SZTAN v Minister for Immigration and Anor (No.2)

[2015] FCCA 3442

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAN v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 3442

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) not to grant applicant a Protection (Class XA) visa (Protection visa) – whether the Tribunal represented to the applicant that it was not likely that the Tribunal would rely on an issue to draw adverse inferences against the applicant – whether the words uttered by the Tribunal were misinterpreted into Bengali so as to give rise to a representation in Bengali that it was not likely that the Tribunal would rely on an issue to draw adverse inferences against the applicant – no misrepresentation.

PROOF – Proof of misinterpretation of words spoken at hearing before Tribunal – whether misinterpretation of the words spoken in the source language (English) into the target language (Bengali) can be inferred from the interpretation into the source language of the words spoken in the target language by which the words spoken in the source language were interpreted into the target language.

Legislation:

Migration Act 1958 (Cth), s.425(1)

Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840
De La Espriella­velasco v The Queen [2006] WASCA 31
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
SZTAN v Minister for Immigration & Anor [2014] FCCA 438

Applicant: SZTAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1551 of 2013

Judgment of: Judge Manousaridis

Hearing dates:

6 December 2013; 26 March 2014;

20 November 2014

Date of Last Submission: 13 November 2014

Delivered at: Sydney

Delivered on: 22 December 2015

REPRESENTATION

Counsel for the Applicant: Ms Rao

Solicitors for the Applicant: SBA Lawyers

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1551 of 2013

SZTAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings, the applicant, who is a citizen of Bangladesh, seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa.

2. The applicant’s challenge to the Tribunal’s decision largely turns on the true meaning of three sentences the Tribunal member uttered to the applicant about one aspect of the applicant’s claims (Tribunal’s words in question). The applicant claims that by those three sentences the Tribunal represented it was not likely the Tribunal would rely on what it considered to be an unexplained coincidence in one of the alleged events on which the applicant relied for his claims for protection, but that, contrary to the representation, the Tribunal materially relied on what the Tribunal considered to be the unexplained coincidence. The applicant claims that, because of the Tribunal’s representation, he did not request that the Tribunal call a witness that could have given evidence in relation to the unexplained coincidence.

3. The applicant claims the representation was conveyed by the English words the Tribunal used. Additionally, or in the alternative, however, the applicant claims the representation was conveyed by the Bengali words by which the interpreter at the hearing (Tribunal interpreter) interpreted to the applicant the Tribunal’s words in question. The applicant claims that if, contrary to his submission, the Tribunal’s words in question did not convey in English the representation, the interpreter mistranslated the Tribunal words so as to have conveyed a representation to the same effect, namely, that it was not likely the Tribunal would rely on what the Tribunal considered to be an unexplained coincidence.

4. I have in previous reasons for judgment set out the applicant’s claims for protection, and the reasons for which the Tribunal did not accept the applicant’s claims.[1] Those parts of my earlier judgment should be treated as incorporated in these reasons for judgment, and I will not repeat them here.

   [1] SZTAN v Minister for Immigration & Anor (No.1) [2014] FCCA 438 at [3]-[12]

5. Before I consider the applicant’s claims and the parties’ submissions, it will be necessary to set out the evidence of the Tribunal’s words in question, how those words were interpreted in Bengali to the applicant, and the applicant’s recollection of what was interpreted to him.

Evidence

1. There are two versions of the Tribunal’s words in question. One is that transcribed by Ms Spencer as follows:[2]

   [2] N Spencer affidavit, transcript, T14

   So you can, I I just want to now alert you that these are things that I must consider further.

   Now we also talked about your, the way you, you told me that you met another young man at the Chinese Embassy in in Dhaka. And um I won’t make too much of this but I want to just flag with you I I don’t get the sense that you are completely ah open and frank with me about how the two of you met and why it’s such a big coincidence. Now that’s, that’s a little bit in my mind although I may not, I may not um mention that in the decision.

2. The other version is that transcribed by Auscript:[3]

   So you can – I – I just want to now alert you there are – these are things that I must consider further. Now, we also talked about you were away – you – you told me that you met another young man at the Chinese embassy in – in Dhaka. And I won’t make too much of this, but I just want to make clear with you, I don’t get the sense that you are completely open and frank with me about how the two of you met and why such a big coincidence – yes, that’s – that’s a little bit in my mind, although I may not – I may not mention that in the decision I make.

   [3] Auscript transcript annexed to affidavit of Ms A J Carr made on 20 November 2013, 14.03.13 T14.40

3. The differences between these two versions are minor, and nothing turns on which is the correct version. In the remainder of these reasons, I will refer to Ms Spencer’s translation.

