.7):

   It is hard for me to explain to her that in Lebanon even if someone is detained, he will not receive any release document, they can do anything they want ...  it is not like here.  I would like to explain to you that the System in Lebanon is very different from here.

6. The applicant took issue with the fact that according to the Applicant’s Transcript (at p.9.7) the interpreter translated this response in English as:

   he said I am trying to explain that the system in Lebanon is totally different to here. 

7. According to the Respondent’s Transcript (at p.10.36), the interpreter’s translation was:

   I would like to, like try to explain, like the system in Lebanon is totally different than here

8. As submitted for the first respondent, both transcripts disclose that the interpreter correctly translated the applicant's evidence to the Tribunal that the system in Lebanon was different to the system in Australia.  Insofar as other words spoken by the applicant were addressed to the interpreter they were not responsive to the Tribunal's proposition that the summons did not identify the place to which the applicant claimed to have been summoned.  They were immaterial to the Tribunal's findings in relation to the genuineness of the summons.  A failure to translate such a remark is not such as to effectively prevent the applicant giving evidence.

9. Furthermore, when the Tribunal member continued that she had seen some such documents before and that they usually stated where you should go, this gave the applicant a further opportunity to address this issue.  However he responded that “If she [presumably the Tribunal member] has a concern about this document, she can call the Lebanese Authorities and validate it” (Respondent’s Transcript at p.10.43).    

10. The next contention by the applicant was that that the interpreter’s translation was not accurate or was misleading in the Applicant’s Transcript at p.9.10 – 10.9 (p.10.54 – 11.5 of the Respondent’s Transcript).  In this part of the hearing the Tribunal revisited the fact that the summons purported to relate to an appeal hearing in relation to a criminal charge and the issue of how this related to the applicant’s claimed fear of harm from the Muslims.  The applicant asked if he could say something.  He continued with remarks in Arabic which, according to his transcript, were as follows (Applicant’s Transcript at p.9.10):

    I would like to say that usually if there is an appeal against a case in Lebanon, they give you certain period of time whereby they can lodge an appeal which could be 10-20 days or a month maximum.  If they don't put an appeal during this time, the case will be dropped.  It can't be appealed after 5 years...

11. However, according to the Respondent's Transcript (at p.10.54 – 10.56) the applicant’s remarks in Arabic were:

    Usually, in Lebanon, when there is an appeal, and you know that, they give them certain period of time, 10 days, 20 days, one month maximum.  If they don't put an appeal during this time, the case will be dropped.  After 5 years, they re-opened the case.

12. The interpreter (according to the Applicant’s Transcript at p.10.1) translated this response as:

    I would like to explain something, usually if there's an appeal against a case in Lebanon, they give you certain time like maybe up to one month if you wonna (sic) appeal the case.  This case was not appealed till after 5 years.  These people they opened the case and they appealed it after 5 five years.

13. According to the Respondent’s Transcript (at p.11.1 – 11.3) the interpreter translated the applicant’s response into English as follows:

    Well, I would like to explain something, you know usually if there’s an appeal against a case in Lebanon, they give you certain time like maybe up to one month if you wanna (sic) appeal the case.  This case was not appeal till after 5 years.  These people they opened the case and they appeal it after 5 years.

14. The applicant submitted that his response was mistranslated.  However both the Applicant's Transcript and the Respondent's Transcript disclose that the interpreter correctly translated the applicant's evidence that usually there was a short time within which a case in Lebanon could be appealed, but that he claimed his case was not appealed until after five years.  Further, the applicant reiterated this evidence in English, claiming that the case should have been dropped.  Contrary to the comment on the Applicant’s Transcript, it is not apparent that he was correcting the translator in so doing.  No inadequacy in the standard of translation of the kind considered in Perera or Appellant P119 is apparent in this part of the Tribunal hearing.

15. The applicant also took issue with the accuracy of the interpreter's translation from Arabic to English of his remarks in response to the Tribunal when it asked him to explain what happened in 2000 when he was charged with assaulting a resident of Tripoli who owned a pick-up truck and his wife and children, as described in the Police Report.  There is a significant difference between the translation of Arabic recorded in the Applicant’s Transcript and that in the Respondent’s Transcript.  According to the Applicant's Transcript (at p.10.6) the applicant said in Arabic:

    What is written in the Investigation report in that page (sic) is not a detailed description about the real incident or what happened.  It is a summary that the Investigation officer made.  The issue is about an incident that happened in chekka.  The local police was involved.  Please I will need your help to translate here. 

16. However, according to the Respondent’s Transcript (at p.11.24 - 11.27), the applicant said in Arabic:

    A: Ok, these are minor details.

    I: This is the case…

    A: These are minor details that they've put.  The basis of the problem– here I want you to translate – the basis of the problem, there was an issue in Lebanon that the Lebanese police were involved in.

17. The translation into English by the interpreter was, according to the applicant (p.10.6):

    this is correct what you said they just you know some points about the case but the problem is that during that time there was big problem and the Lebanese police was involved in that problem. 

18. The Respondent’s Transcript (at p.11.28 – 11.29) recorded the interpreter’s translation into English in similar terms (with punctuation). 

19. In other words there is a not insignificant difference between the Applicant’s version of his response in Arabic (in which he is said to have referred to an incident in Chekka (which is a place in Lebanon)) and the Respondent’s version (which can be seen as responsive to the fact that the Tribunal raised an issue about the man the applicant was said to have assaulted).  The interpreter’s translation accords closely with the Respondent’s version of the applicant’s remarks in Arabic.  On the evidence before the court it has not been established that there was a mistranslation, let alone a mistranslation going to show that the standard of interpretation meant that the applicant was effectively prevented from giving his evidence.  Both transcripts disclose that the interpreter correctly translated the applicant's evidence that the basis of his problems in 2000 was an incident in Lebanon in which the Lebanese police were involved.  Moreover the applicant went on to elaborate on this problem in further evidence. 

20. The applicant then took issue with an exchange on the basis that he had to interrupt and correct the interpreter.  He submitted that confusion was created by the interpreter.  It is convenient to set out in full this part of each transcript.  The Applicant’s Transcript is as follows (at p.10.7 to p.12.2):

    [Tribunal] OK.  What was the problem.?  Tell me what the problem was.

    [Applicant] In Arabic.  There was a fight in Chekka.  I had nothing to do with the fight.  The fight was between local Police members, a crowd of people and muslims and the police asked everyone who was there to go and witness what happened.  We went there to try to help the local police as they were accused for being involved in the fight.  When we went there, they changed all our testimonies.  There were around 12 pages in the report.  They were writing and they didn’t let us read what they were writing in the report.  After all this they changed the facts and put the blame on us instead.  They accused us of assaulting the muslims, removing scarves from the women, hitting the women and children, destroying the pick up… When we went to testify, they took us to a private investigation room, blindfolded us.  They covered our eyes and hand-capped our hands behind our backs and started to beat us.  They started taking us from one jail to another. 

