VRAN v Minister for Immigration
[2004] FMCA 259
•30 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
VRAN v MINISTER FOR IMMIGRATION [2004] FMCA 259
MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – whether interpretation at Tribunal was adequate – whether inadequacies in interpretation constituted a failure to provide the applicant an opportunity to give evidence. Judiciary Act 1903 (Cth), ss.39B(1), 39B(1A)
Migration Act 1958, ss.425, 427(7), 477Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 171
Long v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 183
Tobasi v Minister for Immigration and Multicultural Affairs (2002) FCA 1050 (23 August 2002)
Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 54
Applicant: VRAN
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File No: MZ 1053 of 2003
Delivered on: 30 April 2004
Delivered at: Melbourne
Hearing Date: 21 January 2004
Judgment of: McInnis FM REPRESENTATION
Counsel for the Applicant: Ms C Harris (with an audio link to the Applicant)
Solicitors for the Applicant: Holding Redlich
Counsel for the Respondent: Ms S Moore
Solicitors for the Respondent: Australian Government Solicitor ORDERS
(1)The application filed 5 August 2003 be dismissed.
(2)The Applicant shall pay the Respondent’s costs fixed in the sum of $5,000.
(3)Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNEMZ 1053 of 2003
VRAN Applicant
and
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent
REASONS FOR JUDGMENT
1.In this application the applicant seeks an order for review of a decision of the Refugee Review Tribunal (the RRT) dated 27 October 1999 which had affirmed a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The application is made pursuant to ss.39B(1) and 39B(1A) of the Judiciary Act 1903 (Cth).
Background
2.The applicant is a single 27-year-old male citizen of Afghanistan. He claims to be of Pashtun ethnicity and Sunni Muslim religion. He departed Afghanistan illegally from Kandahar. The applicant claimed that he could not request an exit permit from the Taliban government. He arrived in Australia on 28 March 1999 without any travel documents.
3.On 14 May 1999 the applicant lodged an application for a protection visa. The contents of the visa application form were interpreted into the Farsi language by an interpreter. The visa application was accompanied by a statement of the applicant dated 4 May 1999 which was also interpreted into the Farsi language by the same interpreter.
4.The visa application records that the applicant has a widowed mother and brother remaining in Afghanistan, however, no other family members were included in the visa application. Part of the applicant's claim to be a refugee related to the death of his father. In a visa application the applicant indicated that if he was called for interview he would need an interpreter in the Farsi language. Although the form made provision for a dialect, none was recorded. The application also records that the applicant speaks, reads and write Sparsi and Pashtu.
5.The applicant was interviewed by a delegate of the respondent. On 19 July 1999 a delegate of the respondent refused to grant the applicant a protection visa and on 23 July 1999 the applicant's then legal representative lodged an application for review of that decision with the RRT.
6.The review application recorded that the applicant required an interpreter in the Farsi language. Although the review application form included a box to record the dialect, the box was not marked. The applicant's legal representative sent written submissions dated 8 September 1999 to the RRT, although not received until 15 September 1999 which was the day of the hearing. The hearing which occurred on that day was conducted by videoconference and the applicant gave oral evidence. No other witnesses were called for the applicant. The applicant's legal adviser did not attend the hearing but had requested the RRT to send him a copy of the hearing tapes so that he could make submissions on what was said at the hearing. An interpreter was in attendance at the hearing.
7.Before this court the applicant relied upon an affidavit of Sayar Dehsabzi sworn 31 October 2003. Annexed to that affidavit was an exhibit marked "SD-3". For convenience and by agreement, that document was altered by the parties so that it then became what is described as an agreed and corrected version which the court received in this application. That agreed translation records that the interpreter's native language was Pashtu and the interpretation was being conducted in Pashtu. At the time the interpreter was sworn no information about his accreditation, his formal or informal qualifications or his experience as interpreter are requested or provided. According to Mr Dehsabzi's affidavit, however, there is no NAATI test made available in the Pashtu language and the interpreter used had a NAATI level 2 accreditation for English competence.
8.At the commencement of the hearing before the RRT the transcript records that the applicant was advised of the purpose of the interpreter and was told if he did not understand the interpreter he should say he did not understand. The applicant advised the tribunal that he understood the interpreter. The interpreter advised that he did not have any difficulties understanding the applicant. At one point during the hearing the applicant advised the RRT that he had a speech problem but the interpreter advised that he did not have any trouble understanding the applicant.
