FEDERAL COURT OF AUSTRALIA

AWN17 v Minister for Immigration and Border Protection [2019] FCA 440

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court of Australia dated 15 February 2018 wherein it was ordered:

  1.    The amended application is dismissed;

2.    The applicant pay the further costs of the respondent fixed in the sum of $6,825;

be set aside and in lieu thereof it be ordered that:

(a)    The amended application is allowed.

(b)    A writ of certiorari be issued to the Administrative Appeals Tribunal quashing its decision of 10 February 2017.

(c)    The matter be remitted to the Administrative Appeals Tribunal for determination according to law and in accordance with these reasons by a differently constituted Tribunal.

(d)    The first respondent pay the appellant’s costs of the hearing before the Federal Circuit Court of Australia.

3.    The appellant pay 50% of the first respondent’s costs of the interlocutory application of 26 October 2018.

4.    The first respondent pay the appellant’s costs of this appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from the Federal Circuit Court of Australia (FCC) constituted by Judge Street. On 15 February 2018, his Honour dismissed an application for the issuing of a Constitutional writ pursuant to the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (the Migration Act) in respect of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 10 February 2017. The Tribunal had affirmed a decision of the delegate of the first respondent Minister not to grant the appellant a protection visa.

2    As the analysis which follows shows, a significant number of failures in translation occurred in the course of the Tribunal hearing. Many were important and could clearly be seen as directly causative of findings on significant facts which adversely affected the Tribunal’s conclusion as to the appellant’s credibility. That conclusion became the foundation of its decision. Nevertheless, the Department for Immigration and Border Protection (the Department) has steadfastly denied the existence of any error which might have altered the outcome of the decision. Some of the arguments it advanced in response to the appeal seemed to border on the fanciful and appeared to be derived from a blinkered view of the realities of the decision making process. That said, the Court was not asked to make any finding in this matter as to whether the Department complied with its obligations under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) or any other statutory obligation concerning the conduct of litigation and, because it was not raised, no conclusion is ventured.

Background

3    The grounds of the application for a Constitutional writ made to the FCC were varied but included a claim that the Tribunal had failed to comply with s 425 of the Migration Act or had denied the appellant procedural fairness because he was unable to give evidence and present arguments at the hearing due to the flawed translation services provided. In relation to this ground, the FCC permitted the appellant to amend the application for review by including the seventeen particulars which appeared in paragraph 33 of the appellant’s written submissions to that Court.

4    At the hearing of the application before the FCC the appellant relied upon the affidavit of Ms Alaska Ghosal, an accredited interpreter. Ms Ghosal had listened to the recording of the Tribunal hearing and prepared a transcript which revealed the existence of a number of inaccuracies in translation by the interpreter. That transcript records what Ms Ghosal heard as having been said in English by the persons present and also what was said in Bangla by the appellant and the translator present at the hearing. In this way, the transcription enabled a comparison to be made between what was spoken by the appellant in Bangla and the manner in which it was translated in English. The transcript reveals that there were errors in what was translated into Bangla from English and vice versa. Before the FCC the Minister did not adduce any evidence which contradicted anything contained in Ms Ghosal’s affidavit. He sought and obtained an adjournment of the hearing of the application for review before the FCC due to the late production of the evidence of Ms Ghosal but, ultimately, determined not to traverse it in any way.

5    As mentioned, about seventeen identified errors in translation became the particulars relied upon in the appellant’s written submissions to the Court. The primary judge briefly referred to each of these particulars but found that neither any of them individually, nor taken together, were causative of any adverse credibility finding and neither did they give rise to any question that the appellant was not given a real and meaningful hearing. His Honour concluded there was no breach of the requirements of natural justice or any failure to comply with s 425 of the Migration Act.

6    The sole ground raised on this appeal is that the several errors made by the interpreter at the review hearing before the Tribunal were of “such significance” as to enliven a finding of a failure to afford procedural fairness and/or a breach of s 425 of the Migration Act and that the primary judge was in error in not reaching that conclusion.

7    Given the nature of this single ground of appeal it is not necessary to set out at length the appellant’s background and circumstances leading to the decision of the delegate. Where necessary, some reference will be made to the circumstances of the case.

Procedural history before this Court

8    The appeal to this Court was originally set down for hearing on 22 August 2018. On 15 August 2018, the Minister’s solicitors wrote to the Court attaching draft orders to which both parties consented and asked that the orders be made. They were informed that if the orders were made it was likely that the matter would be relisted in the November Full Court period. On 16 August 2018, the orders requested were made, which, inter alia, provided:

(a)    The hearing listed on 22 August 2018 at 10.15am be vacated and the matter be adjourned.

(b)    The appellant be granted leave to rely on new particulars of alleged breaches of s 425 of the Migration Act and/or denials of procedural fairness as identified in the appellant’s submissions filed 10 August 2018.

(c)    The first respondent be granted leave to file and serve any affidavit evidence by 19 September 2018.

The orders also made provision for the filing of further submissions. The matter was subsequently listed for hearing on 14 November 2018 and the parties filed submissions in accordance with the orders made on 16 August 2018.

9    From the consent orders the parties knew and understood that the scope of the appellant’s argument as to the deficiencies in the interpretation services provided were to extend beyond the particulars which were previously relied upon in the FCC. There had been only one ground specified in the Notice of Appeal and it was unparticularised insofar as the alleged errors were concerned save that it referred to the “errors raised” and that seemed to be a reference to the errors raised in paragraph 33 of the written submissions given to the FCC.

10    On 24 October 2018 the Court received an email from the Minister’s solicitors requesting clarification as to order (c) above. The parties had differing views as to its effect and queried whether it was necessary for the Minister to file and serve an interlocutory application in respect of his proposed reliance on further affidavit evidence filed in accordance with order (c). That further evidence was annexed to an affidavit of Ms Davyskib. She deposed she had listened to the recording of the hearing before the Tribunal and had prepared a transcript of the English words which were spoken. It did not purport to correct the translations by Ms Ghosal although it did alter some of the English transcription which she had prepared. Mr Blount for the appellant submitted that the differences in the recording of the English spoken were minor and did not affect the case he sought to agitate although he accepted that Ms Davyskib’s transcription was accurate. Mr Kaplan for the Minister submitted that the differences between the recording of the words spoken in English in Ms Ghosal’s affidavit and those in Ms Davyskib’s were somewhat more important.

11    On 25 October 2018, the Court wrote to the parties and notified them that a hearing was required in order to ascertain whether the Minister might rely on the affidavit evidence. At the hearing on 9 November 2018, the respondent’s main contentions were that, while in the FCC it was content to rely on the transcription put on by the appellant, it was not content to do so on appeal because numerous additional misinterpretations and errors were identified in the appellant’s submissions filed in this Court. In the Minister’s submissions filed 5 November 2018 it was stated:

Upon receipt of the appellant’s submissions, the Minister’s solicitors formed the view that the appellant “was seeking to advance on appeal new particulars of his allegation that the … Tribunal … had breached section 425 of the … Act”. Having formed that view, the Minister’s solicitors listened to the audio recording of the hearing before the Tribunal and compared it with the transcript of the hearing prepared by Ms Ghosal. The result was that the transcript was not accurate. Ms Ghosal’s transcription of the hearing being inaccurate, the Minister’s solicitors formed the view that, in order to ensure its accuracy and properly to respond to the appellant’s (largely new) case on appeal, another transcript should be arranged to be prepared. That was done, and, once done, it was checked for accuracy.