4. There are two translations into English of the Tribunal interpreter’s interpretation into Bengali of the Tribunal’s words in question. The first is that made by Mr Amin:[4]

   These things I have to consider more. You also told that how you met a young man at chinese embassy in Dhaka. Though I don’t say I don’t believe it, but I find it hard to believe it that you have come across with this sort of (indistinct) people, it is a coincidence, how did it match? I may not mention this in my discussion, but this came into my mind. Working in my mind

   [4] Annexure “D” affidavit of B Amin made on 28 May 2014

5. The second version is that given Mr Chowdhury:[5]

   You had also said that you had met one young man at Chinese Embassy in Dhaka. . . I do not disbelieve…but I have trouble to believe that how was it possible for you to meet this kind of people, coincidence, how did it coincide? Probably I will not mention this in my decision but is has struck my mind, I am pondering.

   [5] Annexure “C” affidavit of M. I. H. Chowdhury made on 29 August 2014.

6. The applicant and the Minister have jointly submitted that the translations of Mr Amin and Mr Chowdhury are both reasonably open.[6] On the basis of this submission, neither Mr Amin nor Mr Chowdhury was cross-examined.

   [6] The submission is recorded in a letter dated 10 November 2014 from the applicant’s solicitor to the Minister’s solicitors which has been marked Exhibit 2

7. There is also the applicant’s recollection of what the Tribunal interpreter said to him:

   4.I recall that on the second day of the hearing the Tribunal member informed me that he was concerned about my evidence of that meeting with the other Buddhist monk, but that he was not likely to rely on it.

   5.I understood that to be the case as I recall that the interpreter said words to me in Bengali to the effect of:

   You have told me that you met one young person in Chinese Embassy. I am trusting you, but it is getting hard to trust how you met such a person. I am not likely to rely on it in my decision but I am wondering.

8. Also relevant, because it provides context to the Tribunal’s words in question, is a long passage from the transcript of the first of the two hearings before the Tribunal in which the Tribunal discusses the Coincidence Issue with the applicant: [7]

   [7] Spencer transcript, T8-11

   MEMBER: Was [X] helping anybody else ah to leave Bangladesh?

   INTERPRETER: No he didn’t help anybody but when I went to apply I meet another boy.

   MEMBER: Who did you meet?

   INTERPRETER: I met him in Dhaka.

   MEMBER: Where in, where in Dhaka?

   INTERPRETER: In the Chinese Embassy.

   MEMBER: Where exactly in the Chinese Embassy?

   INTERPRETER: In Dhaka…

   MEMBER: No, no, no, no I’m not asking for the address, I’m asking where in the embassy did you meet this person for the first time?

   INTERPRETER: In, in front of the gate.

   MEMBER: So what time then? Did you have a particular time to appear at the gate?

   INTERPRETER: I went in the morning, after ten.

   MEMBER: Okay. So how did this happen that you just met another person who was also going to China?

   INTERPRETER: Well because the about the robe, the dress. Me and he were in the same um clothes, religious.

   MEMBER: Now hundreds and probably thousands of people go to the Chinese embassy every year to get visas. So how did it happen ah that you and another person happened to be at the gate on the same day at the same time and I understand that you also ended up going to the same university in China and that you also travelled to Australia together, how did that happen? Do you know?

   INTERPRETER: Because my guru ah apply for me and ah to the university and arrange everything for me and told me to go to the High Commission Embassy to ah that particular time. When I went to the High ah Embassy at that particular time, I saw that another boy was there. And the papers with him I ah saw that exactly the same university, the . . . University.

   MEMBER: Okay. So do you know how it is that um another boy in a Buddhist robe happened to be there at the same time? Did your guru arrange for that or did someone else arrange, and why did you both end up, I mean have you wondered why you both ended up at the same, at the gate at the same time?

   INTERPRETER: I don’t know anything about it. My guru told me you take these papers, hopefully you will get a visa and you will study in China.

   MEMBER: All right, you’ve already mentioned that several times so I don’t, I don’t need to hear that particular point anymore. What I’m asking is you’re asking me to believe a a thing which is very unusual, extremely unusual and extremely coincidental and I am saying to you that if in such a coincidence I think that a person like you would be trying, would be talking to the other boy and finding out why, why are you both ah invited on the same day. But you know nothing which suggests to me that you’re not ah, which, which I’m finding it difficult to believe.

   I’ll explain why this is, this is not what your refugee or your protection claim’s all about but it’s very important because I may get the impression that someone in Bangladesh has planned like a long time, a long time for two young Buddhist men to get visas to China and then get get to Australia and also prepare a story so it really is important that you be frank and honest with me now so that I can, so that I don’t think that there is some scheming or planning and and that you’re not being honest with me.

