SZTTO v Minister for Immigration
[2016] FCCA 2128
•19 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTTO v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2128 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal – standard of interpretation at Tribunal hearing – whether non-compliance with s.425 of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Cases cited: Minister for Immigration and Border Protection v SZSRS& Anor (2014) 309 ALR 67; [2014] FCAFC 16 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 SZBEL v Minister for Immigration and Multicultural and indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109; [2009] FCAFC 106 SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 |
| Applicant: | SZTTO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 55 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 23 June 2015 19 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision made on 9 December 2013 in Tribunal case number 1217632.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 10 October 2012.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 55 of 2014
| SZTTO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 9 December 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Nepal, was born in 1989. She first arrived in Australia in May 2009 as the holder of a student visa. She applied for a protection visa on 31 January 2012.
In support of her protection visa application the Applicant claimed that she was a lesbian and that if she returned to Nepal she would be killed by the parents of her former girlfriend and the people of her village. She claimed that in 2005 she had fallen in love with a female classmate (referred to as “R”) and that when the relationship was discovered she was banned from attending school for some time and was beaten and isolated by her parents. She claimed she subsequently discovered that R’s parents and brothers had killed R. She claimed that the villagers thought that she also deserved such an “honour killing”.
The Applicant claimed that in 2008 she was forced to marry a man with whom she lived in Kathmandu. She later travelled to Australia with her husband. She claimed that when she returned to Nepal in 2011 to visit her sick mother, her former girlfriend’s brothers told her father that she should be dead too and the villagers resumed talking about wanting her to be killed. At her mother’s urging she left the village because it was dangerous for her to remain there.
In support of her application the Applicant provided a document dated 18 January 2012 said to be from the principal of a named school (referred to for convenience as the “S School”), which stated that the Applicant had been studying in the school since “March 2000 AD” up to “higher secondary level” and that while she studied there “her behaviour was like boys. We had a lot of counselling to behave like girls but she didn’t. Due to her boy-like behaviour, the school sometimes had to face problems too.”
The Applicant attended an interview with a delegate of the First Respondent. The delegate refused the application on 10 October 2012. The delegate did not accept that the Applicant’s fear was well-founded, given that, on her evidence at the interview, she had been able to remain in the same village, attend the same school and sit for final examinations without incident, despite claiming to be in danger of being killed.
The Applicant sought review by the Tribunal. She provided a written submission and further supporting documentation, including country information in relation to the treatment of homosexuals and lesbians in Nepal.
The Applicant attended a Tribunal hearing on 28 November 2013. She had the assistance of an interpreter in the Nepali and English languages. A transcript of the Tribunal hearing prepared by a NAATI-accredited translator is before the court as an annexure to an affidavit affirmed by the translator which in turn is annexed to an affidavit affirmed by the Applicant on 1 July 2014.
The Tribunal Decision
In its reasons for decision the Tribunal recorded that in her application the Applicant had claimed that she was from a small village of people she described as “all farmers and illiterate” who were very religious and completely against any form of sexual preference beyond the socially-accepted norms.
The Tribunal summarised the Applicant’s claims that she had been harmed in the past and feared harm in the future because she was perceived to be and was a lesbian. It recorded her oral evidence and issues raised by the Tribunal at the hearing in some detail.
For reasons which it gave, the Tribunal was not satisfied that the Applicant was a lesbian. First, it found that the Applicant’s initial claim in her protection visa application that she had been “beaten up and tortured by [her] family and school principals all [her] life because of [her] sexual tendencies” was “highly implausible”. It had regard to the fact that at the hearing the Applicant had said that she had led a normal life until her mid-teens when her relationship with R became known and as a result she was perceived to be a lesbian. The Tribunal did not accept that the Applicant was beaten up and tortured all her life because of her sexual tendencies.
Nor was the Tribunal satisfied that the Applicant’s claim to have been in a relationship with a schoolmate was true. It had regard to the fact that, on her evidence, the burning to death of a schoolgirl by her family because of her sexual orientation would be disapproved of by most villagers. The Tribunal was of the view that such an incident would have been a topic of “grave concern and discussion” in the area, and found that (as it had indicated at the hearing) it seemed unlikely that if such an incident had occurred, news of it would not have reached an NGO in Kathmandu that was monitoring and reporting on such incidents at that time. The Tribunal appreciated that the claimed incident was said to have occurred during the so-called “People’s War” between Maoists and the government, but found that it was not credible that the police had been prepared to come to the village because of a report about the murder of R, but that they would not arrest the killers and, indeed, on the Applicant’s claims, would do nothing at all. The Tribunal also had regard to the fact that the Applicant had no photograph or any evidence at all of the claimed relationship and that she had been vague in her evidence as to the year in which R was killed. It found that such vagueness was not consistent with the Applicant’s claim to have been in a close relationship with R.
In addition, the Tribunal found that the Applicant’s claim that she was kept at home after her relationship with R became known and after R was killed (which, according to her varying evidence, was sometime in 2005, 2006 or 2007) and then sent to a different school (the S School) was contradicted by the letter from the principal of the S School which stated that the Applicant had attended that school from the year 2000 to higher secondary level. It did not accept the Applicant’s explanation that this was an error.
Nor was the Tribunal satisfied that the Applicant had been socialising with lesbians in Australia or that she had made any effort to do so. It had regard to the fact that, despite the Applicant’s claim that she had been going to clubs for that purpose for some four years (since her arrival in Australia), she was unable to recall the names of her favourite clubs or to say what streets they were in. It also found that the absence of any evidence from any source that the Applicant had had a relationship with a female partner in Australia, or that she was regarded as a lesbian by anyone, cast further doubt on the reliability of her claim that she was a lesbian.
Further, the Applicant did not dispute that at the time she lived in Nepal there were NGOs in Kathmandu which provided social or other support for lesbians. The Tribunal found that the fact the Applicant had not taken the opportunity to contact such organisations, despite living in Kathmandu for a year and being free to do so if she wished, was not consistent with her claim to be a lesbian.
The Tribunal also found that while the Applicant claimed to fear being harmed by R’s family members who lived in her home village, they had not harmed her or apparently even attempted to harm her in the years she remained in her home village (until 2008) or when she visited the village in 2011. The Tribunal also inferred from the fact that the Applicant willingly returned to her village in 2011 that she did not have any fear of being harmed there. It was not persuaded that she would have visited the village if she were fearful of being killed as claimed.
The Tribunal found that, taken as a whole, the Applicant’s evidence cast such doubt on her “general credibility” that it was not satisfied that she was a lesbian.
The Tribunal recorded that all the Applicant’s claims to fear being harmed in Nepal related to her being a lesbian. While it was satisfied that lesbians in Nepal were members of a particular social group in Refugees Convention terms, as it did not accept that the Applicant was a lesbian or that she might be perceived as such. It found that it followed that she did not have a well-founded fear of persecution in Nepal for the Convention reason of her membership of that particular social group.
In addition, as the Tribunal was not satisfied that the Applicant was a lesbian, it found that there was not a real risk that she would suffer significant harm for that reason.
The Tribunal concluded that the Applicant did not meet the Refugees Convention criterion or the complementary protection criterion. It affirmed the decision not to grant the Applicant a protection visa.
These Proceedings
The Applicant sought review by application filed in this court on 9 January 2014. There are three grounds in the application. The Applicant did not file written submissions. She filed a transcript of the Tribunal hearing.
Ground One
The first ground in the application is as follows:
The Tribunal Member was suggestive and forced me to answer the way she wanted to hear the answers. The Tribunal member was not at all familiar with the culture and society of my country and speculated that things would the (sic) treated the same way in Nepal as they would be treated in Australia. This I find it as a Bias decision. There were several occasions when the Tribunal member misunderstood me and made notes in a negative sense however did not give me opportunities to clarify them. The Tribunal asked me questions which were not relevant to my case, and made speculations about the wrong intentions of my High School Principal who wrote a letter for me in good faith.
The Applicant submitted that whatever she said at the hearing, the Tribunal member said that that was not true and that the Tribunal member thought that Nepalese culture was the same as Australian culture.
The Applicant also claimed generally that while the Tribunal gave her the opportunity to say whatever she wanted to say, she was not from an English-speaking background and her English was not good. She appeared to claim that she did not understand a lot of what the Tribunal member said and that hence she could not explain herself to the Tribunal. She claimed that things that were supposed to be interpreted into Nepali or into English were not interpreted properly during the hearing.