12    As was correctly submitted by the Minister in support of his application to adduce further evidence, it was for the appellant to obtain leave to raise new points on appeal. The appellant did not do so although the consent orders made on 16 August 2018 envisioned he have leave to rely on them and the Minister have leave to file and serve any relevant affidavit evidence. It was put that that order was proposed by the Minister to avoid any prejudice to the Minister and this was evident from the exchange of correspondence between the parties. Ultimately, the appellant conceded, or at least did not oppose, granting the relief sought by the Minister. Consequently, the Minister was granted leave to adduce the further evidence of Ms Davyskib and provision was made for the parties to file updated submissions in relation to the substance of the appeal and the costs of the interlocutory application.

13    Ultimately, what the Court was left with was two separate records of the events which occurred at the hearing before the Tribunal. Ms Ghosal’s purports to be a complete transcript of the hearing whilst Ms Davyskib’s contained only a transcript of what was said in English. The parties reached no clear agreement as to what was actually said in the Tribunal. That, of course, was completely unsatisfactory on an appeal and it required the Court to attempt to traverse two different documents simply to ascertain what occurred and what was said.

14    In these reasons parts of the transcripts are “extracted”. They represent the combined evidence of Ms Ghosal and Ms Davyskib. Where the evidence of Ms Davyskib differs to Ms Ghosal’s, Ms Davyskib’s evidence is used although underlined. That is on the basis that Mr Blount for the appellant conceded that Ms Davyskib’s evidence was accurate. On some occasions, where the differences are great, both versions are identified.

Decision of the FCC

15    The FCC dismissed the application for a Constitutional writ directed to the Tribunal. It did so primarily because it concluded that the mistranslations were effectively irrelevant to the outcome of the case. At least, that was the conclusion reached by the primary judge although the particular reasons why that conclusion was reached are not apparent.

Relevant principles

16    It is far from overstatement to say that the principles of natural justice are essential aspects to the rule of law: Raz, The Authority of Law: Essays on Law and Morality (1979) at 217. The according of natural justice to all persons before courts and tribunals ensures equality under the law. An essential requirement of natural justice is the opportunity to be heard. That necessarily encompasses both the ability to understand what is being put and the ability to communicate a response. Each element is necessary for the existence of a fair hearing.

17    The entitlement to be accorded natural justice before the Tribunal has been circumscribed by s 425 of the Migration Act which relevantly provides:

Tribunal must invite applicant to appear

(1)    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.

18    It has long been recognised that, in respect of persons who are unable to communicate in English, the satisfaction of that section can only occur if adequate translation or interpretive services are provided. In the absence of such services the invitation to appear at the hearing or the right to give evidence and present arguments is illusory. It follows that it is now well established that the absence of adequate translation or interpretive services may result in a denial of procedural fairness under the general law or, in the case of proceedings before the Tribunal, a failure to comply with s 425(1) (or s 360(1)) of the Migration Act: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, [17] and [20]; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131.

Onus

19    The Minister submitted that the appellant bore the onus of establishing that any departure from the required standard of translation services related to a matter of significance and there was a sufficient connection between that and the Tribunal’s decision. That submission, if once accurate, is no longer entirely correct. The manner in which s 425 might be breached and what a person must show to establish that is to be considered in the light of the decision of the Full Court in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (Allsop CJ, Flick and Robertson JJ) (SZRMQ) and in the light of the recent High Court authority in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252. There the plurality said:

[2] … Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.

…

[4] Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof.

20    In relation to the materiality of a breach of procedural fairness, their Honours later said:

Materiality

[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

21    It follows that the appellant in this case carries the onus of establishing that a breach of the requirements of natural justice or s 425 occurred and that compliance with those requirements could realistically have resulted in a different decision.

Requirement to provide adequate translation services

22    The foundations of the now accepted principles concerning the according of natural justice by the provision of adequate translation services were identified in SZRMQ, which concerned the application of common law procedural fairness requirements to mistranslations. In that case Allsop CJ said (at 215 [9]-[10]):

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

[10]    How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit.

23    Later at 219 [24] the Chief Justice said:

The content of procedural fairness in relation to the standard of interpreting requires an evaluation of the fairness of the process. As I have said earlier, I agree with the expression of the matter by Robertson J and that, fundamentally, the question is one of evaluation as to whether the applicant has had a real and fair opportunity to put what she or he wanted to put, to understand what was being said to her or him, and to participate in the hearing in a way from which it can be concluded that the hearing was fair, and thus that administrative justice was done.

24    Those views and those of Flick and Robertson JJ in that case have been considered in the subsequent five years and applied in different circumstances. In SZNCY v Minister for Immigration and Border Protection [2018] FCA 611, Markovic J specifically considered their application in the context of s 425, paying particular attention to the careful decision of Griffiths J in SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. It is appropriate to set out her Honour’s observations (at [72]-[73]) with which I agree:

[72] In SZSEI v Minister for Immigration & Border Protection [2014] FCA 465 Griffiths J considered whether, among other things, mistranslation prevented the hearing before the Tribunal in that case from being a lawful exercise of the Tribunal’s functions and powers pursuant to s 414 and s 425 of the Act. After referring to the decision of a Full Court of this Court in SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212 (SZRMQ) (Allsop CJ, Flick and Robertson JJ) concerned with the application of common law procedural fairness requirements to mistranslations at [71], Griffiths J summarised the relevant principles. At [72]–[74] his Honour said:

72     In my view, subject to some important observations which I will make shortly, the approach to be taken in a case such as this which raises the application of s 425 of the Act is essentially that which was applied in cases such as Perera, SZOYU, Appellant P119 and WALN. In WALN, Ryan J (with whom Tamberlin and Middleton JJ agreed) set out the relevant approach relating to alleged errors in translation in a s 425 context in the following terms at [29]:

To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (above) at [38]–[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry …

73 In SZRMQ at [22] and [23], the Chief Justice highlighted the need for passages such as the one set out immediately above from WALN to be read with care. That is for two reasons. First, it is clear that there is no requirement to demonstrate that there was a complete incapacity to interpret such that the applicant is prevented from giving any evidence. As the Chief Justice stated in [22], Kenny J in Perera at [45]–[46], “was referring to matters of significance involving important issues, not to a complete incapacity to interpret”. The Chief Justice also highlighted the undesirability of overly defining the relevant tests in circumstances where what is involved “is a more easily expressed and broader requirement: a fair hearing”. In my view, there is considerable force and attraction in expressing the matter that way, while giving effect in a relevant case such as here to the statutory text not only of s 425 of the Act but also other relevant provisions, such as ss 414 and 422B (noting the exhortatory command in s 422B(3) that, in applying Div 4, the Tribunal must act a way that is fair and just and see also the observations of the Full Court on that provision in Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 at [15] and [18]).

