SZUZZ v Minister for Immigration

[2015] FCCA 1946

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUZZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1946

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – interpretation – whether denial of procedural fairness – whether Tribunal failed to take into account relevant considerations – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.15.27(2)

Migration Act 1958 (Cth), s.425

Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
SZHEW v Minister for Immigration & Citizenship [2009] FCA 783
SZJBD v Minister for Immigration & Citizenship (2009) 179 FCR 109
SZRMQ v Minister for Immigration & Border Protection [2013] FCAFC 142
SZSEI v Minister for Immigration & Border Protection [2014] FCA 465
WALN  v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131

Applicant: SZUZZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2464 of 2014

Judgment of: Judge Smith

Hearing date: 9 June 2015

Date of Last Submission: 9 June 2015

Delivered at: Sydney

Delivered on: 17 July 2015

REPRESENTATION

Counsel for the Applicant: Mr M. Fozzard

Solicitors for the Applicant: Michael Vassili

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2464 of 2014

SZUZZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the second respondent (“Tribunal”) dated 14 August 2014. The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of Uganda whose first language is Luganda. He claimed in summary that he feared persecution in Uganda as he was a member of the opposition Forum for Democratic Change (“FDC”) political party. He raised two grounds in this application: first, that the standard of interpretation at the second of three hearings conducted by the Tribunal was so inadequate that it denied him a fair hearing; and secondly, that the Tribunal erred by failing to take into account a newspaper report that, he claimed, was corroborative of his claims. For the reasons that follow neither of those grounds is made out and the application will be dismissed.

Background

1. The applicant arrived in Australia on a Special Program (TE – 416) visa which was cancelled on 18 November 2011. On 28 November 2011 he applied for a protection visa. The following summary of those claims is taken from the applicant’s written submissions which are accepted by the Minister to be an accurate summary:

   [12]The Applicant also made specific claims in his original application to the Department on the 28 November 2011:

   (a)In August 2004, the applicant became involved in addressing the issue of excessive course tuition fees which was causing student anger. He was charged with the responsibility of mobilizing and leading students in a peaceful demonstration which started at the front of Macmaine and went to Constitution Square. On arrival there, the students were met by anti-riot police, army personnel and special military police who used various weapons- batons, AK47s and even armed vehicles – to disperse them. Some students sustained bullet injuries.

   (b)The applicant was arrested and assaulted by the authorities because of his role in the demonstaration (sic). He and other students were taken by a police truck to an unknown location where he was beaten with wire whips, tortured and interrogated for a day and a night. He was released after being warned against further involvement in any demonstrations and after being forced to sign documents confessing to false accusations. He was also advised that he had been blacklisted and would sent to prison if arrested again.

   (c) In 2006, the applicant became a formal member of the FDC and was recruited as chairman of the FDC youth at Macmaine and became the focal point for party activities at the institute, conducting FDC rallies and assemblies there. He also became active in opposition politics against the Democratic Party (DP) and other parties at the university and national levels. On several occasions, the applicant and other students who were involved in peaceful demonstrators were rounded up by anti-riot police, jailed for few days and then released on bail.

   (d)Shortly after completing his diploma at the end of 2006, the applicant was employed by Bukasa Telcom Uganda as an installation technician and then by Huawei Technologies Uganda as a technician. He was involved in maintain telecommunication masts around Uganda and in Burundi, Rwanda and Kenya. He also continued his political activities, attending meetings regularly.

   (e)On 31 July 2010, while on duty for his company, the applicant was returning to Uganda across the Uganda-Malaba when he was stopped by the Uganda customs security (UPDF) at the checkpoint. When the officers saw from his passport that he travelled frequently to Burundi and Rwanda, they asked for his official work request. Because he did not have one, and even though he had company identification and a company car, they detained him on suspicion of making false statements to them about his reason for crossing the border. He was beaten and refused contact with his employer. While in UPDF custody he was tortured and interrogated about his work, travels across the border and political involvement and political opinion. He was accused of contacting and collaborating with members of the allied Democratic Forces (ADF) in Rwanda. He denied this and any interests in politics, although he stated that he was a supporter of the FDC. He was then further physically abused by soldiers and was warned against any involvement with the FDC or ADF. He was advised that he would be kept under constant surveillance. He was released and his documents were returned on payment of 50,000 Ugandan shillings, however he was told that he must no leave the country. He was also forced to sign a document which he was not allowed to read. He then drove to Tororo town to obtain medical treatment for his injuries. A friend drove him back to Kampala because he was so weak, and he then reported the incident to his employers who gave him leave to recover.