    X Translator: I had nothing to do with that fight but the fight was between Islamic police group and after a while they asked me to go as a witness because the people who had the fight were from my town 

    [The applicant], in Arabic, stopped the translator: the police were from my town

    X Translator: Ah the police were involved in the fight.  They were from my town.  So we went to witness for them to try to help them.  They changed all the information we gave.  The report was about 12 pages and when the police write a report, like you know they won’t let you read what they wrote in the report.  After all this, they changed the facts, they like you know tried to blame us for like you know doing like, being in the fight like trying to kill them, kill their children or beat them.  Since then when we went like you know to witness in that court case they took us like you know to a private investigator room just like you know ah, folded

    [Tribunal] Blindfolded

    The translator continues: blindfolded us and they took us from one jail to another and they were beating.

    [Tribunal] Who took you?

    [Applicant] In Arabic the Lebanese intelligence

    The translator: The Lebanese like yeh

    [Tribunal] The intelligence service

    The translator: Yes the intelligence service.

    [Tribunal] You, you went to court to give evidence.

    [Applicant] Not to court, to the investigation service to witness.  Before you go to court… there were no court yet, we didn’t know anything yet.  (Comment: this confusion was obviously created by the translator)

    The translator: not to court, you know they were investigating their case

    [Tribunal] So you went to the intelligent service office in Chekka.  Is that what you did?

    [Applicant] yes, in Chekka and in koura and in Tripoli

    [Tribunal] Why did you go to all those places?

    [Applicant] Arabic: Because they weren’t believing us, they moved us from a place to place beating us and trying to make us confess that we did the fight even though we all said we did not.  We did not do anything, we didn’t know why they arrested us or when we are going to be released.

    X Translator: they were taking us from one place to the other.  They tried to make us confess that we did like you know the beating.  But we had nothing to do with the fight.  We didn’t know where what you know jailed.  We didn’t know when we gonna be released. 

    [Tribunal] So the Intelligent service put you in jail?

    [Applicant] In Arabic: Yes.  Not one jail, 5-6 jails.  With physical harm, I will now tell you what they did to me 

    X Translator: not one jail only.  Like 4-5 jails and the physical harms you know I tell you what it happened. 

    [Tribunal] You didn’t say anything about this in your application

    [Applicant] No one asked me before to say

    [Tribunal] Well you are making the case for yourself to be a refugee you should put the facts, if you are seriously harmed in the past you should say so.(Comment: in a loud voice)

    The translator is translating to [the applicant] that in Arabic. 

    [Applicant] In Arabic [the applicant] said: No matter how much I say they will not believe me, they had the investigation report and summons and they saw the stamps and they said it doesn’t have a stamp hence it is not valid.  They did not believe it. 

    X Translator: if like you know I give this information and it is not like you know stamped or like you know from the government or anything, they will say to me it is not valid.  The information is not valid.  No document.  Like in Lebanon like nothing is like really you know (Comment: surely the translator is making it harder to understand)

1. The Respondent’s Transcript of this part of the hearing at p.11.33 to p.12.46 is as follows:

   TM: Ok.  What was the problem? Tell me what the problem was.

   A: These police were an Islamic group.  I didn’t have anything to do with the issue.  At one time they asked us to go and testify with them; we had nothing to do with the issue but the policemen were to be punished. 

   I: Ok, I had nothing to do with that fight but like you know the fight was between Islamic police group and after a while they asked me to go as a witness. 

   A: Because they were from our town.

   I: Because the people who had the fight were from my town.

   A: The policemen were from my town.

   I: Ah the police, the police were involved in the fight.  They were from my town. 

   A: So we went to testify with them to help them. 

   I: So we went to witness for them to try to help them.   

   A: They changed all the testimonies, if you can see the testimonies they’ve put, around 12 papers, when they write these things in a report at the police station where I come from, you know these things, they don’t let you see what they’re writing. 

   I: They changed all the information we gave.  The report was about 12 pages and when the police write a report, they, like you know they won’t let you read what they wrote in the report. 

   A: After all these things, they changed the whole story; that we were involved in the issue and that they weren’t involved in the issue and that we meddled in, we beat them, removed the scarves from their heads and beat their children.

   I: After all this, they changed the facts, they like you know tried to blame us for like you know doing like you know, being in the fight like trying to kill them, kill their children or beat them. 

   A: From the time, when we went to testify with them, they took us to the investigation division, different to the police station, they call it the investigation division, I don’t know if they’ve got it here in Australia, they blindfolded us, put our hands behind our backs and started beating us and then took us from one prison to the other. 

   I: Since then when we went like you know to witness in that court case they took us like you know, a private investigators, they like you know ah, folded…

   TM: Blindfolded

   I: Blindfolded us and they took us from one jail to the other and they were beating. 

   TM: who took you?

   I: Who took you?

   A: The Lebanese intelligence. 

   I: The Lebanese, like…

   TM: The intelligence service.

   I: Intelligence, yeah.

   TM: You went to court to give evidence. 

   A: Not to court.  To the investigation division, before the court case…

   I: We didn’t even go to court yet, that was before that…

   TM: So where did you go?

   I: That was for investigate … like you know they were like investigating the case. 

   TM: Ok, so you went to the intelligence service office in Chekka.  Is that what you did?

   A: Yes, in Chekka and in Koura and in Tripoli.  Around 6 places, to the investigation divisions. 

   I: Ok, we went in Chekka and in Koura and in Tripoli…

   TM: Why did you go to all those places?

   I: Why did you go to all these divisions?

   A: Because they didn’t believe us, they wanted to beat us just to make us confess that we did it. 

   I: They were taking us from one place to the other.  They tried to make us confess that we did like you know the beating. 

   A: We didn’t do anything, we didn’t even know why they arrested us or when we were going to be released. 

   I: But we had nothing to do with the fight.  We didn’t know where what, we were like you know jailed.  We didn’t know when we gonna be released. 

   TM: So the Intelligence service put you into jail?

   A: Yeah.  Not one jail, 5-6 jails.  With physical harm, I will now tell you what they did to us as well. 

   I: It’s not in one jail only.  Like 4-5 jails and the physical harms, I tell you like you know what happened. 

   TM: You didn’t say anything about this in your application. 

   A: No one asked me before, no one. 

   I: No one asked me to …

   TM: Well you’re making your case for yourself to be a refugee, you should put the facts before us, if you have been seriously harmed in the past you should say so.  

   I: Because you are applying for protection, you should state all the facts if you were exposed to harm in the past. 

   A: But if I said and then if they see that it didn’t have stamps and didn’t have stuff, like they saw now, then they would say that it is not valid. 

   I: If like you know I give this information and it’s not like you know stamped or like you know from the government or anything, maybe, they will say to me it is not valid.  The information is not valid. 

   A: The issues in Lebanon are different, cannot be known. 