   INTERPRETER: I didn’t know anything about this boy. I didn’t know him. Why… I didn’t know him previously. In that gate, in that Embassy gate I met him. Because when I met him ah ah and we get a visa so we plan um to come, to go to China together.

   MEMBER: Okay.

   INTERPRETER: Well I didn’t know anything about that boy.

   MEMBER: Yep. I’ll just put you on notice now Mr [applicant] that ah that ah you have, you have said several times and I’ve understood very clear that you did not know that boy. I I understand that. But I will put you on notice that I find it very difficult to believe that since meeting him you have not tried to figure out how this coincident arisen [sic] so that causes me to doubt you’re being truthful or being completely honest in what you’re now telling me.

   INTERPRETER: I didn’t know him previously. I met him first in in front of the Embassy.

   MEMBER: Hm mm okay. I I won’t ah dwell on this any further but what I’m saying is I, ah I don’t find it very, I find it very difficult to believe that since meeting him and since travelling to China with him and since coming to Australia with him you have not um tried to discover why you were both there at the gate on the same day.

   INTERPRETER: Okay I met him in front of the ah Embassy then we plan we go to China together and and because it is the same university we used to live in the same house, same place. When we ah after few day, after few, after a while we get to know that we can’t stay here for long time. Because then we decide ah we can work hard so that we can go somewhere to for our safety we can go some other country and then ah stay safely. Ah the other guy also ah fleeing ah to China because his brother or father ah maybe ah victimised …

   THE APPLICANT: father

   INTERPRETER: … his father was been killed.

   MEMBER: Thank you I’ll take a note of that. And I’ll also put you on notice that you have not answered my question about ah how the two of you in all the period that you’ve lived together, travelled together and everything, you’ve never discussed, you you you’re just not answering how that coincidence arose or wondered why you were both at the gate at the same time.

Parties’ submissions

1. The applicant submits:

   a)the Tribunal’s words in question conveyed the representation that, despite its concerns about the Coincidence Issue, the Tribunal was not likely to rely on that issue to draw any adverse credit inferences;[8]

   b)the applicant relied on that representation by not addressing the Coincidence Issue in the further written submissions and evidence the applicant provided to the Tribunal after the hearing;[9]

   c)contrary to its representation, the Tribunal relied on the Coincidence Issue in its decision as a basis for making findings that were adverse to the applicant;[10] and

   d)the Tribunal, therefore:

   i)failed to comply with s.425(1) of the Migration Act 1958 (Cth) (Act) because it denied the applicant the opportunity to make submissions on an issue that was relevant to the applicant’s case, and on which the Tribunal relied;[11]

   ii)additionally, or alternatively, the Tribunal acted unreasonably.[12]

   [8] Further Amended Application, particular b. to ground 1; Outline of Submissions on behalf of the applicant, [3]; Applicant’s Outline of supplementary submissions, [1], [11]

   [9] Outline of Submissions on behalf of the applicant, [6]

   [10] Outline of Submissions on behalf of the applicant, [7]

   [11] Outline of Submissions on behalf of the applicant, [42]

   [12] Outline of Submissions on behalf of the applicant, [41]

2. Counsel for the applicant does not only rely on the Tribunal’s words in question as conveying the representation; counsel for the applicant relies on the exchange between the Tribunal and the applicant about the Coincidence Issue during the first of the two hearings. Counsel submits that, on that occasion, the Tribunal tested the applicant with intensity but the Tribunal’s words in question, which were spoken during the second hearing, was a retreat from that position.

3. Additionally, or alternatively, counsel for the applicant submits that both of the interpretations into English of what the Tribunal interpreter said in Bengali to the applicant indicate the Tribunal interpreter misinterpreted the Tribunal’s words in question. Counsel submits that the Bengali words by which the Tribunal Interpreter interpreted the Tribunal’s words in question conveyed the meaning that the Coincidence Issue would not be relied on adversely to the applicant in the Tribunal’s decision.[13]

   [13] Further Amended Application, particular b1. to ground 1

4. Counsel for the Minister, on the other hand, submits that the Tribunal’s words in question cannot reasonably convey the meaning which the applicant claims they bear, particularly having regard to the exchange that occurred on the first hearing day about the Coincidence Issue. Counsel submits it is clear that the Tribunal indicated that it was still considering the Coincidence Issue.