   (f)From August to November 2010, the applicant was very frightened for his life. He considered quitting his job but did not want to live in poverty again. After he resumed work, he was spied on and received death threats over the phone. He systematically faced with targeted arrest and illegal detention and was falsely accused by different Ugandan security agents. On 31 August 2010, he was contacted by phone by a man who identified himself as a colonel from the Bombo military barracks and told him that he was required to attend an interview on account of the incident in July 2010. He said that he was under surveillance by the Ugandan military intelligence and could not run from the UPDF.

   (g)On 11 September 2010, three men attacked him in his house. They arrested him, took into their car at gunpoint, and then beat him with the stocks of their guns and kicked him with steel-capped boots. They took him to an unknown destination, insulted him, physically abused him in various ways and kept questioning him about his affiliation with the FDC, his collaboration with the ADF rebels and his reason for refusing to join the ruling NRM (National Resistance Movement). He was also questioned again about his travels to other countries. Eventually he was driven somewhere and dropped on the side of the road.

   (h)The applicant was fearful of returning home and decided to stay at the home of a neighbour. He then relocated to another house, kept a low public profile, changed his mobile phone number and concentrated on his work. He continued his political activities despite the danger, attending many FDC pre-election meetings.

   (i)After the February 2011 presidential and parliamentary elections, the applicant was assigned as an FDC youth leader in the Ntinda area to mobilise and guide demonstrations to be held on 11 and 1 April 2011 which were known as the “Walk to Work” campaigns. During the first demonstrations, the Ugandan government sent armed military and police forces to intercept and attack the demonstrators. The applicant was beaten by soldiers but escape.

   (j)During the second demonstration, smaller groups of protestors moved fro (sic) their home areas and converged in the city, with the applicant leading the Ntinda group. Again there was heavy deployment of anti-riot security forces which attacked the demonstrators. The applicant was beaten and arrested with other demonstrators and taken by military truck to an unknown destination. He and the others were tortured by near-drowning. The next day he was interrogated by three officers, one of whom was a public prosecutor and, he was told, would write a statement about him.

   (k)After a total of two days in detention he was taken to the central police station where other Walk to Walk demonstrators were being held. On 19 April 2011, when of the police officers took pity on him and allowed the applicant to contact his family or friends. He was also advised that he would be appearing in court on charges of associating with a rebel organization, causing disorderliness, inciting violence and treason. He know he would be given life imprisonment or the death sentence on these charges.

   (l)He appeared in court on the 21 April 2011 and was given legal representation which had been organized by the FDC, who spoke to him while he was in jail. He and the other “Walk to Work” captives denied all the charges of which they were accused. The applicant and some others were released on bail on the basis of poor health, however in passport was requested because he was banned from travelling; he told his representative that he had lost it although he still had it at home. He was required to return to court for another hearing on 30 May 2011, which was later rescheduled to 31 August 2011.

   (m)After his release he received medical treatment and his friends advised him to leave the country. He noted that he was under surveillance all the time. He decided that he needed to escape Uganda to save himself. He had already begun looking for ways to leave at the end of 2010. A friend named Alex told him that a man he knew, named Joshua, could assist him. Joshua arranged for him to obtain a visa for Australia. He managed to skip his court hearing on 31 August and was helped by a friend of Alex, who worked at the airport, to pass through airport security on departing Uganda in 4 September 2011. When he arrived in Perth on 6 September 2011, he was met by people from “Youth with a Mission”. He realized he did not fit in with them. Two days later he met a Ugandan girl, told her about his problems, and they both travelled to Sydney where she told him that her friend Jeff could help him. A West African church leader in Perth also gave him a few hundred dollars to travel to Sydney.

   (n)The applicant fears that, if he returns to Uganda, he will be arrested and killed because he has been accused of very serious offences and left before his court hearing.

