VWPT v Minister for Immigration

[2005] FMCA 753

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VWPT v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 753

MIGRATION – Review of decision of RRT – interpretation – inability to provide suitably accredited interpreter to the satisfaction of the applicant – whether there is an obligation to provide an interpreter with the accreditation requested by the applicant – the right to be heard and the provision of an interpreter – refusal to partake in hearing unless interpreter provided was accredited to a standard acceptable to the applicant – Tribunal hearing proceeded in the absence of the applicant – application for review dismissed.

Migration Act 1958, ss.420, 425, 426, 427, 474

Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 185

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 Long v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 183 Minister for Immigration and Multicultural Affairs v SCAR (2003) 198 ALR 293

Applicant: VWPT

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG1223 of 2004

Judgment of: O’Dwyer FM

Hearing date: 17 May 2005

Delivered at: Melbourne

Delivered on: 13 October 2005

REPRESENTATION

Counsel for the Applicant: Mr. Krohn

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the First and Second Respondents: Mr. Horan

Solicitors for First and Second Respondents: Australian Government Solicitor

ORDERS

1. The Application for Review filed on 17 August 2004, and later amended by an Amended Application filed on 18 February 2005 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1223 of 2004

VWPT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The central issue of the Applicant’s case in this Application for Review centres on whether or not the Applicant was right to refuse to partake in the Refugee Review Tribunal’s (the Tribunal) hearing because the Tribunal was unable to provide an interpreter with a recognised accreditation that was likely to ensure competent translation.  Ancillary to that issue is whether or not there is an obligation on the Tribunal to only proceed with a hearing in circumstances where a suitably accredited interpreter is available.

2. The Applicant contends that a failure to provide a suitably accredited interpreter was a failure on the part of the Tribunal to afford procedural fairness and a failure to exercise jurisdiction as required under ss.425 and 427 of the Migration Act 1958 (the Act). On the basis of those alleged failures, the Applicant contends the Tribunal’s decision was infected by jurisdictional error and thereby not afforded protection, as a privitative clause decision, under s.474 of the Act.

3. The Applicant does not take issue with the Tribunal’s findings and reasoning per se and should I find against the Applicant in respect of the above alleged failures, it follows that no other jurisdictional errors are alleged and the decision will be afforded the protection of s474.

Background

1. The Applicant is a national of India who arrived in Australia on

   
   

   21 December 1997 and within 10 days of his arrival the Applicant applied for a protection visa.  Almost a year later a delegate of the First Respondent refused to grant a protection visa.  On 23 July 2004, the Tribunal affirmed the delegate’s decision.

2. On 17 August 2004 the Applicant applied in the Federal Court to review the Tribunal’s decision, which application was transferred to the Federal Magistrates Court and is now the subject of this proceeding.  The Applicant filed an Amended Application on 18 February 2005 claiming the Tribunal’s decision was affected by jurisdictional error.

3. The Applicant’s mother tongue is Punjabi.  There is a significant shortage in Australia of Punjabi interpreters.

4. The Tribunal, having reached a preliminary view that it could not make a favourable determination in favour of the Applicant on the material before, it invited the Applicant to a hearing.  The first attempt at a hearing was aborted in consequence of the Tribunal accepting argument by the Applicant that the interpreter engaged on the occasion was not accredited by the National Accreditation Authority for Translators and Interpreters Ltd (NAATI) to the standard of “Interpreter” (or its then descriptive equivalent).  The Tribunal expressed confidence in the interpreter engaged as she was experienced and previously found credible.  She had been used in other proceedings before the Federal Court and the Tribunal.  Her accreditation with NAATI was at the “paraprofessional” standard.  Nonetheless, the Tribunal was persuaded to adjourn the hearing to allow the engagement of an interpreter with higher accreditation.

5. The distinction between the two standards is as follows:

   (i)A paraprofessional interpreter is assessed as being competent to interpret in general conversations, in situations where specialised terminology or more sophisticated conceptual information is not required and in situations where a depth of linguistic ability is not required.

   (ii)An Interpreter is assessed as being able to interpret in both language directions for a wide range of subject areas usually involving specialist consultations with other professionals (eg., doctor/patient, solicitor/client, bank manager/client, court interpreting) and being able to interpret in situations where a depth of linguistic ability in both languages is necessary.

