SZSEI & ANOR v MINISTER FOR IMMIGRATION & ANOR
[2013] FCCA 1660
•13 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSEI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1660 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming to fear harm by cultists in Nigeria – applicants not believed – asserted interpretation problems at the Tribunal hearing – whether a breach of s.425 of the Migration Act 1958 (Cth) occurred considered. |
| Legislation: Migration Act 1958 (Cth), ss.414, 425, 428 |
| Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 SZGSI v Minister for Immigration [2009] FCA 200, (2009) 107 ALD 414 |
| First Applicant: | SZSEI |
| Second Applicant: | SZSEJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2611 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr L Karp |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application filed on 14 October 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2611 of 2012
| SZSEI |
First Applicant
SZSEJ
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 15 October 2012. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants protection visas.
The applicants, who are citizens of Nigeria, are husband and wife. They arrived in Australia in October 2011 as visitors and applied for protection visas on 4 November 2011. They have a son, born in Australia on 4 June 2012, after the making of the delegate’s decision. The Tribunal found that it did not have jurisdiction in relation to their son because no decision about him had been made by the delegate.
The following statement of background facts is derived from the submissions of the applicants.
The applicants’ claims were set out in a statement at pages 69-72 of the court book. In essence it was claimed that the applicant husband’s father had become a member of a cult. The applicant husband was unaware of this until after his father died. During preparations for the burial ceremony members of the cult approached the applicant husband and wanted him to replace his father in their society. The applicant husband refused because he was a Christian. The cultists demanded that he leave Christianity to join them. He again refused. They contacted him afterwards and threatened to kill him if he did not comply.
The applicants planned a ten day holiday to Australia from 30 October to 10 November 2011. On 24 October the applicant husband returned home to find his two children (twin sons) strangled to death. Moments later he received a call from a member of the cult telling him to expect more. He and his wife, who was then pregnant, left immediately. They claimed to fear the cultists, whom the police are unable and unwilling to control.
The applications were rejected on 2 May 2012[1]. The delegate did not believe that the applicants’ children had been murdered[2]. The application for review was lodged on 4 May 2012[3].
[1] Court Book (CB) 82-98
[2] CB 95
[3] CB 100-105
Amongst the documents submitted to the Tribunal were medical reports to the effect that two boys bearing the applicant husband’s surname had died after being stabbed on 24 October 2011[4]. Death certificates were also produced[5]. A hearing was held on 15 August 2012.
[4] CB 151-2
[5] CB 155-6
The Tribunal did not believe the applicants. The decision makes it clear that inconsistencies in their documentation and evidence was a prime reason for that disbelief[6]. Amongst the issues regarded by the Tribunal as important were that in the applicant husband’s original statement he said that his children had been strangled, whereas the medical reports produced referred to them having died of puncture injuries[7]. The Tribunal did not accept their explanations for the discrepancies[8].
[6] CB 280-282
[7] CB 281 [104]
[8] CB 281 [105]-[106]
The Tribunal also considered aspects of the applicants’ claims implausible.
The judicial review application
These proceedings began with a show cause application filed on 12 November 2012. The applicants now rely upon an amended application filed on 14 October 2013. The grounds in that amended application are:
1. The Tribunal committed jurisdictional error by in effect delegating its power to take evidence for the purpose of the review pursuant to s.425 of the Migration Act other than pursuant to s.428.
Particulars
(a) The Tribunal member conducting the hearing permitted the interpreter to engage in lengthy exchanges with the applicants in their language.
(b) Further, parts of these exchanges were not translated, or not adequately translated to the Tribunal member.
2. The hearing held pursuant to s.425 failed to comply with the requirements of that section.
Particulars
(a) Information or evidence given by the applicants at the Tribunal hearing was affected by material mistranslations of the reviewer’s questions and their answer as to;
(i) How the applicants’ children were killed;
(ii) The circumstances of the childrens’ burial.
(b) Parts of the exchanges between the applicants and the interpreter were not translated, or not adequately translated to the Tribunal member.