Issues

1. It is common ground that if the Tribunal misleads an applicant before it in a way that induces the applicant to do or not to do something that has a material bearing on the decision the Tribunal reaches, the Tribunal will have made a jurisdictional error. Counsel for the Minister referred to Re Ruddock; Ex parte Applicant S154/2002.[14] But the more basic principle which governs when the making of a representation may give rise to procedural unfairness and which, by analogy, may support the conclusion that the Tribunal has not complied with the duty prescribed by s.425(1) of the Act, is that stated by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam:[15]

   A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. . . . A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

   [14] (2003) 201 ALR 437 Counsel for the Minister particularly referred to [28] and [58]

   [15] (2003) 214 CLR 1 at [37]

2. It is also common ground that the principles that I must apply if the Tribunal’s words in question have been misinterpreted are those stated by Allsop CJ in SZRMQ v Minister for Immigration and Border Protection:[16]

   [5] Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.

   . . .

   [9] The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

   [10] How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair.

   [16] [2013] FCAFC 142 at [5], [9], [10]

1. The issues I must determine, therefore, are as follows:

   a)What meaning did the Tribunal’s words in question convey? In particular, did they convey that, despite its concerns about the Coincidence Issue, the Tribunal was not likely to rely on that issue to draw any adverse credit inferences against the applicant?

   b)What meaning did the Tribunal Interpreter’s words (Bengali Words) by which he interpreted the Tribunal’s words in question convey? In particular, did they convey that the Coincidence Issue would not be relied on adversely to the applicant in the Tribunal’s decision?

   c)Did the applicant rely on the meaning he attached to the Bengali Words in a way which means he was not given the opportunity s.425(1) required that he be given to appear before the Tribunal “to give evidence and present arguments relating to the issues arising in relation to the decision under review”?

2. This arrangement of the issues reflects the structure of the applicant’s case and submissions, and the Minister’s response to those submissions. It is not, however, a logical arrangement. The first question should be whether the Tribunal’s words in question were properly interpreted to the applicant. If they were, whether or not the Tribunal made the representation the applicant claims the Tribunal made is to be determined by construing the Tribunal’s (English) words in question in the context in which they were made, and all other issues would be considered by reference to the construction of the Tribunal’s (English) words in question. If, on the other hand, the Tribunal’s words in question were not properly interpreted, the Bengali Words would have to be construed in the context in which they were made, and all other issues would need to be considered by reference to the construction of the Bengali Words.

3. The difficulty is there is no expert opinion evidence about whether the Bengali Words are an accurate or appropriate interpretation of the Tribunal’s (English) words in question. The applicant appears to have assumed it is open to the Court to infer the Bengali Words are a misinterpretation of the Tribunal’s (English) words in question on the basis of findings I may make that the English translations of the Bengali Words that are in evidence are not equivalent to the Tribunal’s (English) words in question. In the absence of expert opinion evidence, however, I am not prepared to accept that that assumption is correct. That is so because of the inherent complexities of translating words spoken in one language (source language) into another language (target language).[17] It is worth setting out what one author has said about these complexities (emphasis in original):[18]

   [17] I have taken the words “source language” and “target language” from H Mikkelson Introduction to Court Interpreting, Routledge page 68.

   [18] H Mikkelson Introduction to Court Interpreting, Routledge (2000) pages 67-68. For a review, see D. Panou “Equivalence in Translation Theories: A Critical Evaluation” Theory and Practice in Language Studies, Vol. 3, No. 1, pp. 1-6, January 2013 accessed on 13 December 2015

   “[I]nterpreting is the transfer of an oral message from one language to another in real time (as opposed to translating, which is the transfer of a written message from one language to another and may take place years after the original message is written . . .) . . .  This seemingly simple process is complicated by the fact that it is difficult to define all of the elements that make up a message, and to transfer all of those elements intact from the source language (the language of the original message) to the target language (the language into which the message is being interpreted or translated). In his book Translation and Translating: Theory and Practice (1991), Roger T. Bell cites a standard definition of translation as “the replacement of a representation of a text in one language by a representation of an equivalent text in a second language”, but goes on to explain that the matter of equivalence is exceedingly complex:

   Texts in different languages can be equivalent in different degrees (fully or partially equivalent), in respect of different levels of presentation (equivalent in respect of context, of semantics, of grammar, of lexis, etc.) and at different ranks (word-for-word, phrase-for-phrase, sentence-for-sentence) . . . .

   Bell then concludes that “the ideal of total equivalence is a chimera” . . . . Gile . . . attributes the problem to the fact that “languages are not isomorphic”:

   [I]n other words, there is no one-to-one correspondence between them as regards lexical elements (“words”) or linguistic structures associated with rules of grammar, stylistic rules, etc. In particular, there is no automatic equivalence between words in the source and target languages, and apparently similar structures may have different uses and different connotations.

   . . . . The broadly accepted standard is that interpreters should strive to retain every element of the source-language message in the target-language version, including not only lexical content, but also style, tone, and nuance.