9.On 16 September 1999, just one day after the RRT hearing, a letter was faxed from the RRT to the applicant's solicitors noting the written submissions received on the day of the hearing and seeking clarification of a number of matters in those submissions. By facsimile letter dated 24 September 1999 the applicant's solicitors replied and in part stated the following:
“Having reviewed the audiotapes of the RRT Hearing we consider there is a certain unsafeness in full reliance upon the answers provided. At least to our listening it appeared that many times quite lengthy answers were interpreted as, if not indeed reduced to, very brief answers much of which was provided in a stammer from the interpreter which did not appear to have come from the original answers.
We cannot press this point in any specific way but suggest that a review of the audiotape might confirm our anxiety as to the total accuracy of those answers.”
10.On 29 September 1999 the tribunal replied to the adviser's letter. That letter in part provided the following:
“The member reviewing this case has asked me to advise you as follows. The Tribunal refers to your letter where you state: ‘Having reviewed the audio tapes we consider there is a certain unsafeness in full reliance upon the answers provided’. Could you please advise the Tribunal which particular portions of the evidence you are concerned about and the particular problem with those aspects of the evidence. In what way is it submitted the interpretation was inaccurate. Any response should be received by the Tribunal by COB 11/9/99.”
11.
Despite requesting a response by 11 September 1999 it was not until
5 October 1999 that the adviser wrote back to the tribunal. That letter in part stated the following:
“Further to your letter dated 29th September 1999, our Peter Wearne has once more reviewed the audio tapes and replies as follows:
1We cannot take this matter further if the Tribunal, having reviewed the audio tape is satisfied with the interpretation provided at the Hearing because we do not have any means to understand the content of the questions put to the Applicant or of his answers.
2Especially to the end of the first side of tape 1 through the commencement of side 2, both before and after the five-minute break when the interpreter went to put money in the parking meter, it appeared that the amount of stammer or difficulty the interpreter was having increased. Whether this was from tiredness or for other reasons we cannot say.
3We acknowledge that in each case the question of the Tribunal appeared to be directly interpreted to the Applicant without stammer or apparent difficulty. On the other hand, the answers provided from the Applicant into English by the interpreter seemed less direct and comfortable to our perception.
[... The writer provided a number of examples]
We feel that we can provide no further specific assistance in this question for the time being.”
12.On 27 October 1999 the RRT decided to affirm the decision of the delegate not to grant a protection visa and the applicant was notified of the decision on or about that date.
13.On 4 November 1999 the applicant filed an application for judicial review of the RRT's decision in the Western Australia district registry of the Federal Court. On 5 January 2000 French J ordered that the applicant's application be discontinued at his own request and that he have liberty to reinstate the application within 14 days of the order. The application for an order for review was not reinstated within 14 days.
14.On 5 August 2003 the applicant filed the current application for judicial review in the Federal Court of Australia. On 4 September 2003 the respondent filed a notice of objection to competency and on 16 September 2003 the proceedings were transferred from the Federal Court to the Federal Magistrates Court.
15.At the time of hearing the applicant was detained in a migration detention centre.
The application
16.The application claimed that the RRT decision is affected by jurisdictional error and provides the following particulars:
“(a)The Tribunal was obliged to, but did not, provide adequate interpreting services to the Applicant and so failed to afford the Applicant an effective opportunity to give evidence and present arguments, as it was required to do by s 425(1) of the Migration Act.
(b)Further alternatively, the failure of the Tribunal to provide adequate interpreting services to the Applicant constituted a denial of procedural fairness to the Applicant. The Applicant was denied the possibility of a Tribunal decision in his favour because the poor interpreting resulted in the Applicant's evidence being misrepresented to the Tribunal, and in the Applicant not understanding the questions he was asked.”
17.Further particulars of the application were provided on 6 November 2003 pursuant to orders made in the Federal Court. In the further particulars reference was made to the revised transcript referred to earlier which became part of a supplementary court book, then subsequently subject to the agreement to which I have already referred. In the further particulars it is claimed the transcript demonstrates that the interpreting services provided by the tribunal at the hearing were inadequate in the following ways:
“1. The interpreter incorrectly translated into English words or phrases from the applicant's Pashtun language responses on issues which were material to the Tribunal Member's decision. These incorrect translations include the following:
Page 39: Incorrect translation of response to question as to whether Ali was present in a group searching the applicant's house on two occasions (applicant's answer differentiated between the two occasions, and the interpretation was that ‘On both occasions he was’).
Page 40: Incorrect translation of the term ‘paperwork’ as ‘search warrant’.
Page 45: Failure to translate the word ‘indirectly’ when referring to approaches by Ali's group made by applicant's uncle.
2.The interpreter did not fully or accurately translate some of the Tribunal Member's questions from English to Pashtun, with the consequences that:
(a)the applicant did not understand the questions put to him, and was not able to provide responsive answers as his evidence on these issues; and
(b)matters which the Tribunal Member attempted to put to the applicant, such as perceived inconsistencies in the applicant's evidence, were not accurately put to the applicant so that he did not have a proper opportunity to respond.