   (Errors in original)

2. On 11 February 2013 a delegate of the Minister decided to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision.

3. On 11 September 2013 the applicant was invited to attend a hearing to be held by the Tribunal on 21 November 2013. Shortly before that hearing, the migration agent acting for the applicant sent a number of documents to the Tribunal including a newspaper article in Luganda regarding the Walk to Work campaign that the applicant claimed to have attended in 2011.

4. The applicant attended the hearing before the Tribunal on 21 November 2013 and gave evidence over the course of approximately 3 hours with the assistance of an interpreter in the Luganda language. The hearing was adjourned to another day. It was initially to be held on 27 November 2013 but, at the request of the applicant’s adviser was fixed for 18 December 2013. In the meantime the applicant’s adviser requested, and was provided with, a copy of the recording of the first hearing.

5. The applicant attended the second hearing on 18 December 2013 again with the assistance of an interpreter in the Luganda language. This hearing lasted approximately 3.5 hours. At the hearing the applicant gave the Tribunal a letter from a general practitioner indicating that “any interview should be done in stages with no more than 30 minutes, followed by a 5-minute break to allow him to do his breathing exercises & relax & get thoughts in order.”

6. It will be necessary to return to some of the detail of the second hearing in due course. For present purposes it may be noted that there were some questions raised about the standard of interpretation at the hearing and that the Tribunal asked the applicant some questions relating to the newspaper article that had been provided by his agent.

7. After the hearing the applicant’s agent asked for and was provided with a copy of the recording of the second hearing.

8. In submissions to the Tribunal dated 24 January 2014 the applicant’s agent stated that a translator for the newspaper article had been unable to be obtained and that there had been serious interpretation issues in the second hearing. It noted that “on several occasions during the second hearing, the interpreter informed the Tribunal that she did not understand a particular word or phrase used by the applicant, and that she was not fluent in Luganda.” The submission went on to say that by “listening to the audio-recording of the second hearing, it is immediately apparent that there were significant inaccuracies, errors, and omissions made in the interpreting throughout the hearing.” However, there were no instances given of those inaccuracies errors or omissions.

9. In the statutory declaration accompanying the agent’s submissions, the applicant said in respect of the second hearing that:

   [7]I did not feel that the Luganda interpreter was very good. She did not understand some of the language I was using and she could not express what I was saying properly. I know this as my English is quite good.

   [8]For example, when I used the word “incite” during the hearing she did not know how to translate it to Luganda.

   [9]Also, when I was explaining that I was accused of supporting the ADF rebels, she said that I was supporting the rebels. This is a very significant difference for my case. I worry that there were other instances like this in my second hearing that I may not have picked up on.

   (Emphasis in the original)

10. It may be noted that this statutory declaration, like every other statement made by the applicant in support of his claims, was in English and that there is no indication that it had been translated for the applicant.

11. In light of the concerns raised about the standard of interpretation at the second hearing, the applicant was invited to and did attend a third hearing conducted by the Tribunal on 18 June 2014. Once again, the applicant gave evidence at this hearing with the assistance of a Luganda interpreter.

12. The Tribunal made its decision on 14 August 2014 affirming the decision of the delegate.

Tribunal’s decision

1. The Tribunal had significant concerns about the applicant’s evidence at the second hearing. However, the Tribunal stated that its concerns about the third hearing alone led to such significant concerns about the applicant’s credibility that it found that he was not a witness of truth and that he was prepared to say anything to obtain a protection visa. It noted that, in addition to and independently of those concerns, it had concerns about the applicant’s evidence at the first and second hearings which also indicated that he was not a witness of truth and had fabricated his claims.

2. The Tribunal explained its concerns arising from the evidence at the third hearing as follows:

   a)there were inconsistencies between the applicant’s claimed experiences of arrest and torture in 2010 and the evidence from his passport which showed that, contrary to his other evidence, the applicant had travelled from Uganda to Kenya at that time;

   b)the fact that the applicant chose to continue with the very work that had given rise to the authorities’ suspicions about him and was warned not to leave the country because he would be under constant surveillance was inconsistent with his claim to fear harm;

   c)similarly, the fact that the applicant continued with the same work after having been attacked, arrested, blindfolded, threatened with death and severely beaten in connection with the travel associated with his work made his claim to fear harm not credible;

   d)the applicant voluntarily attended a Court hearing in May 2011 even though he faced charges against him which carried either a life sentence or a death sentence; and

   e)the applicant’s delay in leaving Uganda was inconsistent with his having experienced a genuine fear of harm there.