4. These potential complexities of translating have been recognised in Australia. In Perera v Minister for Immigration and Multicultural Affairs Kenny J quoted with approval the following passage from an academic article:[19]

   No matter how accurate the interpretation is, the words are not the defendant's nor is the style, the syntax, or the emotion. Furthermore, some words are culturally specific and, therefore, are incapable of being translated. Perfect interpretations do not exist, as no interpretation will convey precisely the same meaning as the original testimony.

   [19] [1999] FCA 507 at [26] The passage was taken from Michael B Shulman, "Note: No Hablo Ingles: Court Interpretation as a Major Obstacle to Fairness for Non-English Speaking Defendants" (1993) 46 Vand. L. Rev. 175

5. The same point was made by Roberts-Smith JA in De La Espriella­velasco v The Queen:[20]

   I respectfully endorse the approach taken by Kenny J in Perera (at [29]) that the interpreter must express, in the target language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the source language. The individual aspects of this expression of what is required, are important. The reference to the “idea or concept” being expressed acknowledges that the process of interpretation is not merely the substitution of a word in one language for an equivalent word in the other and that there is often a lack of semantic equivalence. That, and social or cultural differences may mean that even the “idea or concept” itself has no equivalent in both societies.

   [20] [2006] WASCA 31 at [75]

6. In the light of these considerations, it is unsafe, in the absence of expert opinion evidence, to infer from the English translation of the Bengali Words any misinterpretation by the Tribunal interpreter of the Tribunal’s (English) words in question. There is the possibility that the Tribunal’s (English) words in question contain words or concepts that have no immediate or obvious analogues in the Bengali language. If that is the case, the interpretation back from the Bengali Words into English may disclose an apparent distortion in the meaning of the Tribunal’s (English) words in question that may have nothing to do with any inaccurate interpretation.

7. The consequence of that is that the applicant’s claims based on misinterpretation must fail. I will, however, consider the applicant’s case based on misinterpretation on the assumption that it is reasonably open to infer from the English translation of the Bengali Words a misinterpretation by the Tribunal interpreter of the Tribunal’s (English) words in question occurred. I will, therefore, address the issues I have identified.

Meaning conveyed by Tribunal’s (English) words in question

1. I first consider the Tribunal’s words in question themselves. A convenient starting point is the string of words “I won’t make too much of this” (first string of words). The word “this” refers to two other strings of words, but one subject. The two strings of words are: “Now we also talked about your, the way you, you told me that you met another young man at the Chinese Embassy in in Dhaka” (second string of words) and “I don’t get the sense that you are completely ah open and frank with me about how the two of you met and why it’s such a big coincidence” (third string of words). The subject is the Tribunal’s not having the sense that the applicant was completely open and frank about how the applicant and the young man met at the Chinese embassy in Dhaka and why it was such a coincidence (Coincidence Issue). That was a matter explored at some length at the first hearing. When considered together, and without regard to any other words, these three strings of words convey that the Tribunal will not make much of the Coincidence Issue; in other words, the Tribunal will not place too much emphasis on the Coincidence Issue. That necessarily implies, however, that the Tribunal could and may make something of the Coincidence Issue. It also implies that the Tribunal has not decided whether it would make anything of the Coincidence Issue. The words cannot reasonably imply the Tribunal would not or that it was likely the Tribunal would not rely on the Coincidence Issue.

2. The next string of words to consider is “I want to just flag with you” (fourth string of words). That precedes the second string of words. It conveys that the Tribunal wanted to bring to the applicant’s attention something; and that something was the Coincidence Issue. The fifth string of words is “Now that’s, that’s a little bit in my mind” (fifth string of words). This conveys that the Tribunal member had in his mind the Coincidence Issue. That, in turn, conveys that the Tribunal was considering whether it would rely on the Coincidence Issue in its decision. The final string of words is “although I may not . . . mention that in the decision”. “That” is a reference to the Coincidence Issue; and the words “may not mention” may reasonably be interpreted to mean “may not rely on”. Those words convey that, although the Tribunal member had in his mind the Coincidence Issue, and was considering it, he may not rely on it when deciding the applicant’s case. It also necessarily implies, however, that the Tribunal member could and may rely on the Coincidence Issue in his decision.

3. When the Tribunal’s words in question are considered together, they conveyed three things: the Tribunal member did not intend to make too much of the Coincidence Issue; the Tribunal nevertheless was considering the Coincidence Issue; the Tribunal, however, may decide not to rely on the Coincidence issue, but it may also decide that it would rely on the Coincidence Issue. There is nothing in the Tribunal’s words in question that could reasonably suggest the Tribunal member represented it was likely the Tribunal would not rely on the Coincidence Issue to draw adverse inferences against the applicant.