The Applicant’s oral submissions about incorrect or inadequate interpretation are considered in more detail below in relation to ground 2 (which asserts that there were problems with the interpretation at the Tribunal hearing).
Contrary to the Applicant’s contention that in the hearing the Tribunal was “suggestive and forced [her] to answer the way she wanted to hear the answers”, there is nothing in the transcript to support such a claim. It is the case that the Tribunal endeavoured, in the face of what were often apparently vague and unresponsive answers, to clarify the Applicant’s evidence. However nothing has been pointed to and nor is anything apparent from the transcript to support the allegation that the Applicant was in some way forced to answer questions in a particular way.
Insofar as it is contended that the Tribunal member was not familiar with the culture and society of Nepal, the Tribunal cited an extensive range of sources about the treatment of lesbians in Nepal (including the fact that homosexuality was legalised in 2007). The selection of and weight to be given to particular country information is a matter for the Tribunal. Beyond this, this aspect of ground 1 seeks impermissible merits review.
It was also asserted that on several occasion the Tribunal misunderstood the Applicant and “made notes in a negative sense” but did not give the Applicant opportunities to clarify them. It is not clear what is meant by this claim. There were (perhaps unsurprisingly given the lack of clarity in aspects of the Applicant’s oral evidence) occasions during the hearing when the Tribunal appeared not to be certain about what the Applicant meant by her evidence. As discussed further below in relation to ground 2, the transcript discloses that the Tribunal sought clarification from the Applicant on matters of significance. However this is not in itself indicative of bias or other jurisdictional error. The Tribunal was clearly at pains to understand the Applicant’s claims and to give her an opportunity to clarify her evidence.
There is nothing in the Tribunal reasons for decision to support any contention that the Tribunal misunderstood the Applicant in a manner indicating actual or apprehended bias or a failure to consider any integer of her claims. The fact that the Tribunal reached adverse conclusions about aspects of the Applicant’s claims does not establish jurisdictional error.
The Applicant’s complaint that the Tribunal asked irrelevant questions was not particularised. No jurisdictional error is made out on this basis. The Applicant submitted that the fact that the Tribunal raised issues of concern with her was indicative of bias. On the contrary. This reflected the Tribunal’s obligation to put dispositive issues to the Applicant during the hearing (see SZBEL v Minister for Immigration and Multicultural and indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63).
The Applicant also appeared to contend that the Tribunal was otherwise obliged to put its thought processes or provisional views to her for comment. There is no such obligation (see Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594; [2011] HCA 1 per French CJ and Kiefel J at [9]).
It was also asserted in the application that the Tribunal had “speculated” about what were described as the “wrong intentions” of the Applicant’s high school principal.
It is not clear whether this complaint relates to what occurred in the Tribunal hearing or to the Tribunal reasons for decision. Insofar as it was intended to be a reference to the Tribunal hearing, it is apparent from the transcript that the Tribunal spent some time trying to clarify the Applicant’s claims about when she attended school and which school or schools she attended as well as the circumstances in which the principal of the S School wrote the letter of support dated 18 January 2012. It did so in circumstances where the letter from the principal certified that the Applicant had been studying at the S School from March 2000 up to her higher secondary level but did not state that she was a lesbian or refer to the death of R. Rather the principal stated that while the Applicant studied at S School her behaviour was “like boys”, that there was a lot of counselling for her to “behave like girls” but that she did not do so and that due to her “boys like behaviour, the school sometimes had to face problems too”.
At the hearing, after the Applicant acknowledged that before she was caught in the relationship with R she had a normal life and did not have problems (transcript 1, p.6), the Tribunal put to her that the claim in her protection visa application that she was beaten up and tortured by her family and school principals all her life was not the case. The Tribunal also put to the Applicant that her oral evidence that her teachers hit her with a stick, scolded her and told her father about her seemed to be an exaggeration. It sought further clarification as to whether “something bad” had happened to the Applicant before she and R were caught, in particular whether there was anything that she did not want to tell the Tribunal about (transcript 1, p.8). However the Applicant responded (in English before the interpreter could translate), “no, not like that.”
After a discussion of the relationship between the Applicant and R and her claims about R’s death and police inaction, the Tribunal returned to the principal’s letter. It put to the Applicant that if she had been banned from attending school and the whole village knew about her relationship with R, then the Tribunal assumed that the principal also knew she was in a relationship with her classmate. The Applicant indicated that she did not know about that, as her school was “a bit far” from the village (transcript 1, p.12).
The Tribunal also sought clarification of the Applicant’s claims that she finished high school after R died, given that she had claimed she had been banned from school. The Applicant responded that she had been banned, but that she then went to another school, the S School, from which the letter of support came.
The Tribunal asked the Applicant if she was saying that the headmaster at the S School did not know about her relationship with R. The Applicant agreed (transcript 1, p.14). The Tribunal then put to the Applicant its understanding of her claims about her schooling. It sought information as to how the Applicant had obtained the letter of support. The Applicant had initially claimed that the principal gave the letter to her (transcript 1, p.14). The Tribunal pointed out that the letter was dated 2012 (when the Applicant was in Australia) and sought further clarification. The Applicant explained that the letter was posted to her from Nepal. Subsequently the Tribunal questioned the Applicant about her claims that the principal went to her village to find out whether she was a lesbian and about the content of the letter of support. It was open to the Tribunal to attempt to clarify the Applicant’s claims and in doing so to raise issues of concern with her. The fact that it did so is not indicative of a closed mind or predetermination.
After a discussion of whether the principal would have been told in the village that the Applicant was a lesbian, the Tribunal member put to the Applicant that she was having difficulty understanding this part of the evidence and was going to try to explain again why that was so. The Tribunal member explained that her concern was that if the principal was trying to help the Applicant, she would have expected that the letter would have stated that the Applicant was a lesbian or that her partner was murdered. The expression of such concern is not indicative of any inappropriate speculation or otherwise such as to support a claim of bias.
It is clear that the Tribunal was, properly, raising dispositive issues and endeavouring to give the Applicant every opportunity to explain aspects of her evidence with which the Tribunal had concern, including issues of vagueness, inconsistency and implausibility in her evidence about attendance at school and the principal’s letter. It was open to the Tribunal to engage in such questioning. The transcript does not support the Applicant’s contention that the manner in which the Tribunal questioned her was in any way indicative of actual or apprehended bias, as distinct from an attempt to clarify her claims and give her an opportunity to reconcile or provide an explanation for apparently inconsistent or implausible aspects of her claims.
The Applicant may have intended to take issue with the Tribunal’s findings about the principal’s letter. The Tribunal rejected the Applicant’s claim that she was kept at home after the relationship became known and R was killed (which she variously claimed was some time in 2005, 2006 or 2007) and that she was thereafter sent to a different school (the S School). This finding was based on the wording of the letter from the S School (which stated that the Applicant had attended that school from 2000 to higher secondary level). The Tribunal did not accept the Applicant’s explanation that this was an error. The Tribunal’s assessment of the weight to be attributed to the letter was a matter for the Tribunal.
Insofar as the Applicant’s claims in this respect take issue with the Tribunal’s observation that she was unable to provide any explanation about the problems the school faced because of her behaviour, it made that observation in circumstances where the Applicant had said that it was “the lesbian problem”, but had also agreed that the principal did not know she was a lesbian at the time she was a student at the S School. The Tribunal did not “speculate” about the intentions of the school principal in a manner indicative of pre-judgment either in the hearing or in its reasons for decision. Rather, it appropriately sought to clarify the basis on which the letter was written, whether the principal knew that the Applicant was a lesbian and, if so, why this was not stated in the letter. Moreover the Tribunal placed no reliance on the Applicant’s evidence on this issue in its findings. Its approach in this respect is not indicative of actual or apprehended bias.
Overall, nothing in the Tribunal’s reasons or the transcript of the hearing is such as to establish actual bias or anything that would cause a hypothetical, fair-minded lay person properly informed as to the nature of the proceedings to reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to its task or that its mind was not open to persuasion such as to constitute apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [28]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [71]-[72]).
Ground 1 is not made out.
Ground 2
Ground 2 is as follows:
Problem with the way the interpreter worked. The Nepali interpreter deployed by the Tribunal was not professional and lacked experience. I can confirm this because the interpreter did not interpret properly and missed out several chunks of my answers. The interpreter used English words more than 30 % of the time during the entire conversation. I could not understand them as I have a language barrier. I can prove this by producing a transcript of the interview audio from an accredited translator in the Nepali language.