74 Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ). To similar effect, in SZRMQ at [68] Robertson J emphasised that “the process is central”. His Honour reinforced the point at [85] when he posed the relevant question as whether a mistranslation “affected or could have affected the quality of the hearing or the findings and reasons”. The Minister did not contest the correctness of those observations, nor their application to a s 425 case.

(original emphasis)

[73] At [75]–[76] Griffiths J referred to the observations of Allsop CJ in SZRMQ at [17]–[18] and those of Robertson J at [67]–[69] where Robertson J agreed with the observations of Allsop CJ that there is no requirement, at least for the purpose of procedural fairness, to establish a causal connection between a mistranslation and the decision-maker’s ultimate conclusion. At [77] Griffiths J concluded that he agreed with those observations and considered that they applied equally to a complaint of non-compliance with the requirements of s 425 of the Act. At [78]–[81] his Honour completed his analysis:

78 In my opinion, Robertson J provided further useful guidance in SZRMQ. For example, his Honour emphasised the importance of distinguishing between a case where the mistranslation or non-translation is frequent or continuous, as opposed to a case where the errors are intermittent (see SZRMQ at [70]). His Honour also drew attention, correctly in my view, to:

(a)     the importance of keeping separate questions of mistranslation and non-translation, as opposed to mere errors of fact (see SZRMQ at [73]); and

(b)     the distinction to be drawn between a mistranslation and a lack of detail in the relevant question the subject of translation (SZRMQ at [114]).

79 A further relevant principle is that in assessing whether or not one or more mistranslations or non-translations give rise to jurisdictional error, it is necessary to bear firmly in mind that interpretation or translation is not a perfect science and, having regard to the difficulties which are inherent in the process, perfection cannot reasonably be expected (see generally the observations of Kenny J in Perera at [29]–[31]). It may well be enough that the translation is sufficiently accurate so as to convey the idea or concept being communicated (WACO at [66]).

80 Furthermore, it is necessary to consider not only alleged mistranslations or non-translations individually with a view to assessing their relevance to the fairness of the overall process, but also to have regard to their cumulative effect. As Robertson J said in SZRMQ at [116]:

I turn finally to consider whether, in the aggregate, the mistranslations constituted a denial of procedural fairness. In my view, in the circumstances of this case, they did not. While care must be taken to examine whether errors in translation may have contributed to adverse findings or otherwise have been of significance to the process and thereby to a lack of procedural fairness, in the present appeal the sum of the mistranslations did not rise to that level. The errors of translation were intermittent rather than continuous and did not have a cumulative effect.

81 Finally, as noted above I did not understand the Minister to contest the proposition as stated by Jagot J in SZHEW v Minister for Immigration & Citizenship [2009] FCA 783 at [52] that the question whether inadequate interpretation has deprived an applicant of the opportunity given by s 425 of the Act “involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole”.

25    The relevant principles were also helpfully summarised by Wigney J in SZUYU v Minister for Immigration and Border Protection [2018] FCA 786. There, his Honour correctly observed that s 422B of the Migration Act requires the according of natural justice before the Tribunal can be said to have provided a hearing in the manner provided for in Division 4 of Part 7 of the Migration Act. As s 427(7) deals with the provision of translators, it would appear that where a question arises as to whether the provision of such services were adequate, the contention must be considered within the rubric of that Division. It is appropriate to set out at length his Honour’s careful analysis of the relevant principles concerning the adequacy of interpreters in that statutory context:

[72] Section 422B(3) provides that in applying Division 4, “the Tribunal must act in a way that is fair and just”.

[73] Section 425(1) of the Act, which is within Division 4, relevantly provides that the Tribunal must invite the review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The invitation which the Tribunal must give is to a “real and meaningful” hearing: Minister for Immigration & Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126; Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [61]–[63]. The evident purpose of s 425 is to “provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review”: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [60]. Having regard to the terms of s 422B(3), s 425(1) must be applied in a way that is fair and just: BZAID v Minister for Immigration & Border Protection (2016) 242 FCR 310; [2016] FCA 508 at [49].

[74] Section 427(7) of the Act provides that “[i]f 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”.

[75] A failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground for review within s 476 of the Act, because it would involve a failure by the Tribunal to comply with ss 425(1) and 427(7): Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [17] and [20]. The same applies where an interpreter is provided, but the quality of the interpretation or translation was so poor or incompetent that it can be concluded that the Tribunal did not give the review applicant an effective opportunity to give evidence about important matters or matters of significance: Perera at [38]–[41]; SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 at [22].

[76] In Perera, Kenny J said (at [29]), in relation to the required standard of interpretation, that while there is “rarely an exact lexical correspondence” between different languages, the “interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language”. As for the question how bad must an interpretation be to render reliance on it a reviewable error, her Honour said (at [41]):

What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, 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: cf Gonzales v Zurbrick at 936–937; United States v Urena (10th Cir 1994) 27 F 3 d 1487 at 1492; Acewicz v Immigration and Naturalization Service at 1062.

[77] It will generally be easier to conclude that the hearing process miscarried where there were frequent or continuous mistranslations or non-translations: SZRMQ at [70]–[71] (per Robertson J). Where the errors are intermittent, the errors must be considered in the context of the overall hearing: SZRMQ at [72] (per Robertson J).

[78] In Perera, Kenny J noted (at [45]) that not every departure from the standard of interpretation will effectively prevent an applicant for refugee status from giving evidence before the Tribunal; “the departure must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision”. It does not necessarily follow, however, that it is necessary to demonstrate a direct causal effect; it may be sufficient to show that “material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another”: SZRMQ at [10] (per Allsop CJ, with whom Robertson J agreed at [67]). It may be enough to show that “a mistranslation or non-translation could have affected the outcome” SZRMQ at [69] (per Robertson J); see also SZSEI v Minister for Immigration & Border Protection [2014] FCA 465 at [75]–[77]; BZAID at [52].

[79] In relation to the potential impact of deficient or defective translation on the Tribunal’s findings concerning the credit or credibility of the review applicant, Kenny J said in Perera (at [49]):

A witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation. In the present case, the incompetence of the interpretation cannot have assisted the Tribunal in making a reliable finding about Mr Perera’s credit. It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness: cf Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178–179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and Warren v Coombes (1979) 142 CLR 531 at 537 and 552–553.

[80] It may be of considerable significance that initial errors in translation were either corrected by subsequent questioning and answers, or were otherwise detected in the course of the hearing. In SZRMQ, Flick J said (at [46]):

For present purposes, it is considered to be a mistake to fix the standard of interpretation by reference to touchstones such as whether a translation has been “accurate” or whether any particular interpreter meets the standard of a “first-flight interpreter”. Errors in translation will inevitably occur. Even in the absence of such errors, words or expressions used may initially fall short of conveying an intended meaning. Even when proceedings are being conducted in English by those fluent in the English language, it may require two or more attempts to accurately convey a particular meaning. In those contexts where a claimant is entitled to be heard, that entitlement necessarily demands that any hearing involves a meaningful opportunity where that which is sought to be conveyed by both the claimant and the decision-maker is conveyed in a real and meaningful manner. Initial errors in translation may be corrected by subsequent questioning and answers. A danger necessarily lurks in errors that may go undetected at a hearing and which only emerge after a hearing has concluded. But whether the error emerges during the administrative hearing itself, or subsequently, the fact that an error in translation may have occurred may assume no ultimate significance if the true meaning and content of that which is sought to be expressed ultimately emerges.