   I: No document Like in Lebanon like nothing is like, like really you know…

   A: [unintelligible]

2. Again, it must be said that there is a marked difference between the Applicant's Transcript and the Respondent’s Transcript that cannot be said to be attributable only to different views about the “correct” interpretation of words spoken in Arabic, although it may partly reflect the fact that in the Applicant's Transcript the lengthy explanation that the applicant gave appears as a block quote, from which it appeared that the translator then commenced to translate and that the applicant stopped him and added that "the police were from my town" (Applicant’s Transcript p.10.10).  However this was something that was not expressly said by him in his initial evidence and cannot be seen as a correction of the interpreter.  In contrast, the Respondent's Transcript records that after the applicant said a sentence or two in Arabic, that was translated, then the applicant would continue and the interpreter would translate as the applicant went on. 

3. Neither transcript of this part of the hearing is indicative of interpreter error in the Perera sense.  Both the Applicant’s Transcript and the Respondent’s Transcript disclose that the interpreter correctly translated the applicant's evidence that he had not been involved in the fight, but that he was a witness to it and that he was falsely accused of having been a participant. 

4. The applicant took issue with the interpreter's use of the English words "Islamic police group" (at Applicant’s Transcript p.10.10) in the translation of the first response of the applicant set out above at [94] apparently on the basis that, according to his transcript, the applicant said in Arabic in this part of his evidence (Applicant’s Transcript p.10.7):

   There was a fight in Chekka.  I had nothing to do with the fight.  The fight was between local Police members, a crowd of people and muslims, and the police asked everyone who was there to go and witness what happened.  We went there to try to help the local police as they were accused for being involved in the fight.

5. However, the Respondent’s Transcript recorded at p.11.34 – 11.36 that what the applicant said in Arabic at this point was:

   These police were an Islamic group.  I didn't have anything to do with the issue.  At one time they asked us to go and testify with them;  we had nothing to do with the issue but the policemen were to be punished.

6. The first respondent submitted that this was one part of the applicant’s dialogue incorrectly translated in the Applicant’s Transcript.  According to the Respondent’s Transcript, the use of the expression “Islamic police group” was an accurate reflection of the evidence that was given by the applicant.  Insofar as the applicant contends to the contrary, having regard to the difference between his Transcript and that of the Respondent, he has not discharged his onus of proving any error. 

7. Further, contrary to the applicant's submission that it was not clear that he and the Tribunal member were talking about a fight, or who was fighting whom, this evidence was given in the context of the applicant having been asked to explain exactly what happened in the incident described in the police investigation report which led to the claim that he had been charged with assaulting a resident of Tripoli and his wife and children.  Insofar as his evidence in this respect was unclear, it has not been established that that was as a result of interpreter error. 

8. In both transcripts the point that the applicant appeared to be trying to make that he was not involved in the fight and that the Lebanese police were involved was communicated to the Tribunal.  The applicant's claims about his initial involvement as a witness and that he was falsely accused by Muslim police of having been a participant in what was a religious fight were also communicated (on either transcript).  Insofar as the applicant asserted that his Transcript was correct and that the Respondent’s Transcript was incorrect apparently on the basis that it was not apparent from the Respondent’s Transcript that the applicant’s claim was that the fight was between local police, Muslims and a crowd of people, the applicant has failed to discharge the onus of proving any such interpreter error.  The evidence before the court does not establish that the Applicant’s Transcript should be regarded as more accurate than that of the respondent, in particular in relation to what the applicant stated in Arabic. 

9. The applicant also submitted that confusion appeared to be caused by the interpreter in this and other parts of the hearing.  However it has not been established that the standard of interpretation was such that either the applicant was prevented from giving evidence or that there was “confusion” caused by the interpreter that affected matters of significance to the applicant’s claims or the Tribunal findings.  The fact that the Tribunal sought to clarify the applicant’s claims and raised concerns with him about an apparent lack of clarity in his evidence has not been shown to be a response to or demonstrative of interpreter error of significance.  Indeed, even on the Applicant’s Transcript the applicant’s evidence in Arabic could be said to lack clarity.  For example, both the Applicant’s Transcript and the Respondent’s Transcript disclose that in the early part of the part of the hearing set out at [94] and [95] above the applicant used the words “testify” and “witness”.  The interpreter apparently regarded this as being a reference to a witness in a court case.  However any miscommunication in this respect has to be seen in the context of the lack of clarity or responsiveness in the applicant’s evidence in Arabic (on either version).  In any event this was subsequently clarified.  Further, both transcripts disclose that the interpreter correctly translated the applicant’s claims that the Lebanese Intelligence Service moved him and his friends from gaol to gaol and tried to make them confess that they were involved in the fight, that he claimed that they were not involved and that he did not know why they had been arrested and when they were going to be released. 

10. Insofar as the applicant’s evidence of having been moved between five to six gaols was translated as four to five gaols, there was such a mistranslation on either transcript.  However such mistranslation was not material to the substance of the applicant’s claims or the Tribunal’s findings. 

11. As to the final part of these extracts, in each transcript the applicant’s evidence was obscure and somewhat unresponsive to the Tribunal’s concern that he had not mentioned his claims to have been arrested and detained in his protection visa application.  Any confusion arising from the interpreter’s attempt to translate this part of the applicant’s evidence has not been shown to be attributable to the interpreter.

12. It is notable that at that point in the hearing the Tribunal member endeavoured to bring the applicant back to the issue that she had raised, which was that if he was applying for protection he should have put all the facts before the decision-maker and that if he had been seriously harmed in the past he should have said so.  The Tribunal specifically put to the applicant that he had not previously mentioned that he had been detained and beaten.  This gave him a further opportunity to respond to this issue.

13. It has not been established that the standard of interpretation in this part of the hearing as recorded in the transcripts was so incompetent that the applicant was effectively prevented from giving his evidence or that any shortcomings were material or  related to a matter of significance for the applicant's claim or the Tribunal's decision.  Moreover, any confusion arising from the interpreter's attempt to translate the applicant's obscure evidence cannot be said to have been caused by the interpreter.

14. The applicant next took issue with the translation of his response in Arabic to a Tribunal question about his claim that the police changed information in the Police Report to state that he and his friends were involved in the fight.  When asked why would they do that, according to the Applicant's Transcript (at p.13.7), the applicant said in Arabic:

    Because it was with Muslims and they wanted to take the blame of (sic) themselves so they put it on us.

    According to the Applicant's Transcript (at p.13.7) this was translated as: “because it was between Muslims and they wanted to take the case from them and put it on us”.

15. In contrast, according to the Respondent's Transcript, the applicant said at p.14.31, "Because they were Muslims, Muslims", which was translated as, "Because it was between Muslims” (at p.14.32) and the applicant then continued (at p.14.33), “And they wanted to take the blame off themselves so they put it on us”, which the interpreter translated as: “They wanted to take the case from them, put it on us.” (at p.14.34).  The Tribunal then commented that this did not make sense and asked for a further explanation. 

16. The applicant submitted that the interpreter was behind the Tribunal’s confusion.  Insofar as there is a difference between the Applicant’s Transcript of the Arabic (in particular that he said “Because it was with Muslims”) and the Respondent’s Transcript (that he said in Arabic “Because they were Muslims, Muslims”) the applicant has not met the onus of establishing error in the Perera sense based on the translation “because it was between Muslims”, particularly when regard is had to the subsequent exchange referred to at [111] below.

