SZRMQ v Minister for Immigration
[2013] FCCA 12
•26 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRMQ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 12 |
| Catchwords: MIGRATION – Application for review of decision by Independent Merits Reviewer – interpreter translating Tamil to English and English to Tamil – Affidavit of Independent translator interposed correct translation reveals paraphrasing rather than translations during hearing – standard of interpretation – claim that some paraphrasing did not convey the sense of the questions and answers – cumulative effect of interpretation errors – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 46A, 425, 427 |
| Cases cited: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 NAIF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 458 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZGSI v Minister for Immigration and Citizenship (2009)107 ALD 414 SZGWN v Minister for Immigration and Citizenship (2008) 103 ALD 144 SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653 SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 SZQLS v Minister for Immigration and Citizenship [2012] FCA 1274 SZQUH v Minister for Immigration and Citizenship [2012] FCA 1265 VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 WACO vMinister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131 |
| Applicant: | SZRMQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1097 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 11 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Mr R.T. Selliah of Rasan T. Selliah & Associates |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the First Respondent: | Ms F. Taah of Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The application filed on 21 May 2012 and amended on 11 December 2012 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRMQ.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1097 of 2012
| SZRMQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court Orders made on 19 June 2012, the solicitors for the first respondent, the Minister for Immigration & Citizenship (“the Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”), and marked Exhibit “A”. Mr Karp read an affidavit of Edilbert Naveenan Rajadurai affirmed 29 November 2012 which attaches a transcript of the Independent Merits Review interview on 9 December 2011.
The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review upon, together with any supporting affidavit material, on or before 7 August 2012. The applicant elected to file an amended application on 11 December 2012, being the date of the hearing. No objection was made and leave was granted for it to be filed.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking a declaration and an injunction against the first respondent, the Minister for Immigration and Citizenship (“the Minister”). The applicant claims that he is entitled to declaratory relief in respect of a recommendation by the second respondent, Luke Hardy, in his capacity as Independent Merits Reviewer (the “Reviewer”), of 19 March 2012 that the applicant not be recognised as a person to whom Australia owes protection obligations (CB 291-346).
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the applicant’s Counsel Mr Karp. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material.
The applicant is a Sri Lankan national of Tamil ethnicity. He left Sri Lanka by boat on 1 March 2010 and arrived on Christmas Island on 20 March 2010 (CB 38). He was thus an “offshore entry person” within the definition of that term in s.5 of the Migration Act and was not able to lodge a Protection visa application without dispensation from the Minister (s.46A of the Migration Act).
The applicant was interviewed by an officer of the Minister’s Department as an “unauthorised arrival” on 23 April 2012 (CB 1-26). In that interview he is reported to have said, amongst other things, that:
a)He was born and raised in the north of Sri Lanka, and lived in various locations in that region from his birth in 1974 until 2010 (CB 6-8);
b)He had undertaken one overseas trip in that time – to Singapore and Malaysia in 2009 (CB 12);
c)His two cousins were approached to join the Liberation Tigers of Tamil Eelam (the “LTTE”) in 2004. The LTTE also approached the applicant to join, but as other members of his family had joined they left him alone. One of the cousins came to live with the applicant and his mother in 2006. In 2009, the applicant’s cousin went missing. The applicant claims that the army, Eelam Peoples Democratic Party (the “EPDP”) and intelligence agency came to the family home and searched and found some photos relating to the LTTE and also photos of the applicant with his cousin. He claims he was locked up for ten days and released when his uncle paid a naval officer (CB 14, 23); and
d)The applicant also claimed to be in danger at the hands of the EPDP whose members threatened and demanded money from him (CB 14, 22, 23).
The applicant applied for a Refugee Status Assessment (“RSA”) on 12 June 2010 (CB 33-85). In a statutory declaration, submitted with the application, the applicant introduced a new scenario; that he had spent the years from 2001 to 2009 in the United Kingdom where he had applied for asylum on the basis of ethnicity (CB 46, 56 at [4]). He said that he was too afraid to mention his time in the UK in his entry interview (CB 58 at [19]). The applicant reiterated his claims that his female cousins, who had been living with his family, were pressed into service with the LTTE. He claimed that one of the cousins was taken in 2001 and the other cousin was forced to join in 2003, after she and the applicant’s mother had asked for the first cousin to be allowed to return home (CB 58). The applicant also reiterated his claims about the first cousin’s disappearance in 2009, the subsequent raid on his home, the discovery of evidence which implicated him with his cousins as connected with the LTTE and his subsequent detention and torture at the hands of security forces (CB 58).
The applicant made a number of additional claims:
a)To have been arrested by the CID (Criminal Investigation Department) when he was returned from the UK to Colombo. He claims to have been kept in solitary confinement for four weeks, accused of being in contact with the LTTE in the UK, interrogated and beaten. It was, he contends, during one of these beatings that the middle finger on his right hand was broken. A bribe was paid for his release; and
b)To have been threatened and to have been the victim of extortion by EPDP cadres at his mother’s shop in Jaffna after being released from confinement in Colombo.
In an attachment form he disclosed that he had travelled to India, Singapore and Malaysia after returning from the UK to Sri Lanka in 2009.
The applicant reiterated these claims at an interview with an RSA officer (CB 78-85).
The RSA officer found the applicant not to be a refugee on 16 July 2010 (CB 88-99). The finding was made essentially on the basis of credit (CB 96-99). The applicant applied for an Independent Merits Review on 30 July 2010 (CB 100-103).
On 5 May 2011 one reviewer, Mr Christopher Keher, made a recommendation that the applicant should not be recognised as a refugee. On 4 October 2011, the Federal Magistrates Court declared by consent that the reviewer in that circumstance had failed to follow the requirements of procedural fairness, and had thus made an error of law: SZQHL v Minister for Immigration and Citizenship (SYG 1190/2011).
The Second Independent Merits Review
A telephone interview was conducted with the applicant on 16 November 2011 by a person who appears to have been another RSA officer (CB 206-211). The applicant is recorded to have explained his travel to India, Singapore and Malaysia after his return from the UK as follows (CB 206-207):
a)The first journey to India in March 2009 was to obtain medical treatment. A bribe was paid to permit him to go;
b)The second journey to India in May 2009 was for the purpose of his mother’s business;
c)The journey to Singapore in September 2009 was to explore the possibility of buying and selling gold; and
d)The journey to Malaysia in September and October 2009 was to see friends and explore business opportunities.
As well as several submissions written by the applicant’s advisers, Amnesty International had also made a lengthy written submission on his behalf (CB 225-251).
The matter was re-allocated to Mr Luke Hardy, an Independent Merits Reviewer (the Reviewer”) whose recommendations and reasons are the subject of the present matter (Review Case Number VIV068, Date of Report 19 March 2012). Mr Hardy conducted an interview with the applicant by video link on 9 December 2011. The Reviewer was in Sydney with the applicant’s adviser (not his current solicitor). The applicant and interpreter were located in Curtin Immigration Detention Centre, Western Australia (CB 312 at [85]). A transcript of the hearing is exhibited to the Affidavit of Edilbert Rajadurai, affirmed 29 November 2012. The Reviewer recommended, on 19 March 2012, that the applicant not be recognised as a person to whom Australia has protection obligations. As part of departmental policy, the Reviewer’s recommendation was accepted and the case was not referred to the Minister to consider the exercise of his discretion to permit the applicant to lodge a Protection visa application (CB 289).
The Reviewer’s reasons commence at CB 336 at [187]. The Reviewer accepted that persons suspected of affiliation with the LTTE may be detained for interrogation and/or “rehabilitation” and mistreated, and even tortured and killed (CB 337 at [188]). The Reviewer accepted that the evidence provided by or on behalf of the applicant relates to the treatment of former LTTE members and cadres or persons suspected of such profile. The Reviewer noted that the applicant did not claim to have had any personal, direct or voluntary affiliation with the LTTE. The Reviewer stated that the applicant claimed that his associations with the LTTE are imputed and circumstantial and that it is these imputed links that give rise to a risk of persecution in the future just as they had, according to the applicant, in the past (CB 337 at [189]).
The Reviewer accepted the applicant’s basic claims of where he was raised, lived and worked as well as his travels to the UK, India, Singapore and Malaysia (CB 337 at [190]-[192]). The Reviewer commented that he understood that the applicant may have feared disclosing his having lived in the UK and his travels after his return to Sri Lanka. The Reviewer also commented that he understood that the applicant:
…might have feared disclosing that he not only returned to, and re-integrated in, Sri Lanka in 2009 but also travelled out of and back into the country legally on two occasions additional to his trip to Singapore and Malaysia in September and October 2009, lest this draw attention to the arguable freedom of movement he enjoyed after returning from the UK earlier that year, to the detriment of his chances of gaining asylum in Australia.
(CB 337 at [192])
The Reviewer observed, to the applicant’s credit, that he did not try to fabricate a history of problems with the LTTE in Sri Lanka between 2000 and 2009, but on the other hand that the applicant did falsely claim that the LTTE had tried to recruit him (CB 337 at [193]). The Reviewer notes that the applicant’s story “really began more or less in 2009” with the EPDP coming and demanding money, going to the particular social group claim about wealthy people and more significantly about the disappearance of his cousin and subsequent detention (CB 337-338 at [193]-[194]). The Reviewer deduced that the applicant’s main claim is that from the beginning of 2009 he was treated as a suspected LTTE supporter or member. The Reviewer found it troubling that the applicant omitted this claim, but also that it is based on facts that are inconsistent and in some respects, far-fetched (CB 338 at [194]).
The Reviewer stated that he had taken into account:
…that undue weight should not be placed on some degree of confusion and omission to conclude that a person is not telling the truth… However, this does not mean that inconsistent evidence or the late introduction of significant new claims are unimportant or should nor reflect on credibility.
(CB 338 at [195])
The Reviewer also noted that the applicant acknowledged that he initially made misleading claims due to his fear of being rejected under what the applicant described as “poor advice” (CB 338 at [196]).
The Reviewer accepted that there might be difficulties in a person’s recounting facts that he did not witness himself, especially as the applicant was outside of Sri Lanka for so long (CB 338 at [198]). However, the Reviewer stated that over the whole history of the case the only supporting material connecting the applicant to two female cousins were two affidavits, both dated 2 August 2010. The Reviewer considered the information put forward in the affidavits to be unreliable (CB 339 at [201]).
The Reviewer found that, on a cumulative consideration of the issues raised by the applicant, he did not accept that on the evidence before him that the status or profile of any relatives or persons known to the applicant caused him to be imputed to have links with the LTTE (CB 340 at [206]).
The Reviewer did not rule out that the applicant may have suffered some discomfort and hostility during the period of detention or immigration on his return from the UK. However, the Reviewer did not accept that he suffered serious harm, or that he was held unduly or for long (CB 341 at [211]).
The Reviewer noted that he did not accept on the evidence before him that the applicant was regarded, up to the time he last left Sri Lanka, as a possible LTTE supporter, affiliate or member (CB 348 at [222]). The Reviewer did not accept that, up to the time he left, the applicant was of any significant interest to the Sri Lankan authorities for reasons of being a Tamil male from the North, Northeast or East (CB 348 at [223]). The Reviewer did not accept that the applicant was of any significant relevant interest to the Sri Lankan authorities for reasons of having formerly resided and/or having sought asylum in the UK (CB 348 at [224]).