[81] Flick J was in dissent in SZRMQ, though this statement was referred to with approval by Griffiths and Moshinsky JJ in Gill v Minister for Immigration & Border Protection (2017) 250 FCR 309; [2017] FCAFC 51 at [87].

[82] The focus, ultimately, is on “the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act”: SZSEI at [74]; SZRMQ at [8] and [17]. The question whether the process was sufficient in that regard, or miscarried, will be a “matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication”: SZRMQ at [9] (per Allsop CJ).

26    The Minister suggested in submissions that the appellant was able to understand English sufficiently and that became apparent at the end of the Tribunal hearing when he spoke in English directly to the Tribunal member. However, that conversation rather suggests that the appellant did not have sufficient fluency for the purposes of participating in a proceeding regarding his refugee status. In this respect the appellant referred to the observations in Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1, [23] to the effect that:

[23] The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a hearing before a court or tribunal. Thus, an applicant for refugee status may be able to use English for some purposes, even professional purposes, but may be insufficiently proficient to give evidence and make submissions before the Tribunal in support of an application vital to his or her future prospects. The fact that an applicant has sufficient knowledge of English for some purposes does not mean that the applicant will be so proficient that he could cope adequately with the giving of evidence and the making of submissions before the Tribunal: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 20-21 [34]-[36].

27    In Perera, Kenny J emphasised the importance of a translation expressing the idea or concept as accurately as the language and circumstances permit and her Honour identified the sequelae of inaccurate interpretations (at [49]):

[49] A witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation

Application to the circumstances of the present case

28    That perspicacious comment of Kenny J is of particular relevance in the present case where the foundation of the Tribunal’s decision was the appellant’s perceived lack of credibility. That perception was based, in part, on the manner in which the appellant responded to matters put to him by the Tribunal. As is discussed below, some inaccurate translations of his responses can be seen to have resulted in adverse credit findings.

29    In the application of the above principles to the circumstances of the present matter, it is appropriate to consider the individual mistranslations and ascertain the relevant likelihood that they impacted upon the ultimate decision and, further, to consider the cumulative effect of those errors. It is also appropriate to ask whether the nature and extent of the mistranslations had the result that the hearing was not fair or not “real and genuine”

30    However, it is important to keep in mind that the Tribunal’s determination turned on credibility findings. If it is determined that those findings were contributed to by some of the interpreter’s errors, it would be difficult, if not impossible, to disentangle those adverse credit findings from the other credit findings and ascertain the extent to which the errors contributed to the overall conclusion. In the authorities referred to above, specific reference has been made to credit findings which arise as a result of mistranslations. If, of course, it can be ascertained that an interpretation error was obviously irrelevant, different considerations would apply. But once it is likely that the errors had some effect, the conclusion can be fairly easily reached that the person did not have a fair hearing. That is particularly so in cases such as the present where the credibility finding is conclusory and not based upon articulated reasoning.

31    The Minister submitted that none of the mistranslations, either considered individually or together, resulted in there being any material non-compliance with s 425(1). He also submitted that the appellant had not shown a connection between the mistranslations and the reasons for decision although, as the above authorities reveal, the degree of connection need not always be explicit. He also submitted that when the transcript is read as a whole it cannot be said that the appellant did not have a fair hearing.

Paragraph [19] of the Tribunal’s reasons

32    At [19] of its reasons the Tribunal concluded that it was implausible that the appellant’s father would not have completed the legal process of donating land to a charity which he had previously agreed to do. The Tribunal put to the appellant its concerns in relation to this and did not accept his answer which was given under oath. This finding was repeated by Street J at [11]. The mistranslation occurred in the following passage:

Member – English – He would have understood the importance of transferring over title to the new owner when land was given to the new owner.

Interpreter – Bangla – He surely understood that the title needs to be transferred when land is donated.

Member – English – Do you want to make any comment on that?

Applicant – Bangla – My father was a very busy man and sick too. The principal of the orphanage did not want to pressurize my father. He was a good person he will transfer it in his own convienience [sic]. When my father died suddenly then I faced all the problems.

Interpreter – English – My father, yes, wanted to give that (indistinct) but the principal didn’t put much pressure on that and my father was a very busy man and that’s why it’s like that but obviously he wanted to give the land.

33    The appellant’s explanation as to why his father had not donated the land was because his father was “a very busy man and sick too”. However the interpreter failed to translate the evidence of the appellant’s father’s illness at the relevant time. It would also appear that part of the appellant’s responsive explanation for his father’s failure to transfer the land was that he had died suddenly. That sudden death was not translated at all at this point in the transcript. Importantly, it was not recorded by the Tribunal as a reason for the father’s failure to transfer the land to the orphanage. It merely relied upon the explanation that the father was busy.

34    The Minister submitted that because the translator had previously translated evidence that the failure of the appellant’s father to transfer the land was for reasons which included the father’s lack of health, the particular mistranslation had no effect. That submission must be rejected. It is apparent from the terms of paragraph [19] of the Tribunal’s reasons that it had in mind the mistranslated answer to the question of the failure to transfer the land when reaching the conclusion that the appellant’s explanation could not be accepted. It concluded that the fact the father was busy was an inadequate explanation. Because the mistranslated answer did not refer to the father’s illness, the appellant’s response was not fully given to the Tribunal which, consequently, made an adverse finding in relation to the appellant. The same observations apply in relation to the failure to mention the sudden death of the father. That too would have provided some cogency to the answer with which the Tribunal had concerns.

35    It is important to keep in mind that the evidence given by the applicant before the Tribunal was under oath. It follows that the Tribunal's conclusion that the appellant's explanation was implausible was also a conclusion that the appellant was prepared to misstate the facts despite his oath. Such a conclusion must have a substantial detrimental effect on a persons’ credibility.

Paragraph [22] of the Tribunal’s reasons

36    At [22] of its reasons the Tribunal identified what it perceived to be a discrepancy between the appellant’s written evidence and his oral evidence concerning an attack on him by a neighbour. The Tribunal identified that the appellant’s written evidence was that the son of a person called Mr B hit him, but in his oral evidence he said Mr B hit him. This finding was also identified by the primary judge who indicated that the appellant’s evidence was that the father had hit him with a bamboo stick. The relevant mistranslation appears from the following:

Member – English – Okay. Now in your visa application you said that Mr B’s son – the incident that happened on the 13th of February 2013 during that incident Mr B’s son hit you with a bamboo stick – or sorry – Mr B’s son threw a bamboo stick at you? …Let me finish – you can respond. Today you said Mr B hit you with a bamboo stick. …So again, these inconsistencies in our evidence raise concerns for me about the credibility of your claim. Would you like to make any response to that?