These inadequately interpreted questions include the following:
Page 47: Failure to translate in full the Tribunal Member's question, involving the assumption that Ali's group were contacting the uncle, where this evidence had not been given, so that the applicant was not aware that this was the Tribunal Member's understanding of the evidence:
Pages 51-52: Inaccurate interpretation of Tribunal Member's question relating to what was said during the applicant's interview with the Department Delegate, as being what was said by the applicant ‘in your writing’, and inaccurate interpretation of follow up question.
3.The interpreter did not accurately interpret into English the responses of the applicant, in that the interpretation was on numerous occasions incomplete or generally inaccurate, with the consequence that the applicant's evidence on these issues was not properly put before the Tribunal, as it did not represent the applicant's true answer or appear as fluent and consistent as the evidence actually given. These inadequately interpreted and incomplete responses include the following:
Pages 8-11: Answers of the applicant in relation to the Taliban's actions following the takeover were not fully or properly translated and consequently do not appear responsive to the Tribunal Member's questions (which are also not fully translated).
Page 43: Answers relating to the reaction of the Taliban search parties’ responses to the applicant's mother are inadequately interpreted so as to deprive them of their true sense.
4.The interpreter on several occasions gave interpreted answers which added supplementary information to the answer actually given by the applicant, so that evidence was apparently given to the Tribunal but was not the evidence of the applicant. These supplemented answers include the following:
Page 20: Answer including a reference to the applicant having ‘some sort of collection’ of weapons, which was not stated by the applicant in his response.
Page 44: Response as to how long people continued to come to search the applicant's house was inaccurately translated, with the interpreter adding the words ‘Nearly for one year’ which were not said by the applicant.
Page 50: The answer to the Tribunal Member's question as to what happened to other families whose male head fought for the Mujahideen is incorrectly interpreted in several ways, with certain information being added (note reference to ‘Hezbe-Islami Hekmatyer’ not stated by the applicant) and omitting other parts of the original answer (note applicant's un-interpreted reference to ‘Nakeeb’).”
The applicant's claims before the tribunal
18.It is convenient to rely upon a summary of the applicant's claims as set out in his contentions of fact and law as follows:
“The applicant, a citizen of Afghanistan, formerly lived in Khandahar with his mother and young brother. His father, a Mujahadeen commander, killed a man in a dispute. This man was the brother of Ali who became a powerful Taliban commander. The applicant's father was subsequently killed in 1995 in fighting against the Taliban in Takht-a-Puhl prior to the taking of Kandahar by the Taliban. After his father's death, Taliban forces came to search the home of the applicant, looking for weapons, and later looking for him. The applicant was also informed that Ali was looking for him to revenge the killing of his brother. Ali apparently believed that the applicant was involved in the killing. Ali and his men came to the applicant's home to search for him. On the second occasion his home was searched, the applicant went into hiding in his uncle's home. The searches continued after he had gone into hiding in his uncle's home. He stayed in his uncle's home for about 3 ½ years until his uncle was able to arrange for him to leave the country. His uncle had arranged for an indirect approach to be made to Ali to try to resolve the matter but this was unsuccessful.”
19.It should be added to that summary that at the time of the hearing before the tribunal the applicant stated he did not want to go back to Afghanistan as long as the Taliban was in control because his life was in danger, but if there was a legal government in Afghanistan he would go back.
The tribunal's reasons for decision
20.The tribunal found that the applicant is Afghani and from Kandahar and that his father was a Mujahideen commander fighting for the Hizbi Islami (or Islamic Party led by Hetmatyar) faction. It found the applicant's account was consistent with country information that indicated that Hetmatyar forces controlled the areas around Kandahar prior to them being overrun by the Taliban in October-November 1994. When the Taliban took over Kandahar they conducted searches of people's homes for guns. The RRT did not accept the Islamic Party was a religious organisation or that the applicant or the applicant's father was involved in a religious organisation.
21.The RRT found that the Hetmatyar faction was notoriously violent and a statement made in not believing killing fellow Muslims was farcical. The RRT had attempted to point out to the adviser the discrepancies between their submissions and the applicant's claims. The RRT claimed the applicant's adviser had misunderstood their client's claim and accordingly relied on the material obtained directly from the applicant rather than the adviser's letter. The RRT did not accept that the Taliban were looking for the applicant or that he was in hiding for four years from the Taliban. It found that the applicant never did anything to oppose the Taliban, was never involved in politics and when they searched his home, despite finding arms, they did not take any action against his family.