4. The broader context in which the Tribunal’s words in question were uttered reinforces the meaning I have held those words convey. First, the Tribunal’s words in question were uttered towards the end of the second hearing after the Tribunal member said he wanted “to alert you that I’ve got some significant concerns about the claims and evidence you’ve made”, and that the Tribunal member needed “to advise you of that”.[21] The Coincidence Issue was one of the “significant concerns” the Tribunal member mentioned, and it is in that context that the Tribunal uttered the Tribunal’s words in question. In that context, the Tribunal could not reasonably be understood as having represented that it was unlikely the Tribunal would rely on the Coincidence Issue to draw adverse inferences against the applicant.

   [21] N Spencer transcript, T13.7

5. Second, the Tribunal’s words in question referred to the discussion of the Coincidence Issue that took place at the first hearing. The Tribunal there said it found it “very difficult to believe” that the applicant and the young man he met at the Chinese embassy did not attempt to “figure out” how the coincidence occurred; and that the applicant had not answered the Tribunal’s question about whether the applicant and the other man had not discussed how the coincidental meeting between the applicant and the young man occurred. I disagree with the applicant’s counsel’s submission that in the second hearing, the Tribunal retreated from what it said about the Coincidence Issue in the first hearing. The Tribunal specifically alluded to the discussion about the Coincidence Issue. The Tribunal’s words in question, and particularly the Tribunal’s stating that it did not have the sense that the applicant was being completely open and frank about “how the two of you met and why it’s such a big coincidence”, repeated the substance of the concerns the Tribunal expressed at the first hearing. Having repeated the substance of its concerns, the Tribunal’s words in question cannot reasonably convey the meaning that it was unlikely the Tribunal would rely on the Coincidence Issue.

6. The applicant’s claim fails, therefore, to the extent it is based on the contention that by uttering the Tribunal’s (English) words in question the Tribunal represented it was not likely the Tribunal would rely on the Coincidence Issue.

Meaning of the Bengali Words

1. As I have already noted, there are two interpretations into English of the Bengali Words. I will first consider Mr Amin’s interpretation which is as follows:

   These things I have to consider more. You also told that how you met a young man at chinese embassy in Dhaka. Though I don’t say I don’t believe it, but I find it hard to believe it that how you have come across with this sort of (indistinct) people, it is a coincidence, how did it match? I may not mention this in my decision, but this came into my mind. Working in my mind.

2. These words cannot reasonably convey a representation to the effect that it is unlikely the Tribunal would not rely on the Coincidence Issue to draw adverse inferences against the applicant. The Tribunal member said it had to consider “these things”. One of those things was the applicant’s having previously stated he had met a young man at the Chinese embassy at Dhaka. The Tribunal member said it was not saying it did not believe the applicant; but the Tribunal member also said he found it difficult to believe it was by coincidence that the applicant met the young man. The Tribunal member concluded with the words were “[w]orking in my mind”; that is, he was still considering the question.

3. What of Mr Chowdhury’s interpretation of the Bengali Words? It is as follows:[22]

   You had also said that you had met one young man at Chinese Embassy in Dhaka. . . I do not disbelieve…but I have trouble to believe that how was it possible for you to meet this kind of people, coincidence, how did it coincide? Probably I will not mention this in my decision but it has struck my mind, I am pondering.

   [22] Annexure “C” affidavit of M. I. H. Chowdhury made on 29 August 2014

4. Mr Chowdhury’s interpretation differs in two substantial respects from that of Mr Amin. First, Mr Chowdhury, unlike Mr Amin, does not appear to have interpreted the Tribunal’s words “these are things that I must consider further”. It is not clear why Mr Chowdhury did not do that. One available inference is that he was not provided with a recording of that part of the exchange between the applicant and the Tribunal interpreter. The basis of the inference is the length of the recording of the exchange that was provided to Mr Chowdhury. The “Brief to Expert” by which Mr Chowdhury was requested to interpret the Bengali Words refers to Mr Chowdhury being provided with, among other things, an “audio recording of Bengali and English – 1:01 minutes”.[23] The “Brief to Expert” that was provided to Mr Amin, on the other hand, refers to Mr Amin being provided with the audio recording of the second hearing, and being instructed to play “the recording from 1.09.38 to 1.11.11”.[24] That is longer than the 1.01 minutes of the recording provided to Mr Chowdhury. For reasons that will appear shortly, my decision does not depend on whether Mr Chowdhury was or was not provided with that part of the recording in which the Tribunal member said “these are things that I must consider further”. I nevertheless do not find that Mr Chowdhury did not interpret these words because they were not interpreted by the Tribunal interpreter to the applicant.