The Reviewer considered separately and cumulatively the applicant’s other main claim that he faces persecution in Sri Lanka from groups like the EPDP, with the active or tacit approval of the Government and the State for reasons of being perceived to be a member of a “particular social group” characterised as “wealthy people” (CB 344 at [226]). The Reviewer found that he did not accept that the applicant faced a real chance of persecution by the non-state parties for reasons of him or his family being seen as “wealthy persons” (CB 345 at [235]).
The Reviewer found that on the evidence before him and the issues arising from the evidence separately and cumulatively he was not satisfied that the applicant faced a real chance of Convention-related persecution in Sri Lanka (CB 345 at [236]).
Proceedings before the Federal Magistrates Court
The applicant filed an application on 21 May 2012 seeking a declaration that the recommendation of the Reviewer was not made in accordance with law and an injunction restraining the Minister from relying upon the recommendation of the Reviewer be made. Mr Karp filed an amended application on 11 December 2012. The applicant sought the following orders:
1. A DECLARATION that the decision is affected by error of law.
2. A WRIT OF PROHIBITION or AN INJUNCTION, restraining the First Respondent, his employees, officers, delegates or agents, from acting upon or giving effect to the decision.
3. Costs.
4. Such further or other Order as the Court considers appropriate.
The applicant’s Amended Application contained one ground:
1. The decision is affected by one or more breaches of natural justice.
Particulars
(a) The information or evidence given by the applicant at the reviewer’s interview with him was affected by material mistranslations of the reviewer’s questions including, but not limited to;
(i) “Agents” who arrange to (sic) procure passports for Sri Lankan citizens.
(ii) The applicant’s travel in and out of Sri Lanka in 2009 and whether he was evading discussion of that subject.
(iii) Whether he had ore friends than enemies in officialdom in Sri Lanka.
(iv)Why the authorities needed to see a photograph of the applicant with his cousin before concluding that he was an LTTE supporter.
(v) The reviewer’s putting adverse country information to the applicant.
(b) The information or evidence given by the applicant at the reviewer’s interview with him was affected by material mistranslation of the applicant’s answers to the reviewer’s questions including, but not limited to;
(i) The applicant’s cousin’s state of health at the time she was permitted to leave the LTTE,
(ii) Whether he made a “wrong statement’ on the basis of information or advice given to him.
(iii) “Agents” who arrange to (sic) procure passports for Sri Lankan citizens.
(iv) Whether the applicant was “targeted” by the security forces.
(c) Not pressed.
Applicant’s Opening Submissions
Mr Karp submits that this is a case where the Reviewer tried to get it right, tried to be fair and tried to be reasonable, but was prevented from doing so by mistranslation either from Tamil to English or English to Tamil, or both.
Mr Karp submits that in the context of providing a fair hearing a statement of principles is that of his Honour Logan J in SZQLS v Minister for Immigration and Citizenship [2012] FCA 1274 delivered on 12 November 2012. His Honour addresses issues of mistranslation commencing at [30], where his Honour states:
30… [I]n the sense that, if accepted, the inadequacy of translation or assimilation of the answers given in Tamil would mean that the appellant had not been afforded truly an opportunity to be heard by the reviewer.
In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, Kenny J discusses at some length, and in the context of the obligation specified with respect to the Refugee Review Tribunal in s.425 of the Migration Act, the question of whether inadequacy in interpretation might lead to a transgression of the obligation found in that section:
It was common ground between the parties, and rightly so in my opinion, that her Honour’s observations were relevant by analogy to the question as to whether the translation undertaken in the interview which Ms O’Connell conducted of the appellant was such as to give rise to a denial of procedural fairness to the appellant…
His Honour Logan J in SZQLS (supra) cites:
·Perera (supra) at [45];
·WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131 per Ryan, Tamberlin and Middleton JJ at [29];
·SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653 per Middleton J.
His Honour goes on to state the principles which can be derived from those cases at [33] where he states:
In short, then, the appellant’s submissions were directed to the end of establishing by reference to the interview of the appellant by Ms O’Connell either or each of the following:
(a) that the standard of interpretation at that interview by the reviewer was so inadequate that the appellant was effectively prevented from giving evidence at the hearing; or
(b) that errors were made by the interpreter at that reviewer interview, which were material to the conclusions which Ms O’Connell made adversely to him.
Mr Karp contends that these passages deal with specific instances of mistranslation and that both of those issues apply in this matter and constitute a breach of procedural fairness. In this matter, as a general observation, the applicant’s claim as to his cousin’s alleged LTTE involvement and his suffering as a result were not believed. This was at least, partly, because of what the Reviewer considered to be inconsistent and implausible evidence.
In the Decision Record under the heading “Findings and Reasons” at [195] (CB 338), the following appears:
I have taken into account that undue weight should not be placed on some degree of confusion and omission to conclude that a person is not telling the truth, especially in the context of claimants who have been residing in detention and of interviews somewhat constrained by time and reliant on interpretation, where a claimant may be slow to realise what is relevant and which degree of detail is required, and where a claimant has had to give evidence about the same events on repeated occasions over a long period. However, this does not mean that inconsistent evidence or the late introduction of significant new claims are unimportant or should not reflect on credibility.
Mr Karp submits that it was quite reasonable that the Reviewer referred to inconsistent evidence that may affect credibility, which it did in this case.
Mr Karp contends that issues of credit can accumulate. In other words, if the applicant is not believed in one particular claim that can throw doubt on the Reviewer’s willingness to believe him in respect of others. Therefore, it will be difficult to conclude that any denial of procedural fairness did not affect the result.
In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, the High Court per curiam held that:
It is no easy task for a Court of appeal to satisfy itself that what appears on its face to have been a denial of procedural fairness could of have no bearing on the outcome of the trial of an issue of fact. And this typically is magnified when the issue concerns the acceptance or rejection of testimony of a witness at a trial.
Mr Karp submits what has occurred in this matter is a number of mistranslations which could have had an effect on the Reviewer’s conclusions as to credit. In the translation in this matter the interpreter has paraphrased. While this does not necessarily result in inadequate translation it does leave significant room for error. Mr Karp then referred to the specific mistranslations and their consequences. Each of these instances is addressed below.
Respondent’s Opening Submissions
Mr Reilly, appearing for the Minister, indicated that he and Mr Karp were in broad agreement on the relevant test for the issue of interpretation. Mr Reilly informed the Court that the majority of cases relied upon in this matter concern the Refugee Review Tribunal (“RRT”) and agreed with the position expressed by Mr Karp that the same approach has been followed in relation to decisions of Independent Merits Reviewers.
Mr Reilly addressed the issue of material misinterpretation and referred the Court to Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17]-[18] where the Court tested such a ground by asking whether the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence, or whether errors made in interpretation were material to adverse conclusions reached against the applicant. The Court found that the admitted errors in interpretation in that case did not establish either test.
A similar conclusion was reached with admitted infelicities, interpretation in WALN (supra) at [29]-[30]; SZGSI v Minister for Immigration and Citizenship (2009) 107 ALD 414 per McKerracher J at [44]-[54] and SZQLS (supra) per Logan J at [30]-[38] (a case concerning an Independent Merits Reviewer). A judgment of whether an applicant has been deprived of an opportunity to give evidence due to misinterpretation requires a quantitative assessment of the conduct of the interview as a whole: SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 per Jagot J at [52]; SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 per Jacobson J at [32].
Mr Reilly submits that in all of these cases there were errors in interpretation, but in none of them, unlike Perera (supra), was it found that errors were so serious as to require relief to be granted.
Mr Reilly submits that none of the specified instances of misinterpretation relied upon in the applicant’s submissions are so material to the Reviewer’s adverse conclusions to amount to a breach of procedural fairness. Mr Reilly referred the Court to the decision in SZQLS (supra) per Logan J which concerns the decision of an Independent Merits Reviewer, with the real significance of the case being that the Federal Court essentially accepted that cases such as Perera (supra) and WALN (supra), which concerned decisions of the RRT, also apply to a claim that an Independent Merits Reviewer’s decision was affected by misinterpretation.
Mr Reilly referred to the decision in SZJZE (supra) per Middleton J, which was a decision that was referred to and discussed by his Honour Logan J in SZQLS (supra) at [35], where it states:
35. It emerged in the course of the appellant’s oral submissions that the criticism made of the judgment below was not so much that the correct test had not been identified, but rather that, in the application of that test to the interview at hand, there had been one or the other of the errors which I have mentioned. To that end, the same errors as those rehearsed at great length by the federal magistrate were identified.
36. I have separately read the interview conducted by the reviewer. The end result of that is no different conclusion on my part to that to which the learned federal magistrate ultimately came at paragraph 61. That is that, considered either individually or cumulatively the identified errors were not such that the quality of the interpretation was so severely below a required standard that the appellant was not able properly to advance his case during the hearing. Further, again considering the identified deficiencies both individually and cumulatively, I do not consider, as the learned federal magistrate did not consider, that there was an error which led to material relevant to the claim for refugee status not being put forward. In other words, I do not see reading the transcript as a whole, that there were material errors.
37. That is not to say, as indeed the federal magistrate concluded, that this translation was one of the highest quality. There is a necessarily impressionistic aspect to an assessment of these types of alleged errors. At the extreme, such errors will be easy to identify. At less than that, it is important not to seize in isolation upon any one particular error. It is also important to read what are said to be errors in context, and to appreciate that this was a free flowing conversation.
Mr Reilly submits that a review of the judgment of his Honour Logan J reveals that there were quite a lot of problems with interpretation in that case, but ultimately it didn’t get to the required level. Mr Reilly contends that there obviously had been some problems with interpretation in the matter currently before this Court, however, it is similarly contended that none of the identified areas in this case get to requisite level requiring relief to be granted.
Specific Instances of Translation
Preparation of Transcript
The Affidavit of Edilbert Rajadurai, which was read in these proceedings, contains the following information:
1. I have been commissioned by the appellant’s solicitors to prepare a transcript of the appellant’s evidence given in the second respondent’s interview with the applicant on 9 December 2011. My commission included an instruction to annotate the transcript by noting thereon any errors in translation from English to Tamil and Tamil to English. Mistranslated passages have been rendered in bold type and I have noted whether the translation was English to Tamil or Tamil to English. I have also, at various places in the transcript, annotated the transcript with the time references at which the statement occurred.
…
5. Exhibited hereto and marked “ENR 1” is a true copy of the transcript that I have prepared and annotated in accordance with paragraph 1 above.
Transcript, p.16 (degree of cousin’s illness)
Applicant’s Submissions
Mr Karp informed the Court that the issue being discussed concerns the date when it was alleged that the applicant’s cousins, who were sometimes referred to as his sisters, joined the LTTE:
Reviewer: Yeah… but…I appreciate that you gave a wrong statement. Ah… that’s on the record. Okay I acknowledge… I acknowledge that. Sorry I acknowledge that you gave a wrong statement. That’s on the record here and before… mm. Why did you say that… why did you say that Nagu was recruited in two thousand and four if she was really recruited in two thousand and one?
Applicant: What I said was Naguleswary joined in two thousand and one. But after Naguleswary joined it was in 2004 Jegatheeswary joined. That is what I said [Applicant’s answer translated from Tamil]
Interpreter: So what I would like to tell here this is what I said the Neguleswary – she was forcibly taken away – that was in two thousand and one.