6. Implicit in the Applicant’s contention is the proposition that an interpreter with accreditation to the paraprofessional standard is inadequate to the task and that a minimum standard is that of an Interpreter.

7. After the adjournment it became apparent that the only Punjabi interpreter accredited by NAATI to the Interpreter standard resided overseas and that there were no other interpreters in Australia accredited to higher standards.

8. The Tribunal determined that it would, in the circumstances, proceed with the hearing and would engaged the interpreter accredited to the paraprofessional standard.  Correspondence passed between the Applicant’s representatives and the Tribunal about the appropriateness of this proposed course, with the Applicant requesting an indefinite adjournment until a suitably accredited interpreter was available. 

   
   

   In consequence of the Tribunal determination to proceed with the hearing, the Applicant was advised by his representatives not to attend the hearing.  The hearing proceeded in his absence, with the Tribunal expressing concern that the Applicant was not there to respond to the Tribunal’s questions about how the Applicant’s case was being put. 

   
   

   It is to be noted, however, the Applicant provided further material to the Tribunal in response to an invitation to do so.

Court’s decision and reasons

1. The Applicant alleges that the Tribunal failed to invite him to a hearing with an interpreter accredited by NAATI as an “Interpreter” and by refusing to adjourn the hearing until an interpreter accredited to that standard was available, and in proceeding to conduct a hearing in his absence, the Tribunal deprived the Applicant of an opportunity of a hearing at which he could properly give evidence and present arguments relating to the issues arising.

2. Section 425(1) of the Act requires the Tribunal to invite the Applicant to appear before it to give evidence and present arguments should it be unable to give a decision favourable to the Applicant on the material before it.

3. Section 426A(1) of the Act provides that, if an applicant is invited to appear before the Tribunal but does not appear at the scheduled hearing:

   “the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it”.

4. Section 427(7) of the Act provides as follows:

   “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.”

5. Although s.427(7) does not impose a mandatory obligation on the Tribunal (see Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1858 at [24]), there may be circumstances in which the Tribunal comes under a duty to provide an interpreter in order to comply with the obligations imposed by s.425(1). In other words, where an applicant is not proficient in English, the Tribunal may not be able to give an applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter to assist, (see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 17 [20]; Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [27]–[31]; Long v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 183 at 190 [29]; Minister for Immigration and Multicultural Affairs v SCAR (2003) 198 ALR 293 at 299 [33]–[37]).

6. Where an applicant demonstrates that the interpretation provided at the hearing was so incompetent that he or she was effectively prevented from giving evidence on a matter of significance for the Tribunal’s decision, the Tribunal might have failed to comply with its obligations under s.425(1), giving rise to jurisdictional error (see Mazhar v Minister for Immigration and Multicultural Affairs).

7. As her Honour Kenny J noted in Perera at 19 [29] and [26]:

   “… the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter…”

   “… [p]erfect interpretation may … be impossible”, and “a particular interpretation may well be less than perfect yet acceptable for the Tribunal’s purposes.”

8. The factors that the Tribunal must take into account in assessing the competence of the interpretation provided at a Tribunal hearing include and found in Perera at [41]:

   “… the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought  to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter…”

9. I note that her Honour’s observations and comments are in the context of an objective evaluation of competence by the Tribunal and, generally, by a Tribunal ignorant of the language being interpreted.  Notwithstanding the obvious limitation placed on the Tribunal Member by not being proficient in the subject language, her Honour was of the view that competence of an interpreter can be assessed by the objective indicia set out by her.  In my view, this is correct, and experience shows that tribunals and courts can, and do, assess competence of interpreters by applying the indicia set out in Perera.

10. It is clear on the authorities that, in determining whether or not an interpreter is likely to be competent, any accreditation held by the interpreter is not determinative.  The court may have regard to the interpreter’s qualifications, accreditation or experience.  However, “though lacking in qualifications and experience indicative of a capacity to interpret competently, an interpreter may turn out to provide a competent interpretation” (and vice versa).  In Long v Minister for Immigration and Multicultural Affairs, Mansfield J said at [51]:

    “Of course, the fact that the interpreter was not of NAATI Level 3 accreditation is not of itself reason to conclude that the transcript was inadequate. As Kenny J pointed out in Perera (at [31]), an interpreter without qualifications, accreditation or experience may nevertheless provide a competent interpretation. The existence of qualifications, accreditation and experience will be relevant to the determination of whether an interpretation is competent. The question of competence is ultimately a question for the Court.”