I received as evidence the court book filed on 21 January 2013 and the Auscript transcript of the hearing conducted by the Tribunal with the applicants on 15 August 2012[9]. I also received another copy of that transcript, annotated in bold, annexed to an affidavit of an expert Yoruba interpreter situated in the United Kingdom[10] (annotated transcript). The annotations are translations into English of what was said in Yoruba, where that differs from what was rendered into English by the interpreter at hearing.
[9] Exhibit A1
[10] Mr Ebenezer Majiyagbe
Both parties made written and oral submissions.
Consideration
The applicants’ case, as set out in the amended application attached is that:
a)the Tribunal exceeded its jurisdiction by in effect delegating its power to take evidence other than pursuant to the requirements of s.428(1) of the Migration Act 1958 (Cth) (Migration Act). So far as I am aware there is no authority on point;
b)there was a breach of s.425 of the Migration Act in that several of Tribunal’s questions, and information or evidence given by the applicants at the Tribunal hearing, were materially mistranslated, and in some cases there was no translation at all[11].
[11] There are several authorities on point, and I was advised that the Full Court of the Federal Court (Allsop CJ; Flick and Robertson JJ) heard an appeal on the issue of mistranslations in SZRMQ v Minister for Immigration on 23 July 2013. Judgment remains reserved at the time of this judgment.
In relation to the first ground, where proceedings are conducted with the assistance of an interpreter, it is important that the interpreter interprets faithfully what is said by the presiding member and the applicant (or other witnesses). It is usually apparent when an interpreter departs from his or her function of interpretation of what is being said and engages in conversation with the applicant or other witness. There may be circumstances in which the interpreter needs to converse with the applicant or witness in order to ensure that the interpretation is effective. In such circumstances, the interpreter should explain to the presiding member the need for that to occur and obtain his or her consent to it. If the presiding member permits the interpreter to engage in undirected conversation during a hearing with an applicant or witness, the Tribunal risks losing control of the hearing. There may be even worse vices occurring. For example, I can recall circumstances in which I suspected that an interpreter was coaching a witness by suggesting answers to questions. It is easy for a presiding member in the Tribunal to become distracted because of the general practice of making notes of what is being said onto a computer[12]. That risk of distraction, while it might explain a presiding member permitting undirected conversation between an interpreter and an applicant or witness, does not excuse it. It does not follow, however, that such an error in the conduct of a hearing has jurisdictional significance. Relevantly, it must bear on the opportunity for a fair hearing under s.425 of the Migration Act.
[12] Sound recordings of Tribunal proceedings usually have a background noise of keystrokes, indicating the presiding member is making notes on a computer
It has often been said that the Tribunal’s review is inquisitorial[13]. It is the function of the Tribunal to review actively the merits of a delegate’s decision. In the course of that review it may, but is not obliged to, exercise its power of inquiry by requiring the Secretary of the Department to make an investigation.
[13] eg Re Minister for Immigration; Ex parte S154/2002 (2003) 77 ALJR 1909 at [30]; Minister for ImmigrationvLi [2013] HCA 18 at [10], [93]; Minister for Immigration vSZIAI (2009) 83 ALJR 1123
However, that does not authorise a person other than a Tribunal member to conduct the review or the hearing. In the applicants’ submission, s.414 of the Migration Act requires the Tribunal to conduct the review, and in their further submission ss.425(1) and 428(1), read with s.414, requires the Tribunal to conduct the hearing unless s.428(1) is validly invoked.
In the present case, as stated above, the applicants complain that the Tribunal permitted several question and answer sessions between the applicants and the interpreter at hearing. The situation was compounded by the fact that the interpreter’s questions in Yoruba were not translated into English, and in several places, parts of the applicants’ answers in Yoruba were not translated or not correctly translated[14].
[14] eg at annotated transcript pages 16, 19, 26, 30-32
In the applicants’ submission, the interpreter’s questioning, and the lack of translation of the questions asked by the interpreter and parts of the answers given by the applicants was permitted to an extent that amounted to an unlawful delegation of the Tribunal’s obligation to conduct a hearing. If this is so the Tribunal did not exercise its jurisdiction and thus acted beyond power.