17. Both the Applicant's Transcript and the Respondent's Transcript disclose that the interpreter correctly translated the applicant's evidence that the fight involved Muslims and that there was an attempt by the police to shift the blame to the applicant and his friends.  Given the lack of clarity in the applicant’s evidence it cannot be said that mistranslation or confusion caused by the interpreter led to the Tribunal's statement that the applicant's evidence did not make sense.  Indeed, the applicant accepted in a later response that it did not make sense that the police wanted to take the blame off themselves because they were afraid they would be blamed. 

18. The next alleged error was said to have occurred after the applicant claimed that the police changed the report to put the blame on the applicant and his friends because they feared for their lives.  When asked why they feared for their lives both the Applicant's Transcript at p.14.1 and the Respondent's Transcript at p.14.46 stated that the applicant replied in Arabic, “Because it was a religious fight” and went on to say words to the effect that they “gave it a religious impression and they started to scream in the mosques that the Christians in Chekka are killing the Muslims, and at the same time drowning cases happened in Chekka, and they accused us of drowning them” [or of “drowning muslims”, according to the Applicant’s Transcript p.14.1], Respondent’s Transcript p.14.46 – 14.48. 

19. It is the case that according to both the Applicant's Transcript and the Respondent's Transcript the interpreter initially translated only the first sentence of this response.  It is not clear whether the Tribunal interrupted with a further question (Respondent’s Transcript at p.14.50, Applicant’s Transcript at p.14.2) “But you said you didn’t know what the fight was about?” before all the reply was translated.  However the balance of the applicant’s answer was translated shortly thereafter.  In these circumstances the initial incomplete translation does not establish interpreter error in the sense considered in Perera. 

20. Issue was also taken with the interpreter's translation of the applicant's response to the Tribunal’s comment (after he said it was a religious fight), that the applicant had said that he did not know what the fight was about.  According to both transcripts (Applicant’s Transcript p.14.2, Respondent’s Transcript p.14.52) the applicant said words to the effect, “I didn't know before, but I knew this from the document later on after they accused us”.  This was interpreted as, "I didn’t [or “did not”] know before, but I knew this from the information that was put in the report," in both transcripts (Applicant’s Transcript p.14.2, Respondent’s Transcript p.14.53).  Both transcripts disclose that the interpreter correctly translated the applicant's evidence that he did not know what the fight was about until he learnt from information put in the written document (clearly a reference to the police report) what the fight was about.

21. In any event the Tribunal sought to clarify the source of the applicant’s knowledge.  The applicant was then asked: “What report?” (Applicant’s Transcript p.14.3, Respondent’s Transcript p.14.54).  According to the Applicant's Transcript at p.14.3 he replied in Arabic:

    When we went to witness with the police, the police told us that we are accused of assaulting the muslims.  They told us the names of the muslim people, someone had the name of Mohammad accused us.  (sic)

22. According to the Respondent's Transcript at p.15.1, what was said by the applicant in Arabic was:

    The policemen when we went to witness with them, they said that they were named Mohammad and so on and they were claiming that we were killing them.

23. The translation according to the Applicant’s Transcript (at p.14.3) was in similar terms, except that the interpreter was said to have added the words “the police report” at the start of the translation of the applicant’s response shown at [115] above. According to the Respondent’s Transcript (at p.15.3 – 15.4) this was translated as:

    They were Muslims, they were claiming that the Christian people  they were like trying like you know to kill them and do like you know things in the mosque, problems in the mosque and…

    At that point the Tribunal interrupted and said, “So you did see the police report?” (Applicant’s Transcript p.14.4, Respondent’s Transcript p.15.5). 

24. Contrary to the applicant’s contention, this exchange and the Tribunal’s question about whether the applicant saw the police report is not indicative of confusion caused by the interpreter demonstrating or contributing to jurisdictional error in the Perera sense.  Both transcripts disclose that the interpreter correctly translated the applicant's claim that he and his friends had been accused by Muslim policemen of assaulting Muslims.  The Tribunal, apparently correctly, understood that the applicant had claimed to have learnt of the nature of the fight from a document he first saw after he had been accused of involvement.  The fact that the Tribunal interpreted this claim as a reference to the police report is not material to the substance of the applicant's claims or the Tribunal's findings, and, in any event, represents a correct translation of the applicant's evidence according to the Respondent’s Transcript.  The applicant has failed to discharge his onus of proving any error in this respect. 

25. Moreover, in translating the applicant’s response, the interpreter included the earlier reference to Christians trying to kill Muslims.  This part of the transcript has not been shown to give rise to jurisdictional error. 

26. The next asserted mistranslation is that, according to the Applicant's Transcript at p.14.6, after the Tribunal raised with the applicant that he was telling her very different things he replied in Arabic with a reference to “the authorities” as follows:

    This is what happened and I know it is hard to get information from the authorities, how am I going to get such information. 

1. However, according to the Respondent’s Transcript at p.15.16 he said in Arabic:

   This is what happened and I know it is hard to get information from them, how am I going to get such information?

2. According to the Applicant’s Transcript (at p.14.6) the interpreter translated what the applicant had said as:

   that's what happened, it is very hard to know to get information from them especially for me but how can I get like you know ...

3. The Respondent’s Transcript of the translation of this response (at p.15.18 – 15.19) was to the same effect.  Both transcripts disclose that the interpreter correctly translated the applicant's evidence which, it appears, was to the effect that it was difficult to get information to support his claims.  Insofar as the applicant’s contention is based on a claim that there was no translation of the word “authorities” (which appears in his Transcript), according to the Respondent’s Transcript he did not use this expression.  He has not met the evidentiary onus of proving such error.

4. The next alleged error has to be seen in light of a significant difference between the Applicant's Transcript and the Respondent’s Transcript as to what the applicant said in Arabic.  In response to the Tribunal seeking clarification about whether he was saying that there was a fight “between” Muslims and “one side of the fight decided to blame the Christians” (which, I note, gave him a further opportunity to explain exactly who was involved in the fight), according to the Applicant’s Transcript at p.14.7 he replied with words that begun:

   No I didn’t say that.  I said that the Muslims had a fight with the crowed (sic) of people and the Christian local police members were there …(emphasis in original)

   However, according to the Respondent’s Transcript at p.15.23 he said in Arabic:

   I did not say that.  I said that the Muslims were in a fight and the policemen in Chekka were involved in that fight.

   As with the previous alleged error, in both versions of the transcript the interpreter’s translation accords with the account in the Respondent’s Transcript of what the applicant had said in Arabic, being: “Sorry I did not say that, what I said, the Muslims were involved in a big fight and in the fight the police from Chekka, they were involved in the fight” (Respondent’s Transcript p.15.25 – 15.26).  Again this highlights the issue of whether the Applicant’s Transcript of the applicant’s evidence in Arabic is accurate in all respects.  The applicant has not met the onus of establishing the asserted error. 