As indicated, a transcript of the Tribunal hearing (consisting of two CDs referred to as transcript 1 and transcript 2) obtained by the Applicant is in evidence, annexed to an affidavit of the transcript provider who attested to being a NAATI accredited translator with a “Post Graduate certificate in Community Translating and Interpreting from Macquarie University.”
The translator was not required for cross-examination. The First Respondent did not seek to rely on his own transcript. Hence, apart from obvious typographical errors, I have accepted the transcript as accurate.
In considering the issues of interpretation raised by ground 2 I have borne in mind the approach of the Federal Court in relation to when inadequate interpretation during a Tribunal hearing will constitute or give rise to a jurisdictional error. The law in this respect was summarised by Griffiths J in SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [71]-[81] in relation to a decision of the Tribunal. As his Honour pointed out, the underlying principles were discussed and analysed at length by the Full Court of the Federal Court in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 (see in particular Allsop CJ at [13]-[25]; Flick J at [42]-[44] and Robertson J at [65]-[75]).
SZRMQ involved a decision of an independent merits reviewer and was primarily concerned with the application of common law procedural fairness requirements. As Griffiths J pointed out in SZSEI at [71], there is some overlap in the relevant principles in the non-statutory and statutory context. However, Robertson J (with whom Allsop CJ agreed, subject to some further comments) had observed at [74] in SZRMQ that compared with the common law principles of procedural fairness, s.425 of the Act poses “the blunter question as to whether the Tribunal has given the applicant an opportunity to appear before it to give evidence” and to present arguments in relation to the issues arising in relation to the decision under review, as considered in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507. In SZSEI (at [71]) Griffiths J found it unnecessary in the circumstances of that case to define with precision the extent of the overlap between common law principles of procedural fairness and those arising under s.425 of the Act. The same may be said in this case.
Relevantly, in SZSEI Griffiths J set out the approach to be taken in a case which raised the application of s.425 of the Act. His Honour stated at [72]-[74]:
In my view, subject to some important observations which I will make shortly, the approach to be taken in a case such as this, which raises the application of s 425 of the Act, is essentially that which was applied in cases such as Perera, SZOYU, Appellant P 119 and WALN. In WALN, Ryan J (with whom Tamberlin and Middleton JJ agreed) set out the relevant approach relating to alleged errors in translation in s 425 context in the following terms at [29]:
To succeed on this ground, the appellant must establish that he was effectively prevented from giving his evidence; see Perera (above) at [38]-[41]. Alternatively, he must establish that errors have occurred in translation which were so material as to cause the decision-making process to miscarry…
In SZRMQ at [22] and [23], the Chief Justice highlighted the need for passages such as the one set out immediately above from WALN to be read with care. That is for two reasons. First, it is clear that there is no requirement to demonstrate that there was a complete incapacity to interpret such that the applicant is prevented from giving any evidence. As the Chief Justice stated in [22], Kenny J in Perera at [45]-[46], “was referring to matters of significance involving important issues, not to a complete incapacity to interpret”. The Chief Justice also highlighted the undesirability of overly defining the relevant tests in circumstances where what is involved “is a more easily expressed and broader requirement: a fair hearing”. In my view, there is considerable force and attraction in expressing the matter that way, while giving effect in a relevant case such as here to the statutory text not only of s 425 of the Act but also other relevant provisions, such as ss 414 and 422B (noting the exhortatory command in s 422B(3) that, in applying Div 4, the Tribunal must act a way (sic) that is fair and just and see also the observations of the Full Court on that provision in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [15] and [18].
Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ). To similar effect, in SZRMQ at [68], Robertson J emphasised that “the process is central”. His Honour reinforced the point at [85] when he posed the relevant question as whether a mistranslation “affected or could have affected the quality of the hearing, or the findings and reasons”. The Minister did not contest the correctness of those observations, nor their application to a s 425 case.
Griffiths J also referred with approval to the remarks of Allsop CJ in SZRMQ at [17]-[18] about the importance of the decision-making process and to the suggestion of Robertson J in SZRMQ at [67]-[69] that if a mistranslation or non-translation “could have affected the outcome, then, depending on the circumstances, that may be sufficient to establish a denial of procedural fairness”. Griffiths J expressed the view (at [77]) that such observations applied equally to an assertion of non-compliance with the requirements of s.425 of the Act.
I have borne in mind the distinction between a case in which mistranslation or non-translation is “frequent or continuous, as opposed to a case where the errors are intermittent” (see Robertson J in SZRMQ at [70] and SZSEI at [78]). It is also important to keep separate questions of mistranslation and non-translation, as opposed to mere errors of fact (see Robertson J in SZRMQ at [73] and Griffiths J in SZSEI at [78]) and the distinction between a mistranslation and a lack of detail in the relevant question or answer that is the subject of translation (see SZRMQ at [114] and SZSEI at [78]).
It is well-established (see generally Kenny J in Perera at [29] to [31]) that “interpretation or translation is not a perfect science” (SZSEI at [79]). This is relevant when considering whether or not mistranslations or non-translations give rise to jurisdictional error. It was suggested in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 at [66] that it may suffice if “the translation is sufficiently accurate so as to convey the idea or concept being communicated” (SZSEI at [79]).
At the same time, it is necessary to consider not only individual allegations of mistranslation or non-translation, but also to have regard to their cumulative effect (see SZSEI at [80] and SZRMQ at [116] per Robertson J). In essence, as Jagot J stated in SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52], the question of whether inadequate interpretation has deprived an applicant of the opportunity required under s.425 of the Act “involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole” (also see SZSEI at [81]).
As the First Respondent submitted, the onus of establishing jurisdictional error falls upon the Applicant (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] per Gummow J; and SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109; [2009] FCAFC 106 at [71] per Buchanan J).
While the Applicant put the transcript of the Tribunal hearing in evidence, she provided no written submissions. When given several opportunities to elaborate on her concerns about the Tribunal hearing and any issues other than those identified generally in the application, apart from raising an issue in relation to the Tribunal’s questioning about the intentions of her high school principal and the general contention that the Tribunal had misunderstood her (which is considered above), the Applicant identified only one example of a claimed mistranslation, in relation to the word “lesbian”. She also claimed that she did not know what the interpreter was saying when she was explaining that word. She contended that there was a difference in what she said about her sexual orientation and the way the interpreter explained it. Beyond this, the Applicant said that the hearing was a long time ago and that she could not remember exactly the issues with the interpretation. Despite this, I have considered the transcript as a whole (see SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146).
The First Respondent was given (and took) the opportunity to make submissions in relation to issues of potential concern arising out of the transcript, and the transcript as a whole.
There are what appear to be minor mistakes or typographical errors on the part of the transcript provider, such as misspelling “complimentary” protection and recording the Tribunal referring to “real exestuation (sic) of what was happening” (transcript 1, p.8) when it appears that the Tribunal was putting to the Applicant that the claim that she was beaten up and tortured all her life was a “real exaggeration of what was happening” (translated by the interpreter at the hearing as “made up extremely, more than what happened, it was extremely made up.”) Further, according to the transcript, the Tribunal referred to a well-founded fear of being “prosecuted” in describing the Refugees Convention criterion. It seems inherently unlikely that the Tribunal would not have referred to a well-founded fear of “persecution”. However, the First Respondent did not seek to dispute the general accuracy of the transcript (apart from taking issue with particular limited aspects) and did not seek to file his own transcript of the hearing.
First, contrary to the Applicant’s assertion in ground 2 that the interpreter used by the Tribunal was “not professional” and “lacked experience”, the Tribunal hearing record in the Courtbook indicates that the interpreter used at the hearing was NAATI accredited (albeit only Level 2). There is otherwise no evidence as to the extent of the interpreter’s experience or expertise. Early in the hearing the Applicant indicated, when asked, that she had no difficulty understanding the interpreter and that she was happy to talk through that interpreter. There is no evidence or suggestion that she subsequently raised with the Tribunal any concern about the interpreter or the standard of interpretation. While the absence of any such complaint is not determinative in relation to the adequacy of the interpretation, these factors do not support a contention that the interpreter had such a lack of qualifications or experience as to in itself demonstrate a failure by the Tribunal to afford the Applicant the requisite hearing under s.425 of the Act.