Reviewer: Mm.
Interpreter: And the second one – the Jegatheeswary and she was joined in two thousand and four.
At Transcript, p.17;
Reviewer: How and why did… ah… did Jegatheewary join the LTTE?
Interpreter: Can you tell me how old…
Reviewer: How… how and why did the older cousin join the LTTE?
Applicant: The reason is the younger sister is a bit unwell. She has to be released. But there should be one person in the LTTE without failure. And for that reason. [Applicant’s answer translated from Tamil].
Interpreter: Because my younger sister she was ill at the time. And she was totally sick. In order to release my younger sister from that LTTE unit she actually joined in that unit.
Mr Karp submits that the applicant’s answer, “a bit unwell”, was translated as “totally sick” in the hearing interpreter’s translation. This found its way into the summary of interview at [89] (CB 312) which states:
I asked Mr [SZRMQ] to explain why he had claimed that Naguleswari had been recruited in 2004 if she had really been recruited in 2001. In reply, Mr [SZRMQ] simply said that Naguleswari had been recruited in 2001 before Jegatheeswari who was recruited in 2004. I asked Mr [SZRMQ] in the context of the LTTE purported demanding one member of each family, why the second sister Jegatheeswari joined in 2004. In reply, he said the younger sister had become “totally sick” and was swapped for the older one.
In the “Findings and Reasons” at [199] (CB 338):
Evidence to the effect that both were LTTE recruits was presented in the form of the photograph of the two women in what were said to be LTTE military uniforms. On reflection, the problem with this evidence is that, on Mr [SZRMQ]’s evidence to me, the sisters were not serving as soldiers in the LTTE at the same time. One was purportedly so sick in 2003 or 2004 that she was replaced (sic) by the other, and then taken across the country to the Vanni…
Mr Karp submits that the tone of the Reviewer’s statement was one of doubt, based on the translation that the sister was very sick, possibly with an implication that she might have had difficulty travelling across the country to her home. Mr Karp acknowledges that the first mistranslation is a relevantly minor one.
First Respondent’s Submissions
Mr Reilly referred the Court to the Decision Record’s “Findings and Reasons” at [199] (CB 338) in the third sentence where it states:
…One was purportedly so sick in 2003 or 2004 that she was replaced (sic) by the other, and then taken across the country to the Vanni, the sister replacing her then disappearing in 2006 before the family even moved back to Ponnalai South…
Mr Reilly contends that the point that the Reviewer is making is that at that time the photo was meant to have been taken neither sister was serving as a soldier in the LTTE and the issue of how one sick sister had to be replaced by the other simply did not arise. In the transcript at p.17, the interpreter described the applicant’s statement as follows:
Interpreter: Because my younger sister she was ill at the time. And she was totally sick. In order to release my younger sister from that LTTE unit she actually joined in that unit.
Mr Reilly argues that nothing turns on how one sick sister had to be to be replaced. The point was that she was sick and was replaced. That is utterly immaterial in terms of anything to do with the Reviewer’s ultimate reasoning. Nowhere does the Reviewer lay stress or emphasis on the degree of illness as opposed to the fact that, because of illness, one sister had to be replaced by the other. Mr Reilly submits that is just one of the many factors that ultimately led the Reviewer to the conclusion that the story about the sisters, having been LTTE members who disappeared in one case, or were taken, it seems, from the applicant’s house which resulted in the applicant being suspected of being in the LTTE, was not true. The issue of how sick one sister was when she was replaced by the other was not material in the cumulative consideration of the issues raised.
Transcript, p. 18 (issue of wrong information/ poor advice)
Applicant’s Submissions
Mr Karp referred the Court to the following passage of the applicant’s interview:
Reviewer: …Now you don’t understand my question. The question is about back in the entry interview you said that Naguleswary joined the L…was cons…recruited to the LTTE in two thousand and four. And you acknowledge that that was a wrong statement. And you have said that she was recruited in two thousand and one. But why did you go into such detail about her joining in two thousand and four if that’s not the truth?
Interpreter: In the initial interview you said that Neguleswary was recruited in 2004. But now you say that Naguleswary joined in the year 2001. [Interpreter’s interpretation into Tamil translated into English].
Applicant: Yes. [Applicant’s answer translated from Tamil]
Interpreter: Why was there such a discrepancy? [Interpreter’s interpretation into Tamil translated into English]
Applicant: At that time I made a wrong statement about it. But later in the lawyer’s interview, and later in the RSA interview, I corrected it and said correctly… clearly that it was in 2001 that Naguleswary joined and in 2004 Jegatheeswary joined. [Applicant’s answer translated from Tamil]
Interpreter: So that time I was given wrong information. Then after the RSA interview then I met me lawyer then I actually advised my lawyer and other authorities there was a wring… and then I changed the whole thing. And then I dedicated Nagulewary joined in two thousand and one and Jegatheeswary was joined in two thousand and four.
Reviewer: What doe you mean you were given wrong information? Des… Describe to me the wrong information you were given and who gave it to you…please.
Interpreter: What do you think what wrong information was given? Can you now describe it in detail. [Interpreter’s interpretation into Tamil translated into English]
Applicant: Wrong information in the sense that I was in Vanni during this time and I was insisted by the LTTE to join their movement… at that time I gave this wrong.
Mr Karp indicates that what the interpreter said was “so, at the time, I was given wrong information.”However, the applicant’s actual statement was to the effect that he made a wrong statement. That is an admission. The way it was rendered by the interpreter was “I was given wrong information.” That was rendered as an excuse. Mr Karp submits that this could hardly fail to reflect on the applicant’s credit. This is reflected in the Reviewer’s reasons at [91] (CB 313):
…I asked him to explain why he had said “2004” when in calling that a “wrong statement” he knew it not to be true. In reply, he said he was given wrong information and changed “everything: after he met his (IAAAS) lawyer.
(emphasis added)
Mr Karp submits that the word “given” suggests that the Reviewer considered the statement made by the interpreter, but not by the applicant, to be important.
First Respondent’s Submissions
Mr Reilly submits that the Reviewer understood that the applicant stated that he had made false statements at his entry interview because of the fear of being rejected if it became known that he was in the UK from 2001-2009 (CB 207 at [2]). Any misinterpretation that the applicant said he was given poor advice is immaterial.
Transcript, p. 26-31 (new passport)
Applicant’s Submissions
Mr Karp referred the Court to the following extract, from the transcript at p.26:
Reviewer: It’s not unusual to have these matters passed through agents… through travel agents or travel brokers or people like that. It’s not unusual to have passport matter handled by intermediaries in Sri Lanka.
Interpreter: This is how it is done usually. This was not done unusually. [Interpreter’s interpretation into Tamil translated into English]
Applicant: Normally if to obtain a new passport, the old passport has to be handed over. But I did not go in person. I gave it to another person. He is the one who obtained the passport. [Applicant’s answer translated from Tamil]
Interpreter: Usually if you want to renew a new passport you always have to submit your old passport.
Reviewer: Mm.
Interpreter: That’s the common thing over there. But in this case I never present physically but I only did it through somebody else.
Reviewer: My point though is that if that were not an acceptable practice the passport would not be replaced.
At p.27 of the Transcript, the translation continues:
Interpreter: When you look at this, this is not something that is in common practice. [Interpreter’s interpretation into Tamil translated into English]
Applicant: What is that? [Applicant’s answer translate from Tamil]
Interpreter: Which one?
Reviewer: It is not an unacceptable practice in Sri Lanka for you to return a damaged passport through an intermediary or through some service to have it replaced.
Interpreter: When you look at Sri Lanka this is not something in practice. That is if you want to get your passport changed that has to be given through someone else and obtained. That is how it is, isn’t it? [Interpreter’s interpretation into Tamil translated into English]
Interpreter: Yes. I agree with that because that is not in the routine process because I had a fear that time as a result only I sent somebody else to get a passport for me.
Reviewer: Mm. I hear you say you had a fear but you adopted a practice which is not unusual in Sri Lanka to have passport matters… passport and ticketing matters handled through intermediaries.
Interpreter: Now look here. You say that you had fear. But when you look in Sri Lanka for passport and ticketing matters they do this normally… people impersonate. That is how it is, isn’t it? [Interpreter’s interpretation into Tamil translated into English]
Applicant: What do you man by impersonate? I do not understand? [Applicant’s answer translated from Tamil]
Interpreter: Sorry I didn’t understand.
Reviewer: A while you were… a moment ago you agreed with what I was saying. And now you say you don’t understand. I’ll just make sure that you were agreeing with something that you understood. So we will go back a little bit.
Interpreter: I think you did not understand. We will go through it again. [Interpreter’s into Tamil translated into English]
Applicant: Yes [Applicant’s answer translated from Tamil]
At p.28 of the Transcript, the interview continues:
Reviewer: Mm. Firstly I will ask you though a little bit of detail. This person who helped you get your replacement passport – specifically what did this person do?
Interpreter: Look here. A person helped you… your passport… to obtain another passport.
Applicant: Yes. [Applicant’s answer translated from Tamil]
Interpreter: What does he normally do? [Interpreter’s interpretation into Tamil translated into English
Applicant: He normally does this kind of work. That is to obtain and hand over passports illegally. He is like an agent. [Applicant’s answer translated from Tamil]
Interpreter: Yeah. He usually does this sort of a job because he is actually he… he was an agent.
Reviewer: So he does it for a lots of people in quite normal situations. Is that right?
Interpreter: Yes.
Advisor: There is a word missing there.
Reviewer: What word was missing?
Advisor: The word “kalavu” is forged.
Reviewer: Mr Interpreter is the forged omitted from your…
Interpreter: What’s the word?
Advisor: “Kalavu”… “kalavu” he said “kalavu”
Interpreter: Yeah “kalavu”.
Reviewer: Did you miss that word?
Interpreter: “Kalavu”… “kalavu” is actually steal.
Reviewer: Steal. Ok. .
Interpreter: Stealing… stealing.
At p.29 of the Transcript, the interview continues:
Reviewer: Mm. Ok we agree that you ask someone who doesn’t legally practice as an agent to be your agent in the replacement of your passport.
Interpreter: So you agree that he did not obtain this passport through proper means? That’s how it is, isn’t it?[Interpreter’s interpretation into Tamil translation into English]
Applicant: Yes. [Applicant’s answer translated from Tamil]
Interpreter: Yes.
Reviewer: Now there are legally practicing agents who do this all the time.
Interpreter: When you look at this, there are many who do it legally. They will do it through many ways, isn’t it? [Interpreter’s interpretation into Tamil translated into English]
Applicant: They will do. I do not understand not understand. [Applicant’s answer translated from Tamil]
Interpreter: Yeah. I didn’t understand.
Reviewer: I think it’s easy to understand that there… that there are legally practicing agents who handle passport matters as part of their legal practice. Their legal jobs… Lawful… I mean lawful jobs… lawful jobs.
Interpreter: Yes. There are people.
Reviewer: Ok. Why did you choose somebody who didn’t have that as their lawful job?