22.The RRT found it was implausible that the applicant could remain in hiding in his own home for seven months and at his uncle's home nearby for nearly four years if the Taliban were looking for him without being detected. It found it was implausible that the applicant would not have tried to leave at an earlier time and at least travelled to Pakistan. It found that it was far-fetched that the Taliban never searched the applicant's uncle's home if they were searching for the applicant because of his connection with his father. The RRT found the applicant had fabricated his evidence in relation to the searches of the house.
23.The RRT found it was inconceivable if the applicant was in hiding at his uncle's home that his uncle would approach those people who were looking for him. It concluded that the applicant was not being sought by the Taliban at the time he left Afghanistan, nor was he being sought by Ali and that there was no real chance that the applicant would be persecuted by the Taliban because his father fought against the Taliban and he therefore did not have a well-founded fear of persecution for reasons of an imputed political opinion.
The issues
24.The parties agreed that the issues arising out of the application which the court must determine are as follows:
a)whether there has been a departure from the standard of interpretation;
b)whether the standard of interpretation at the hearing was so inadequate that the applicant was effectively prevented from giving evidence or from presenting his case to the tribunal; and
c)whether any errors made by the interpreter at the hearing were matters of significance for the applicant's claim or the tribunal's decision so as to have affected the outcome of the decision, ie, whether the errors were material to the conclusions of the tribunal adverse to the applicant.
Relevant law
25.It is not in dispute that the relevant sections of the Act are ss.425 and 427(7).
26.Section 425 of the Act provides that:
“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
27.Section 427(7) of the Act provides that:
“If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.”
28.It is common ground that the appropriate principles in relation to the determination of the standards of interpretation were set out in the decision of Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 (Perera). The court's decision in Perera has been followed in a number of other cases which have been referred to by the party, most recent of which is WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 171 (WACO). Although the wording of s.425 has been amended since the decision of Perera, that alteration, it is accepted, does not detract from the applicability of Perera and the requirements to fulfil its obligations under s.425 the tribunal is to provide an interpreter whose interpretation is such that the applicant is able adequately to give evidence and present arguments to the tribunal.
29.I further accept the fact that if an interpreter was not of an appropriate NAATI level standard of itself is insufficient to establish that the required standard of interpretation was not available (see Perera paragraph 51)
30.The court otherwise accepts submissions made on behalf of the applicant that those decisions relating to ss.425 and 427 of the Act establish, together with general requirements that justice be seen to be done, is that an applicant not proficient in English must be provided with a competent standard of interpretation for a hearing. Further, it is accepted that what is required is accurate interpretation which enables the applicant to be heard effectively (see Perera at paragraph 29).
Whether there has been a departure from the standard of interpretation
31.It was submitted on behalf of the applicant that he speaks and writes Farsi and Pashtu. It is not disputed that he required an interpreter and that in his application for a protection visa had advised he would need an interpreter in Farsi for the purpose of any interview. The interview, however, was conducted in Pashtu.
32.It was submitted that the level of NAATI qualification recognised as appropriate for interpretation in legal hearings is level 3 or professional interpreter. Reference was made to the affidavit of Sayar Dehsabzi and to the "Guide To Best Practice: Lawyers, Interpreters and Translators" paragraph 9.1 which was exhibit SD-4 to Mr Dehsabzi's affidavit. It was submitted that the interpreter used by the department was a level 2 or para-professional interpreter. According to the applicant's submissions, the interpreter and the applicant spoke different dialects of the Pashtu language. The interpreter spoke Mishriqi dialect, whilst the applicant speaks Kandahari dialect which it was submitted is quite different. In the circumstances it was submitted it would have been hard for a speaker of Kandahari dialect to understand the interpretation in the interpreter's dialect.
33.It is useful to set out relevant paragraphs from the affidavit of Mr Dehsabzi in relation to these issues where he states the following:
“11.I believe that the person who acted as interpreter in the hearing had a level of English competence equivalent to a paraprofessional or NAATI level 2 interpreter, which is a lower level of competence than level 3. I believe this from listening to the interpretation on the tapes, and because the tapes had affixed to them a label identifying the name of Rauf Safi. I am aware that the directory of interpreters and translators published by NAATI refers to Rauf Safi as having level 2 accreditation.
12.Pashto is a language which has several regional dialects. I also believe from listening to the tapes of the RRT hearing that the person acting as interpreter in that hearing did not speak the same dialect as the person being questioned. From listening to the tape I observed that the appellant speaks the Kandahari dialect, which is quite different the dialect spoken by the interpreter, which is the Mshriqi dialect. The interpreter's dialect is accepted as a standard Pashto in Afghanistan, but for a person who speaks the Kandahari dialect it would be difficult to understand the communication expressed by the tribunal through an interpreter who is not fully qualified and speaks a different dialect.”