3. In addition to those matters, the Tribunal outlined six other bases upon which it rejected his claims as lacking credibility. Those reasons included a number of occasions at the hearings at which he gave inconsistent evidence, such as stating on one occasion that his mother was unable to pay his tuition fees and on another occasion stating that she had paid them.

4. The Tribunal also had regard to the documentary and other corroborative evidence relied upon by the applicant, saying that it had weighed up the documents but because of evidence, and the applicant’s admission, the documents could be obtained by bribery and because of its other concerns with the applicant’s credibility, it was not prepared to give any weight to those documents from Uganda.

5. In respect of the newspaper article, the Tribunal noted that it had been unable to find the article online and that, in spite of being given the opportunity to obtain the original article the applicant was unable to do so. Those reasons, together with the fact that the applicant’s name was a common name and on the basis of his lack of credibility in general, the Tribunal was not prepared to accept that the article was genuine and that even if it was it did not give it any weight.

6. The Tribunal then had regard to evidence that was contained in medical and psychological reports relied upon by the applicant and, noted that while it was prepared to accept the diagnosis in February 2012 that the applicant suffered severe stress, anxiety and depression and that he had been diagnosed with PTSD. However, it did not accept that he had experienced harm in Uganda simply because he had told his doctor and psychologist that he had.

7. The Tribunal summarised its credibility findings as follows:

   [63]Considering the matters from the third hearing as discussed initially above, and taking into account the documents and corroborative evidence matters discussed above (and in the Annexure), the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has fabricated an account of events upon which he has based his protection claims.

8. On the basis of that conclusion, the Tribunal rejected all of the applicant’s factual claims and found that he did not satisfy the criteria for the grant of a protection visa.

Consideration

1. Before turning to the grounds relied upon by the applicant, it is worth noting several procedural matters. The application for judicial review was filed on 3 September 2014 and listed for a first Court date on 17 November 2014. On that day the Court made various directions for the preparation of evidence and for the filing and serving of any amended application and listed the matter for the call over on 6 February 2015. In the meantime, the matter was transferred to my docket. On 6 February 2015 I ordered that the matter be listed for hearing on 2 April 2015. That date was later changed to 14 April 2015.

2. By application in a case filed on 1 April 2015 the applicant sought the hearing date be vacated in order for the applicant to be able to engage an expert to give evidence about the interpretation at the second hearing and also that he be given leave to file a further amended application. Those orders were made by consent on 2 April 2015 and the matter listed for hearing on 9 June 2015 before me.

3. On 9 April 2015 the applicant filed a further amended application raising four grounds. He now only presses the first and third of those grounds namely that the Tribunal made a jurisdictional error in denying the applicant procedural fairness, and by failing to take into account relevant considerations when determining the truthfulness of the applicant’s evidence.

4. On 24 April 2015 the applicant filed two affidavits in support of his application. The first, by himself and the second by a Siddique Panwala, the manager of an agency called Universal Interpreters and Translators. On 5 May 2015 the applicant filed an affidavit which annexed the transcript of the second and third Tribunal hearings.

5. At the hearing, Mr Fozzard, counsel for the applicant, read each of the affidavits filed in the matter but conceded that, on the basis of that evidence, he was unable to establish any particular instance of misinterpretation or lack of interpretation. When I explained to him that this might constitute a significant barrier to any success in respect of the first ground, he accepted that that might be the case but was content to rely on the evidence as it stood including the statement of reasons prepared by the Tribunal.

6. I note these matters because the first ground will be rejected on the basis of the evidence before the Court, and in spite of the applicant’s awareness of the inadequacy of that evidence, he made no application for an adjournment in order to remedy that situation. That being said, I turn now to consider each of the remaining grounds in the application.

Ground 1

1. The applicant’s primary contention in respect of this ground was that, at the second hearing the applicant did not understand the questions that were being put to him, and hence his responses at the second hearing were not responsive. He argued that this constituted a denial of procedural fairness that was not remedied by the Tribunal holding a third hearing.