I prefer the Minister’s submissions on this issue. The annotated transcript does not support the applicants’ contentions. The Tribunal member was present at all times and asked the applicant husband questions in an unremarkable fashion. It is true that there were some relatively lengthy exchanges between the interpreter and the applicant husband in Yoruba, but this was usually because the applicant husband asked the interpreter questions or his answers had not addressed the question asked by the Tribunal member. As these exchanges were in Yoruba the Tribunal member could not have understood them, and it would not have been appropriate for the Tribunal member to intervene unless it appeared that the exchanges did not relate to the questions the Tribunal member had asked.
In the circumstances there was no jurisdictional error in the Tribunal member allowing these exchanges. The Tribunal member had advised the applicant husband to break his statements up to allow the interpreter to interpret[15], and repeated this advice at times[16]. The Tribunal member should, in my view, have monitored the exchanges between the interpreter and the applicant husband more closely. But he would have needed to be cautious in doing so. If the Tribunal member had sought to intervene as apparently contemplated in the applicants’ submissions the applicant husband might have complained that he had not been permitted to give his evidence as required by s.425(1) of the Migration Act. In any case, I accept that there was no “delegation” in the circumstances by the Tribunal member of the power to take evidence. This ground therefore fails.
[15] Auscript transcript, 3:35
[16] eg 18:45
There is more substance in Ground 2. The issue is whether the quality of the interpretation at the Tribunal hearing significantly impacted upon the fairness of the hearing in relation to the critical issue of the applicants’ claims concerning the death of their children.
The applicants claim that the Tribunal did not comply with s.425 of the Migration Act because of inadequate interpretation at the hearing. In Appellant P119/2002 v Minister for Immigration[17] the Court tested an allegation of jurisdictional error by allegedly inadequate interpretation before the Tribunal 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 by the Tribunal against the applicant[18]. The standard is not one of perfection[19]. Rather, the errors must be such as to effectively prevent an applicant from giving evidence or be material to adverse conclusions reached against an applicant, and considering whether it can be said that misinterpretation denied the applicant an opportunity to give evidence requires a qualitative assessment of the conduct of the interview as a whole[20].
[17] [2003] FCAFC 230 at [17]-[18]
[18] This test was followed in WALN vMinister for Immigration [2006] FCAFC 131 at [29]-[30], and in single judge appeals such as SZGWN vMinister for Immigration [2008] FCA 238, (2008) 103 ALD 144 (Gilmour J); SZGSI v Minister for Immigration [2009] FCA 200, (2009) 107 ALD 414 (McKerracher J); SZHEW v Minister for Immigration [2009] FCA 783 (Jagot J); and SZOYU v Minister for Immigration [2012] FCA 936 (Jacobson J)
[19] WACO vMinister for Immigration (2003) 131 FCR 511 (FC) at [66]; SZOYU at [30]-[31]
[20] SZHEW at [52]; SZOYU at [32]
The purpose of a hearing in the present circumstances was to permit the applicants an opportunity to present evidence and arguments and to address any concerns that the presiding member may have had about their case. An issue therefore is whether the applicants truly had an opportunity to be heard, and to address the issues arising in relation to the decision under review as was required pursuant to s.425(1) of the Migration Act.
The standard of interpretation in the context of s.425 of the Migration Act has been considered in a number of cases[21]. In Pererav Minister for Immigration[22], at [29], Kenny J, said, in a passage that has been adopted several times by this Court:
Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.
[21] The issue was addressed very recently in a non-statutory context by the Full Federal Court in SZRMQ v Minister for Immigration [2013] FCAFC 142. The majority and dissenting judgments in that case show that reasonable minds can differ in a particular case about what procedural fairness, and the need for the appearance of procedural fairness, requires.
[22] (1999) 92 FCR 6
There has thus to be a reasonably efficient communication. Whether or not evidence is eventually communicated may not be sufficient, for mistranslations can produce the perception of evasion, of inconsistency, and of dishonesty, all of which go to credit.
In the applicants’ submission, the ultimate issue in a case is whether the translation was so incompetent that the applicant husband was prevented from giving his evidence[23], and addressing those matters which the Tribunal considered to be issues arising in the review. Another issue is whether any errors in translation could have made a difference[24].