In any event, what is in issue is not whether the interpreter “lacked experience” as such, but rather the fairness of the hearing in the sense considered in SZSEI.
It was also contended in ground 2 that the interpreter used English words more than 30 per cent of the time. This is not apparent from the transcript. Nor is there anything in the transcript (or otherwise in the evidence before the court) to suggest that the Applicant raised any such concern with the Tribunal. This part of the Applicant’s claim is not made out on the evidence before the court.
While the Applicant made only limited submissions in particularising certain asserted deficiencies in interpretation, the transcript speaks for itself. I have considered the transcript as a whole in relation to the Applicant’s claims that the interpreter did not interpret properly and failed to translate several (unspecified) parts of the Applicant’s evidence.
As stated in SZRMQ and SZSEI, it is relevant to focus on the process afforded to the Applicant to enable her to give evidence and present arguments in relation to the issues arising in relation to the decision under review. In that context it is of significance that, as Griffiths J stated in SZSEI at [74], “there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision” as the mistranslation may be “of such a character or frequency” as to deny any conclusion that the hearing was a proper opportunity for the Applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review. Importantly, the issue is not limited to whether mistranslations in fact affected the quality of the hearing or the Tribunal’s findings or reasons. It encompasses whether the mistranslations “could have affected” the quality of the hearing or the Tribunal’s findings and reasons (SZRMQ per Allsop CJ at [25] and SZSEI at [74]).
Such remarks are of particular significance in the present case, because the interpreter’s translation of the Tribunal’s initial explanation to the Applicant of the centrally important issues of the purpose of the hearing and the criteria for a protection visa was flawed, inaccurate and incomplete.
This part of the hearing was as follows (transcript 1, p.1):
Member: Thank you very much. Okay, so um… what I’m going to do first is just explain to you what the purpose of this hearing is, answer any question you have and after that we’ll talk about your application.
Interpreter: First of all, I will tell you why we have done this hearing and after that I will talk with you about your application.
Applicant: Uh-huh…
Member: okay, so the purpose of this hearing is to help me decide if you are owed Australia’s protection.
Interpreter: This is… this hearing is… uh… the purpose is to let you… uh… Australian’s
Member: Yeah? ... yeah… ok uh… there are two avenues through which you can get that protection.
Interpreter: Australia protection in… uh… whether or not to you, there are two ways to know whether you are in it or not.
Member: One way is through being found to be a refugee.
Interpreter: One way is if you are a refugee.
Applicant: Uh-huh.
Member: Which is under a United Nations convention definition.
Interpreter: That one comes under United Nations conviction (sic) definition.
Member: The other way is through what’s called… uh… con… complimentary (sic) protection, sorry.
Interpreter: The other one is complimentary protection.
Applicant:… protection
Member: yeah, and so… to be a refugee, you need to have a well-founded fear of being prosecuted (sic) in Nepal.
Interpreter: for you to be refugee you need to have… uh… uh found one… uh… reason, in which, when you return to Nepal, you have a fear that someone will do something bad.
Member: Reasons of race, religion.
Interpreter: Reasons of region, race.
Member: Or nationality.
Interpreter: Or your nationality.
Member: Membership of a particular social group.
Interpreter: Or you… um… one specific group.
Member: Or political opinion.
Interpreter: Or your political reasons.
Member: Okay… um… and I mean in your case your clamming… um… to be a lesbian.
Applicant: Yes.
Member: and lesbians may form a particular social group.
Interpreter: in your case, you have said you are a lesbian and lesbians are one particular member of a group.
Member: so… uh… it’s… it’s possible for you to be a refugee and to fear being prosecuted (sic) for that reasons, because of your membership to that group.
Interpreter: and in that, because of one reason you may be that groups member and you may fear something bad will happen to you.
Applicant: oh…
Member: umm… you have a… way you can get protection as I said, is through complimentary protection.
Interpreter: other protection, another way for you to get is said, complimentary protection.
Member: um… and uh… that requires that there is a real risk, that you’ll be subjected to serious and so significant harm.
Interpreter: um… that is one, for you, there… any fear which is injustice to you.
Member: uh… if you return to… um… to Nepal.
Interpreter: if you be back to Nepal.
Member: now, I haven’t given you quiet right definition for that, I just wanted to get it correct before we go on.
Interpreter: I haven’t told you right definition for that, that’s why… that… uh… before starting, I will…
Member: uh just give me a second
Interpreter: tell you the definition, give me a second.
Member: um… cause the wording is quite specific.
Interpreter: for that the definitions are a lot… actually there.
Member: Okay, umm… there must be substantial grounds for believing.
Interpreter: a lot right, right round must be there, in which believing.
Member: there are some necessary and foreseeable consequences of you being removed from Australia to Nepal.
Interpreter: and in there… uh… in the near future and consequential reasons if you to leave from Australia.
Member: there’s a real risk you will suffer significant harm.
Interpreter: there if you truly fear that injustice will be done to you.
Member: so, for any reason.
Interpreter: because of a lot of reasons.
Member: Okay, uh… in other words not… not… uh… doesn’t… have to be because of your race or religion or membership of a particular social group. They can be any reason.
Interpreter: uh… for that reason… uh… for example you race, religion or because you are one groups member. Doesn’t have to be that for you, you might also have fear for other reasons.
Member: um… so… um… as you know the immigration officer, who interviewed you… umm… found that you didn’t fit ether of those definitions.
Interpreter: immigration officer who had interviewed you, they couldn’t fit you in both of those categories.
Member: umm… this tribunal isn’t part of the immigration department.
Interpreter: this court isn’t part of the immigration department.
Member: it’s a completely separate, independent body.
Interpreter: this one is a separate, freedom body… a group.
Member: so what that means is that I’ll be taking… uh… I’ll be looking at your whole application anew.
Interpreter: that means, your application, I will look at a different, new way.
Member: and the hearing today gives you a chance to um… to explain anything more that you want to, add anything, any new information you have and so on.
Interpreter: this… uh… hearing gives you a chance; you can add new things, which thing like similar similar things.
Notably, and of particular significance to the issue of whether the Applicant was afforded the requisite opportunity to present arguments and give evidence in relation to issues arising in relation to the decision under review, the interpreter made significant errors in translating the Tribunal’s explanation of the Refugees Convention criterion and the complementary protection criterion.
First (whether the Tribunal referred to a well-founded fear of persecution or prosecution), the translation of “a fear that someone will do something bad” is inadequate and misleading. It is not overcome by the fact that the reasons of the delegate included a summary of the law (in English).
The interpreter did translate correctly aspects of the Convention reasons (albeit that the concept of “membership of a particular social group” was, somewhat unhelpfully, and incorrectly, translated as “Or you … um… one specific group” and the explanation that lesbians may form a particular social group was not conveyed clearly).
However a significant error is apparent in the interpreter’s translation of “serious” and “significant” harm. There is a clear distinction between the concepts of a real risk of significant harm and “any fear which is injustice to you” as the interpreter said. Moreover, when the Tribunal then gave the Applicant a detailed explanation of the complementary protection criterion, the interpreter did not adequately translate “substantial grounds for believing”. It was translated as “a lot right, right ground must be there, in which in believing.” The Tribunal continued: “there are some necessary and foreseeable consequences of you being removed from Australia to Nepal” but this was translated as “and in there… uh… in the near future and consequential reasons if you to leave from Australia” (transcript 1, pp. 2-3).
When the Tribunal repeated the requirement that there is “a real risk you will suffer significant harm”, the interpreter repeated and compounded the earlier mistranslation in referring to a different concept, being: “there if you truly fear that injustice will be done to you” (transcript 1, p.3). The interpreter also translated “so for any reason” as “because of a lot of reasons”. These errors clearly had the potential to affect the Applicant’s ability to give evidence, present arguments and respond to Tribunal concerns in a meaningful way.
In relation to the purpose of the hearing, the interpreter failed to translate the explanation that the Tribunal (wrongly referred to by the interpreter as a court) was an “independent” body. More significantly, the interpreter did not accurately convey the Tribunal’s explanation that the hearing gave the Applicant a chance “to explain anything more that you want to, add anything, any new information you have and so on”. Instead, the interpreter conveyed the notion that a much more restricted opportunity was being afforded to the Applicant to address “similar” things in referring to “…a chance; you can add new things, which thing like similar similar things” (transcript 1, p.3). This suggested that the Applicant could not raise new matters which were unrelated to her existing claims.