34.It was submitted on behalf of the applicant that the interpretation provided was inaccurate in the sense discussed by the court in Perera. It was claimed there were a number of examples of inaccurate, unresponsive and inconsistent answers. It was claimed that the range of errors were identified in two categories, namely:
i)errors in interpretation of specific terms used in questions or answers on issues material to the tribunal member's decision;
ii)general examples of the incomplete and hesitant nature of much of the translation and the lack of fluency and occasional confusion in the interpretation of questions and responses.
35.I propose to set out the written submissions of the applicant's counsel extracted from the Respondent’s contentions of fact and law which incorporate comparative tables which claim to illustrate the inaccuracies referred to above and include for convenience the Respondent’s comments.
| Particular | Details of particular | Supplementary Court Book page reference [Translation page reference] | Reference in Applicant’s contentions of fact and law | Respondent’s response |
| 1(i) | Incorrect translation of response to question as to whether Ali was present in a group searching the applicant’s house on two occasions, and the interpretation was that “On both occasions he was”. | 129-130 [28-29] | Paragraph 26 (example 1) Paragraph 29 | The basis of the applicant’s criticism appears to be that the “correct” evidence of the applicant was that there had been two visits – one by the Taliban central command searching his house and one by Ali’s group searching for him in his house. I The issue of whether Ali or Ali's group visited the applicant’s home on one or two occasions was clarified in subsequent dialogue between the Tribunal and the applicant (the translation of which is not criticised by the applicant). See SCB 130 lines 10 to SCB 1311ine 5. By the end of these questions the Tribunal was aware that there had been two visits and that Ali's group had come at a separate time to the central command visit. This is the same information that is conveyed I the revised translation to the Tribunal's question (correctly interpreted): “When did you find out that Mr Ali was after you?” “Abdul: He was among the members of the group who were searching my house. It was either Ali’s group or from the central command of the Taliban.” This is reflected in the Tribunal’s reasons at CB 69 when it records the applicant’s evidence. |
| 1(ii) | Incorrect translation of the term “paperwork” as “search warrant” | 130 [29] | Paragraph 26 (Example 1) Paragraph 29 | There are some minor errors in transcription on SCB pages 129–130 but not in relation to the question and answer about the warrant. It is submitted that even on the applicant’s case the word “warrant” was used by the applicant himself as analogous to “paperwork”. In the revised translation [CB 130 line 18] the applicant is alleged to have said: “Those people who came from the central command would show some sort of paperwork but those others would just enter without any warrant.” That is, what the applicant was saying was that the Taliban central command used a paperwork or warrant and the absence of a warrant or paperwork was what enabled him to identify Ali’s group from the central command. Or, put differently, the presence of paperwork or a warrant was what identified the Taliban central group from Ali’s group. The Tribunal’s decision reflects that it considered that the applicant had fabricated his evidence in relation to the searches primarily because he had not made reference to visits from Ali’s group in his interview with the delegate [CB 76]. Rather, he had said that the Taliban came to his house on one occasion and he ran away. Whereas at the hearing the applicant claimed that he had also had visits from Ali’s group and that these became about every month for nearly a year. Therefore, even if there was an error before the Tribunal in relation to the search warrants is was not one that was material. It decided the issue of searches by Ali' s group adversely to the applicant on other aspects of his evidence. |
| 1(iii) | Failure to translate the word “indirectly” when referring to approaches to Ali’s group made by applicant’s uncle. | 134 [33] | Paragraph 29 (Example 2) Paragraph 31 | Even if there was an error in not translating the word “indirectly” the Tribunal was not left confused nor was the error one that was material. It is submitted that the error in failing to interpret the evidence of the applicant specifically as the word “indirectly” did not prevent the applicant from presenting the case to the Tribunal – that is, that his uncle didn’t attend personally but arrange for others to go to Ali. This is made clear in the interpretation given by the interpreter at SCB 134 “My uncle sent some people to Ali.” In any event, the word “indirectly” was later used by the interpreter at SCB 135 line 16 when he interpreted that the applicant’s uncle “indirectly asked other people” to approach Ali or conveyed as indirect approach at SCB 140 lines 6–7. The questions of the Tribunal member would have left the applicant in no doubt as to the member’s understanding of the evidence. |
| 2(i) | Failure to translate in full the Tribunal Member’s question, involving the assumption that Ali’s group were contacting the uncle, where this evidence had not been given, so that the applicant was not aware that this was the Tribunal Member’s under-standing of the evidence. | 135 | See above | See above |