Interpreter: Why didn’t you ask them for help and get this done? [Interpreter’s interpretation into Tamil translated into English]
Applicant: At that time I did not give them owing to fear. I believe that if I gave him he would get it easily. [Applicant’s answer translated from Tamil]
Interpreter: Because that time it was a very hard time. And I got real fear about the place and that’s why have given to this person. I thought this person is going to make very easily for me.
Mr Karp submits up to this point there is great difficulty about the communication between the Reviewer and the applicant through the interpreter. A number of questions are mistranslated and meanings are missed. The most important being when the applicant said “he didn’t do this – he didn’t – the agent didn’t do- didn’t get the passport legally”. Mr Karp contends that a review of the above transcript gives the impression that the Reviewer was having great difficulty in getting information from the applicant. This was at least partly, if not wholly, because the interpreter was not interpreting accurately.
The Court was then referred to p.30 of the Transcript to the following passages:
Reviewer: Ah… just what did he do though? What did he do? What… What… What physical procedure did he undertake?
Interpreter: I have given my passport and also I have given some money to him then he did everything for me.
Reviewer: What did he do?
Interpreter: I don’t know what he did actually but I got a brand new passport.
Reviewer: Mm… Because if you go to somebody who does this for their job lawfully that’s what you do. Give him some money and you give him the old one. And they go and away and get another one for you.
Applicant: No. They would not do it for everyone. Now he… I… they will ask for a lot of things. So if you go to them, in a genuine way, there will be a lot of problems. [Applicant’s answer as translated from Tamil]
Interpreter: So they didn’t do it like that. If I go in a genuine way but I would have had a lot of hard time. And they… they don’t… and they are not… [unclear] for me. So that’s … that’s why I chose that person [Interpreter’s interpretation into Tamil translated into English]
Mr Karp submits that it is quite clear he obtained his first passport by paying money and if he went through a genuine agent then that problem initially might be revealed. They way that is rendered is at p. 30 of the Transcript:
Interpreter: Yeah. Because what happened actually if I chose a genuine way to obtain my passport and definitely they are going to trace back to me because I already had a problem with them. And they will probably find out what I had previously.
Reviewer: Please repeat. Please repeat what you said again, Mr Interpreter.
Interpreter: Yeah. Yeah. If I chose in a genuine way to get my passport I definitely probably face some sort of a problem because they already got some information about me. And as a result they would have [unclear] my passport. And that’s why I choose this person.
At this stage the hearing was adjourned to provide the parties with a break. Upon resumption the following occurred at Transcript p.31:
Applicant: He asked about the passport matter. In Sri Lanka it is not possible to get a passport through an agent legitimately as in other countries where it could be given to someone and obtained. One thing is to pay money and obtain or else we will have to go in person and obtain [Applicant’s answer translated from Tamil]
Interpreter: So you have asked about my passport, how I obtained my passport. But when you look at the Sri Lanka this is not like other countries. But you are you can’t get your passport in a direct way, maybe legally what you call actually, usually but whatever actually I… I got a passport through the agency after I gave some amount of ransom to her… them.
Mr Karp contends that the answer is almost entirely garbled and is very difficult to understand. The next question was:
Reviewer: Now anything else you want to say at this stage?
Applicant: Yes. That is to say it is not possible to get a passport legitimately by someone. Either we obtain by ourselves or else it has to be obtained by giving money. [Applicant’s answer translated from Tamil]
Reviewer: It seems odd to me that you were afraid to renew your passport legally… ah…you were afraid to renew your passport in person and yet the passport was renewed. And the passport that was renewed has been used by you six times out and in, out and into Sri Lanka.
Mr Karp submits that it seems odd to the Reviewer, partly because of what the applicant said previously but wasn’t translated that the applicant received his first passport through a bribe and that might be found out later. Mr Karp contends whether the applicant’s story is to be believed or not he does deserve adequate and comprehensive interpretation. The Court was then referred to the Decision Record at [95] (CB 313) where it states:
95. After a break allowing Mr [SZRMQ] time to confer with his advisor, I asked him if he wanted to raise any matters or issues. In response, he said that obtaining a passport in Sri Lanka is not like the process in other countries. Having earlier acknowledged it was not unusual to lodge a passport application indirectly, he now said a person cannot obtain a passport in Sri Lanka unless he or she applies in person. He said he had to give his application to someone else to lodge for him.
Mr Karp contends that what the applicant actually said was that it was not unusual to lodge a passport application in this way, but in the Transcript above he says that this was done illegally, so the sense of what was said is missing.
First Respondent’s Submissions
Mr Reilly referred the Court to the “Findings and Reasons” set out in the Decision Record at [212] (CB 341) which states:
212. First Mr [SZRMQ] was in a position to apply for a passport a week or ten days after he returned from the UK. He says his mother fixed all of this while he was still languishing in detention, using her business contacts to have the state issue a passport they would or might otherwise never have issued: a genuine passport obtained and only obtainable by bribery without any personal input from the detained person to whom it was issued. I do not accept that claim to be true, even though I do no doubt that Mr [SZRMQ]’s family, as importers of goods for retail, would have cultivated and maintained helpful contacts in various sectors of Sri Lankan society. I find on the basis of Mr [SZRMQ]’s repeated ordinary use of this passport, issued in his own name, between March 2009 and October 2009, at least, that it was not issued under any extraordinary circumstances.
Mr Reilly submits that the above conclusion was explicitly based on the applicant’s repeated and ordinary use of his passport between March and October 2009. It was not based on a view that the applicant’s answers, summarised at [94]-[97] (CB 313), were “inconsistent” or “garbled” as suggested in Mr Karp’s submissions. Any infelicities in the interpretation of the applicant’s evidence were therefore not material to the Reviewer’s conclusion. Mr Reilly acknowledges that there have been some degrees of misinterpretation in the relevant passages set out above but the essential point was communicated. The applicant sought to explain this point as to how, given that he was possibly suspected of being associated with the LTTE, he got a passport so quickly after coming back to Sri Lanka from the UK. The applicant’s claim was that he did it through an agent and through bribery, essentially. It is not entirely clear if he means bribery of an agent or bribery through the agent of other people but he said he got it through bribery and that’s obviously unlawful. That was understood by the Reviewer and the difficulty that the Reviewer had was not with anything to do with any misinterpretation or confusion in relation to the applicant’s claim on that subject.
Mr Reilly contends that in [212] of the Decision Record, there is a reasonable summary of the applicant’s claim in that he said that the passport was obtained through bribery and that is exactly what the Reviewer dealt with. The basis of rejection is the applicant’s repeated use of the passport which he claimed was obtained through bribery. The view that was taken by the Reviewer was “well, if you really did obtain this passport through bribery, then its use would appear to put you in some danger and instead you seem to have used it quite a lot in a period” where the applicant travelled several times out of Sri Lanka to India on business trips. Any particular issue about the precise details by which the applicant said he arranged for the agent to get the passport did not feature at all in the ultimate reasoning of the Reviewer and any misinterpretation on that issue is simply immaterial to the Reviewer’s reasoning.
Transcript p.35 (failure to translate “no search warrant on me”)
Applicant’s Submissions
Mr Karp directed the Court to Transcript p.35, to the following:
Applicant: At that time I was not a person searched for by the Sri Lankan government. That is to say that I was not a wanted person… No search warrant on me [Applicant’s answer translated from Tamil]
Interpreter: So at that time what you mentioned I was not a person being suspected by the Sri Lankan government [unclear] by them
Mr Karp submits there is a clear and obvious difference between the applicant’s response and the interpretation provided by the translator and that was the basis of the Reviewer’s finding of an inconsistency.
At p.36 of the Transcript the Reviewer continues:
Reviewer: I put to you also it’s… it’s quite the opposite of what you just told me yourself. The business about you only got through an interrogation at the airport by a bribery - that’s drawing attention to yourself during an interrogation. And just a few minutes ago you said that you weren’t a suspect. They weren’t targeting you. So how can you say that they weren’t targeting you if you are telling me that you need a bribe to get out of an interrogation at the airport.
Mr Karp contends that the above statement by the Reviewer is entirely misunderstood, on the basis of what the interpreter said.
First Respondent’s Submissions
Mr Reilly submits the fact the issue about there being no search warrant was not translated does not add anything to that answer and it seems apparent that the applicant could not have actually known if there was a search warrant for him and he is just speculating that there wasn’t one, because nothing happened to him and therefore he was presumably not of interest. Mr Reilly contends that the Reviewer understood that and the fact the applicant had explained that he wasn’t picked up because he wasn’t of interest was understood and accepted by the Reviewer. Mr Reilly argues that it was immaterial whether the particular words about the search warrant were translated.
Transcript p.38 (evading answers)
Applicant’s Submissions
Mr Karp referred the Court to the following exchange at p.38:
Reviewer: Okay. Look I think… I think you are evading discussion about the ease with which you travelled out of Sri Lanka (sic) on these occasions between February and December [2009]
Interpreter: Look here. You have travelled out and came back three times from February to December [Interpreter’s interpretation into Tamil translated into English]
Mr Karp submits that what is left out is the suggestion that he might be evading discussion of the matter. The Transcript continues:
Reviewer: I don’t … Usually go far. Suffice to say I think you are evading. But I have tried to bring you back to this point a couple of times and told you why. And…and… on this last occasion you are leaping forward to December again. I want to… please help me understand why you would try to leave the country and come back three times if you had such a bad experience on return… in February… and why they would let you travel if as you claim if they there suspecting you to be a LTTE supporter?
Interpreter: Look here. You have travelled between February and December. At the same time they have detained you in February… they stopped at airport did… But even after that you have travelled two times. And you have come back [Applicant’s answer translated from Tamil]
Mr Karp submits that there is an omission of the suggestion that he is evading discussion. The suggestion that he is evading discussion can be traced back to part of the Transcript where the applicant states “there was no search warrant for me” and the interpreter said “he’s not a suspect.” The applicant, earlier in the Transcript (at p.35), tried to explain that he didn’t have a problem before December 2009, which was the date he said his cousins’ LTTE affiliations were found out. The fact that the issue of evasion of discussion was not translated was crucial because the avoidance of a question or discussion of an issue must damage credit and the applicant needed to know what the Reviewer was saying in order to attempt to rectify any damage.
First Respondent’s Submissions
Mr Reilly refers to the Reviewer’s comments, “I think you are evading” which was not translated, but submits nothing turns on that admission. The Reviewer questioned the applicant about how he was able to come and go in 2009 on his passport and the applicant’s answers were essentially that “he wasn’t of interest at that time”. That was understood and nothing turns on the fact that the precise wording about the applicant’s evasion of the subject was not translated. Mr Reilly contends that there is nothing in the Reviewer’s reasons to indicate that some review by the Reviewer that the applicant’s evidence on that point was evasive or was of particular significance in the Reviewer’s ultimate conclusion. What the Reviewer found was that the applicant’s ability to come and go repeatedly indicated that he was not of interest to the authorities. That is reflected in the “Findings and Reasons” at [213] (CB 341).
Transcript, p.59 (Applicant’s sympathisers)
Applicant’s Submissions
Mr Karp referred the Court to the following passage at Transcript p.59:
Reviewer: …Thankyou. Looking back at the history of scrutiny, detention, release a person might make the observation that you had more friends in the system in Sri Lanka than you had enemies. What would you… you say to that?