2. The applicant also argued that the standard of interpreting at the second hearing was so incompetent that the applicant was effectively prevented from giving his evidence. Further, he argued that errors made in interpretation were material to adverse findings by the Tribunal and that this constituted a breach of s.425 of the Act in line with the authority in Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6.

3. In support of these contentions the applicant, in his affidavit, stated that “there were significant inaccuracies, errors and omissions made in the interpreting throughout the second hearing conducted on the 18 December 2013.” He submitted in his written submissions that such errors were evident in the transcript. However at the hearing before me, the applicant took me to no part of the transcript and, as I have noted, frankly conceded that no part of the transcript could support the assertion in the applicant’s affidavit because it did not purport to be anything other than a transcription of what was said in English at the hearing. The applicant also said in his affidavit that he “never understood what was asked at the second hearing”.

4. The applicant also argued at the hearing before me that the Tribunal’s reasons themselves established that the difficulties with interpretation had a material impact upon its decision.

5. In particular on the following paragraphs of the Tribunal’s decision:

   [15]The Tribunal has not accepted that the applicant’s evidence was adversely affected by his mental health in any of the hearings (for reasons set out later in this decision and/or the Annexure A). The Tribunal notes that the applicant complained about the standard of interpreting at the second hearing. The Tribunal has significant concerns about the applicant’s evidence at the second hearing, however it has found that his evidence, and its concerns from the third hearing alone, led to such significant concerns about his credibility that that (sic) he is not a witness of truth, and is prepared to say anything to obtain a protection visa.

   [16]The Tribunal also considers, additionally to and independently of the concerns arising from the third hearing, that its concerns about the applicant’s evidence at the first and second hearings further indicate that he is not a witness of truth and has fabricated his claims. The Tribunal’s concerns, leading to an advert’s credibility finding, are set out below.

   (Emphasis in original)

6. The applicant also relied upon the following passage in the Annexure A to the Tribunal’s decision:

   [91]The Tribunal noted that the interpreter correctly pointed out there were occasions when she did not understand a word used by the applicant. The Tribunal suggested that the hearing continue, and that the applicant could continue to use the interpreter, and if there was a word she could not interpret, he could attempt to explain this in English. The Tribunal is satisfied that the applicant was able to communicate, for the most part, in Luganda and with the interpreter, and when necessary, effectively in English, noting that there were occasions when the applicant and his agent made objections, which were then dealt with.

7. The Minister argued that the evidence relied upon by the applicant did not establish that the interpreter at the second hearing was incompetent, that the applicant was prevented from giving his evidence by such incompetence, or that any mistranslations were “so material as to cause decision making process to miscarry”.

8. The principles relating to the standard of interpretation for the purposes of review by the Tribunal were summarised by Griffiths J in SZSEI v Minister for Immigration & Border Protection [2014] FCA 465 at [71] – [81]. I gratefully adopt that summary and, for present purposes, need only note the following:

   a)the general approach to be taken in cases reason the application of section 425 of the Act is that described by Ryan J in WALN  v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 at [29]:

   To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence… Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry. …

   b)the first part of that statement should not be understood to mean that the applicant must be prevented from giving any evidence but rather as being reference to matters of significance involving important issues: see SZRMQ v Minister for Immigration & Border Protection [2013] FCAFC 142 at [22] and [23].

   c)there is no need to show a causal connection between the mistranslation and the decision-maker’s ultimate conclusion only that the mistranslation could have had significance: SZRMQ at [25]; and

   d)the question of whether there was inadequate interpretation involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole: SZHEW v Minister for Immigration & Citizenship [2009] FCA 783 at [52].

9. It should also be recalled that the onus of establishing any jurisdictional error falls upon an applicant in proceedings for judicial review: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 616 [67] per Gummow J; and SZJBD v Minister for Immigration & Citizenship (2009) 179 FCR 109 at 124 [71] per Buchanan J.

10. The first ground relies on two factual assertions: first that there were significant inaccuracies, errors and omissions in the interpretation at the second hearing; and secondly, that the applicant did not understand what was being said at that hearing. Neither of those assertions is made out on the evidence.