Interpreter – Bangla – On 13th of February Mr B’s son threw a bamboo to hit you. Today you said Mr B himself hit you. Again these inconsistencies in your evidence raise concerns about your credibility. Would you like to comment on that.

Applicant – Bangla – I had written Mr B hit me. They came together about 5 or 6 of them. I still have the scar.

Interpreter – I wrote that Mr B hit me over there in my claim. There are 4 or 5 people was there too so they - one of them they hit me and it was Mr B and I have that scar in my face.

37    The first difficulty with this is that the translator failed to identify the inconsistency in respect of which the Tribunal was asking the appellant to comment, which concerned the discrepancy between the appellant’s original written statement and his oral testimony before the Tribunal. The translator put to him a different inconsistency, being as between the fact that the son hit him and, at the hearing, he had said that it was the father. It seems from his answer that the appellant had not understood what was actually being put to him and he asserts that he had written in his statement that the father had hit him. Necessarily, the mistranslation effectively denied the appellant the opportunity to comment upon the Tribunal’s concern.

38    The second difficulty with the translation is that the appellant’s response, “I had written Mr B hit me. They came together about 5 or 6 of them. I still have the scar”, was mistranslated as “I wrote that Mr B hit me over there in my claim. There are 4 or 5 people was there too so they - one of them they hit me and it was Mr B and I have that scar in my face”. That mistranslation gave the incorrect impression that the appellant maintained his assertion that Mr B had hit him. However, his actual evidence (albeit wrongly translated) was that he seemed to concede that he was not certain of the identity of the person who had hit him. That answer would have ameliorated the inconsistency perceived by the Tribunal.

39    Again, the Tribunal took into account the inconsistency in assessing the appellant’s credibility. It said that it “raises further concerns about the credibility of his claims”. The appellant submitted this is an example of the Tribunal mistakenly understanding the verbal exchanges in the course of the hearing and that error diminishing the appellant’s credibility. There is substantial force in that.

40    The Minister’s submission on this mistranslation failed to deal with the gravamen of the error. He submitted that the translation accurately interpreted the substance of the appellant’s response. That cannot be accepted. As paragraph [22] of the Tribunal’s reasons disclose, the inaccurate response was relied upon as adversely affecting the appellant’s credit. The response actually given revealed that the appellant harboured some uncertainty as to the identity of the person who hit him. Such an answer may well have ameliorated the concern of the Tribunal as to the apparent inconsistency.

41    The mistranslation in this respect can be seen to be causally connected with a significant finding in relation to the appellant’s credibility.

Paragraphs [25] and [26] of the Tribunal’s reasons

42    At [25] and [26] of its reasons the Tribunal recorded that it had concerns about the veracity of a letter written on behalf of the appellant by a Mr M. It raised matters which had not previously been raised and the Tribunal records that when the appellant was asked about it he said “that he was not okay with everything that was happening to him and things were going on here and there”. The Tribunal relied upon this as being an unacceptable response to the question. The evidence shows that what was said was:

Member – English – Why have you not mentioned this before?

Applicant – Bangla – When I applied I did not know what I will need. I talked to my brother in law. He talked to Mr Be, then he sent me the letter which I submitted.

Interpreter – English – I was not quite okay with everything that’s happening with me so if things were going here and there after I asked this man to give me a reference letter so as the - I got the reference letter, that’s why I have said that.

Member – English – So you changed your story to match this letter?

Interpreter – Bangla – So you changed the happenings on basis of this letter.

Applicant – Bangla – At first I did not submit the letter. I talked to my brother in law and then Mr Be said I will give you a note submit that to the immigration department then I submitted it.

Interpreter – English – The person said that okay because that did happen and then I’m going to give you a letter on that and you should submit that to the Immigration.

43    So, in fact, rather than giving a somewhat non-responsive or meaningless answer, the appellant gave a perfectly proper answer to the question of why he had not raised the matter previously. Ultimately the Tribunal, at [26], considered, in part, that the unexplained lateness of the assertion about the second assault at the hands of Muslims as it appeared in the letter from Mr M was a reason for finding that it was not true. However, the actual evidence given did provide an explanation of sorts as to the lateness of the letter. It is also possible that the Tribunal’s conclusions on this issue were partly based upon the translated answer concerning the suggestion that the appellant changed the events on the basis of the letter. The translated answer was, “The person said that okay because that did happen and then I’m going to give you a letter on that and you should submit that to the Immigration”. The actual answer was, “At first I did not submit the letter. I talked to my brother-in-law and then Mr Be said I will give you a note submit that to Immigration Department then I submitted it”. The translated answer gave an appearance that the appellant was cajoling people into writing letters misstating events. It certainly does not provide the answer which the appellant intended.

44    Again, the mistranslations went to an issue concerning the appellant’s credibility. The Tribunal expressly relied upon the mistranslated responses for the purposes of concluding that the appellant and his testimony lacked credibility. That much seems to have been accepted in the Minister’s submissions at [23] which recites what the Tribunal relied upon which was, in fact, the mistranslated answer. The submission is correct to the extent that the Tribunal did not accept the explanation, but that may well have been because it was not the explanation which the appellant had given. When the written Minister’s submission asserts at [24] that none of the mistranslations “related in any respect to the expression of the appellant’s evidence”, it is clearly in error. The Tribunal recited the mistranslated answer in its reasons as being the answer of the appellant and that mistranslation was central to the Tribunal’s conclusion in this respect.

45    Again, it is possible to discern the direct causal connection between the mistranslation and a finding which adversely affected the appellant’s credibility.

Paragraph [28] of the Tribunal’s reasons

46    At paragraph [28] of its reasons the Tribunal expressed doubt as to the veracity of the letter from Mr M because it suggested that the appellant was on his way to the Government Land Registry Office to register the land even though no survey had been undertaken and that would have been “highly unlikely”. The alleged travel to the Registry was relevant to what the appellant claimed was a second occasion on which he was attacked. The appellant said that on that occasion he was going with a friend to the Government Land Registry Office to ascertain if the land in question could be registered without being measured (surveyed). The neighbours became aware of that and attacked them. The mistranslation was:

Member – English – So are you saying there was another incident where you were attacked a second time?

Interpreter – Bangla – Do you mean to say you were attacked second time.

Applicant – Bangla – We were trying to find out if we could register without measuring. Then they got the news and attacked us.

Interpreter – English – When you said that question I didn’t understand.

Member – English – Sure. Are you saying there was a second time – a second incident where you were attacked?

Interpreter – Bangla – Please understand the question and then answer. Were you attacked a second time.

Applicant – Bangla – Yes

Interpreter – English – Yes, yes I was attacked twice.

47    Crucially, the statement that the appellant was going to the Registry Office to ascertain whether land could be registered without a survey was not relayed to the Tribunal. That information would have allayed the apparent concern the Tribunal referenced in paragraph [28] of its reasons. It would have explained that the appellant was seeking advice as to whether registration without survey could occur in some manner. Unfortunately, this rationalisation was not given to the Tribunal, yet its inability to understand how it was that the land was to be registered without survey formed part of its conclusion that the appellant’s story in this regard was not plausible.