Interpreter: Look. We will look at one thing again. You have been questioned many times. Right? You have been detained. And then they allowed you to go. Not only that you have many friends there. At the same time you have enemies as well there. [Interpreter’s interpretation into Tamil translated into English]
Applicant: Not friends, there are only enemies, many of them.
Interpreter: Not really friends but I have a lot of enemies.
The adviser then asked that the question to be rephrased and the Reviewer said:
Reviewer: The whole question, yeah. A person in my situation listening to your story about detention, security, release, might wonder whether if you have more sympathetic people on your side in the system [unclear] in the system in Sri Lanka than enemies working in the system in Sri Lanka.
Interpreter: So you have been detained, then scrutinized and then released. I want to ask you one thing. Are there people who sympathize you?
Applicant: Yes. That is to say, there are many relatives who sympathize me, and want to help me as they want to help me.
Interpreter: I have a lot of sympathizers from my family background so those actually my family friends and relatives… who actually help me [unclear] from the condition which I had.
Mr Karp contends that this is a garbled response, but the point is that the question which the Reviewer asked was not accurately translated so the applicant could respond. This found its way into the Decision Record at [113] (CB 316) where the Reviewer reports:
113. I put to Mr [SZRMQ] that on his evidence he seemed to have more (and more effective) friends in the Sri Lankan system than enemies. In reply, he said he had a lot of supporters in Sri Lanka because of his family’s business background, on both his mother’s and his father’s side.
Mr Karp contends that the above appears to be more or less what the interpreter said but it was not responsive to the questions which were asked.
First Respondent’s Submissions
Mr Reilly indicates that this is the issue of whether the applicant has more friends than enemies in Sri Lanka. The applicant indicated that he had relatives who sympathised with him and that was accepted by the Reviewer. In the “Findings and Reasons” at [212] (CB 341) the Reviewer states:
… I do not accept that claim to be true, even though I do no doubt that Mr [SZRMQ]’s family, as importers of goods for retail, would have cultivated and maintained helpful contacts in various sectors of Sri Lankan society…
Mr Reilly contends that there is no material misunderstanding of anything the applicant has said about having friends, in particular relatives, who sympathise with him. Further, it just does not go anywhere in respect of the Reviewer’s ultimate reasoning.
Transcript, p.70 (role of naval officer)
Applicant’s Submissions
Mr Karp referred the Court to the following part of the Transcript where the Reviewer dealt with the disappearance of one of the applicant’s female cousins and the attempts to find her after she disappeared:
Reviewer: … There is no one you could talk to about this… no one to contact. There is a naval officer. (the naval officer is a person who apparently helped the applicant out of custody)
Applicant: That was when I was arrested and taken away. But if we were to contact him and ask him, then we would have problems as a result of it. We approached him only after the problem arose, and as far as this problem is concerned, we searched on the basis of suspicion and, and we did not go to him as we thought that we would have problems as a result of that [Applicant’s answer translated from Tamil]
Interpreter: So because we only approached the navy officer after I had a problem. But I never approached the navy officer when my sister is actually disappeared. Because if we approach the navy officer properly that is going to impact on our whole family and he is also going to be in trouble so that is why I simply avoided the navy officer.
Applicant: He did it for money and not for any love or affection towards us. So if we had asked him that would be known to the top level … that is if we asked him.
Interpreter: Because we never… we never bribed the navy officer. He just sincerely did that help for us.
Reviewer: He is a naval officer who is a friend of your family and you didn’t even try to find out if he had heard of anything where your sister-cousin has gone?
Applicant: He is not a friend he is an enemy. He is a person who comes to our shop and takes goods free of charge. He is an enemy. He is capable of doing anything for money.
Interpreter: So look at here. That navy officer who was not a friend of us. And he is an enemy of us. And he simply comes and takes the grocery items from our shop without paying any money to the shop. And he can do anything for money.
Mr Karp contends that the above statement by the interpreter is entirely inconsistent with what was said in the passage he interpreted immediately above, namely “we never bribed the navy officer. He just sincerely did that help for us.” The Transcript continues:
Reviewer: … he can… he can probably sort out what happened to your sister maybe. In this… you know… a person similar described might be [unclear] find out what’s happened to your sister.
Interpreter: So if you had told like this he would have found and handed your elder sister back [Interpreter’s interpretation into Tamil is translated into English]
Applicant: But because of that there could have been danger. Not that he will find and hand over. Danger would have befallen in the sense that he would have caused more problems to her when he goes to investigate about her. The other thing is we could have had problems as a result and because of this fear we did not approach him.
Interpreter: I think if we approached him and requested his help definitely he probably caused some problems to my sister. Probably my sister’s life is threatened by this particular navy officer
Applicant: It is not the case. By telling him he would ask the top whether such a person was arrested. As a result we could at that time inflict more torture to the elder sister. Or else he would have come to us, based on this incident, to extort money. [Applicant’s answer translated from Tamil]
Interpreter: Not like that. If we approached the navy officer he will probably inform the top officers. Then from the (sic) top level they will probably approach… approach our family and… we will be in trouble. And that’s why we simply avoided.
Mr Karp contends the specifics of the suggestion that the sister would be in more trouble or the family would be extorted are left out. This is reflected in the Decision Record at [122] (CB 317), in the following passage:
…Mr [SZRMQ] seemed to be digressing here: the point he repeatedly did not address was that whenever he was arrested, his mother used his family’s standing and contact networks to try and locate and release him, whereas neither he nor she asked for help from or offered apparently customary inducements to anyone. I put to Mr [SZRMQ] that I remained at this stage somewhat concerned at how little was done in the circumstances to help locate or ascertain the fate of Naguleswari, particularly when the same assumptions were made as to the identity of her captors as was made in Mr [SZRMQ]’s own case.
Mr Karp submits that the applicant addressed this issue above by saying that they could have tortured the sister or extorted money from the family, but that comment did not find its way into the Reviewer’s description of the hearing or the interview and that is almost certainly because that material was not translated properly.
First Respondent’s Submissions
Mr Reilly submits that ultimately it seems to become clear that the naval officer was viewed as an enemy but there has been a misinterpretation before that he was a friend. However, the Reviewer’s account of the interview at [122] (CB 317) states:
…I indicated to Mr [SZRMQ] that this did not yet seem to explain why his mother did so much to help him and virtually nothing accept looking in other homes for his “sister”, and he said the naval officer was not a friend but an enemy who came to the shop and took groceries without paying and who therefore seemed like someone his mother could bribe. He said his mother could not ask this officer to help find Naguleswari in case he had been involved in her arrest or abduction. He said the officer had to ask for help up the ranks and that if he had done so for Naguleswari it could have caused his family trouble. Mr [SZRMQ] seemed to be digressing here: the point he repeatedly did not address was that whenever he was arrested, his mother used his family’s standing and contact networks to try and locate and release him, whereas neither he nor she asked for help from or offered apparently customary inducements to anyone…
Mr Reilly submits that the Reviewer’s concern at that point was not really about the naval officer in particular, but just the lack of effort on the applicant’s account in respect of his and his family’s efforts to try to locate his sister when she went missing. This is repeated at the “Findings and Reasons” at [203] (CB 339). In the middle of that paragraph the Reviewer states:
…This was all by stark contrast with the claimed behaviour of Mr [SZRMQ]’s mother on occasions when, he claimed, he was in trouble with the authorities. In those situations uncles and other contacts including business contacts were brought in to help resolve the situation. Although purportedly suspecting at the time that Naguleswari had been abducted by the authorities or by some pro-government group, Mr [SZRMQ] claimed he and his mother limited their search for his cousin to the homes of people living nearby. This does not sound like two people who suspected that Naguleswari had been arrested or abducted by the army…
Mr Reilly submits that in that finding there is nothing about the naval officer and any particular issue about whether the naval officer was a friend or an enemy just does not register in terms of the Reviewer’s ultimate findings. The point for the Reviewer was that the applicant didn’t seem to have made, on his claims, much effort along with his mother to look for his sister after she allegedly vanished and that was one of a number of matters that, considered cumulatively, led the Reviewer to reject that claim.
Transcript, p.77 (UNHCR Guidelines)
Applicant’s Submissions
Mr Karp referred the Court to p.77 of the Transcript where the Reviewer wanted to put UNHCR information to the applicant:
Reviewer: … I will throw some challenges to you and hear what you have to say. What do you have to say for example the UNHCR Guideline… that just being a Tamil or just being a Tamil male from the north east is not enough on its own to be of concern to UNHCR as a person who might face persecution.
Interpreter: There are certain guidelines from UNHCR. According to that you are a Tamil person. You are a male. And your age is this. So because of this if you return what danger will you have for your life… what problems will you have - based on that. [Interpreter’s interpretation into Tamil is translated into English]
Mr Karp submits as far as the interpretation is concerned, the information which the Reviewer wanted to put to the applicant was not put to the him. A question is asked and the applicant just goes on to say he will be tortured and killed because of his being a Tamil from the North or East. He does not engage with the UNHCR information which was being put to him, partly because the information was not put to him.
First Respondent’s Submissions
Mr Reilly acknowledges that the passage “being a Tamil or just being a Tamil male from the north east is not enough on its own to be of concern to UNHCR” was not correctly interpreted, in that the concept of it was not communicated accurately. However, it is clear from what the applicant has said later in the transcript that he claims that because he is not particularly young and a Tamil male he has a fear of harm in Sri Lanka for that reason alone. Consequently, he certainly and adequately communicated the fact that if there is a view to the contrary, that is not his view and he would disagree with it. That point was also made by his adviser which was understood by the Reviewer, albeit ultimately not accepted by him. Mr Reilly argues that there was no material misinterpretation on that issue during the interview.
Consideration
As indicated at [15] above, the review was undertaken on 9 December 2011 by video link with the Reviewer and the applicant’s adviser sitting in Sydney, and the applicant and interpreter located in Curtin Immigration Detention Centre, Western Australia. These details are set out in the Decision Record at [85] (CB 312). The qualifications and experience of the interpreter present at the hearing were described by the Reviewer as nationally accredited and the interpreter was engaged through an outside agency (Transcript p.3). However, it is the skill and competence of that individual that is the basis of the applicant’s application before this Court.
In the Decision Record at [85]-[145] the Tribunal records details of the interview conducted on 9 December 2011. There is no reference in that material to the interpreter, other than he interpreted in the Tamil-English medium. There is no indication that any difficulty was experienced by the Tribunal or the applicant’s adviser with any aspect of the interpretation. At the completion of the hearing leave was granted to the applicant and his adviser to file further submissions, however, in those submissions there was no mention to the standard of interpretation during that hearing.
The applicant’s outline of submissions filed on 28 November 2012 attached an amended application which Mr Karp sought leave at the final hearing to reply upon. There was no objection raised by Mr Reilly and leave was granted. Mr Karp’s amended application relies on a number of misinterpretations, during the second IMR hearing that are identified in the affidavit of Edilbert Naveenan Rajadurai. Mr Rajadurai provided his curriculum vitae setting out his qualifications as follows:
EDUCATIONAL QUALIFICATIONS:
1. Master of Arts in Linguistics from Patrice Lumumba Friendship University Moscow, former USSR from 1978 – 1994 Dissertation on the topic Comparative Analysis of Grammatical Gender of Nouns in Tamil and Russian
2. Diploma in German – University of Cologne in West Germany 1986-1987
3. Studies in Linguistics in University of Siegen, West Germany 1991-1994 – not completed
4. Master of Letter from University of New England in Armidale 1999-2000 Thesis on Tamil Phonology
5. LLB University of Western Sydney – Parramatta, 2000-2005
6. Graduate Diploma in Legal Practice 2005-2006 University of Western Sydney/ College of Law
7. PLT (Practical Legal Training) 2009
8. Admitted as Solicitor/ Barrister at Supreme Court of NSW- 2010
9. NAATI Recognition in Tamil and Sinhalese languages as Interpreter and Translator – 1996 (Note: there is no NAATI accreditation in Tamil).