11. Dealing first with the applicant’s apparent inability to understand anything, the following may be noted: first, the applicant’s affidavit in these proceedings was in English and there was nothing to suggest that the affidavit had been translated for him before he executed it. I note that r.15.27(2) of the Federal Circuit Court Rules 2001 (Cth) requires that if a person making an affidavit does not have an adequate command of English then a translation of it and the oath or affirmation must be read or given in writing to the person in the language that the person understands and that the translator must certify in or below the juror that he or she has done so. I raised this fact with Mr Fozzard at the hearing and gave him the opportunity of obtaining instructions. He informed me, after having obtained those instructions, that while the applicant understands some English, reading and signing an affidavit in a solicitor’s office is a different matter to understanding questions at a hearing. While I accept that submission, I reject the applicant’s evidence that he did not understand anything. That is not only because of the fact that his affidavits were in English but because of the matters that follow.

12. Secondly, as already noted, each of the applicant’s statements made in support of his protection visa application were in English and there is no evidence to suggest that they were translated to him before he signed them.

13. Thirdly, although this is a matter to which I give far less weight, in his protection visa application the applicant indicated that he spoke, read and wrote English.

14. Fourthly, as will be seen from the extract of the transcript of the second hearing set out below, the applicant clearly understood relevant parts of the questions asked by the Tribunal in English. The applicant understood, and was able to answer some of those questions in English and on several occasions was able to correct the interpretation given by the interpreter.

15. Fifthly, in his statutory declaration made after the second hearing, the applicant himself said that he was aware that the interpreter did not understand some of the language and that this was because his English was quite good.

16. Sixthly, as noted by the Tribunal the applicant had successfully undertaken a number of courses in English in Australia and obtained qualifications including advocating in English on behalf of aged care clients: see [90] of the Tribunal’s reasons.

17. All of these matters are important to the qualitative analysis of the interpretation that was given at the hearing. Critically, as explained by Allsop CJ in SZRMQ, the Court must have regard to the process and determine whether it is, as a whole, fair. It is not the case, as appears to have been submitted by Mr Fozzard, that simply because there is an interpreter, the applicant’s own ability in English is irrelevant to the determination of those issues.

18. As I have noted, Mr Fozzard conceded at the hearing that he was unable to point to any particular incident of inaccuracy, error or omission in the interpretation. In my view, that concession could be sufficient to dispose of the first ground. However, as the transcript was in evidence before me, I have had regard to it in order to determine whether the assertions made by the applicant in respect of the level of interpretation were made out. I have concluded that they are not.

19. The transcript does reveal that there was some truth in the applicant’s complaints to the Tribunal about the quality of the interpretation. The following extracts reveal that on a number of occasions the interpreter was unable to interpret particular words and on two occasions made some mistakes in interpreting what the applicant had said. However, that is insufficient to justify any conclusion that the interpretation was of a standard that it denied the applicant the opportunity required by s.425 of the Act.

20. The first passage in the transcript is at pp.27-29:

    Female Interpreter: If he goes back they’ll reopen a case against him for supporting rebel groups,

    Applicant: Inciting violence

    Female Interpreter: Inciting violence

    Applicant: [Foreign Language]

    Female Interpreter: and joining walk to work.

    Applicant: [Foreign Language]

    Female Interpreter: I don’t know if I can tell that in English.

    Female Agent: I think I can try to –

    Applicant: Yeah, I think I can try to –

    Female Interviewer: I’ll just let your agent speak, yes?

    Female Agent: It seems like there are some interpreting problems.

    Female Interviewer: Okay, I think that’s right, there are some interpreting problems, however, I think that it seems, because your understanding of English is so good you’re also understanding of there’s a problem picking up on that and we’re talking about it. Does that seem fair or does that not seem?

    Female Interpreter: Can I say something?

    Female Interviewer: Yes.

    Female Interpreter: Can he try if he understands you better, can he try to express what – because there are some words that I don’t understand in Luganda that I cannot express, but if he can express them in English the way he understands them, can he try that?

    Female Interviewer: If you let us know what word you don’t understand that might work, okay? So how does that sounds if we go with that?

    Applicant: It’s hard for me but I can try.

    Female Interviewer: What is hard for you?

    Applicant: I express myself well in Luganda.