[23] see Perera at 92 FCR at 22 [38]
[24] SteadvState Government Insurance Commission (1986) 161 CLR 141, 145
The Tribunal member referred to medical reports, “in relation to the two children whom he claimed had been killed in Nigeria”, and that in his statement the applicant husband said that they had been strangled[25]. This was clearly an issue in relation to the review so far as the Tribunal was concerned. Indeed it formed a part of the reasons for refusal[26].
[25] annotated transcript 30:43
[26] CB 281 [104]-[106]
Following this there was an extended exchange between the interpreter and the applicant husband. It took some time for the interpreter to state the Tribunal’s real concern[27], that the applicant husband had said that the children were strangled and that the medical reports said they were stabbed. After that the interpreter[28] made a statement, ostensibly translating what the applicant husband had said.
[27] annotated transcript 31:42
[28] at annotated transcript 32:5
The applicants complain that the problems with the interpretation are these:
a)that nothing in the exchange[29] was translated to the Tribunal member;
b)after the issue was clarified for the applicants the interpreter’s statement appears to have had little resemblance to what the applicant husband actually said;
c)the Tribunal’s follow up question[30] led on directly from the incorrectly interpreted statement[31].
[29] at annotated transcript, pages 30-31
[30] at annotated transcript 32:16
[31] commencing at annotated transcript 32:5
Following that the Tribunal member asked a question about the circumstances of the childrens’ burial. There followed another exchange between the interpreter and the applicant husband[32] which the applicants contend was not adequately interpreted[33], in that it did not reflect that which was said by the applicant husband.
[32] It would appear that the passage commencing at annotated transcript 33:34 was the applicant husband’s rather than the interpreter’s.
[33] commencing at annotated transcript 33:42
It cannot be known what attitude the presiding member may have had if the relevant passages had been translated accurately, or indeed in some cases if they had been translated at all. In those circumstances it is, in the applicants’ submission, impossible to say whether accurate translations would have made a difference. The most that can be said is that they may have done so.
It may be noted that, as the applicants’ submissions acknowledge and the Auscript transcript demonstrates, the applicant husband speaks some English[34]. It may also be noted that at the commencement of the hearing the applicant husband agreed that he could understand the interpreter[35], and it could not be submitted that the applicant husband was prevented from giving evidence. Given these factors a clear case would need to be made out that there was nevertheless a breach of s.425 because of materially inadequate interpretation.
[34] and conducted the interview before the delegate without an interpreter: CB 91
[35] Auscript transcript 3:30
The applicants’ submissions complain about pages 29-33 of the annotated transcript. The relevant exchanges were as follows with the exchanges in Yoruba appearing in bold:
Now, you’ve produced some documents to the tribunal today. Two of those documents are medical reports in relation to your two children who you claim were killed in Nigeria. Now, you, Mr … , have said in your application and in your statement that your two children were strangled.
I: He said in that application that you wrote….
I: You should know what he is talking about….
A: Yes
I: In the medical report, it was mentioned that they were killed
I: Or what was written in there?
A: Yes
A: Are they asking if……
I: That is what I am thinking too…
A: If somebody is killed, I wrote it as I understand it. I will not be able to write it as a medical term. That is the way I wrote it.
I: As you wrote it at first?
A: Then the doctor wrote his own differently.
I: How he wrote his own is different?
A: Because my friend, Andrew, has told me that I always forget things ever since that incident happened. He said that when I was still at home, I always forget whatever he tells me, and that maybe because of the hypertension I had.
I: Was it that your friend who called you to say all these?
A: I was the one who called him. He confirmed to me, when I asked, that because of what has happened to me, I cannot remember things. He only writes down whatever comes to my memory.
MR SHORT: These medical reports say that they were killed as a result of puncture wounds. Perhaps is you – one at a time so the interpreter can interpret.
I: He said he will look at it, but he doesn’t believe that you have given him concrete answers.
I: He says that you have confused him when it was mentioned in one report that your children were stabbed and in another that they were strangled.. He doesn’t seem to understand that!