What occurred thereafter in the hearing is to be seen as having occurred in a context where the purpose of the hearing and the applicable visa criteria were not translated accurately.
As discussed further below, there were several occasions on which there was a lack of clarity and confusion between the Tribunal and the Applicant. Some of this confusion appears to have been attributable to an understandable difficulty on the part of the Tribunal in comprehending the sometimes vague and unresponsive evidence of the Applicant. However there were also ongoing issues with the interpretation. As the First Respondent submitted, some were corrected or were not of ongoing significance in relation to the Tribunal’s findings. However, such inadequacies in interpretation (which might in isolation be trivial or of no ongoing significance) must be seen in light of the standard of interpretation of the applicable criteria and purpose of the hearing and an assessment of the conduct of the hearing as a whole.
The only specific example of mistranslation referred to by the Applicant was in relation to the translation of the concept of “lesbian”. It appears that this was intended to be a reference to an exchange that occurred at page 5 of transcript 1.
Prior to this exchange, the interpreter had (according to the transcript) accurately translated the word “lesbian” when used by both the Tribunal member and the Applicant. It is clear that the Tribunal understood that the Applicant’s claim was that she was a lesbian. For example, the Tribunal referred to the country information provided by the Applicant on the day of the hearing. The Tribunal member indicated that she had not had time to read it, but would read it thoroughly. The Tribunal member raised with the Applicant whether there was something in particular the Applicant wanted her to pay attention to in this material and went on (transcript 1, p.4) to describe it as “general information about the treatment of … what are known as LBGTI … in Nepal. It’s Lesbian, Gay, Bisexual, Transgender … and Intersex people”. According to the transcript these concepts (including “lesbian”) were accurately translated by the interpreter. When the Applicant indicated that it was only about “lesbians”, this was also translated correctly. Further, the Tribunal member went on to ask the Applicant about when people knew or began to think of her as being a lesbian (transcript 1, p.4).
Relevantly, the Applicant claimed that the community knew she was a lesbian before her relationship with R became known. Again, according to the transcript, the word “lesbian” was accurately translated in this part of the hearing. The Applicant continued (transcript 1, p.5):
Applicant: yeah… and after that happened, everyone in that village said I was like that, like a lesbian, but I was like that so how can I change myself.
Interpreter: so in the village, that started talking that she’s the uh… she’s like a transgender, “hizada” is actually a transgender.
Applicant: uh… les… lesbian like so…
Interpreter: “Hizada” is a trans, sorry (chuckle)(sic).
It appears that the interpreter volunteered that “hizada” meant transgender and that the reference to a “chuckle” may be other than a translation. In any event, the hearing continued:
Member: yeah…
Interpreter: uh…
Member: yes.
Interpreter: okay... and so they starter (sic) talking like that, the community started saying… that she’s a… that I’m a transgender and they started looking at me in that part way.
It appears that this last translation was supposed to be the completion of the translation of the Applicant’s remarks at the start of the exchange. The hearing continued:
Member: well, okay... that was before you were caught?
Interpreter: so, that was before you were caught with [R]?
Applicant: I was a lesbian, I was a lesbian before that.
Interpreter: I was like that only, I was a lesbian only.
The translation did not accurately reflect the Applicant’s evidence that she was a lesbian before she was caught with R.
Insofar as the interpreter suggested to the Tribunal that the word “hizada” used by the Applicant in fact meant “transgender”, whether or not this was a misinterpretation (and this was not clear from the transcript), it was explained and corrected immediately thereafter and in itself was of no ongoing significance. At all other points in the transcript, the concept of “lesbian”, whether used by the Tribunal or the Applicant, was correctly interpreted. It is abundantly clear from the rest of the transcript (as well as from the Tribunal’s reasons for decision) that the Tribunal understood and considered the Applicant’s claim as a claim that she was a lesbian.
However in other respects the interpretation was deficient and appears to have contributed to the Tribunal’s need to seek repeated clarification (although on occasions this also occurred where the Applicant’s evidence in Nepalese as translated into English by the transcript provider was disjointed and somewhat lacking in clarity).
For example, both mistranslation and attempted clarification occurred in an exchange in which the Tribunal discussed with the Applicant her claims about her treatment by her teachers. Relevantly, she had claimed in her protection visa application that “I was beaten up and tortured by my family and school principals all my life because of my sexual tendencies”. The Tribunal sought details of this claim. The Applicant claimed that her teachers thought she was a lesbian. This was accurately translated, although the Applicant’s evidence that “they used to think I was definitely a lesbian, she looks like this and sits with girls, its bad they used to say” was, somewhat inaccurately, translated as “they used to think, that I’m a lesbian only, she… I stay with the girls uh… and uh… then they used to, they never used to like me.” After this, the Applicant had responded (in English) to a Tribunal question before it was interpreted. The Tribunal advised her not to “jump in” and to let the interpreter interpret, because if she did not understand the Tribunal she might answer “the wrong question and then we’ll misunderstand” (the substance of this was translated, although the translation was not entirely accurate, in that the interpreter translated it as “don’t step in the middle, let the interpreter answer, you… you uh… if you answer in the middle your, you might also say wrong and that’s why don’t step in.”)
The following exchange then occurred (transcript 1, p.7):
Member: okay… and so what did the teachers and the principal do… what, did they cause you any problems?
Interpreter: what did the teacher and principals do to you? Did they give you any problem?
Applicant: still the problems were, something something, how unfortunate they used to say.
Interpreter: yes, they used to um… they did create a problem, they said she’s daughter of the sis uh… I’m a daughter of this is this and uh… they used to hit me.
Member: you were a daughter of the sisters, is that a term for lesbians?
Interpreter: uh… sorry, she’s saying I’m a daughter of this this this person.
Member: oh this is this?
Interpreter: this is… she didn’t.
Member: oh I see...
Interpreter: I’m sorry, sorry.
Member: they… sorry it was an interpreting misunderstanding, my fault.
Interpreter: because she didn’t complete the name, so I…
Member: yes, interpreter, can you just interpret that too...
Interpreter: when you said, you said you were this and this daughter and when I said this this this, she didn’t understand and this things, is it the sister’s thing, she asked in the middle.
This part of the transcript is very confusing. It is not clear why the interpreter referred to the Applicant being a daughter. It is also not clear whether the reference in the transcript to the Applicant saying “something something” was intended to indicate that the transcript provider was unable to identify what was said by the Applicant or whether the Applicant said “still the problems were something something”. It appears that the transcript does not include all that was said in this exchange, particularly as the Tribunal member appeared to understand what was said by the interpreter when all that was recorded was “this is… she didn’t…” to which the Tribunal responded “oh I see…”. However the Tribunal recognised that there may have been a misunderstanding. Relevantly, the Tribunal immediately clarified the issues as follows (transcript 1, p.8):
Member: okay, so they would... uh… so when you say they hit you, what did they do? How serious was it?
Interpreter: so when you said that you git (sic) hit, what did they do? How hard, what did they do to you?
Applicant: they hit me, they scold me, they told my father that I did this and that, I couldn’t have a free life.
Interpreter: they used to hit me, they used to scold me uh… they used to say this, that… I could not live a free life, that was how it was.
It is apparent from this part of the transcript that the interpreter understood and translated the Applicant’s claim that the teachers used to hit her. Any initial confusion in this respect was cleared up and was of no ongoing significance. However the interpreter did not translate the Applicant’s claim that the teachers told her father about her activities.
There is a further unclear reference to “sisters” at page 8 of transcript 1, but in this context, according to the transcript provider, the Applicant did use the expression “sisters”. The Tribunal put to the Applicant that her claim that she had been beaten up and tortured by her family and school principals all her life sounded like a “real” exaggeration (although the transcript suggests that the English words the Tribunal used were “real exestuation”). In any event, the interpreter adequately conveyed the sense that it sounded like this claim was “made up” and “more than what happened”. The Tribunal put to the Applicant that she had not described anyone beating her up or torturing her (although the interpreter translated this as “you haven’t said anyone particularly, said anyone hit you or tortured you, you haven’t given extra information” to which the Applicant replied (transcript 1, p.8):
Applicant: uh… I haven’t done that but that’s my life, what should I give it I know what happened, it my whole life.
Interpreter: that is mine, why should I give uh… give so much of uh… details about it, it is my life.