   [23] Annexure “B” affidavit of M. I. H. Chowdhury made on 29 August 2014

   [24] Annexure “B” affidavit of B Amin made on 28 May 2014

5. The second substantive difference is that Mr Chowdhury’s interpretation of the Bengali Words has the Tribunal interpreter say “[p]robably will not” whereas, on Mr Amin’s interpretation, the Tribunal interpreter said “may not”. Considered alone, there is a substantial difference in meaning. “Probably will not” usually implies a greater than even chance and is equivalent to “likely will not”, whereas “may not” implies only a possibility. The words “probably will not” in Mr Chowdhury’s interpretation cannot, however, be considered in isolation.

6. As with Mr Amin’s interpretation, under Mr Chowdhury’s interpretation the Tribunal member said he did not disbelieve the applicant. The Tribunal member also said, however, he had trouble believing it was possible for the applicant to meet the young man through coincidence. The Tribunal member also said that his not believing it was a coincidence has stuck in his mind, and that he was “pondering”. That last message is particularly important. The Tribunal member’s stating that he was still pondering conveys that the Tribunal member had not yet made up his mind, and cannot reasonably imply a meaning that the Tribunal member was not likely to rely on the Coincidence Issue. The only reasonable meaning that could be attached to Mr Chowdhury’s version is that the Tribunal member had not made up his mind whether to rely on the Coincidence Issue, and that he was continuing to ponder – that is, consider - that question.

7. The two broader matters of context to which I have already referred reinforce this construction of Mr Chowdhury’s interpretation. The first is that the Tribunal uttered the Tribunal’s words in question towards the end of the second hearing as part of its identification of the “significant concerns” the Tribunal member said he had and of which he needed to advise the applicant. The second is what the Tribunal said to the applicant about the Coincidence Issue at the first hearing. There is nothing in Mr Chowdhury’s interpretation of the Bengali Words that could reasonably have given the impression that the Tribunal did not continue to have the concerns about the Coincidence Issue which the Tribunal expressed at the first hearing.

8. On neither Mr Amin’s, nor on Mr Chowdhury’s interpretation, therefore, could the Bengali Words reasonably give rise to a representation that the Tribunal was not likely to rely on the Coincidence Issue in a manner that was adverse to the applicant. This part of the applicant’s claim, therefore, also fails.

9. If, contrary to my conclusion, the presence in Mr Chowdhury’s interpretation of the words “probably will not” means that, on that interpretation of the Bengali Words, the Tribunal did represent that it is unlikely the Tribunal would rely on the Coincidence Issue in a manner adverse to the applicant, I would be confronted with conflicting interpretations of the Bengali Words. That would be so, even though the applicant and the Minister jointly submitted that the interpretations of both Mr Amin and Mr Chowdhury were reasonably open. That two conflicting interpretations of the same set of words, namely, the Bengali Words, are reasonably open does not mean both interpretations are correct.

1. If, contrary to my conclusions, the interpretations of the Bengali Words were inconsistent, I would not have been in a position to decide which of the two interpretations is correct. In those circumstances, I would have decided that question by reference to the onus of proof. That is, it is for the applicant to prove the Bengali Words bear the meaning he contends they bear. Given there would have been two conflicting, although reasonably open, interpretations of the Bengali Words, and one of those interpretations, namely, Mr Amin’s, would not support the construction of the Bengali Words for which the applicant contends, the applicant would not have discharged the onus which is on him to prove the Bengali Words bore the meaning he contends they bear. That would mean the applicant would not have succeeded on this part of his case, even if Mr Chowdhury’s interpretation were to support that part of the applicant’s case.

Inducement

1. Having concluded the Tribunal did not represent to the applicant that it was not likely the Tribunal would rely on the Coincidence Issue, it is not necessary to consider whether the applicant was induced not to do something he otherwise would have done. I will, nevertheless consider that question for the sake of completeness. And in doing so, I will accept as true what the applicant deposed was his recollection of the Bengali Words, namely:[25]

   You have told me that you met one young person in Chinese Embassy. I am trusting you, but it is getting hard to trust how you met such a person. I am not likely to rely on it in my decision but I am wondering.

   [25] Applicant’s affidavit 15.11.2013, [5]

2. The starting point is the applicant’s evidence contained in his affidavit in which he deposed:[26]

   [26] Applicant’s affidavit 15.11.2013, [11]-[14]

   11.At the end of the second day of the hearing, the Member then granted me a further time to put on written submissions. I understood from what was said that I should focus on the issues that the Tribunal Member asked me to address.

   (1)     my Facebook page, and

   (2)     any evidence of persecution of Barua Buddhists.