    Female Interpreter: It’s hard to express yourself in Luganda?

    Applicant: No it’s easier for me to express myself in Luganda because I understand it better and so I can try to –

    Female Interviewer: I understand that what the interpreter is saying is that she’s having difficulties with some words, not the whole thing but with some words –

    Applicant: And those words are the ones which are important to me because they are the right words –

    Female Interviewer: Then every time we get to such a word, we’ll stop and we’ll see how we go, okay? Okay. Alright. So there was a particular word just then that was not understood yes?

    Female Interpreter: [Foreign Language]

    Applicant: [Foreign Language]

    Female Interpreter: He understands everything, it’s only that I don’t understand, I don’t know how to express some of the words.

    Female Interviewer: There was one word that got us stuck, do you remember what that was? So we will start again on that.

    Female Interpreter: Can we start again on that?

    Female Interviewer: Do you know what the word was where you got suck, where the interpreter got stuck?

    Applicant: [Foreign Language]

    Female Interpreter: [Foreign Language]

    Applicant: [Foreign Language]

    Female Interpreter: Because you asked why doesn’t he want to go back?

    Female Interviewer: Mm-hm. Yeah. Sorry, there was a word that you said she wasn’t interpreting properly, do you remember what word that was? You don’t remember. Do you remember or you don’t?

    Applicant: No, I don’t remember.

    Female Interviewer: Okay, you said if you go back they’ll reopen a case for supporting rebel groups and inciting violence and, and then that was the word.

    Applicant: No inciting a violence. Inciting

    Female Interpreter: Inciting.

    Applicant: Yes.

    Female Interviewer: That’s what I said, inciting violence.

    Female Interpreter: That’s what he said inciting violence.

    Female Interviewer: What was the next thing? That’s where the word was – there was a problem.

    Applicant: [Foreign Language]

    Female Interpreter: And putting himself or –

    Applicant: Not putting, not putting –

    Female Interviewer: That’s the word. Yes. This is, this is where we had the problem.

    Applicant: It’s not putting myself… I was there.

    Female Interpreter: In what way?

    Applicant: [Foreign Language]

    Female Interviewer: You mean present?

    Applicant: Yes.

    Female Interpreter: You were in the group of walk to work.

    Applicant: Yes. [Foreign Language]

    (Errors in original)

21. It may be noted that the difficulties experienced by the interpreter only related to “some of the words” and that those difficulties were met by the practical solution of the applicant giving that evidence in English. There is no suggestion in the evidence that that evidence by the applicant was somehow affected by the interpreter. Similarly this extract shows that the interpreter was corrected by the applicant in English in respect of the word “inciting”. This supports my conclusion that the applicant had some understanding of English and this enabled him to overcome any difficulties that the interpreter experienced in interpreting his words in Luganda.

22. The second relevant extract is at pp.32-34 of the transcript:

    Tribunal Member: What do you want to say? Because you need to say it, because it's on recording.

    Applicant: Something I can try to help myself but –

    Tribunal Member: What do you want to say?

    Applicant: Female Interpreter doesn't understand -

    Tribunal Member: Is the Female Interpreter accredited Luganda speaker?

    Female Interviewer: Okay, just hold on one second I'll ask that question in a moment. However, I just- Okay. You clearly do speak English. Okay. I don't want to ask you to continue to do it in English but I think you do understand what I'm asking which is about how many youth leaders are there in the FDC in Uganda, do you understand the question in English or not?

    Applicant: Yes, I understand that.

    Female Interviewer: Okay. Are there about 200 youth leaders in the FDC in Uganda?

    Applicant: Can you [inaudible]?

    Female Interviewer: How many youth leaders are there in the FDC in Uganda? Do you understand that question?

    Applicant: Yes.

    Female Interviewer: Okay.

    Applicant: What I know each district has a youth leader and each district has other counties like - so I don't know the exact number.

    Female Interviewer: That's okay, but you are saying approximately?

    Applicant: Yeah, maybe approximately.

    Female Interviewer: Okay. So in terms of your question about the accreditation I don't know, I'll check. So your question is, is the interpreter -

    Tribunal Member: It would just seem to me that this interpreter is not fluent in Luganda and there's a real communication issues arising today. The last hearing the interpreter was remarkably different and it can translate Luganda.