A: What happened was that I was under stress, even when I arrived here. I have slept on the streets before I got some assistant. I couldn’t think very well. I have had plenty of troubles since I arrived here. I do not think straight.
[I]: He said he has had this problem from time, and that once he is under stress, he can’t think straight. That is what he said when his children were killed. That he always makes lots of mistake when he is under stress.
THE INTERPRETER: They said he actually put those document – the initial one he submitted was a medical one. I wrote them as – according to our understandings the medical terminologies is not – the way they actually die is different. Maybe it might be different from the way they – maybe they put the document there the way they understood it. Okay. He said actually when he was writing it he wrote them according to his own little understanding about the whole thing. But even when he called the friend back home, when the friend was telling him some things he said, “Why do you have to forget some part of it?” So the friend after he wrote tell him that, “you used to forget things easily.” So the whole write-up he said is according to his own understanding. That is how he put it down.
MR SHORT: Mr …, I will consider that explanation but it’s really not a very good explanation, I’m afraid. I have great difficulty in accepting that you would be confused about whether your children were stabbed – were stabbed or suffered puncture wounds or whether they were strangled.
THE INTERPRETER: He said he knows this but he has this problem right from ….. Once he’s under stress he can’t think straight, and that was what he said the other time when his children was killed. He said when he was under stress he couldn’t think straight and that was why the friend handled the case. So he’s saying when he came to Australia there was sufficiently lot of stress, “So he couldn’t think straight or anything. They just come to ….. so we just say and sometimes we make a lot of mistakes.” That that was what happened, that when he’s under stress and under tension that he can’t do things successfully.
MR SHORT: Now, at the departmental interview you were asked about what had happened after you had left Nigeria.
I: He said he has asked about what has happened since you left Nigeria.
THE INTERPRETER: He said he doesn’t understand the way you want him to put it.
[THE APPLICANT]: I don’t understand.
MR SHORT: Well, I’m just referring to what you said at the departmental interview.
A: What is he asking of me now..?
I: He is only referring to what you have said at the interview before.
[THE APPLICANT]: Okay.
MR SHORT: As I’ve said – as I said at the beginning of the hearing, Mr …, I’ve listened to what you said at the departmental interview. Now, at the departmental interview you sid that your firend had told you that he had buried the children. He said he had buried them on the same day in the burial ground. He said that he hadn’t contacted the police. He said that if he had called the police they would – he said that he – you had said that he had told you that if he had called the police they wouldn’t have done anything. He said you couldn’t get a death certificate for the two children. He said that you or your wife would have needed to be there in person in Nigeria in order to obtain the death certificates. Now, today you’ve produced me a report which your friend supposedly made to the police and death certificates for both of your children.
I: He said he has listened to all that you have said at the interview.
I: You said at the interview that your friend told you he has buried the children. You said both of your children were buried on the same day. You said you have not contact the police.
A: Hen..? (what?)
I: Let me finish speaking……..
I: You said that your friend told you it will make no difference if he called the police. That you did not obtain the death certificates of those children, because you and your wife must be present before you can obtain them. He said that is what you wrote in your statement.
I: But today you brought a certified certificate that you got from…..and you also brought the death certificates of the children.
I: say something to that……
A: I can just say that I was traumatised most of the time. When they tell me anything, I do not understand.
[A]: He told me that it will not be possible to bury those kids without referring to the police. And that whether they want to conduct an investigation or not, they still have to contact the police. Because of the connection between us, and because I always forget things, he has let me know that he has explained all these procedures to me before. He said it may be because I am mad or that I do not know what I am doing that made me not to recollect. He said I was not happy because of what has happened.
THE INTERPRETER: He said according to the way he sees all situations, ever since what happened – that ….. that happened to him he said the way ….. his friend testified ….. Those the only time he ….. because sometime he would say some things nobody would understand him. So he’s thinking maybe it was that problem he had initially that was what affected him, that because sometimes he himself – he doesn’t even understand himself that he says some thing that does not ….. So he said the friend told him, call him to tell him that it’s not possible for him to bury those kids without doing all the necessary documents. So he said the friend explained this to him but he forgot that the friend said that to him, so it was when the friend now call him that, “What is wrong with you?” that I’ve done all the necessary documents, and that was why I come to ….. So it was the friend said, “What is wrong with you?” why we say such a thing.