10. NAATI Accreditation in German at Level 2 1997
WORK EXPERIENCE
Production Assistant at the state owned TV of Sri Lanka Rupavahini- from 1987- 1991, Assembler Dick Smith Electronics 1994-1995, Freelance Interpreter/ Translator since 1996 up to date. Work as interpreter in almost all courts of Australia (Local, District-, Family-, Federal-, Federal Magistrates-), Centrelink Offices, Health care Interpreter Services in hospitals, SBS (Special Broadcast Services – Subtitling Division), Since February 2009 as solicitor
PUBLICATIONS
Translation of Henry Lawson’s Short Stories into Tamil, Translation into English of Sri Lankan Tamil short stories, SBS-Dateline programs.
LANGUAGES
Fluent in English, Tamil, Singhalese, and Russian.
Mr Rajadurai prepared a transcript of the interview which was attached to his affidavit, consisting of 110 pages. Within the Transcript, Mr Rajadurai identifies in excess of 200 examples of paraphrasing rather than full translation of what was actually said. Mr Karp acknowledges that at times the paraphrasing was sufficiently accurate to convey the sense of the question and answer, except for eight specific instances identified by Mr Karp. In his oral and written submissions the inaccurate translation is claimed to have had a direct result on the Reviewer’s reasons and comments which were detrimental to the applicant as a direct consequence.
For convenience those incidences have been identified in the submissions as:
a) Degree of cousin’s illness (Transcript p.16-17);
b) Issue of wrong information/ poor advice (Transcript p.18);
c) New passport (Transcript p.26-31);
d) Failure to translate “no search warrant on me” (Transcript p.35);
e) Evading answers (Transcript p.38);
f) Applicant’s sympathisers (Transcript p.59);
g) Role of naval officer (Transcript p.70);
h) UNHCR Guidelines (Transcript p.77).
Mr Karp acknowledges that individually these eight identified issues would not be sufficient to establish this ground of review, but instead relies upon them for their cumulative effect to establish jurisdictional error.
There is no dispute between the parties in respect to the relevant test to be applied in relation to an inadequate standard of interpretation. In the Court’s view it is, rather, the application of that test to the contents of the interview with the Reviewer that is the subject of these proceedings.
Both counsel have drawn the Court’s attention to the judgment of his Honour Logan J in SZQLS (supra). I wish to take those submissions further and concentrate particularly on a passage appearing at [31]-[32] of his Honour’s judgment where he states:
31. … In Perera, at para 45, her Honour observed:
It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision: cf Yi Gui Stone v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Hill J, 28 June 1996). Similarly, in Tran, the Court held (at 991), that in order to succeed, the accused had to show that:
“the lapse in interpretation which occurred was in respect of the proceedings themselves, thereby involving the vital interests of the accused, and was not merely in respect of some collateral or extrinsic matter, such as an administrative issue relating to scheduling.”
32. Later in time, in WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131 at [29], the Full Court, Ryan, Tamberlin and Middleton JJ, stated:
To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry; see Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, at [18]. Those authorities were applied in Appellant P119 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230 and WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511, at [63]-[68].
As indicated in the respondent’s submissions set out at [35] above, the majority of cases relied upon, in this matter concern decisions of the RRT and the parties contend that the same approach has been followed in relation to decisions of Independent Merits Reviewers. In that respect, I make the following observations. Under s.427 of the Migration Act, the RRT is required to provide an interpreter where the applicant is not able to give evidence without one: VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 at [8]. The RRT has a statutory obligation under s.425 to ensure the invitation to a hearing is “real and meaningful”; Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [16].
This includes providing an interpreter of sufficient skills, such that the applicant is not denied his or her right to a fair hearing: VWFY (supra) at [27]. In order for an applicant to succeed in an application that they were denied a fair hearing they must show one of the following:
a)The standard of interpretation, at the hearing was so inadequate that the applicant was prevented from giving evidence; or
b)Errors made by the interpreter at the hearing were material to the conclusion of the Reviewer and adverse to the applicant: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [17].
Authorities indicate that the Court should consider:
a)Whether there is a “correct” translation available, against which the interpreters performance is compared; VWFY (supra) at [10]. In making comparisons “it is sufficient if the translation is sufficiently accurate as to permit the idea or concept of being translated to be communicated”: NAIF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 458 at [63]; WACO vMinister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [26].
b)The manner of the applicant’s responses, including “the responsiveness of the interpreted answers to questions asked, the coherence of these answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, the evident confusion in exchanges between the Tribunal and the interpreter”: Perera (supra) at [41] applied in VWFY (supra) at [11] and applied in P119/2002 (supra) at [20].
In SZGWN v Minister for Immigration and Citizenship (2008) 103 ALD 144 per Gilmour J at [20]-[21], his Honour stated:
20. The first question that must be determined is whether there was a departure from the relevant standard of interpretation. The interpretation before the Tribunal must be so incompetent that it prevents the appellant from giving evidence: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [38]. Further the departure from the requisite standard of interpretation must relate to matters which were significant to the appellant’s case in the Tribunal as well as to the Tribunal’s decision: Perera at [45]. Perera was cited with apparent approval by the Full Court in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362; (2001) 113 FCR 541 at [44]. That passage was itself cited by the Full Court in SCAR at [34].
21. While it is accepted that a perfect interpretation is never possible, it is essential that the interpreter serve as an accurate means of communication between the parties: Gaio v The Queen [1964] PGHCA 2; (1960) 104 CLR 419 at 433. It is sufficient that the translation is sufficiently accurate so as to convey the idea or concept being communicated: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 511 at [66].
In SZOYU (supra) per Jacobson J at [29]-[32], his Honour stated:
29. The seminal authority on the standard of interpretation is the decision of Kenny J in Perera. Although that case was decided before s 425 of the Act was amended, it has been accepted that what her Honour said in Perera is equally applicable to s 425 in its current form: WACO at [64].
30. The relevant principles may be stated briefly. The standard of interpretation is not one of perfection. It need not be at the very highest standard of a first-flight interpreter but it must express in one language, as accurately as the language and circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [26] to [29]; WACO at [66].
31. Importantly, not every departure from the standard of interpretation denies an applicant the opportunity to obtain a hearing under s 425 so as to give rise to jurisdictional error. The onus is on an applicant to demonstrate that the departure related to a matter of significance to his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision: Perera at [38], [45]; Appellant P 119/2002 at [16] to [18]; WACO at [69]; see also SZJBD v Minister for Immigration and Citizenship (2009) 179 109 a [72] to [73] (Buchanan J).
In SZQUH v Minister for Immigration and Citizenship [2012] FCA 1265 per Katzmann J, her Honour stated at [19]:
The problem of interpretation
19 Giving evidence through an interpreter is often problematic. The interpreter may misunderstand the witness. The witness may misunderstand the interpreter. The skills of interpreters vary. Interpreters do not always provide literal translations. Subtle nuances may be lost in the process. An unresponsive or inconsistent answer may not reflect a lack of candour but a problem of communication with the interpreter. Yet, there is no such thing as perfect interpretation; “no interpretation will convey precisely the same meaning as the original testimony”: Shulman, MB, ‘No Hablo Inglés: Court Interpretation as a Major Obstacle to Fairness for Non-English Speaking Defendants’ (1993) 46 Vand L Rev 175 at 177, cited in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [26]. Nor will any or every lapse in standards invalidate a decision. Jurisdictional error will only arise where the errors in interpretation deprive the applicant of a real opportunity to give evidence and present arguments which s 425 of the Migration Act requires and which is a precondition to the exercise by the tribunal of its jurisdiction under the Act: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [37]–[38]; Perera [1999] FCA 507; 92 FCR 6 per Kenny J at [26], [38], [45]. In the present case, there is no material before the Court to support such a finding.
In VWFY (supra) there are a number of factors identified that indicate the adequacy of interpretation:
a)Whether the interpreter is qualified (e.g. NAATI qualification), although this is not a conclusive factor, at [11];
b)Whether the applicant was denied the opportunity to contribute evidence because key exchanges in the hearing were not translated for the benefit of the applicant, at [22]-[24]; and
c)If no one factor was severe enough by itself or whether the combination of factors effectively deprives the applicant of the right to appear at [27].
Other authorities identify factors indicating errors in interpretation that were material to the outcome are ;
a)Whether “the very substantial part of the Tribunal hearing was fully and accurately interpreted”: P119/2002 (supra) at [19];
b)Whether any of the exchanges suggest that “the interpreter was mistaking important information or information critical to the applicant’s claims”: NAIF (supra) at [41]; and
c)Whether difficulties faced by a particular interpreter were “real difficulties any interpreter would have faced”: P119/2002 (supra) at [20].
In respect of the specific claims of misinterpretation impacting the outcome, four out of the eight errors are not material to the outcome of the Reviewer’s final decision in themselves and should only be considered as to any weight that they may exert in the cumulative effect of the translation errors. These are namely identified as:
a) degree of cousin’s illness;
b) issue of wrong information/ poor advice;
d) “no search warrant on me”; and
e) evading answers;
This was acknowledged by Mr Karp at [46] in respect to [103](a) (“degree of cousin’s illness”). The respective submissions on this issue appears at [43]-[48] above. The argument advanced was that the younger sister/cousin was so sick that she was replaced by the other sister/cousin. The applicant’s evidence, not conveyed to the Reviewer, was that the applicant’s younger sister/cousin was “a bit unwell”. This was mistranslated as “totally sick” and was referred to by the Reviewer at [89] of the Decision Record as follows:
…In reply, he said the younger sister had become “totally sick” and was swapped for the older one.
In the “Findings and Reasons” no direct reference is made to the sickness of the younger sister/cousin, rather, the focus of the Reviewer is the family’s inaction in response to the disappearance of Naguleswari. The Reviewer took the view that the younger woman was sufficiently sick that she had to be released and replaced by the other sister/cousin. I am satisfied that the degree of the claimed sickness of the women was immaterial.
In relation to [103](b) (“issue of wrong information/ poor advice”) the respective submissions appear at [49]-[51] above. The Tribunal in its “Findings and Reasons” noted at [196] (CB 338) that the applicant acknowledged that he initially made some misleading claims at his early interview about his history due to what he described as fear of being rejected as a result of poor advice. The Tribunal at [197] of the Decision Record states:
197. Also, even after admitting false claims given at the entry interview … I have been concerned about this inconsistency, and about why Mr [SZRMQ] did not tell what he called the true story from the outset. The adviser suggested that as Mr [SZRMQ] was not in Sri Lanka at the time but I accept that a person who was not in the country at the time he might simply have erred in the process of “filling in the gaps”.