    Female Interviewer: Okay, Madam Interpreter, I'm not sure of the qualifications. Just hold on please. Do you want to have a break and we can have a discussion?

    Female Interpreter: That's fine.

    Female Interviewer: Okay, we'll have a break? Okay, we'll have a break and I'll find out the interpreter's accreditation. So we'll have a five minute break. Madam Interpreter if you can just stay for a moment?

    Female Interpreter: Okay.

    Female Interviewer: Thank you. Madam Interpreter so what I'm going to do is I'm just going to get the hearings tape, so if you can maybe go to the front desk, the reception and we're just going to talk about the accreditation, okay so someone will see you at the front desk.

    Female Interpreter: Can I say something before I go?

    Female Interviewer: Okay, just the applicant's not in the room –

    Female Interpreter: Can I say something before I go?

    Female Interviewer: Can you say it to the hearing's team? Is that okay?

    Female Interpreter: Yeah, to the hearing's team and to you because -

    Female Interviewer: They can convey it to me, it's just that we really don't have a conversation in the absence of the applicant, okay?

    Female Interpreter: Because I really understand what you're saying it's only that he does not understand the way of answering the questions.

    Female Interviewer: Okay, I'm just going to pause the recording and we're just going to get the interpreter to go to the front desk, okay, all right and we're just going to take a short journey.

    Female Tribunal Member: This hearing is resumed. The time is 2:47 in the afternoon. The tribunal members and all other parties are in the room.

    Female Interviewer: Okay, thank you. Okay. So before the break there was an issue raised about whether they are interpreting problems. My understanding is that there is no accreditation for Luganda so she can't be accredited. This interpreter has been used in immigration before and has been used in the tribunal before. My understanding is that there are some words that she doesn't understand, that happen often in hearings, not every single word is going to be interpreted. Always, an interpreter doesn't always understand every single word. So what I'd like to do is I'd like to proceed if there's a word that's not been identified, sorry that's not been interpreted properly and it seems that there is a problem then we can work with that. Alright? My understanding as well is that you've done - how many courses have you done in English?

    Applicant: I think I've done-- I can't remember, but a couple of them.

    Female Interviewer: Okay. You provided a number of courses, it looks like you've been - you've had, you've done the course and you've been successfully. That was at general construction induction training, [inaudible 17:16] train age care, work safety in the construction industry, applied first aid and you've also studied things in English like solving a range of problems, investigating the chemical nature of matter, investigating biological processes. There's a lot that you've produced and a lot of study that you've done in English. Is that correct that you've done that study in English?

    Applicant: That's correct.

    Female Interviewer: All right. So what I would like to do is I would like to proceed, continue using the interpreter, if there's a word that she doesn't understand then she can let us know, we'll see if we can work around that word in English. Okay, how does that sound?

    Applicant: That's fine.

    Female Interviewer: All right. Is that fine with you?

    Female Interpreter: Sure.

    (Errors in original)

1. Once again this extract shows that the applicant was able to fill gaps in the interpretation in English by his own evidence and further, that he agreed to the rather practical suggestion made by the Tribunal that if there were any further difficulties he could let the Tribunal know and they could “work around that word in English”.

2. I conclude that, while there were 12 difficulties in the interpretation at the second hearing, those difficulties did not deny the applicant any opportunity to give evidence in support of his claims or to present arguments in accordance with the right provided by s.425 of the Act. For that reason, the first ground is rejected.

Ground 3

1. This ground concerns the way in which the Tribunal dealt with the newspaper article written in Luganda. It is based upon the evidence of the applicant in his affidavit that there were errors and omissions in the interpretation of the article to the Tribunal and the assertion in that affidavit that the Tribunal should have asked for it to be translated at the third hearing and asked him questions about it when the correct interpreter was present. However, the applicant has not established that there were any errors or omissions in the interpretation of the article and has not undermined any of the reasons given by the Tribunal at [50] - [53] of its reasons for not accepting that the article was genuine or, alternatively not giving it any weight.

2. In short, the Tribunal clearly took into account in the sense that it had regard to the material, analysed its contents and gave weight to it according to that analysis. For those reasons, the third ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 17 July 2015