48    The Minister submitted that the real concern of the Tribunal was simply the notion that land might be registered without survey was extraordinary and implausible. Whether that was so under the Bangladeshi land registration system was not the subject of any evidence. Nevertheless, the appellant’s response was to the effect that because his neighbours were preventing the land being surveyed he was seeking information as to whether it could be registered in the absence of the survey. That was not the evidence which the Tribunal relied upon to conclude that the appellant’s evidence was highly unlikely. The Minister’s submission that the effect of the mistranslation was inconsequential must be rejected.

49    Yet again, the mistranslation was closely connected to a finding which was relevant to the Tribunal’s conclusion on the appellant’s credibility.

Paragraph [30] of the Tribunal’s reasons

50    The appellant also produced to the Tribunal a letter from a Mr T. The Tribunal focused its attention, at [30] of its reasons, on the letter dated 26 September 2014 which related the circumstances of an attack upon the appellant. It concluded the letter lacked veracity because Mr T had not been present at the time of the alleged second attack but had purported to write in the letter that it had occurred. The appellant submits that the incorrect translation of the circumstances in which the letter was written for him caused the Tribunal to make an adverse finding about its veracity. The relevant parts of the transcript were:

Applicant – Bangla – There are 2 orphanages solely supported by my father. One was the land that was given. Another one is this. Mr Be called up this person to write. He was not at the spot.

Interpreter – English – This person was not present at the spot but wanted to give something to me so he wrote it and I submitted. There is a phone number if you wish to contact.

(Interpreter – English – Is a true orphanage, so this guy was not there but he wanted to give something to me so he has just produced that and he gave it to me and I submit it.

Applicant – English – Also have the number you can contact.)

Member – English – What is the point in contacting if he was not there.

Interpreter – What is the use he was not there.

[The words in parenthesis are from the evidence of Ms Davyskib.]

51    There is little doubt that the evidence of the translator misstates, to some degree, the appellant’s actual evidence and omits an important part about the identity of the party who encouraged Mr T to write the letter. Indeed, taken at its face, the mistranslation seems to misstate the identity of the person who was not present at the occasion of the second attack. The actual evidence of the appellant seems to have been that Mr Be was the person who was not present, so Mr Be contacted Mr T who was and it was the latter who wrote the letter. The mistranslation asserted that the person who wrote the letter was not present. The Tribunal relied upon that for the purposes of discounting the letter. The conclusion that the letter was not authentic must have had a significant impact on the Tribunal’s assessment of the appellant’s credibility as it was an implicit conclusion that the appellant had set about manufacturing false evidence to give to the Tribunal. Again, the primary judge accepted the veracity of the Tribunal’s findings in this regard.

52    The Minister’s written submissions again do not directly deal with the mistranslations and their impact on the decision of the Tribunal in relation to the letter of Mr T. Whilst the evidence which the appellant actually gave as to the persons who were absent at the time of the second attack might have been equivocal, the mistranslated evidence asserted the the author of the letter was not present when that is not, necessarily, the primary meaning one should give to the actual answer. The difficulty with the answer is that it tends to undermine the authenticity of the letter when it was most unlikely that the appellant intended it to be so.

Paragraph [42] of the Tribunal’s reasons

53    Another aspect of the appellant’s evidence which damaged his credibility was the fact that he had visited Switzerland and France in July 2014, but had not applied for refugee status there. The Tribunal records the appellant’s evidence when questioned about this was that it took about two or three days to “hop around” and that he and his friends went there together for a short holiday and because he had respect for them he had to return with them. The Tribunal expressly did not accept that explanation. The appellant’s evidence was:

We went with friends. It took me 2-3 days to get my bearings. People said do this do that. But I had to be back in Qatar in 9 days’ time. As we went together we returned together.

The translation that was given by the interpreter (as described in the Davyskib affidavit) was:

It take around two – three days to hop around in France and Switzerland, to the countries and we went together so I didn’t want to do anything apart from that, so we went for a vaca – a short tour

…

As we went together so I’ve had a respect on them and I’ve felt to come back together.

54    In the appellant’s written submissions it is said that his actual evidence was to the effect that he was aware of the opportunity to seek asylum but was unable to decide and he was under pressure to do other things and to return to Qatar. Whilst that might be putting it at its highest, it is more likely that the appellant was trying to say that he felt compelled to return and that he did not have a lot of time to think about what he might do. Regardless, the interpretation given by the translator which was criticised by the Tribunal is suggestive that the appellant did not feel the pressure to think about seeking asylum there. The Tribunal expressly rejected the explanation which it thought had been given and, necessarily this must have had a negative impact on the overall perception of the appellant. It is noticeable that the Tribunal expressly quoted the expression “hop around”, which was something not said by the appellant.

55    The Minister again suggested the mistranslation was inconsequential. However, the difficulty is again that the mistranslation is recited as part of the evidence which the Tribunal did not accept as an explanation. The Tribunal also did not consider that part of the appellant’s explanation that he had very little time in which he might have made an application for asylum.

Conclusion on individual errors

56    The above errors in the translation of the appellant’s evidence related directly to findings made by the Tribunal which were adverse to his credibility. The causal connections have been identified above. Despite the attempt by Counsel for the Minister to understate the importance of the mistranslations, they were clearly inaccurate and related to matters of importance relevant to the appellant’s credibility. It can also be said that the translations did not interpret the answers given by the appellant as accurately as the language and the circumstances permitted and the idea or concepts which the appellant sought to advance were not conveyed.

57    Although it is not a requirement to establish a breach of s 425 that an applicant show a causal connection between a mistranslation and the determination by the Tribunal on a significant question of fact, in this case, the appellant has done so. Indeed, it occurred on a number of occasions. It follows from cases such as Perera (at [29]) and SZNCY (at [74]) that the mistranslations were of such a nature as to deny the appellant a real and genuine hearing was required by s 425.

58    The above analysis tends to bundle in the one analysis two distinct concepts. First, whether there has been a breach of s 425 and secondly, whether the breach is material. That necessarily arises by reason of the significance of the mistranslation being clearly causally connected to important findings. However, in isolation the second question concerns the materiality of the breach of s 425, being whether compliance with its requirements could realistically have resulted in a different decision for the appellant. However, as the above discussion reveals, the identified failures of the translation services were relied upon by the Tribunal in reaching its conclusions about the credibility of the appellant. Some were relatively central to that finding. At the very least it cannot be said that the findings in relation to the mistranslations were tangential or immaterial to the Tribunal’s ultimate conclusion. Whilst the above matters were not the only circumstances relied upon by the Tribunal in reaching its conclusion that the appellant lacked credibility, they were individually significant and collectively they were substantial. That being so the conclusion is easily reached that the provision of suitable translation services could realistically have resulted in a different decision for the appellant. On that basis alone the non-compliance with s 425 was material.

59    Further, a number of the above identified matters also went to particular matters of fact. For instance, the discounting of the letter from Mr T would have badly affected the appellant’s credibility, however, that also had the consequence that evidence of the appellant having suffered an attack by certain identified persons was not considered. That matter was directly relevant to the appellants claim for protection on Convention grounds. There was a realistic possibility that had that evidence been accepted, a different outcome in relation to that claim may have occurred. The same can be said of the alleged incident concerning the appellant being struck by his neighbour with a bamboo stick.