5. The applicant also submitted that confusion in a subsequent exchange was attributable to the interpreter.  After the applicant claimed they went to the police station to testify to help the local police but that in the report were blamed by the police, apparently anticipating that the Tribunal would ask why this occurred, he said he did not know why and continued (according to the Applicant’s Transcript at approximately p.14.9) somewhat confusingly in Arabic:

   Three quarter of the people who were with us pretended to be crazy to leave.  Their names are there.  I can get you a copy of different people's legal character statement, stating that they are mentally insane and you can check it for yourself and the dates if you want.

6. Again the difference between the transcripts is not insignificant.  According to the Respondent’s Transcript at p.15.40 what the applicant said in Arabic at this point was:

   Three quarters of the persons who were with us ended up becoming insane from the beating.  Tell her I can now get her a report with the names of the young men who are claiming to be insane in Lebanon and bring them here to her.

7. The interpreter's translation of what the applicant said at this point was (Respondent’s Transcript p.15.43 – 15.45):

   Two third of the people who were with us like, you know [“now” in the Applicant’s Transcript p.15.1] became crazy or they pretended to be [“become” in the Applicant’s Transcript p.15.1] crazy and I can get you from these people, their names of these people who were detained with us.  I've got their names.

8. According to the Respondent’s Transcript at p.15.46 (but not the Applicant’s Transcript) the applicant added: "Their names are available, I can get her…” at which point the Tribunal member said, “They're in the ...  their names are in the, in this report” (Respondent’s Transcript p.15.47). 

9. The suggestion in the Applicant’s Transcript that the interpreter was behind any confusion is not made out.  On either version the applicant’s reference to the people with him was not responsive to the Tribunal’s questioning.  Insofar as the applicant submitted that what he was trying to say was that he wanted to get a copy of the “legal character statement” to prove that his friends pretended to be crazy in order to leave the gaol, I note again that the Respondent’s Transcript of the applicant’s Arabic differs from the Applicant’s Transcript in this respect.  It has not been established that the interpreter mistranslated the substance of the applicant’s response in a manner that prevented the applicant giving evidence or that was material in the Perera sense. 

10. The applicant then said in Arabic, “Yes, I know their names are in the reports, but I am saying I can get you a copy of their ...” (Respondent’s Transcript p.15.48) at which point the Tribunal said, “Ok let's just move, move the thing along a little bit.  For some reason or other you decided to help the police even though the police were Muslim, yeah?” (Respondent’s Transcript p.15.49 – 15.50)  According to the Respondent’s Transcript the applicant responded “Yeah” (p.15.51), contrary to the submission for the applicant in those proceedings that the police were not Muslims and that this mistake was caused by the translator.  The Applicant’s Transcript does not record such a response.  The CD of the hearing is not in evidence before the court.  The applicant has not established that a mistake was caused by the interpreter at this point in the hearing. 

11. More generally, the Applicant’s Transcript and the Respondent’s Transcript both disclose that the interpreter correctly translated the applicant's evidence that other people who were detained with him claimed to be crazy in order to escape detention and that the applicant could get evidence of their names.  His alleged reference in Arabic to a “legal character statement” in the Applicant's Transcript (p.14.10) is dialogue attributed to the applicant that is not contained in the Respondent’s Transcript.  The applicant has failed to discharge his onus of proving any error in this respect.  Similarly, the applicant’s submission that the police were not Muslims and that this was a mistake caused by the translator is contrary to the record in the Respondent’s Transcript of his positive response.  The applicant has failed to discharge his onus of proving error in this respect.  More generally it is not apparent that any confusion in this part of the transcript was the result of interpreter error, rather than the applicant’s tangential responses or infelicity of expression.

12. The applicant next took issue with the fact that in describing what occurred to him while detained, according to both transcripts he said in Arabic, “We were physically assaulted during that time” (Respondent’s Transcript p.17.19 and Applicant’s Transcript p.16.7).  It is apparent from both transcripts that this part of the applicant's evidence was not translated at this point.  Had the Tribunal not appreciated that the applicant made such a claim, this may have been of some significance.  However at a number of other points in the hearing (including at p.17.24 in the Respondent’s Transcript) the applicant gave evidence that he was physically harmed (or beaten or slapped) while detained, which was translated according to both transcripts (for example, in the Respondent’s Transcript at p.17.2, 17.26 and 17.33).  Furthermore, it is apparent from the Tribunal reasons for decision that it clearly understood and addressed the applicant’s claim that he and his friends were detained and physically harmed.

13. The next asserted error was said to have occurred in relation to the applicant's evidence about what occurred after the first two weeks of detention.  However both transcripts disclose that the interpreter correctly translated the applicant’s claims that he was beaten during his detention, transferred to the Chekka section, subjected to physical harm at Chekka and that he did not have proper food or anywhere to wash (see Respondent’s Transcript at approximately p.17.22 – 17.34). 

14. Similarly, the next suggested interpreter mistranslation (at Applicant’s Transcript p.17.4 and Respondent’s Transcript 18.3) is not made out.  Both transcripts disclose that, notwithstanding some lack of fluency in the flow of the interpreter's response, the interpreter correctly translated the applicant's evidence that he and his friends were moved to a bigger gaol in Tripoli, that there were 50 or 20 people in each cell, that during that time they experienced further interrogation, that they did not know when they would be released and that they did not know what charges had been laid against them.  The standard of interpretation in this respect is not such as to constitute or go to show jurisdictional error in the sense considered in Perera and Applicant P119.

15. After the applicant described being in gaol, the Tribunal asked, “how did you get out?” (Applicant’s Transcript p.17.5, Respondent’s Transcript p.18.10), which was correctly translated by the interpreter.  The applicant took issue with the translation of his response.  I note first that as in other instances the applicant’s reply to being asked how he got out of jail, on both the Applicant’s Transcript and the Respondent’s Transcript, was not responsive.  The Tribunal’s findings about the confused account of events given by the applicant should be seen in light of such evidence.  This is not a case in which the applicant can be seen to have give clear responsive answers such as to support an inference that Tribunal findings about confused evidence must reflect interpreter error or inadequacy.  According to the Applicant’s Transcript (at approximately p.17.6) the applicant said in Arabic (without interruption):

    In Lebanon, I don't know if you have an idea, but the system is totally different, some people pretended to be crazy and if you are crazy you don't get judged, other people had political support because they know some personality.   She might now tell me that there is no such thing in Lebanon.  Some people even signed a statement under the situation of torture that they did it, so they can be released.  I can get you some documents from the people who claimed to be insane if you want to (emphasis in original)

16. According to the applicant, the interpreter mistranslated this response as (at p.17.7):

    In Lebanon, I don't know if you have an idea, but the system is totally different, some people pretended to be crazy and if you are crazy you don't get judged because system does not judge you and other people they had support from you know some personality.  I can get you some documents about the people

17. However, according to the Respondent’s Transcript, the applicant's reply in Arabic (at p.18.12 – 18.15) to the question of how he got out of gaol was:

    Then they started, in Lebanon, you know, political support and the like.  Three quarters pretended to be crazy so that they can be released because the crazy person in Lebanon would not be judged, other people had political support, now she's gonna tell me there is no political support in Lebanon.  Some people even signed a statement under torture that they did it, so they could be released, and then we were released.