   12.If I had understood that the circumstances of my meeting of the other Buddhist monk would be important to the Tribunal’s decision, I would have asked the Tribunal to obtain evidence from him to confirm my explanation.

   13.I may also have said something about this in my further submissions.

   14.Since becoming aware of the Tribunal’s decision, I have had a conversation with [Mr X, the young man the applicant met at the Chinese embassy at Dhaka] to the following effect:

   Me:If I asked you to come to the Tribunal to explain how we met, would you have done it?

   [Mr X]Yes.

3. The applicant was not cross-examined on his affidavit. That does not mean, however, I would have been obliged to accept his evidence if I were to have found his evidence to be incredible or unconvincing.[27]

   [27] Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840 at 848: “if a witness's evidence upon a particular matter appeared in his evidence-in-chief to be incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact that the witness had not been cross-examined would, or might be of little importance in deciding whether to accept his evidence.”

4. The applicant’s evidence is premised on the assumption he did not believe the Coincidence Issue was important to the Tribunal. I would have found the applicant’s holding such belief to be incredible. At the first hearing, the Tribunal questioned the applicant extensively about the Coincidence Issue. At the second hearing the Tribunal raised the Coincidence Issue as one of the “significant concerns” the Tribunal member mentioned. And even though, on the applicant’s recollection, the applicant understood the Tribunal member to have said it was likely he would not rely on the Coincidence Issue, the applicant nevertheless recalled that the Tribunal member said it was “getting hard to trust” how the applicant met the young man and that the Tribunal member was still “wondering”. In those circumstances, it would have been difficult to accept the applicant believed the Coincidence Issue was of no importance to the Tribunal.

5. I also would have found incredible the applicant’s evidence that, had he understood the Tribunal regarded the circumstances in which he met the other person at the Chinese embassy to be important to the Tribunal’s decision, he would have asked the Tribunal to obtain evidence from the other person “to confirm my explanation”.[28] The finding the Tribunal made in relation to the Coincidence Issue related to whether the applicant had discussed the coincidence with the other person, and in particular, whether the other person had been assisted or sponsored by the same Buddhist group in Bangladesh that had sponsored the applicant. The Tribunal found the applicant’s evidence to be “repetitive and evasive”. I would have found it difficult to accept that the applicant would have asked the Tribunal to call the other person to confirm an explanation the Tribunal found the applicant did not give. I would have found it equally difficult to accept that the Tribunal, if requested, would have accepted the applicant’s invitation to call the other person to confirm the applicant’s explanation in circumstances where the Tribunal had found the applicant’s evidence on the issue to be “repetitive and evasive”.

   [28] Applicant’s affidavit 15.11.2013, [12]

6. Further, the applicant’s case for saying he believed the Coincidence Issue was not important to the Tribunal’s decision was based on what the Tribunal said at the second hearing. Given the attention the Tribunal gave to the Coincidence Issue at the first hearing, the applicant must have been aware that the Coincidence Issue was or may have been important to the Tribunal’s decision at least at that time. Yet the applicant did not, at that time, suggest to the Tribunal that it should obtain evidence from the other person. That the applicant did not at that time suggest to the Tribunal that it obtain evidence from the other person would seriously undermine the applicant’s evidence that he would have requested the Tribunal to obtain such evidence after the second hearing, had he understood the Coincidence Issue was of importance to the Tribunal.

7. I would also not have accepted the applicant’s evidence that he “may have said something about this” in his written submission. The applicant has not in his affidavit identified what it is he might have said in his submission. And although the applicant has deposed that the other person said he was willing to explain to the Tribunal “how we met”, there is nothing in the applicant’s evidence which indicates what the other person would have said about that.

8. A question would have arisen whether on these findings the applicant would nevertheless have been entitled to relief if he otherwise were to establish that the Tribunal represented to him, or what the Tribunal said had been misinterpreted to him so as to give rise to a representation, that it was not likely the Tribunal would rely on the Coincidence Issue. I do not propose to decide that question.

Conclusions and disposition

1. The Tribunal did not, by uttering the Tribunal’s words in question, represent to the applicant that it was not likely it would rely on the Coincidence Issue to draw adverse inferences against the applicant. There is no evidence the Tribunal interpreter misinterpreted the Tribunal’s words in question. To the extent the English translations of the Bengali Words by which the Tribunal interpreter interpreted the Tribunal’s words in question differ from the Tribunal’s words in question, and therefore provide a legitimate basis for inferring the Tribunal interpreter misinterpreted the Tribunal’s words in question, the Bengali Words did not convey a representation to the effect that the Tribunal was not likely to rely on the Coincidence Issue to draw adverse inferences against the applicant.

2. I propose, therefore, to order that the application be dismissed. I will also order that the Administrative Appeal Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  22 December 2015