60    It might be thought that the usual deference which appellate courts show to the credit findings of first instance judges: Fox v Percy (2003) 214 CLR 118, [17]; and the limits of appellate courts interfering with such findings: Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; might have the consequence that where the breach of s 425 goes to matters affecting the appellant’s credibility it would be difficult to reach the conclusion that there was a realistic possibility of a different decision. The requirement that it be established that the trial judge has “failed to use or has palpably misused his advantage” before a credit finding is overturned might add to that expectation. Statements to the effect that the finding must be “glaringly improbable” or contrary to “compelling inferences” would also suggest that to be true. However, it is likely that in cases of judicial review the opposite is true.

61    The question in the present context is whether compliance with s 425 could realistically have resulted in a different decision. There is no requirement to reach any state of satisfaction that an error in the conclusion existed to any substantial degree. Credit findings often depend upon an evaluative process involving a number of factors such as demeanour, responsiveness to questions, appearance, coherency and, not infrequently, a matter of impression or a combination of some or all of those factors. While it may be true that the obligation of the Tribunal is to set out its reasons as to its finding on credit, it is not necessary for it to attribute weight to particular findings or reveal its entire evaluative deliberation. In the present case, for instance, the finding of fact in relation to the appellant was as follows:

52.    Having considered all the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

62    There is no indication in that “analysis” as to which of the findings relating to the appellant’s credibility were dominant or persuasive or which assumed more importance than others. Nor does the Tribunal identify the relative impact or weight of the various issues on which it found the appellant wanting. In such circumstances, the answer to the question of whether compliance with s 425 could have realistically resulted in a different decision is not fraught with difficulty. Where the Tribunal is mistaken as to the evidence which is being offered to it and on which it relies for the purpose of finding various primary facts which underpin its conclusion on credibility, the conclusion that a different decision could realistically have been made had the true facts been available is fairly easily reached. That is especially so in the present case where the evaluation of the evidence leading to the conclusion that the appellant was not a witness of truth is not exposed. This is consistent with the observations of Kenny J above in Perera. No doubt each case will depend on its own facts. If a mistranslation led to a singular erroneous finding affecting credibility in a case where many other valid findings also had the same effect, it is improbable that any relevant breach occurred, or if it did that it was material. On the other hand, where, in cases such as the present, the above identified misinterpretations were each significant in the Tribunal’s evaluation of the appellant’s credibility, the realistic probability of a different decision had they not occurred is apparent.

63    Even in the absence of the above, each of the incidents of mistranslation identified by the appellant was, in itself, significant. Each was relied upon by the Tribunal in making a separate finding of fact which expressly or implicitly impacted on the appellant’s credibility as well as other factual matters. Taken together, the combined weight of those matters must be regarded as significant in the evaluation process. In those circumstances, had adequate translation services been provided, it is realistically possible that a different decision could have been made.

64    The respondent submitted the Tribunal might have reached the same conclusion as to the credibility of the appellant by reliance on inconsistencies other than those which were affected by the mistranslations. Whilst that is quite possible, that is not the test to be applied. The question is whether there was a realistic possibility of a different decision if the Tribunal had complied with the requirements of s 425(1).

65    It is apparent from the findings of the Tribunal that the mistranslations contributed to the Tribunal’s conclusion (at [16]) that it found the appellant’s evidence to be “vague, implausible, contradictory and unconvincing” and (at [52]) that he was not a witness of truth. Because the Tribunal did not reveal its reasoning process in relation to those conclusions, in the circumstances of this case there is a realistic possibility that had the Tribunal provided appropriate translation services and the mistranslations not occurred, a different decision would have been made. Indeed, most of the mistranslations were given significant weight by the Tribunal in reaching its conclusions as to the credibility of the appellant and the veracity of his claims. They were specifically referenced in the reasons and must necessarily have contributed to the findings. In that respect most of the mistranslations individually would satisfy the test of materiality. When two or more are aggregated that conclusion is substantially strengthened.

66    For these reasons alone it is possible to conclude the appellant was not afforded the hearing contemplated by s 425(1).

67    Additionally, the mistranslations were directly related to several significant findings of fact relevant to the Tribunal’s rejection of the appellant’s claim. The Tribunal rejected the claim that the appellant was involved in a land dispute with respect to land donated by his father: [55]. It did not accept that the appellant had an intention to seek asylum in France or Switzerland: [56]. It did not accept the letter from Mr T was authentic: [57]. These were all directly related to the mistranslations.

68    It follows the foundation of the substantive rejection of the appellant’s claim was also infected by the erroneous translations. The hearing could not be said to be real or genuine.

Errors in translation contributing to a conclusion of lack of credibility

69    The appellant also submitted that other errors of translation contributed, in a more general sense, to the Tribunal’s finding that the appellant lacked credibility. At paragraph [16] of its reasons the Tribunal said, after discussing the appellant’s background, family, employment, reasons for leaving Bangladesh and the fear that he had of returning there, that his evidence was “vague, implausible, contradictory and unconvincing”. Again, that conclusion is not supported by any specific evaluative analysis, but apparently a conclusion drawn from the various matters discussed in the reasons. In this respect the appellant referred to a number of other instances of mistranslations which he claims can be seen as having contributed to the Tribunal’s conclusion. Because of the conclusions just reached it may not be strictly necessary to consider these in minute detail, however some discussion is appropriate.

Paragraph [33] of the Tribunal’s reasons

70    One particular example relied upon by the appellant is the conclusion at [33] of the Tribunal’s reasons where it identifies an inconsistency in the appellant’s evidence as to whether, on a particular occasion, he was treated at a hospital or a clinic. The evidence shows that the appellant’s answer was he was treated at “Sub-Divisional Hospital Clinic”. This was mistranslated as “Upajela Hospital”. The evidence is that the following was said:

Member – English – Right. So you said you saw a doctor. Where was this doctor?

Interpreter – Bangla – Where did you see the doctor.

Applicant – Bangla – My brother in law took me there to the Sub-divisional Hospital Clinic where doctor treated me.

Interpreter – English – My sister… my brother in law took me there and there is a doctor in Upajela and I went there to get treatment.

Member – English – Can you spell that name for me?

Interpreter – English – Upajela, it’s it’s it’s a town centre where.

Member: Yes, okay.

Interpreter – City centre or town centre, yeah.

Member – English – Yes. So was this at a hospital or was it a private clinic?

Interpreter – Bangla – Was that a hospital or Doctor’s Chamber.

Applicant – Bangla – That is the doctor’s Chamber, patients can be treated there. It is more like in a clinic.

Interpreter – English – The doctor go and give the treatment around the whole area but I found him here and there was a clinic, so I got treatment there.