198. I can accept that a person who was outside of Sri Lanka for so long might have erred in the course of providing information about events he did not witness…
(CB 338)
Although the Tribunal indicated that it was concerned about the inconsistencies in the applicant’s explanation of what had occurred in the past, it acknowledged that there were reasons for the applicant changing his story between the time of his original entry interview and the hearing before the Tribunal. The issue of providing wrong information at the entry interview based on poor advice, in itself, is insufficient to support a claim that misinterpretation was so material it resulted in the Reviewer’s adverse conclusion.
In [103](d) (“no search warrant on me”) the relevant submissions appear at [66]-[68] above. This issue is addressed in the “Findings and Reasons” at [214] (CB 341) where it states:
…When he said “I was not being suspected by the government. They didn’t target me” he clearly said to me that he was of no significant relevant interest to anyone between his return from the UK and the events of November-December 2009, and illustrated this by telling me that after his first trip to India he just came home, having encountered no problems at all at the airport…
(CB 341)
The applicant’s evidence was adequately conveyed by the interpreter’s statement “I was not being suspected by the government” and nothing turns on the fact that the additional statement “no search warrant on me” (Transcript p.34.2) was not interpreted, as the essential point that the applicant was not at that stage of interest to the government had been communicated. The discussion at the interview (at Transcript p.36-40) on the issue of why the applicant was repeatedly travelling to and from Sri Lanka was not perfectly interpreted but the Reviewer’s difficulty with the issue was adequately conveyed and the applicant’s response was considered by the Reviewer.
In [103](e) (“evading answers”) the relevant submissions appear at [69]-[71] above, clearly, the question about evading discussion on the issue of the voluntary trips abroad taken by the applicant was the focus of the Reviewer. The Reviewer was seeking an explanation of the applicant’s apparent free flow of exits and voluntary returns to Sri Lanka while the applicant was making claims that he was being persecuted by the authorities. This is reflected in the Decision Record at [213] where it states:
…in spite of purportedly being subjected to detention and torture by the Sri Lankan authorities (he said they were from the CID), Mr [SZRMQ] proceeded to engage in three voluntary trips abroad, from all of which he voluntarily returned evidently in the interests of the family business, evidently reintegrating into family and business life each time. In more recent claims, he said his first trip to India was a medical necessity rather than an option, but I do not accept this to be true. Given the claimed fear of Sri Lankan authorities he sometimes, but not consistently, claimed to have had as a result of his detention in February 2009, and given the purported priority of receiving medical attention, it is incongruous that he did not rely on “native treatment” in the Tamil-populated north of Sri Lanka, rather than exposing himself to the risk of further attention from the Sri Lankan authorities in March 2009 by trying to leave the country…
(CB 341)
Although it may have been apparent to the Reviewer that the applicant was evading discussion on this topic and that the Reviewer raised that issue, it was not conveyed to the applicant by the hearing interpreter. However, the focus of the Reviewer’s attention was to seek an explanation as to the apparent freedom of the applicant’s exits and entries to the country. The failure to convey to the applicant that the Reviewer had formed the view that the applicant was evading discussion on this issue is not highlighted in the findings, as it does not mention this evasion as being of significance. Consequently, this point on its own would be insufficient to establish a basis for a breach based on material not being translated by the hearing interpreter to the applicant.
In respect of the four more significant claims of misinterpretation, impacting the outcome, each is initially considered in isolation:
c) new passport (Transcript p.26-31);
f) applicant’s sympathisers (Transcript p.59);
g) role of the naval officer (Transcript p.70); and
h) UNHCR Guidelines (Transcript p.77).
The submissions in respect to [109](c) (“new passport”) are set out at [52]-[65] above. The argument advanced by Mr Karp is that the interpretation was less than perfect and did not always convey precisely the same meaning in his testimony. In this respect it is important to bear in mind what was said by her Honour Kenny J in Perera (supra) in relation to the role of the interpreter and the standard of interpretation. In Perera (supra) at [26], her Honour pointed out “perfect interpretation may… be impossible” and “a particular interpretation may well be less than perfect yet acceptable for the Tribunal’s purposes.”
There is no doubt that the exchange between the Reviewer and the applicant concerning the attainment of his new passport was drawn out and convoluted, with some residual doubt as to the precise part played by the agent or agents procuring the passport and who was receiving the bribe. The precise role of each participant in the transaction to obtain the new passport remained confusing. However, the result was that the applicant obtained a new passport, relatively quickly, and he claimed that there was an element of bribery that took place in the process. Significantly, the issue the Reviewer focused on was that the applicant was able to use the passport, on at least three occasions, to exit and return to the country without intervention of the authorities challenging the authenticity or validity of the passport itself.
Regardless of what arrangements were pursued by the applicant to obtain a passport the ultimate issue was that the authorities did not detect any anomalies or apparent forgery in the passport during its regular use by the applicant. I am of the view that any confusion that arose during the discussion concerning the obtainment of the passport was immaterial in the Reviewer’s ultimate reasoning. I acknowledge that the exchange regarding the obtaining of the passport was less than perfect, but the essential elements that were being conveyed by the applicant were received by the Reviewer.
I note the passage in the Reviewer’s Decision Record at [95] referred to by Mr Karp (see [61] above). I believe it is important to consider the following paragraph which emphasises the avenue being pursued by the Reviewer. At [96] (CB 313) it states:
I put to Mr [SZRMQ] that is seemed odd in the circumstances that he was able to use his February 2009 passport, issued in his own name, six times if, as suggested, he was somehow not able to obtain it in his own right. In reply, he said he obtained this passport “all illegally” by paying a “bribe”. Again, I questioned whether Mr [SZRMQ] had genuinely feared not being able to obtain and carry a passport in his own name as he had by his own evidence used it six times on journeys out of and back into Sri Lanka. In reply, he said that the passport office was “secure” and that he would have had to cross checkpoints in Sri Lanka to get there. He said it had not been safe to travel to the passport office. He(sic) said that had he gone there himself he would have been asked various questions. He said he therefore avoided all this by paying someone else to lodge his passport application for him.
In WACO (supra) at [66], the Court held:
… 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.
The concept the applicant was advancing was that he had obtained his passport via a third party being some type of agent, which required an element of bribery. In the passage at [97] of the Decision Record the Reviewer has accepted that evidence, but in fact is more concerned about the way in which the passport was subsequently used by the applicant without any intervention or apprehension by the authorities. I am satisfied that the translation was sufficient to enable the applicant to convey to the Reviewer those two aspects of retention of a third party and the element of bribery.
The submissions, in respect of the applicant’s sympathisers, are set out at [72]-[76] above. The disputed interpretation in this respect, although relatively short, is clearly not an accurate translation of the Reviewer’s initial question, nor is the response by the interpreter to the reformulated question after the intervention of the applicant’s adviser. Part of the problem may be due to the use by the Reviewer of a commonly and frequently used colloquial expression in English “you appear to have more friends than enemies” which has been partly modified by the Reviewer in an attempt to clarify the question to the applicant. That expression appears to be either unfamiliar or misunderstood by the interpreter which appears to have led to the intervention by the applicant’s adviser seeking to have the question re-asked or reformulated. The reformulated question, which is more specific and more detailed than that of the original question is more difficult to comprehend because of the removal of the more familiar and commonly used phraseology adopted in the initial question.
This situation is addressed by his Honour Jacobson J in SZOYU (supra) at [30] where his Honour states:
The relevant principles may be stated briefly. The standard of interpretation is not one of perfection. It need not be at the very highest standard of a first-flight interpreter but it must express in one language, as accurately as the language and circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [26] to [29]; WACO at [66].
I agree with the submissions made by Mr Reilly that the question raised by the Reviewer was whether the applicant had more friends than enemies in Sri Lanka and the applicant responded by indicating that the people identified by the Reviewer as friends were, in the majority of cases, his relatives. That appears to be the idea or concept of the Reviewer’s question, which was qualified by the applicant in his response and there is no material misunderstanding as a result of the exchange. The applicant’s clarification was that the identity of the people referred to as friends was more accurately described as his relatives. This questioning sequence is ultimately used in the Tribunal’s “Findings and Reasons” at [212] (CB 341) which is focused on the relatively quick obtainment of the applicant’s passport. Part of that transaction is attributed by the Reviewer to the applicant’s sympathisers who were, in effect, members of his extended family who had cultivated and maintained helpful contacts in various sectors of Sri Lankan society due to their business activities as importers and retailers. The misinterpretation identified in the Transcript at p.59 in itself does not impact the Reviewer’s ultimate reasoning.
The submissions relating to [109](g) (“the role of the naval officer”) appear at [77]-[83] above. The identified problem with the translation at p.70 of the Transcript concerned the relationship between the family and the naval officer and whether he was a friend or an enemy of the family. In the statutory declaration made by the applicant at Christmas Island on 13 June 2010, it states at [27]:
One of the Navy commanders used to come and take goods from our shop without paying, told my uncle and my mother I should leave Sri-Lanka because my life was in danger.
(CB 58 at [27])
In the Refugee’s Status Assessment record, under the Subheading “Claims for Protection”, the Assessor noted:
· He was beaten and kept for 10 days. His uncle paid a navy officer 1 lakh to obtain his release. The navy officer advised that he should not stay in the country. The intelligence agency men said that if he was needed again for questioning he must come;
(CB 90)
There is a further reference to the naval officer in his statement submitted to the RSA and recorded in the Assessment Record as:
· One of the navy commanders who used to come and take goods from their shop without paying told his uncle and mother that he should leave Sri Lanka because his life was in danger;
(CB 91)
In the Assessment on 15 June 2010 he made the following reference:
· He was detained because when the army search Naguleswari’s room they found a photograph of him with her.
· His uncle paid the money to the navy commander. He told his uncle that the claimant would be in further trouble;
(CB 92)
In the written submissions prepared by Australian Immigration Options Pty Ltd on behalf of the applicant for the first Independent Merits Review, it states at [13]:
At the time of release, he was told to keep himself ready for further questioning; privately, one Navy officer told his uncle and mother that he should leave Sri Lanka as his life was in danger…
(CB 107)
In the Statement of Reasons prepared in the first Independent Merits Reviewer, under the subheading “Claims and Evidence” at [11] it states:
…He also feared that he may be harmed by the intelligence agency, as the intelligence officer had said that he should leave the country and if wanted for questioning again he should come…
(CB 124)
Then at [13] it states:
… He claims that on that day he was arrested and held for 10 days at an army camp and beaten. An uncle arranged for the payment of 1 lakh and he was released. He claims that the navy commander (who used to take goods without paying from their shop) told his uncle and mother that his life was in danger and he should leave the country…
(CB 125)
Then at [20]:
…He repeated that his mother had made arrangements for his release through a navy commander…
(CB 128)
In submissions for purposes of the second Independent Merits Review, Australia Migration Options Pty Ltd, in its background, stated:
Mr [SZRMQ]’s uncle paid a bribe to secure his release with the help of one of the Navy officers…
(CB 155)
Then at [1] it stated:
First journey to India – March 2009, it records:
I allowed to go as my mother paid a bribe to an influential person.
(CB 156)
The above statement is repeated in the record of a phone interview at CB 206, dated 16 November 2011.