18. This was said to have been translated as (at p.18.16 – 18.18):

    In Lebanon, I don't know if you have an idea, the system is totally different, some people they like pretended to be crazy and if you are crazy you don’t get like you know judged because system does not judge you and other people they had support from like you know some personality.

19. According to the Respondent's Transcript at p.18.19 – 18.20, the applicant then said: “I can get her documents about the people who claimed to be insane, their names are in the document and I can get her documents” which the interpreter then translated as, “I can get you some documents about the people” (at p.18.21).  While there is a difference in the transcripts in relation to precisely what occurred thereafter, it is clear that the Tribunal member indicated that there was no need for such documents, or that she was not interested in such documents (which has to be seen in context given that the issue raised by the Tribunal was how the applicant got out of gaol, not how other people did so).  It was made clear to the applicant that, as the Tribunal member reiterated (Applicant’s Transcript p.17.7 and Respondent’s Transcript p.18.24), what the Tribunal was concerned about was how the applicant got out of gaol himself. 

20. Both transcripts disclose that the interpreter correctly translated the applicant's evidence that the system in Lebanon was different, that some people pretended to be crazy, and that if you were crazy you did not get judged, and that others had support from certain persons.  Some words spoken by the applicant in this response were not translated.  However these words were not responsive to the Tribunal's question as to how the applicant got out of gaol and were immaterial to the substance of the applicant's claims or the Tribunal's findings.  In part they were addressed to the interpreter, not to the Tribunal.  This exchange is not indicative of jurisdictional error in the Perera sense.

21. The next comment on the Applicant's Transcript identified a Government Minister referred to by the applicant in evidence and is not relevant to any fact in issue or grounds relied on in these proceedings. 

22. The applicant also took issue with what was said at the hearing in relation to the Tribunal making inquiries in relation to his Italian permanent residence status.  This concern does not relate to the translation, and is discussed above.

23. The Applicant’s Transcript contains a final submission (apparently from his sister) that:

    In (sic) multiple occasions, the translator translated partially [the applicant's] answers.  She also translated badly many of his answers and [the applicant] noticed that occasionally.  He tried to correct the translator multiple times within his English language ability.  In some occasion, the translator did not translate the comments at all.  She was behind multiple confusions.  Based on that, [the applicant] was accused of not being a reliable witness and not giving an accurate description of the event.  The member thought that the fight was between Muslims which surely does not make sense and does not support his case.  [The applicant] offered to get copies of statement characters (sic) for his friends which were released from Jail to prove that what he is saying is true.  This was not translated and the member did not know that.

24. In particular the applicant suggested that he had corrected what the interpreter said.  One example was said to be his statement at p.14.7 of his Transcript in Arabic when asked whether he was saying that there was a fight between Muslims and one side decided to blame the Christians.  He replied:

    No, I didn't say that.  I said that the Muslims had a fight with the crowed (sic) of people and the Christian local police members were there ...  (emphasis added in Applicant’s Transcript)

25. As indicated above, the Respondent’s Transcript recorded him as saying, "I did not say that.  I said that the Muslims were in a fight and the policemen in Chekka were involved in that fight” (p.15.23 – 15.24).  The interpreter translated this as (p.15.25 – 15.26).  :

    Sorry I did not say that, what I said, the Muslims were involved in a big fight and in the fight the police from Chekka, they were involved in the fight.

26. This was not a direct correction of the interpreter but rather a response when the Tribunal member put to the applicant her understanding of his evidence, although in one sense it was a clarification of the interpreter’s translation of his earlier evidence about who was involved in the fight.  The fact that the applicant was given the opportunity to clarify this claim does not of itself demonstrate that the standard of interpretation was inadequate.  It is clear that at this point the interpreter accurately conveyed this aspect of the applicant's evidence to the Tribunal, insofar as it was recorded in the Respondent’s Transcript.  To the extent that the Applicant’s Transcript differs, again, the applicant has not met the onus of establishing the asserted error.  Further, insofar as the applicant referred to the fact that he had told the Tribunal that the police were from his town, this had been translated for the Tribunal (see the Respondent’s Transcript at p.11.39 – 11.42). 

27. Insofar as the applicant appeared to suggest that there was confusion in this part of the hearing that has not been shown to be attributable to interpreter error.  Further, his evidence was subsequently clarified (Respondent’s Transcript p.19.29) when he told the Tribunal that Chekka was “a Christian town” (which was translated by the interpreter).

28. The Tribunal member clearly understood at that point that the applicant was telling her that there were fights between Christians and Muslims.  She asked him whether there were gangs of Muslims and gangs of Maronite Christians and they had gang fights.  This does not show any misunderstanding on the part of the Tribunal attributable to interpreter error.

29. The applicant's disagreement with the accuracy of the Respondent’s Transcript does not of itself establish jurisdictional error.  Faced with conflicting transcripts involving interpretation from Arabic to English, and English to Arabic, I am not satisfied that the applicant's version is more likely to be correct than that of the respondent.

Other Interpreter Issues based on the Respondent’s Transcript

1. In written submissions the applicant raised other issues about aspects of the translation at the hearing, although some parts of his submissions reiterated or elaborated on the comments in the Applicant’s Transcript.  I have considered all of the applicant’s submissions. 

2. In particular, the applicant submitted that the Respondent’s Transcript itself revealed significant interpreter error (that is, even if regard was not had to the Applicant’s Transcript).  The first exchange relied upon by the applicant appears in the Respondent's Transcript at p.10.25 – 10.28.  I note first (relevant to any contention that the Applicant’s Transcript should be preferred), that the Applicant's Transcript was much less detailed in describing what the applicant said at this point.  When the Tribunal raised with the applicant the concerns expressed by the delegate about the summons, according to the Applicant’s Transcript he had responded in Arabic (at p.9.7):

   The concern was because I said it was sent by fax.  He also said it didn't have a stamp.  I told him that it has a government seal which means it can't be forged. 

3. The Applicant’s Transcript does not record a translation, although the Tribunal is recorded as having then remarked (at p.9.7), “Even so it doesn't say anything about where to go or”. 

4. On the other hand, the Respondent’s Transcript records that in this part of the hearing (at 10.25 – 10.27) the applicant stated in Arabic:

   Yeah because I said to him that it was sent by fax, he is right, because by fax he should put on it (unintelligible) at the bottom, but it was sent by email.  There is one more thing as well;  he said that it didn't have stamps, in Lebanon, if it was stamped by the Lebanese government, how can it be forged?