| 2(ii) | Inaccurate interpretation of Tribunal Member’s question in relation to what was said during the applicant’s interview with the Depart-ment Delegate, as being what was said by the applicant “in your writing”, and inaccurate inter-pretation of follow up questions. | 139 [38] | Paragraph 31 Paragraph 33 | This is not a material inaccuracy. The Tribunal member’s questions as interpreted would not have left the applicant with any understanding other than that the Tribunal member was addressing him on inaccuracies between what he was saying to it and what had been presented to the Department. The substance of the inconsistency is made clear to the applicant and he is able to respond and present his case or answer to the Tribunal. In any event other questions make it clear that the Tribunal is comparing what was said to the delegate rather than what was written – see SCB lines 8–17. The question as interpreted refers to what was “told” by him to the Department and his answer is what he “said”. |
| 3(i) | Answers of the applicant in relation to the Taliban’s actions following the takeover are not fully or properly translated and consequently do not appear responsive to the Tribunal member’s questions (which are also not fully translated). | 107–110 [6] – [9] | These are not addressed in the applicant’s contentions | There are errors in translation on SCB pages 6–9 which may affect the way the answers are to be read. In any event, none of the issues are material omissions that can be said to have affected the outcome of the decision or prevented the applicant presenting his case. |
| 3(ii) | Answers relating to the reaction of the Taliban search parties’ response to the applicant’s mother are inadequately interpreted so as to deprive them of their true sense. | 132–133 [31] – [32] | Paragraph 34 (Example 4) Paragraph 39 | These errors were not material. The true sense of what the applicant was saying was apparent from the interpreted answers – i.e. that they searched his mother’s home, that they said things to her, that they damaged property and that her mother was scared to talk to them. Again, the reasons reflect that this was not a material error. |
| 4(i) | Answer including a reference to the applicant having “some sort of collection” of weapons, which was not stated by the applicant in his response. | 116 [15] | Paragraph 34 (Example 3) Paragraph 39 | This is an error in the translation. On listening to the tapes the interpreter interpreted the answer as “I have some sort of connection with these weapons, keeping them, so that they had in mind to arrest me.” |
| 4(ii) | Response as to how long people continued to come to search the applicant’s house was inaccurately translated, with the interpreter adding the words “Nearly for one year” which were not said to the applicant. | 133 [32] | This is not addressed in applicant’s contentions | This was not a material error. The error was subsequently clarified at SCB 33 – that in fact they came regularly for one year and after that every three or six months. |
| 4(iii) | The answer to the Tribunal member’s question as to what happened to other families whose male head fought for the Mujahideen is incorrectly interpreted in several ways (note reference to “Hezbe-Islami Hekmatyer”, with certain information being added and omitting other parts of the original answer (“Nakeeb”). | 138 [37] | This is not addressed in applicant’ contentions | The omission of Nakeeb is an omission by the revising translator. If one listens to the tape the hearing the interpreter referred to an name commencing with “M” which is recorded in the translation as “…”. |
ADDITIONAL PARTICULARS ADDRESSED IN APPLICANT’S CONTENTIONS
| Paragraphs in Applicant’s contentions of fact and law | Supplementary Court Book page reference [Translation page reference] | Respondent’s response |
| Paragraph 34 (Example 1) | 113 [12] | This was not a material error |
| Paragraph 34 (Example 2) | 114 –115 [13] – [14] | There are inaccuracies in the transcription of the answer preceding the question by the Tribunal member which will be discussed between Counsel and may address the criticisms made. If not, it is submitted that these were not material errors and the substance of the applicant’s case was relayed to the Tribunal. |
Respondent's submissions
36.The respondent submitted that although some errors in translation have been identified, there has not been a departure from the standard of interpretation.
37.The court was invited to listen to the audio-recordings when making an analysis of the translation of the standard of interpretation. Ultimately, although agreement was reached on certain inaccuracies and in fact an agreed version of the transcript was provided, the respondent submitted that the court should still listen to the tapes. In doing so it was submitted that suggestions by the applicant that the interpreter was stammering and/or the interpretation was not fluent could not be justified on a proper hearing of the tape. Rather than the interpreter stuttering, it was submitted that upon hearing the tape the court should conclude that the interpreting was considered and delivered.
38.It was submitted on behalf of the respondent that there has not been a departure from the standard of interpretation which was appropriate for this tribunal. Reference was made to the decision of Mansfield J in Long v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 183. In that case the court stated the following at paragraphs 54 and 56 respectively:
“54.However, it is also clear that the interpretation at the hearing often provided stilted and abridged answers to questions, rather than fluent answers which the translation demonstrates were actually given. In that respect, there was a departure from the standard of interpretation which was appropriate for the Tribunal ...