In the statement of reasons dated 19 March 2012 at [64] it states:
Mr [SZRMQ] discussed his claim about having been detained from 15 to 25 December 2009 following from an army raid on the family home and the discovery of the photographs and “LTTE documents” in his cousin’s room. He said that he was “strongly suspected of LTTE involvement”. He repeated that his mother had made arrangements for his release through a navy commander, and he was in hiding following release…
(CB 304)
In the applicant’s statutory declaration, provided initially for his Refugee Status Assessment and the subsequent written submissions prepared by Australian Immigration Options Pty Ltd for both of the IMR hearings, there are a number of references to parties, whom the applicant’s mother approached seeking assistance for her son when apprehended and detained by the authorities. These are not specifically described and it must be assumed that they are different individuals. However, specific to the naval officer, who in some cases is alternatively described as the naval commander, it must be assumed to be the one individual. The relationship, consistently described by the applicant, was that this individual went to the applicant’s family’s shop and took various items without payment. The applicant consistently maintained that this individual was not a friend of the family, but rather an enemy who sought to exploit the relationship. The interpretation at [77], in the passage underlined, clearly misinterpreted the applicant’s response, indicating that the naval officer “[h]e just sincerely did that help for us.” This error is partially rectified in the subsequent interpretation, which states:
He is not a friend he is an enemy. He is a person who comes to our shop and takes goods free of charge. He is an enemy. He is capable of doing anything for money.
(Transcript, Rajadurai affidavit, dated 29 November 2011, p.70)
The questioning then focuses on why the family did not ask the naval officer to assist in ascertaining what had happened to the sister/cousin who had disappeared. The immediate response was that a request for help may compromise the life and safety of the sister/cousin if the naval officer made internal enquiries that could result in adverse reaction by more senior officers. The argument advanced by Mr Karp is that the misinterpretation as to the actual relationship between the family and the naval officer led to the omission that any request directed to the naval officer could have result in either extortion of the family or further detriment to the sister’s/cousin’s situation, whereas the focus of the Reviewer was directed to the apparent inconsistency by the applicant’s mother regularly resorting to assistance from various parties, including the naval officer, to assist when her son who was in trouble with the authorities. This contradicted the apparent reluctance to make any moves to seek assistance from the same parties when the sister’s/cousin’s disappearance arose. I am satisfied that the misinterpretation in respect to the status of the naval officer did not ultimately impact the Reviewer’s reasoning and ultimate findings.
In respect to [109](h) (“UNHCR Guidelines”) the submissions appear at [84]-[86] above. There is no dispute between the parties that the question put by the Reviewer was not correctly interpreted and the concept of the question was not conveyed. However, as Mr Reilly submits, later in the Transcript of the hearing the issue of the treatment of Tamil males in the North-east of Sri Lanka attracting persecution was raised, although not in the context of the UNHCR Guidelines. This latter line of questioning arose from an Amnesty International report and a BBC Channel 4 news report. These sources were discussed, together with the nature of the program content. At this point there was a brief adjournment of the hearing.
Upon resumption the following sequence of questions occurred:
Reviewer: …I have just started to ask Mr [SZRMQ] question about whether it’s enough for a person to be… simply be a Tamil male in north east to attract persecution in Sri Lanka. I’m just saying that for the purposes of the recording because we have [unclear],( an adjournment).
Interpreter: Will the Tamil males(sic) in Sri Lanka will be persecuted in Sri Lanka?[Interpreter’s interpretation into Tamil is translated into English]
Applicant: Definitely there will be. Not to everyone but only those whom they will suspect. The other thing is that as they look at Tamil people with suspicious eyes. And their laws – the Prevention of Terrorism Act and Emergency Regulations – provide government army with more power to… Tamil people… [Applicant’s answer translated from Tamil].
Interpreter: Yeah, exactly… that’s correct. Not for all of them for certain people… they identify those people as suspected [unclear] particularly from the Tamil minority’s group – they look at with a different eye. And the government has actually imposed a number of laws… particularly the terrorist laws, emergency laws. And these laws can... can be utilised against the Tamil people by the government of Sri Lanka.
(Transcript, Rajadurai affidavit, dated 29 November 2011, p.80)
In the “Findings and Reasons” section of the Decision Record at [220], the issue of whether the applicant, being a Tamil from the North or East of Sri Lanka, meets the requirements of the definition of a “particular social group” for the purposes of considering the eligibility for protection under the Refugee Convention is addressed. The paragraph then goes on to examine whether males of this characteristic are sufficiently prone to attract a real chance of Convention related persecution in Sri Lanka. This criterion is established from the various country information relied upon by the Reviewer and raised with the applicant during the interview, although no specific reference is made to the source such as the UNHCR Guidelines, the BBC Channel 4 programme or the Amnesty International reports. There is no adverse comment in respect of the response to the question about the UNHCR Guidelines, rather, all of the respective reports have been, in effect, consolidated into a single issue.
This is addressed in [220], where it states:
220. …At our interview, I asked Mr [SQRMQ] whether he believed that being a male Tamil from the North or East of Sri Lanka was on its own sufficient to give rise to a real chance of Convention-related persecution in that country. In reply, as noted, Mr [SZRMQ] said this factor alone is enough to attract a real chance of Convention-related persecution in Sri Lanka. He then said that people are tortured in Sri Lanka and by this I took him to be drawing attention to reported human rights abuses against Tamils, including Tamil males from the North and East, in certain situations. I put to him that by contrast with the people to whom he was broadly referring, he had spent his time or a significant proportion of it back in Sri Lanka working, travelling and shopping. In reply, he said not all Tamils are tortured whereas LTTE suspects are. I do not accept that Mr [SZRMQ] has been regarded as a LTTE suspect, and I do not accept on the evidence before me that he would be so regarded in a reasonably foreseeable future. The country information still suggests that male Tamils from the North or East of Sri Lanka could be disproportionately affected by the post-war security measures still in place in Sri Lanka, but looking at Mr [SZRMQ]’s experience and, again, taking into account his having spent time in Australia, I do not expect that he faces a real chance of persecution in Sri Lanka for reasons of being, or being profiled along the lines of being, a male Tamil from the North or East of that country.
(CB 343)
I am satisfied that the misinterpretation identified at p.77 of the hearing transcript, and referred to by the reference to the UNHCR Guidelines question, although incorrectly interpreted during that hearing has not adversely affected the outcome in the decision. The nature of the question asked in the context of the UNHCR Guidelines was later addressed in the context of other country information and the outcome of all of that questioning is reflected at [220], reproduced above.
In VWFY (supra) per Finkelstein J at [10] his Honour stated:
The requirement of precision or accuracy is self-evident but sometimes it is difficult to tell whether the requirement has been satisfied. To determine how accurate an interpretation is, there must be something against which a comparison can be made. If there is a "correct" translation available, that will provide the yardstick. In the absence of a "correct" translation it will in most cases be very difficult to determine whether the interpretation was accurate.
In this matter a correct translation is in evidence (Rajadurai affidavit, dated 29 November 2011), which was prepared under instruction to annotate the Transcript by noting thereon any errors in translation and those mistranslations have been rendered in bold type. Mr Rajadurai indicates that he prepared his Transcript from a compact disc containing a sound recording of the evidence given at the interview on 9 December 2011, presumably with the benefit of being able to replay any section at will, in order to prepare a correct translation. Even with this benefit, Mr Rajadurai in a number of places annotates the Transcript with a reference that a certain word or words were unclear and those are italicised in the original and bracketed in this judgment to highlight the uncertainty.
As noted above, the interpreter present during the hearing was accredited and provided his registration number. Significantly, the interpreter present at the hearing was translating in real time, which creates an added dimension of difficulty. Mr Karp acknowledges that the hearing interpreter, in many instances, paraphrased both questions and responses which did not necessarily result in inadequate translation, but it did leave significant room for error. As Mr Karp submits this is a case where the Tribunal tried to get it right, tried to be fair and tried to be reasonable, but was prevented from doing so by misinterpretation, either from Tamil to English or English to Tamil or both.
I am satisfied that the eight identified cases of misinterpretation, set out above, taken in isolation, do not in themselves constitute a breach of procedural fairness. Consequently, the focus then turns to whether considered cumulatively they constitute a breach.
Based on the guidelines provided by his Honour Gilmour J in SZGWN (supra) at [20] it is readily accepted by the parties that there was a departure from an accurate translation, however, the question to be resolved is whether that interpretation was so incompetent that it prevented the applicant from giving evidence (Perera at [38]). I am satisfied that such an argument cannot be sustained on the material before the Court. The Reviewer had a substantial body of material prepared by the applicant’s retained adviser, Australian Migration Options Pty Ltd, and submissions for the previous IMR interview, the current review and the previous IMR interview, as well as post hearing submissions.
An initial part of the hearing was an invitation to the applicant to restate his claims and then an examination by the Reviewer of various aspects of the applicant’s family and relatives. The hearing then commenced a more detailed examination of aspects of the applicant’s claims. This examination requires more detail and, consequently, a more complex format of questioning.
It is noted that in both initial questioning about family details requiring explanation of relationships and spelling of names required the readdressing of some questioning. This continues into the more complex form of questions which examined specific points of the applicant’s claim. In places in the Transcript, the questioning in respect of an apparently straightforward question resulted in quite a lengthy sequence of questions in an attempt by the Reviewer to draw a response from the applicant in relation to that issue.
As part of this analysis to determine the adequacy of interpretation, the question to be addressed was whether the applicant was denied the opportunity to contribute evidence because key exchanges in the hearing were not translated for the benefit for the applicant. Having had the benefit of the identification of the alleged misinterpretations and the respective submissions from both parties, I have re-read the transcript prepared by Mr Rajadurai, then the Decision Record, initially in respect of the reporting of the hearing and finally the “Findings and Reasons”.
As a consequence of that undertaking, I have formed the view that the applicant has not been deprived of the opportunity to present any element of his claim or been denied the opportunity to contribute evidence because key exchanges were not translated for the benefit of the applicant. There is no incident of the nature described by his Honour Finkelstein J in VWFY (supra) at [22]-[24], nor is there any combination of the factors depriving the applicant the opportunity to advance his case as described by his Honour in the same case at [27]. I take into consideration that the existence of a perfect interpretation is not possible and in this matter the interpreter has intended to paraphrase some questions. I have formed the view that the very substantial part of the Reviewer’s hearing was fully and accurately interpreted.
The alleged specific instances of misinterpretation have been traced throughout the Decision Record without establishing that the interpreter has misinterpreted important information that was critical to the applicant’s claim, leading to an adverse result for the applicant. In reviewing the review hearing in respect of the interpretation I maintain the view that it is not apparent that any critical information to the applicant’s claim was lost or overlooked through the translation process. In the one example that is identified as part of the eight specific instances the ultimate finding was not made on the one specific translation error identified, but ultimately, was made on a range of other reports addressing the same issue.
There was no evidence tendered that indicated the interpreter faced any particular difficulty in the translation from Tamil to English or English to Tamil. This is not raised to suggest that there is any particular word within either language where it is not possible to provide it a comparable meaning in the other language or that, due to grammatical construction, a concept cannot be conveyed which would exist in most translations. Rather, the broader issue is that there are some particular reasons that the translation process between the two languages presents insurmountable problems for any interpreter to perform the task effectively during a hearing of the nature addressed in this matter.
In the circumstances I am satisfied that the grounds of review cannot be sustained and that the matter should be dismissed with costs.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 26 April 2013
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