In this instance the Applicant’s response was in itself confusing, but was adequately translated. The Tribunal member asked if the Applicant meant that she did not want to tell the Tribunal (which was translated in substance). According to the transcript the Applicant replied (transcript 1, p.8):
Applicant: no, I want to say it but you believe me or not, it’s a thing about sisters (sic).
However the interpreter mistranslated this response as:
Interpreter: I want to tell you but whether you believe me or not, it’s up to you.
The Tribunal then sought further clarification as to whether something had happened to the Applicant before she and R were caught, in particular whether something bad had happened that she had not told the Tribunal about (which the interpreter translated). The Applicant agreed that she had told the Tribunal what happened (which was accurately translated). In this part of the Tribunal hearing, the Applicant’s evidence was itself unclear at times, but any initial confusion was resolved and of no ongoing significance.
However, at page 9 of transcript 1, when asked about the reaction in the village to R’s murder, the Applicant said “there was a lot of propaganda about this.” This was mistranslated as “there was noise and all about this and that.” This was incorrect. Unsurprisingly, the Tribunal member sought clarification, in asking the Applicant what people were saying about the murder and how they reacted (transcript 1, pp.9-10).
There was also some confusion at page 11 of transcript 1 when the Tribunal asked the Applicant if she had heard of the Blue Diamond Society which, as the Tribunal member explained, had monitored and reported discrimination against lesbians in 2005 in Nepal (which the interpreter incorrectly described as “looking at injustice” for lesbians and reporting it). The Tribunal put to the Applicant that in 2005 the Blue Diamond Society had reported a much less serious incident, but that it had not reported the murder of a schoolgirl because she was a lesbian, as the Applicant claimed had happened to R. The substance of what the Tribunal said was translated. The Applicant’s response lacked clarity. She stated (transcript 1, p.11):
Applicant: we didn’t say so how can it be, no one has said anything.
Understandably, the interpreter appeared to experience difficulty in translating this response as:
Interpreter: we haven’t said it uh… so how will they say uh… who will say that… they were…
Again, it appears that the transcript may be incomplete. The exchange is recorded in the transcript as continuing:
Member: well, um… on a (sic) killings were… very um…
It may be that this is intended to be a reference to “honour killings”. In any event it is clear the Tribunal said more than appears in the transcript. The Applicant responded, apparently without waiting for a translation of the Tribunal’s question into Nepalese (transcript 1, p.12):
Applicant: not in our village, this must have been the city.
Interpreter: sorry, can you repeat that?
Applicant: this wasn’t in our village, this was in main city.
However the interpreter reversed the response as:
Interpreter: this happened in our village, but uh… they reported from the city.
The Tribunal member went on to suggest that what the transcript records as “honoured killings” would have been unusual in Nepal and she would have thought that this would have been reported.
There were other occasions in the hearing where apparent confusion on the part of the Tribunal was occasioned because of difficulties reconciling aspects of the Applicant’s claims, in particular in relation to what the school principal knew about her when she was at school (in particular as to whether she was a lesbian), and the fact that he had not stated in the letter of support that she was a lesbian or that she had passed a particular exam. Any confusion in that exchange was addressed, so that the concern that the Tribunal would have expected that a report would have been made of an alleged killing of the nature suggested by the Applicant was adequately conveyed and responded to by the Applicant.
At times, the Applicant appeared to express exasperation with the Tribunal’s attempts to clarify her claims. Part of this may well have been attributable to the Applicant’s evidence, but inadequacies in interpretation also contributed. The Tribunal member asked the Applicant what was meant by the reference (in the letter from the principal) to her “bad behaviour” at the school. The Applicant suggested that it meant that she was a lesbian, even though, as the Tribunal member explained (and as was adequately translated), the Applicant’s evidence had been that at the time she left school the principal had no idea that she was a lesbian. There were some instances of less than perfect translation as well as confusion in the Applicant’s evidence in this respect. It does appear that any initial confusion in this respect was appreciated by the Tribunal member, who persisted in seeking clarification. Ultimately both the Applicant’s evidence in this respect (which involved the assertion that before he wrote the letter the principal went to the village and that was how he knew that she was a lesbian) and the Tribunal’s concern that the principal had not said this in the letter were made clear.
However the Applicant claimed that at times she had indicated by stating “huh?” that she did not understand the interpreter, for example in an exchange at transcript 1, p.17:
Member: right… but you… have told me that he didn’t know that you were a lesbian until after you left… he didn’t know while you were a student at the school, that you were a lesbian.
Interpreter: but you were saying he has no idea, by the time you left school, he had no idea that you were a lesbian.
Applicant: yes, he found out later, because I said as I went on studying, he found out later, not before I left.
Interpreter: yes, th… later he came to know about it, its later, not right when I uh… finished the school.
Applicant: uh… at first I went and after that slowly as I went more, he slowly, because no one knew before…
Interpreter: initially I went to school and there I started getting uh… getting attracted to the girls uh… initially nobody knows about it, no body knew about it.
Member: alright.
Applicant: and after that went on happening and from that behaviour when everyone saw… then said like bad.
Interpreter: later it uh… kept happening and when… when everybody could see it… he uh… thinks that… uh… it was a bad behaviour.
Member: right…
Interpreter: and?
Applicant: that’s it, that happened and then only after he wrote letter saying I was like that.
However this was, somewhat confusingly, mistranslated as:
Interpreter: and, yes, it became a bad behaviour and later it got uh… letter.
Applicant: and he went to the village and knew.
The mistranslation was compounded:
Interpreter: he went to the village also to understand about it, and then he gave a letter.
Member: he gave a letter to the… to the village?
Interpreter: so he gave a letter… to the village?
Clearly the Applicant was confused in responding:
Applicant: huh?
Interpreter: uh… yeah?
Member: are you saying he gave a letter about you… to the village?
Applicant: NO, no, no, no, no, village, no, of course.
Interpreter: you are saying that the letter was given to the village, right?
Applicant: no, no, thats not what I’m saying.
Interpreter: no, no, no.
Member: no, so the… you’re talking about this letter?
Applicant: yeah.
Interpreter: this letter is the… one that you are talking about?
It appears that the above confusion reflected the interpreter’s misunderstanding and mistranslation of the Applicant’s explanation of the circumstances in which the principal wrote the letter of support (mistranslated to suggest he gave a letter to the village). The exchange continued (transcript 1, p.17):
Member: so what problems did his school have because of your behaviour at his school?
Interpreter: what problem did the school have because of your behaviour… in his school? What kind of problems did he have?
Again this was somewhat inaccurate insofar as it suggested that the Tribunal asked about problems the principal had experienced as well as problems for the school. The Applicant (still referring to the letter of support) stated:
Applicant: that bad, bad means that now I could never change and one this was that I was a lesbian.
Interpreter: bad means I cannot change my behaviour uh… ti… it’s a… till I am a lesbian.
Applicant: that… that one thing and, I was born this way and it’s not my fault.
Interpreter: I was bourn (sic) like this. It’s not my fault.
Member: what problems did his school have? He has written here…
Applicant: huh…
Member: here, “because of your behaviour, the school sometimes had to face problems too”, so what problems is he referring to have had?
Interpreter: he has written that you… because of your behaviour that he had problems, his… his school has problems. What problems did his school have?
Applicant: so the problems that the school had was, I used to go touch a girl and it would also affect other girls, they will be ruin them, it will be bad.
Interpreter: I’m a lesbian and if I go and touch a… touch a girl, the girls they will go and…
Applicant: because I’m a lesbian…
Interpreter: touch other girls and then they will get spoiled.
To some extent the confusion in this exchange may have been attributable to vagueness in the Applicant’s evidence, but this was potentially compounded by interpretation inadequacies and confusion. Indeed, the Tribunal explained to the Applicant that it was having difficulty understanding aspects of her evidence about the school principal. It summarised these concerns (which were translated), in particular the fact that the supporting letter did not state that the Applicant was a lesbian or that her partner was killed. However the Tribunal’s findings about the lack of credibility of the Applicant (while not specifically based on concerns clearly attributable to mistranslation) are to be seen in light of the standard of interpretation at the hearing.
In the second CD of the transcript the Tribunal expressed concern about other aspects of the Applicant’s evidence. The Tribunal put to the Applicant that if it accepted that the letter from the principal was genuine, it indicated that she had been at the one school since 2000, whereas she had claimed that she changed schools. The exchange continued (transcript 2, p.2):
Applicant: but, I, I know that I have changed myself.