…
56.It is necessary to determine whether the persistent shortfall in the standard of interpretation is of significance to the determination of the applicant's claim …”
39.Mansfield J in the Long decision concluded the departure from the standard of interpretation of the hearing was not such as to result in the applicant not having been given the opportunity to appear before the tribunal to give evidence.
40.It was submitted by the respondent that the court should make allowance for the fact that the interpreter at the hearing was interpreting "live". By way of contrast, Mr Dehsabzi had been provided with an opportunity to listen carefully to the recording of the proceedings. In addition, he had the benefit of a prepared draft transcription and translation before him when performing the task. It was submitted that it is inevitable that an interpreter may use different words to convey the same meaning from time to time. The fluency of interpretation with the advantage of more time to translate may sometimes present a more cogent expression of a response than that given during a hearing.
41.Reference was made to the decision of the Federal Court in Tobasi v Minister for Immigration and Multicultural Affairs (2002) FCA 1050 (23 August 2002) and in particular paragraphs 50 and 61 of that decision as follows:
“50 Although the interpreter's versions of the answers are somewhat less precise than the Hamoud versions, there is no indication that the Tribunal did not receive the real sense of the applicant's responses. Its follow-up questions indicate that it did. The fact that the answers are a little less coherent and precise on this topic is not in the circumstances significant. There must also be allowance made for the interpreter interpreting "live" compared to the opportunity Mr Hamoud enjoyed of listening carefully to the recording of the interview and thinking carefully about the way in which the applicant's answers should best be expressed in English. For example, whether the applicant's father was "eminent" or a "captain" in the PLO, his administrative duties were correctly understood by the Tribunal, and it is the nature of those duties which led the Tribunal to doubt the applicant's claims about his status and actions so as to attribute to the Syrian authorities a desire to investigate him. The difference between "eminent" or "senior officer" was not of itself a factor in the Tribunal's assessment on this topic.
…
61 My consideration of the respective interpretations of the interpreter at the hearing, and of Mr Hamoud, has not lead me to the view that the applicant was not invited to give evidence at the hearing, or that his opportunity to give evidence was to any real measure frustrated. It is inevitable that interpreters may use different words to convey the same meaning from time to time. The fluency of interpretation, with the advantage of more time to translate, may sometimes present a more cogent expression of the response than that given during a hearing. But in this matter I am far from persuaded that, in substance, the applicant was "prevented from giving his evidence" (per Kenny J in Perera at [38]) because of any incompetence on the part of the interpreter. I do not think that the Tribunal made findings adverse to the applicant by reason of any erroneous interpretation of the applicant's evidence (cp Ismail v Minister for Immigration & Multicultural Affairs [1999] FCA 1555). Nor am I persuaded that its adverse view of the applicant's reliability was contributed to by any inadequacies in the interpretation of the applicant's evidence at the hearing (cp Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172).”
42.The respondent challenged the admissibility of the comments of Mr Dehsabzi in relation to the qualifications of the interpreter, although for the purpose of this application I am prepared to accept that in any event those qualifications alone will not determine the outcome of my considerations, but rather whether it is shown that the interpretation on this occasion has been competent and sufficiently adequate to enable the applicant to give his evidence and present his case consistent with the principles set out in Perera.
43.It was further submitted that in relation to the different dialects used by the applicant compared to the interpreter, that the applicant did not provide the tribunal with is dialect. Nor was it submitted that the applicant tell the tribunal he could not understand the interpreter's dialect. To the contrary, he said he could understand the interpreter. No affidavit material has been sworn by the applicant deposing to any inability to understand the dialect being spoken by the interpreter.
44.As indicated earlier in summarising the contentions of fact and law regarding the applicant's alleged inaccuracies in transcript, for convenience I included the respondent's response taken from the respondent's annexure to his contentions of fact and law. It is not necessary to restate those responses when considering the respondent's submissions. It is appropriate to note that the respondent has assumed that examples given, however, should not be permitted to go beyond the particulars set out earlier in this judgment.
45.It will be clear from the responses set out in the table earlier in this judgment that essentially many of the criticisms raised as to the accuracy of the transcript according to the applicant were ultimately resolved through further evidence and other answers to questions. The main thrust, therefore, of the respondent's submissions in relation to the alleged inaccuracy is that ultimately those inaccuracies were not material and/or have been subsequently clarified. In those circumstances, as I understand the thrust of the submission by the respondent, even if it may be said that there is some shortfall in the standard of interpretation, it is not of a kind to be of significance in the determination of the applicant's claim in this matter.