5. According to the Respondent’s Transcript (at p.10.28 – 10.30) the interpreter translated this as:

   The, like you know, the concerns of the interview, like the professional interview, was because it was I told him it was sent by fax, and it was sent by email, but she said, like, you know the problem is because it's not stamped, like there is no stamp on it, but you know usually the government, they just stamp the…

1. The interpreter's translation is somewhat stumbling, but it does nonetheless convey the substance of what the applicant said.  At that point the Tribunal apparently interrupted (at p.10.31), “Yes, well, even so it doesn't say anything about where you could go, or ...”.  As is apparent from the Tribunal reasons for decision, the absence of any location for the court on this document was material to the Tribunal's reasons.  The Respondent’s Transcript discloses that the interpreter correctly translated the applicant’s claim that the summons had been sent by email and not by fax and that it could not have been forged because it was stamped by the Lebanese Government.

2. The interpreter's repetition of "like" and "you know" at this and at other times of the hearing does suggest a greater degree of hesitation than is apparent in the applicant's answer in Arabic.  However it must be said that the applicant's answers were not entirely coherent or responsive, whether one has regard to the translations of Arabic in the Applicant's Transcript or the Respondent’s Transcript.  In any event, the concern of the Tribunal in relation to the applicant’s evidence was not the manner in which he gave evidence (or whether he was hesitant or ungrammatical), but rather the fact that he gave a very confused and implausible account of the events which he claimed had taken place. 

3. The Tribunal’s finding that the applicant was unable to provide any credible explanation about how or when he obtained the document which purported to be a summons for his arrest in 2010 in relation to a criminal matter has not been shown to have been affected by any error or inadequacy on the part of the interpreter.  Despite the fact that the interpreter translated “Lebanese Authorities” as “Lebanese Government” the interpreter correctly translated the applicant’s evidence (Respondent’s Transcript p.10.43) that if the Tribunal had any concerns about the genuineness of the summons it could contact the Lebanese Government/Authorities.  In any event such a suggestion is not material to the applicant’s claims or the Tribunal’s findings. 

4. The applicant also expressed concern at the fact that the interpreter (Respondent’s Transcript p.11.53) failed to translate in full his response about the changes to the report by the police, in particular his claim that the story was changed to say that he and his friends “were involved in the issue and that they weren’t involved in the issue and that we meddled in, we beat them, removed the scarves from their heads and beat their children” (p.11.50 – 11.52). 

5. The interpreter’s translation does not contain any reference to removing scarves from their heads.  It is otherwise correct.  However the applicant had already given evidence (in English) about the headscarf allegations (Respondent’s Transcript p.6.55).  He was not prevented from giving this evidence by the interpreter’s omission in that respect. 

6. Insofar as the applicant appeared to suggest that the interpreter failed to translate his evidence that he was taken from one gaol to another by the Lebanese Intelligence Service (at Respondent’s Transcript p.12.10), this misinterprets the evidence.  The interpreter continued translating the applicant’s evidence at p.12.12.  The Tribunal clearly understood this claim, as is apparent from the Respondent’s Transcript at p.12.11.

7. The applicant asserted that there was a failure by the interpreter to translate his remark that “they wanted to beat us just to make us confess that we did it” (Respondent’s Transcript p.12.23), instead translating this as “They tried to make us confess that we did like you know the beating” (at p.12.24 – 12.25).  This is clearly not an accurate translation.  However the interpreter elsewhere translated the applicant’s claim to have been beaten while in detention (for example Respondent’s Transcript at p.12.6) and the Tribunal clearly was aware of this claim to which it referred in its decision.  In these circumstances, the shortcoming in the translation at this point in the hearing did not effectively prevent the applicant from giving evidence or the Tribunal from understanding the applicant’s claims.

8. Further, contrary to the applicant’s contention about the Respondent’s Transcript at p.12.26 – 12.29, the interpreter correctly translated his evidence that he and his friends were not involved in the fight, that they did not know why they had been arrested or when they were going to be released, notwithstanding that the interpreter’s translation was not in exactly the same terms as the applicant’s Arabic.

9. It is the case that at p.12.44 in the Respondent’s Translation there is a discrepancy between a remark of the applicant and the immediately following translation.  However this also has to be seen in context.  The Tribunal raised with the applicant the fact that he had not previously said anything about being seriously harmed in the past (as he had just claimed had occurred when he was gaoled and physically harmed).  In response to his reply that no one had asked him before, the Tribunal explained that he was making his case to be a refugee, that he “should put the facts before us” and that if he had been seriously harmed in the past he “should say so” (Respondent’s Transcript at p.12.33 – 12.39). 

10. The applicant’s reply to the Tribunal was obscure and not responsive to the issue raised.  He stated in Arabic: “But if I said and then if they see that it didn’t have stamps and didn’t have stuff, like they saw now, then they would say that it is not valid” (at p.12.40 – 12.41)  The interpreter translated this response in a manner with which no issue is taken.  The applicant then, tangentially and unresponsively, continued “The issues in Lebanon are different, cannot be known” (at p.12.44), which the interpreter (initially apparently continuing his translation of the earlier response) stated “No document.  Like in Lebanon like nothing is like, like really you know …” (at p.12.45).  It appears that the applicant then may have interrupted the interpreter with a remark transcribed as “unintelligible”. 

11. However any shortcoming in the translation at this point was not material to the substance of the applicant’s claims or the Tribunal’s findings.  The Tribunal member then intervened and reminded the applicant that the issue was his failure to include in his protection visa application or the accompanying documents his claims at the hearing that he was detained and beaten.  The Respondent’s Transcript discloses that the interpreter then accurately translated the applicant’s explanation (in response to the Tribunal concern about the absence of any claim in the protection visa application of being detained and beaten) that he thought he would mention these claims at the interview but that he was not given the chance because the delegate said he had not mentioned them in his application.

12. The next aspect of the hearing that the applicant took issue with (reiterating his earlier claims in that respect) was the translation of his response after he said that “they” changed all the information in the report and wrote that the applicant and his friends were involved in the fight and incident (Respondent’s Transcript p.14.25) The Tribunal asked “why did they do that?” (at p.14.29).  The applicant replied “Because they were Muslims, Muslims” (at p.14.31).  The interpreter translated this as “Because it was between Muslims” (at p.14.32). 

13. This issue is discussed above.  In written submissions the applicant endeavoured to explain what he meant by his response (that the people who changed the information were Muslims) and submitted that the interpreter had mistranslated his evidence by saying it was “between” Muslims rather than they “were” Muslims.  However the fact that the interpreter did not translate the applicant’s response in the manner in which he now explains that he intended it, is not indicative of jurisdictional error.  The interpreter correctly translated the applicant’s evidence that the fight involved Muslims and that the Muslims tried to shift the blame from themselves to the applicant and his friends, particularly having regard to the fact that the fight was later said to be a “religion fight” (at p.14.49) and that the applicant explained that “They were Muslims, they were claiming that the Christian people they were like trying you know to kill them…” (at p.15.3 – 15.4).  Moreover, the Tribunal checked whether the applicant’s claim was that the fight was among Muslims (at Respondent’s Transcript p.15.20 – 15.26) to which the applicant explained that he “did not say that, what I said, the Muslims were involved in a big fight and in the fight the police from Chekka, they were involved in the fight”.  In this way any possible confusion arising from the interpreter’s use of the word “between” was addressed. 