MR SHORT: Well, Mr ….., obviously I’ve had the opportunity of listening to you giving your evidence here today and I’ve also had the opportunity of listening to you giving your evidence at the departmental interview. I don’t think you were confused about what you were saying.
I: He said he has given you the opportunity to speak and he has listened to you at this interview today. He said he doesn’t believe that you are confused about all you are saying today.
THE INTERPRETER: He is making an illustration of Job in the Bible. He said his case is like that, that some incident happened to Job and God knows that he will be able to handle it.
A: Yes, because of what happened to me, it makes me think that my case is similar to what happened to Job in the Bible…that God tempted him to see if he will not worship him again.
[THE APPLICANT]: Because they don’t believe me so many times (foreign language spoken). Because if they don’t believe me, I have tried committing suicide so many times in this country. There has been so many problems to the extent that I cannot cope. I have faced many problems in this country!
THE INTERPRETER: He said on several occasions he have attempted killing himself because of all the things that was happening. He said he couldn’t – he said he had actually experienced a lot of stress and it wasn’t normal at all, so at the point he attempts killing himself. He said maybe what contributed to his problem was because he has this kind of stress he’s not used to it because in Nigeria he said he was okay, he has a business that sustain him, even he used to give people money, that he is okay. But this I not the first time he travels – used to travel outside Nigeria, so – he said he can’t claim and he can’t say something that does not exist, but if it’s not real he will never say. That is because – that was the reason – that is the main thing that happened and that is why he’s saying they cannot come to Australia and be saying what does not exist.
MR SHORT: Well, Mr ….., as we’ve discussed, you said at the departmental interview you couldn’t produce these documents at all. You’ve now produced these documents – you’ve now produced these documents, and the documents in some respects contradict your own evidence. Now, the information available to me indicates that official documents can be readily obtained through bribery in Nigeria. Any official document can be forged in Nigeria. Now, the information – this information is relevant to the review because it suggests that you may have, after the Departmental interview, have decided to obtain some documents which supported your story.
THE INTERPRETER: He said that’s not how it is. He said actually that he can ….. what he’s saying today. Maybe one day ….. said it….. That he was under stress, and once he’s under stress he can’t say anything. So maybe that was when – he said that’s when they put down all those ….. But he wants to say it’s not like that. All the documents he produced today are from back home, they give it to him, and ….. why did you have to say all that. I never bribe anybody for any document. Maybe he said that, those things, out of unconsciousness. He doesn’t know what he was saying then. Those documents are original documents and can never forge anything.
The presiding member’s concern that there was a discrepancy between the alleged cause of death of the applicant husband’s children as claimed by him and in documents submitted by him[36]. The applicant husband’s response[37] contains elements from the earlier discussion[38], and then[39] conveys the explanation that the applicant husband was stressed and could not think straight when he arrived in Australia, which was his response to the inconsistency perceived by the Tribunal[40]. There was in my view no material misinterpretation.
[36] at annotated transcript 31:9-11
[37] at annotated transcript 31:21-30 as interpreted
[38] at annotated transcript 30:15-50
[39] at 31:37-44
[40] at annotated transcript 31:13-15
In relation to pages 32-33 of the annotated transcript, the applicant husband’s rather unclear response, when the discrepancy between his claims concerning his friend’s role in the burial of his children was raised with him was in my view adequately conveyed[41]. Any lack of clarity in what is stated there reflects the lack of clarity in the applicant husband’s answers to the interpreter rather than error by the interpreter.
[41] at annotated transcript 33:7-18
The applicants have not identified any interpretation error material to an adverse conclusion by the Tribunal, as would be required to establish a breach of s.425. Rather they speculate that defects in interpretation might have been of significance. This is not in my view sufficient to establish a breach of s.425, although I readily concede that the manner and quality of interpretation was imperfect. Accordingly this ground fails.
Conclusion
The applicants have failed to establish any jurisdictional error by the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 December 2013
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