Conclusion
46.The court has listened to the tape and in general accepts the submissions made for and on behalf of the respondent regarding what might be described as the flow of interpretation and does not accept that the interpreter was stammering and/or the interpretation was not fluent. Further, to the extent that it is relevant, it is not prepared to accept that any pauses in the dialogue may be accounted for by notes being taken without further evidence. However the dialogue has not been unduly interrupted. That of course does not detract from the criticism as to the accuracy of the interpretation which is a separate issue.
47.In my view, the concerns expressed by the applicant in relation to the accuracy of the interpretation, whilst understandable, do not lead to a conclusion that overall the standard of interpretation is of such significance it would lead me to conclude that the applicant was not given the opportunity to appear before the tribunal and give evidence. There is clear evidence that the applicant advised the tribunal that he understood the interpreter and it is important to make due allowance for the process undertaken by an interpreter who does not have the time or opportunity to listen to a tape or transcript of what has occurred but has to translate during the course of a proceeding, albeit in a dialect that may be different to that of the applicant. Had any significant difficulties arisen during the course of the hearing one would have expected those difficulties to have been the subject of complaint by the applicant.
48.In any event, having carefully considered each and every one of the claimed inaccuracies, I am satisfied that ultimately many of those did not involve material issues and/or were ultimately clarified to the extent that the main thrust of the conclusions by the RRT were conclusions open to it which did not involve what may be described as procedural unfairness and/or breach of natural justice as the main thrust of the claim by the applicant had been duly considered. For example as to the challenged translation relating to the issue of whether Ali was present in a group searching the Applicant’s house, it is clear that ultimately the Applicant addressed that issue which was accurately translated as submitted by the Respondent. I do not regard the translation issue in relation to the term “paperwork” and “search warrant” being material. It appears open in my view for the RRT to have made an adverse finding regarding the searches by Ali’s group against the Applicant. Whilst accepting that there is a failure to translate the word “indirectly” when referring to the approaches to Ali’s group made by the Applicant’s uncle, it is my view that this did not lead the tribunal into error in its findings nor did it prevent the Applicant from then being heard and properly putting his case to the tribunal in terms of his uncle not attending personally but arranging for others to go to Ali. The reference in the interpretation of “my uncle sent some people to Ali” makes this clear. Otherwise I accept that whilst there are clear errors in interpretation referred to in the table included in this judgment I accept that those errors were not material and/or in any event the Applicant was not prevented from being heard effectively at the hearing.
49.
Ultimately on a proper reading of the transcript, listening to the recording and having regard to the submissions made by both parties,
I am satisfied that overall, whilst there may be some reservations which I consider arise as to the standard of interpretation arising from the inaccuracies identified, they are not sufficient to justify a finding that there has been a breach of either ss.425 or 427(7) of the Act to adopt the reasoning of Kenny J in Perera. I am otherwise satisfied that the interpretation, whilst not beyond criticism, was at least sufficient to afford an effective opportunity to the non-English speaking applicant to give evidence and that in the circumstances the quality of interpretation was sufficient to ensure that justice was done and seen to be done in this case.
50.This is not a case where it could be said on a proper analysis of the criticism raised that the applicant has demonstrated that the interpretation was so incompetent that he was effectively prevented from giving his evidence. It is important to also note that in the present case there is no affidavit material from the applicant and although the applicant relied upon the affidavit of Mr Dehsabzi, in my view, there is some force in the submission by the respondent that the court in circumstances of this kind may also benefit from an affidavit by the applicant deposing as to any inability to understand the dialect being spoken by the interpreter given that the transcript reveals that at the time the applicant stated that he could understand the interpreter. That part of the transcript is not challenged.
51.
Both parties raised the issue of whether the respondent's notice of objection to competency filed on 4 September 2003 pursuant to Order 54B, Rule 3 of the Federal Court Rules raising the ground that the applicant had not brought his application for review within the
28-day time limit imposed by s.477 of the Act. However, the respondent noted that Order 54B, Rule 3 provides that a notice of objection to competency should be filed and served within 14 days after service upon a respondent of the application. The respondent conceded that it filed its notice of objection out of time and sought leave to extend the time to file the notice of objection. It was argued that an objection to competency can only be upheld if the court is satisfied the decision under review does not involve jurisdictional error (see Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 54).
52.In my view, that is correct and it is further correct that in the circumstances where I have found that there is no jurisdictional error of the kind claimed for the reasons given the practical effect is that the court has in effect dealt with substantive issues raised by the applicant, there is no disadvantage to the applicant in the respondent being granted an extension of time.
53.Accordingly, to the extent that I am required to do so, I would be prepared to extend the time period within which the objection to competency may be filed and would otherwise make orders that the application of the applicant be dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 30 April 2004
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