Interpreter: I know I have changed school.
Member: hmm… okay but you understand I could think you haven’t changed schools…
Applicant: uh… yeah…
Member: yeah?
Interpreter: are you understanding, that I am thinking that you haven’t changed school at all, that you haven’t changed.
Applicant: but I would know that, to me.
Member: hmm… but that would make me wonder, though, if you had had a girlfriend, who had died, and had all of this scandal around you.
Interpreter: and because of that I would think that, if you had a girl and this event happened or not, to think that… um…
Applicant: huh?
It is notable that this “huh” was in response to an incomplete translation. The exchange continued:
Interpreter: what are you saying?
Member: well, you said you were… you were banned from school because of your relationship with [R] and then you had to go to another school.
Interpreter: you have said you were banned in school, you and [R] because of your relationship with her, and because of that you had to go to another school.
Applicant: uh-huh, yes.
Member: uh-huh and this letter seems to indicate that you were at just one school, you didn’t change schools.
Interpreter: but this letter… but this letter says that you never changed school, that you only had one school.
Applicant: well that principal wrote the date, wrote the wrong this so what can I do.
Interpreter: I don’t know, the principal might have written the wrong dates.
Member: okay, okay….
Despite some lack of clarity in the interpretation, it is apparent that the reason the Tribunal was expressing doubt about the Applicant’s evidence in this context was adequately conveyed. The Applicant ultimately had the opportunity to comment and her explanation that the principal might have written the wrong dates was translated in substance.
At another point (transcript 2, p.3) the interpreter mistranslated “one year” as “one month”. The Applicant had said that she stayed in Kathmandu for “one year” and corrected this mistranslation. The interpreter then provided the correct translation.
There was then an exchange about where the Applicant had stayed in Nepal before she came to Australia (transcript 2, p.3). The Applicant denied that she had previously agreed with what the Tribunal had put to her in summarising her evidence in this respect. She stated “uh-huh… no, I didn’t”. This was mistranslated as “yes… did I?”. This exchange continued (transcript 2, p.3):
Member: yes.
Applicant: no… I think so.
Member: yes, you did, yes, you did.
Unsurprisingly, the Tribunal then put to the Applicant (transcript 2, p.3): “now I’m, my problem is that I’m… because a lot of what you’re saying to me is quiet (sic) vague, and um… some of it doesn’t really make sense to me. So I’m just wondering of you are being completely truthful with me.” This must be seen in the context of the earlier frequent, albeit often minor in themselves, mistranslations. Further, this concern was expressed in much stronger terms by the interpreter (at transcript 2, p.4) as: “yes, yes you did say that, right and what you have said it’s a little proper… it is starting to get vague and uh… that’s why I am starting to feel that what you are saying, so many of the things are not true, that you are telling lies, that’s how I feel.”
It is perhaps not entirely surprising that the Applicant, incorrectly, appears to feel that the Tribunal exhibited actual bias or that its conduct of the hearing (as translated by the interpreter) was indicative of apprehended bias. There is a clear difference between the Tribunal member’s expressed concern that she was wondering if the Applicant was being completely truthful with her and the interpreter’s suggestion that the Tribunal member had said she was starting to feel that many of the things the Applicant said were not true and that she was telling lies.
Another interpretation issue arose at transcript 2, p.4. After a break, the Tribunal discussed with the Applicant her evidence about living in Kathmandu with the man her parents had arranged for her to marry after she left school. The Tribunal asked whether the Applicant or her husband were working. When the Applicant said no, the Tribunal asked what income they were living on (which the interpreter translated). The Applicant replied, “My husband used to do his father’s work.” However, the interpreter mistranslated this as:
He used to look after, his hus- uh… his… father’s property.
Unsurprisingly, the Tribunal then started to ask (transcript 2, p.4) about the whereabouts of the property. The interpreter again mistranslated what was said. The exchange continued (transcript 2, pp.4-5):
Member: where was that?
Interpreter: where was that?
Applicant: that by that I mean, his father used to work in Kathmandu as well.
Interpreter: his father used to work in Kathmandu.
Member: alright, so he… your husband looked after his father’s property in Kathmandu?
Interpreter: your, your uh… husband, your fa-… his father’s, looked after his job?
Applicant: not job… his father used to earn and we used to live off of that.
Interpreter: his father used to earn and with that income we used to uh… do our lively hood..
Member: okay… so… you… okay, so you were getting the rent from his father’s property?
Interpreter: you guys… from his father um… getting rent, from his father’s job?
Applicant: what do you mean by rent?
Interpreter: what kind of rent?
Member: you, I don’t understand how you were benefiting from his father’s property.
Interpreter: you… you know how you said job earlier, job would mean…
It is apparent that the interpreter confused the concepts of “property” and “job”. This made the Applicant appear unresponsive, when that was not the case. It appears the Applicant may then have interrupted as follows at transcript 2, p.5:
Applicant: well, one … well, us Nepalese, you know the custom in Nepal is one works and everyone is looked after with that.
Interpreter: what I meant is like in Nepal, how it is, one person, he earns and everyone stays in one house and… that’s how...
Again, this was not exactly what the Applicant said. The Tribunal then confirmed that the Applicant was living with her husband’s family and that her father-in-law was supporting her and her husband. While there is no indication that the misinterpretation in relation to “property” was ultimately of any significance to the Tribunal’s reasons, it clearly impacted on the process.
There was also an initial lack of clarity in the discussion about the Applicant’s claim that she gave her husband some money (transcript 2, p.5). This arose in the context of a mistranslation. The Applicant agreed that she married her husband so she could come to Australia. When asked if she gave him any money she replied: “no, I didn’t, just to make some papers only, I gave him money, for me” This reply was itself somewhat unclear. However, the interpreter initially translated “papers” as “documents” (transcript 2, p.5). The Tribunal then asked “to make what documents? Marriage documents?” The interpreter then mistranslated “documents” as “papers”, “papers for marriage?”. This exchange continued (transcript 2, p.5):
Applicant: well I don’t, he did it, I just gave money, in Nepal you just give money and so.
Interpreter: I don’t know, he did it, I just gave money, in Nepal you just give money and so.
Member: so what… what, was it a lot of money you gave him?
Applicant: no, no, no, not a lot of…
Interpreter: did you give a lot of money to them?
Applicant: no, not like that.
Interpreter: no, not like that.
Member: just a little money?
Applicant: yeah.
Interpreter: little money?
Interpreter: yes.
Member: and what did the money pay for? I just don’t understand what it was for.
Interpreter: that money, what was it for?
Applicant: to make the things, like those things you know.
Interpreter: to make papers of how to come.
Applicant: we had to make papers to show, this is how and that.
Interpreter: the papers to make the uh… to show this person is like… is this one.
Applicant: and he’s the husband and this and the papers and all, everything had to be made.
Interpreter: this husband is uh… this is a… her husband, the husband is this, this kind of…
Applicant: travel and registration…
Interpreter: relationship, the relationship.
Unsurprisingly, the Tribunal member sought clarification that the Applicant was not paying for false documents. The Tribunal member explained she did not understand specifically what the Applicant was paying for (translated as “I don’t understand specifically what you made the paper for”). Ultimately the Tribunal worked out that this evidence was in relation to documents required to obtain a visa to come to Australia.
However, of more direct significance, the interpreter’s apparent inability to translate central concepts in the visa criteria led to further mistranslation after the Tribunal discussed with the Applicant her failure to have made contact with NGOs in Kathmandu which supported lesbians. The Tribunal acknowledged that there was community criticism of lesbians, but continued (transcript 2, p.8): “…but that doesn’t mean they’re being… seriously harmed or persecuted or… or significantly harmed, in Kathmandu does it?”. However, the interpreter mistranslated this as: “but that doesn’t not mean that they… uh… any torture, any injustice is happening, any bad think (sic) like that happen, no such proof is there.”
Unsurprisingly, in response the Applicant addressed the issue of torture (even though this was not what the Tribunal had in fact said). Again, her reply was not translated accurately. The Applicant said (transcript 2, p.8): “there is, now, evidence in terms of torture, being given problems, to say things like that… that happens, you know in one’s heart… with that happening, how can you live, I have seen there”, but the interpreter mistranslated this as “uh… yes uh… there is a… uh… there’s so much of threat and uh… uh… uh… how, how can you uh… live like that in that kind of place?”. These mistranslations related to matters of central significance to the review process.