14. Insofar as the applicant contended that the interpreter did not translate aspects of his evidence that were corroborated by a letter his sister was said to have written in about 2001, the sister’s letter was not before the Tribunal.  In any event, the words in question about Christians in Chekka killing Muslims (at p.14.47) which the interpreter did not finish translating before the Tribunal’s next question, were in fact translated moments later (Respondent’s Transcript 15.3).

15. Further, while on its face, as the applicant contended, the interpreter’s translation “we were beating” did not clearly convey that they were “beating us” as the applicant stated (p.16.19 – 16.20) and hence failed to translate the claim that the applicant and his friends were physically assaulted (p.17.19) before the Tribunal intervened with a fresh question, the applicant’s evidence that he was beaten while in detention was translated on several other occasions (for example at p.17.2 and 17.33).  While the applicant’s concern about the absence of a perfect translation is understandable, it has not been established that the standard of interpretation was so incompetent that he was prevented from giving evidence or that the errors that have been established were material to the Tribunal’s conclusions. 

16. The applicant took issue with the interpreter’s failure to translate his claim that “they” said he had to go to the investigation division “to give your testimony” (which the applicant added while the interpreter was translating an earlier response).  The interpreter commenced “So you can give, like you know …” (at p.16.29) and was again apparently interrupted by the applicant.  However the interpreter returned to this evidence and included it in his translation of the next response (at p.16.32).

17. The interpreter also translated (albeit ungrammatically) the applicant’s claim that he was beaten during his detention and moved to the Chekka section (at p.17.26).  Similarly the Respondent’s Transcript discloses that the interpreter translated (albeit not word for word) at p.18.16 the applicant’s evidence that the system in Lebanon was different, that some people pretended to be crazy and if you were crazy you did not get judged and that others had support from certain persons.  To the extent that the interpreter did not finish translating some words in this response before the applicant continued his evidence (in particular that the support was “political support” (applicant at p.18.12) and that “Some people even signed a statement under torture that they did it, so they could be released, and then we were released” (at p.18.14 – 18.15)), as discussed above, these words were not responsive to the Tribunal’s question as to how the applicant got out of jail (which the Tribunal returned to at p.18.24) and were not material to any finding by the Tribunal.  The interpreter correctly translated the applicant’s subsequent claim that they released others ahead of him sequentially, until only he and another person were left in gaol and that they were released without documents, albeit the applicant said they released them “one at a time” while the interpreter said most were released “in groups” (at p.18.28).  Such issue was not material to the Tribunal’s findings.

18. Similarly, the interpreter translated the applicant’s claims that after his release he and his friends would be targeted and beaten whenever something happened in Chekka, and that groups of Muslims from Tripoli would come to Chekka, a Christian town, and cause problems, notwithstanding the absence of a literal translation of the words “arrest all the Chekka group” (at p.18.36) and the use of the words “Islamic groups from like you know their side, like you know their clans” (at p.19.26) in translation of “their friends, not them in person, groups of their own.  From the Muslims” (at p.19.25). 

19. Contrary to the applicant’s contention, the Respondent’s Transcript discloses that the interpreter also correctly translated the claim that on the one occasion the applicant went to court he and his friends had a lawyer but that his Muslim accusers from Tripoli had more lawyers.  The interpreter did mistranslate that “Ahmed Karami was one of their lawyers” (at p.19.6) (not “the minister at that time” (at p.19.3) as the applicant said) but the applicant (who, as indicated, speaks some English) immediately corrected this and the interpreter then clarified this for the Tribunal (at p.19.7 – 19.11).  Notwithstanding that this did involve a correction by the applicant, these exchanges are not indicative of a standard of interpretation demonstrative of jurisdictional error.

20. The applicant submitted that two lines in the Respondent’s Transcript (p.19.36 and 19.37) (in which he conceded that they “[s]ometimes” had fights) should not be there, as they did not appear in his transcript.  I am not satisfied that he has established such an error.  In any event, the applicant clearly understood the Tribunal’s question as asked at p.19.35 and continued at 19.38 (about whether there were gangs of Muslims and gangs of Maronite Christians and whether they had gang fights) and gave a responsive answer at p.19.40.  The interpreter correctly translated the applicant’s evidence that he was not part of a gang, although he was accused of being part of one, but that there were some fights.

21. The interpreter also correctly translated the applicant’s evidence that he returned to Chekka when he came back to Lebanon from overseas (at p.20.41) and the Tribunal’s decision reveals that it understood this, notwithstanding that the interpreter did not include the word “yes” in the applicant’s response to the Tribunal’s question “And then you went back to Chekka?” (at p.20.39) which was “Yes, after I came back from overseas” (at p.20.40) but was translated as “When I went, came back from like you know, overseas” (at p.20.41). 

22. Further, contrary to the applicant’s submission, despite some grammatical infelicity (“we were beating” for “we were being beaten”), the interpreter translated the applicant’s evidence that he had legal representation before but that he was still beaten.  The interpreter also correctly translated the applicant’s claimed fear that if he were to return to Lebanon he would be put in gaol without knowing what his charge was, because this had happened in the past.

Conclusion

1. Both the Applicant’s Transcript and Respondent’s Transcript disclose that the interpreter correctly translated the substance of the applicant's evidence on all material issues.  The evidence before the court does not support the contention that if there was confusion on the part of the Tribunal as to the specific detail of aspects of the applicant's claims relevant to the Tribunal’s findings, it was caused by the interpreter, as distinct from the applicant's own confusing evidence.  It is the case that the interpreter's translation was not, in all respects, precise or as perfect as one might wish it to be (but see Perera at 57). There were hesitations and pauses and the expression “you know” was used.  There were some inaccuracies.  However it has not been established on the evidence before the court that the infelicities of expression, mistranslations and omissions that have been established were more than minor or that they related to material matters such as the substance of the applicant's claims or the Tribunal's findings.  In particular it has not been established that interpreter errors led to the Tribunal findings about the confused account given by the applicant of past events or to its credibility findings (which I note were based on a number of factors). 

2. Having regard to the conduct of the hearing as a whole (see SZHEW v Minister for Immigration & Anor [2009] FCA 783 at [52]) the inadequacies are not such as to establish that the standard of interpretation meant that the applicant was deprived of the requisite opportunity of a meaningful hearing under s.425 of the Migration Act. As in Appellant P119/2002 the very substantial part of the hearing appears to have been fully and accurately interpreted and apart from isolated, immaterial mistakes, the difficulties in translation were ones that any interpreter could have faced. 

3. In particular, the applicant has not established that the standard of interpretation was so incompetent that he was prevented from giving evidence, or that there were errors of interpretation that were material to the conclusions reached by the Tribunal (P119/2002 at [22]). Indeed, even on the Applicant’s Transcript, the evidence does not go so far as to demonstrate the level of lack of competence required by Perera or Applicant P119 to demonstrate jurisdictional error. 

4. As no jurisdictional error has been established on any of the bases contended for by the applicant the application must be dismissed.

I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  19 April 2012