11. Similarly, Goldberg J stated in Mazhar v Minister for Immigration and Multicultural Affairs at [25]:

    “The fact that the interpreter was not of a NAATI Level 3 standard but only of a NAATI Level 2 standard, of itself, is insufficient to establish that the required standard of interpretation was not available: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 20; Long v Minister for Immigration and Multicultural Affairs [2000] FCA 1172 at [51]. The determination of that issue turns on the interpreting undertaken and whether it is shown to be competent and sufficiently adequate to enable the applicant to give her evidence and present her case.”

12. Accordingly, in the present case, the competence of the interpreter could only be assessed, in my view, once he or she had been given an opportunity to interpret at the hearing.  The Applicant had no right to insist on an interpreter who had been accredited by the NAATI as an “Interpreter”, and to refuse to attend a hearing until such an interpreter had been arranged.  In my view, the question of competency is ultimately a question for the Tribunal, and not for the Applicant or his legal representative.

13. The Tribunal had taken all possible steps to arrange for the best available Punjabi interpreter.  In the absence of any available interpreters who had been accredited by NATTI to “Interpreter” standard, it arranged for a “Paraprofessional” interpreter who had extensive experience in providing interpretation services in both court and tribunal proceedings.  The Applicant has not established that it was likely that this interpreter would be so incompetent that the Applicant would be prevented from giving evidence presenting arguments to the Tribunal.  There is not, in my view, an obligation on the Tribunal to engage interpreters at a particular NAATI accreditation.  The obligation is to engage a competent interpreter, which could prove to be one with a lesser accreditation.  The level of competence is clearly, in my view, a matter for the Tribunal to assess.

14. Further, in so far as the Applicant suggests that the Tribunal was obliged to adjourn the hearing indefinitely until such time as a Punjabi interpreter could be accredited to “Interpreter” standard, this would be inconsistent, in my view, with the Tribunal’s statutory objective of providing a mechanism of review that is fair, just, economical, informal and quick (see s.420(1) of the Act).

15. Contrary to the Applicant’s contentions, there is no basis on which the observations made in Perera, Long and Mazhar (about the relevance of NAATI accreditation) can be distinguished from the present case.

16. It does not make any material difference that, prior to the hearing, the Applicant objected to the Tribunal’s intention to use a person not accredited at the “Interpreter” standard.  This merely underlines the fact that, by declining to appear at the hearing, the Applicant precluded any assessment of the competency of the interpreter.  It was not necessary (and perhaps not possible) for the Tribunal to guarantee the competence of the interpretation at the hearing.  There is nothing to indicate that the interpretation would not have been competent for the purpose of the hearing.  On the contrary, the indication was the interpreter engaged had previously been found by the Federal Court and the Tribunal to be competent to interpret in proceedings before them.

Conclusion

1. Accordingly, the Tribunal did not fail to comply with its obligations under s.425(1), and was entitled to make a decision on the papers pursuant to s.426A of the Act. For similar reasons, the Tribunal did not fail to accord procedural fairness to the Applicant. The Tribunal gave the Applicant a real invitation to appear before the Tribunal to give evidence and present arguments. The Applicant had an opportunity to give evidence (which he declined to do) and to submit material (which he did) to the Tribunal, and the Tribunal had regard to all of the material before it when reaching its decision.

2. For the reasons set out, the Tribunal was not obliged to adjourn the hearing until a NAATI Interpreter level interpreter was available. 

   
   

   In my view, the Applicant was ill advised to not attend the hearing.

3. The Tribunal did not make a jurisdictional error and the decision is afforded protection under s.474 of the Act.

4. Accordingly, the Application for Review filed on 17 August 2004, and later amended by an Amended Application filed on 18 February 2005, is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate: 

Date:  13 October 2005