In the course of translating information the Tribunal put to the Applicant about the treatment of homosexuals and lesbians in Nepal the interpreter translated “relatively tolerant of” as “looked at in a good way”; “social acceptance” as “the community also approve them” (transcript 2, pp.11-12). Even if these approximations were sufficient, more importantly, when then Tribunal put to the Applicant (transcript 2, p.12) “there are no reports of… lesbians in Kathmandu being seriously or significantly harmed” this was mistranslated as “but any… lesbians um… anything in a bad way, injustice or, injustice that have happened anything… anything in a bad way, things like that have not happened.” Again this mistranslation of central elements of the visa criteria potentially affected the Applicant’s ability to respond in any meaningful sense. Further, when the Tribunal put to the Applicant (transcript 2, p.12) that Maoists publicly supported legal protection for homosexuals and that harassment by the authorities and ordinary people in society was generally not as common in urban areas as in rural areas so that “the authorities would have some difficulties, under these circumstances… um… denying equal protection to… lesbians”, the translation “and because of this authority, authorities for lesbians, not to give… will not give protection, it harder for them to say that… because of that” failed to convey what the Tribunal was putting to the Applicant with any clarity.
A mistranslation of applicable criteria occurred again when the Tribunal agreed (transcript 2, p.13) that no one could guarantee anyone lifetime support, and continued: “but what I have to do is to… is to consider whether you might be, seriously harmed or… significantly harmed… in the reasonably foreseeable future”. However the interpreter said: “what I have to look at is, you might be utmost unfairness, this kind of unfairness that my (sic) come to you soon, whether that may happen or not, that the only thing I have to look at” and went on to mistranslate “seriously harm” as “be unfair to you” when the Tribunal further explained its role (transcript 2, p.13). Once again the Applicant’s ability to respond in any meaningful sense is to be seen in light of the fact that the interpreter put “unfairness” to her as the applicable test, rather than concepts even approximating “serious harm” or “significant harm”.
Shortly after this exchange, the Applicant referred to her mother telling her that she was “in danger”. The interpreter overstated this as “threat to your life” (transcript 2, p.13). It appears that the Applicant corrected the interpreter.
The First Respondent submitted that, seen in context, the “translation” of what was recorded as having been said by the Tribunal in relation to the visa criteria, while less than perfect, conveyed in general terms what was said by the Tribunal, including the need for a Convention reason and the Tribunal member’s explanation that lesbians may form a particular social group and that the Applicant may fear harm (as the interpreter said that “something bad will happen to you”) because of being a member of that group. It was submitted that the interpretation sufficiently conveyed the concepts of persecution or serious harm (cf SZSEI at [79]).
It was also submitted that while there were inadequacies in the translation of what the Tribunal member said about the complementary protection criterion, there was no basis to suggest that the inadequacies in interpretation of the wording of these criteria led to the Applicant not asserting any aspect of any harm she claimed to fear in Nepal.
The First Respondent pointed out that there was a detailed explanation of the Refugees Convention criterion and the complementary protection test in the delegate’s decision and that in the Tribunal hearing, after a lengthy consideration of the Applicant’s fears, in particular based on her claim to be a lesbian, past events and her claimed fears for the future, the Tribunal had specifically asked the Applicant (transcript 2, p.10) whether there was any other reason she did not want to go back to Nepal or could not go back to Nepal. This was adequately conveyed by the interpreter except that the notion of not wanting to return or concern about going back was translated in terms of any other reason why she “can’t” go back. The Applicant responded as follows:
There are no other reasons, it’s just that if I go then there will be people who will kill me, they will chase me and they will all say that I am this kind of girl and say things.
She went on to explain that her concern about returning to live in Nepal was on the basis that she was a lesbian and that she feared being killed by the parents and brothers of R.
The First Respondent submitted that there was no basis to suggest that the Applicant did not understand that the Tribunal had to assess her future situation if she returned to Nepal, consistent with her application and the delegate’s decision and the Tribunal’s reiterated request that she inform it of any reason why she feared returning to or harm in Nepal. It was pointed out that the Applicant had agreed (transcript 2, p.15 and p.17) that she had put forward everything that she thought was important. It was submitted that there was no basis to suggest that this was not the case or to support any contention that the Tribunal misunderstood any aspect of the Applicant’s claims.
In particular, shortly before the end of the hearing (transcript 2, p.17), when the Tribunal member indicated that she had no further questions and was ready to end the hearing as long as the Applicant was happy that she had told the Tribunal everything that was important to her (and also see transcript 2, p.15), the Applicant did not raise any further concerns, except to indicate that she could have gone to India but that there was no protection for her there.
However, “the process is central” (SZRMQ at [68] per Robertson J). As Counsel for the First Respondent conceded, Griffiths J made the point in SZSEI at [74] (and see SZRMQ per Allsop CJ at [25] and Robertson J at [68]) that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision. I have had regard to the mistranslation of central concepts in the applicable criteria and the purpose of the hearing and also to the whole of the hearing and the cumulative effect of the mistranslations. Notwithstanding that many of the individual inadequacies in interpretation appear to have been minor or clarified or to have been of no specific significance in relation to the Tribunal’s reasons, such minor inadequacies occurred in a context where the central and critical purpose of the hearing and the criteria for protection were mistranslated.
These mistranslations were significant and misleading and are not overcome by any explanation of the criteria in the delegate’s decision or the Applicant’s acknowledgment that she had no other reason not to return and had told the Tribunal everything important to her. The mistranslations of central concepts in the visa criteria and in relation to the purpose of the hearing had the potential to affect the Applicant’s ability to respond in a meaningful sense.
Moreover I am of the view that, when the transcript is considered qualitatively as a whole (see SZHEW at [52]), it is apparent that the mistranslations occurred so frequently (albeit that the Tribunal member attempted to clarify any confusion) and were overall of such a nature that they affected the process and quality of the hearing and also “could have affected” the Tribunal’s findings and reasons. I have borne in mind the exhortation in s.422B(3) of the Act (see SZSEI at [73] and Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [15] and [18]). The Applicant was not afforded the requisite opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review as required by s.425 of the Act. The mistranslations were of such character and frequency as to deny any conclusion that the hearing was a proper opportunity for the Applicant to give evidence and present arguments as required under s.425 of the Act (see SZRMQ at [25] and SZSEI at [74]).
This conclusion does not imply any inadequacy on the part of the Tribunal member. On the contrary. The significant mistranslation in relation to the criteria and purpose of the hearing would not have been apparent to the Tribunal. The Applicant’s evidence (as recorded by the transcript provider) was in itself at times confusing, unclear and unresponsive. The Tribunal endeavoured to clarify what it perceived as confusion. However in my view the “fundamental mistranslation of matters of significance involving important issues” (see SZRMQ at [22] per Allsop CJ and Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [45]-[46] per Kenny J) and a qualitative assessment of the hearing as a whole reveals that the Applicant was not afforded a fair hearing and that there was a failure to comply with s.425 of the Act.
Accordingly jurisdictional error has been established on this basis.
Ground 3
The third ground in the application related to three documents submitted on the morning of the Tribunal hearing (which the Tribunal acknowledged during the hearing). The Applicant contended that the Tribunal had not considered these documents and failed to mention them in its decision. She submitted that all the materials before the Tribunal, including her submissions, must be considered by the decision-maker before making a decision.
The documents in question were items of country information about the situation in Nepal for lesbians. However, given the Tribunal’s finding that the Applicant was not and would not be perceived to be a lesbian, there was no need for it to refer to any such documents or information in its reasons for decision.
Moreover, as the First Respondent submitted generally, the Tribunal is not obliged to refer to every item of evidence before it in its reasons (SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]). The weight to be attributed to items of independent country information is a matter for the Tribunal as part of its fact-finding function (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]). This is not a case in which a failure to consider the information in question demonstrated error in the sense considered in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 or Minister for Immigration and Border Protection v SZSRS& Anor (2014) 309 ALR 67; [2014] FCAFC 16. Given the Tribunal’s findings, the material in question was not of such importance to the exercise of the Tribunal’s function that it was necessary for it to be considered expressly in the reasons for decision. Ground 3 is not made out.
However as jurisdictional error has been established, the application must be remitted for reconsideration according to law.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 19 August 2016
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