71    So the answer actually given was that he was treated at a place which was a hospital clinic and the answer was responsive to the initial question asked of the appellant. In its reasons the Tribunal focused upon the supposed inconsistency in the appellant’s answer to the question whether he was treated at a hospital or a private clinic. However that question was mistranslated to whether he was treated at a hospital or a doctor’s chambers. This was exacerbated by a subsequent exchange between the member, the interpreter and the appellant where the member sought to know the identity of the doctor, the appellant gave what he believed to be the name, and the interpreter said that the appellant did not know. It is not unreasonable for this exchange caused by the mistranslations to have contributed to the Tribunal’s conclusion that the appellant’s evidence was vague or contradictory.

72    The Minister submitted that the appellant’s evidence was satisfactorily conveyed to the Tribunal, although that is not correct. The response of the appellant was that he was treated at a hospital clinic and the Tribunal at [33] considered that the mistranslated response was not consistent with the previous statement that he had been treated at a clinic.

Paragraph [35] of the Tribunal’s reasons

73    At paragraph [35] of its reasons the Tribunal identifies a perceived inconsistency in the appellant’s testimony to the effect that, on the one hand he claimed to be part of minority which did not have a cent and, on the other, that he was from a wealthy family and, in fact, wealthy himself. The evidence relating to that issue was:

Member – English – I am telling you about the documents that you say support your claims. There are huge problems with these documents.

Interpreter – Bangla – We are just talking bout [sic] documents you say which support your case. They are full of problems.

Applicant – Bangla – People tried to help me, so they produced these documents. They will be afraid to go and get these corrected. People who have the power in Bangladesh are always right. Nobody cares about the truth coming out. Minority people are not worth the bother.

Interpreter – English – People gave these documents to help me. They will be afraid to go and correct the mistakes. Powerful people are always right even when they make mistakes. Minority people are not worth a cent.

(Interpreter – English – They have – you know in my country there is a lot of problems in this sort of things and then when they were afraid of going again and do the documents again, so whatever they produce and I am sure that there are some mistakes there. In my country people do not see what is true and what is false. Whoever has the power, he has – he is always the right. In my country, the minority people does not have a value, like a cent.)

Member – English – Your father was a wealthy man. How can you say that?

Interpreter – Bangla – Your father was wealthy how about it.

74    It is plain the mistranslation had the consequence that the Tribunal relied upon an inconsistency which did not exist. The appellant did not claim to be poor or impoverished as the mistranslation suggested. Necessarily, this would have added to the Tribunal’s conclusion that the appellant’s evidence was “contradictory”.

75    The Minister submitted that nothing turned on the mistranslation, however, it is clear that it did as the Tribunal specified in its reasons that the appellant had given inconsistent evidence as to his personal circumstances.

Paragraph [44] of the Tribunal’s reasons

76    A further example relied upon by the appellant appears at [44] of the Tribunal’s reasons where it relied on the translated evidence that for a period of time the appellant was living at his sister’s home in secret. As the evidence now establishes, the appellant did not say that. All he said was he stayed at his sister’s home and did not move about much. Although this mistranslation did occur it is difficult to see that it actually contributed in any way to the conclusions of the Tribunal, whether they be as to the facts of the matter or the appellant’s credibility. The Minister’s submission that this mistranslation did not have any great impact because the evidence was not dispositive of any relevant issue should be accepted. On the other hand, it does reveal a general level of inaccuracy in the interpretation services at the hearing.

Paragraphs [43], [45] and [58] of the Tribunal’s reasons

77    The Tribunal concluded that the appellant claimed that if he returned to Bangladesh he would preach or proselytise but that it disbelieved that to be true. The conclusion that the appellant said that he would engage in those activities appears to be founded upon the mistranslated evidence that the appellant loved to preach his religion. The relevant part of the transcript reads as follows:

Member – English – Is there any other reason why you don’t want to return to Bangladesh?

Interpreter – Bangla – Other than the reasons you have given are they any other reasons for which you do not feel safe to go back to Bangladesh.

Applicant – Bangla – This is my main reason. My father is gone if they can kill me off the they can give a very big blow to the Baruas. Local Muslims do not like us at all. We practice our religion. Look after our people. They do not like that. They want to kill me and get all my property.

Interpreter – English – No, that’s the main thing, that’s the thing I’m mostly concerned and if I go back Muslim people are huge in number, we are a minority then if - I love to preach my religion my father used to do the same thing so Muslim people definitely doesn’t want anyone will be spreading other religion in their land.

Member – English – Have you ever preached your religion in Bangladesh?

Interpreter – Bangla – Did you preach your religion in Bangladesh.

Applicant – Bangla – By preaching I mean supporting my community helping the Baruas. Donating to temples and orphanages.

Interpreter – English – I did kind of preaching in my religion if I promoting events or feeding the orphanage people and supporting them, this is other ways is stretching my religion.

Member – English – Do you understand what preaching means?

Interpreter – Bangla – Do you understand the meaning of preaching religion.

Applicant – Bangla – Yes

Interpreter - English –Yes.

Member – English – What does preaching mean?

Interpreter – Bangla – What do you mean by religious preaching.

Applicant – Bangla – I am practicing now by feeding people. Working in temples, building temples. Following Barua tradition all through. If you have to preach you have to have a very deep knowledge of the religion. My father was a preacher may be I will preach later.

78    The reality was that all the appellant was saying was that he practised his religion and intended to do so if he returned. It is apparent from the correct translation that the initial mistranslation caused error in the Tribunal’s mind as to the appellant’s propensity to preach or proselytise whereas it was apparent that all he claimed that he would do was to practice the teachings of his own religion.

79    The Minister submitted that the substance of what the appellant said was conveyed to the Tribunal. That is not correct. The appellant did not claim that he was intending on preaching if returned to Bangladesh. That was something added by the translator. The Minister’s submission that no harm was done by this mistranslation because the Tribunal did not accept that the appellant would preach or proselytise was flippant. The real point was that, because of the mistranslation, the Tribunal believed that the appellant claimed that he would preach in Bangladesh. Worse still, it concluded that his perceived evidence in this regard should not be accepted. In this manner the mistranslation negatively impacted upon the appellant’s credibility and could well have contributed to the Tribunal’s findings that the appellant’s evidence overall was vague or unconvincing.

Conclusion in relation to the general effect of the mistranslations

80    Save for perhaps the last example, these further mistranslations cannot be said to directly translate to the credibility findings of the Tribunal. It is possible that the last one referred to may well have. Nevertheless, collectively (save for that alleged in respect of paragraph [44] of the Tribunal’s reasons) it is likely that they added to or tended to instil in the Tribunal the concerns which it had about the appellant’s evidence generally. These examples, taken individually, might not reach the level of rendering the failure to provide adequate translation services a material breach by the Tribunal. However, taken together they could have reached the point which rendered the failure to provide adequate translation services a material breach of s 425. Because of the conclusions concerning the main erroneous mistranslations there is no need to determine whether or not that is so. Nevertheless, they do tend to establish that the translation errors were continuous or frequent throughout the proceeding, rather than being isolated. When the effect of these translation errors is added to the more significant ones relied upon by the appellant and which are referred to earlier in these reasons, there is no room for any serious doubt that the breach of s 425(1) was material.

The translator’s standard of proficiency

81    Given the above conclusions it is also not necessary to consider the appellant’s submission that the translator’s level of proficiency was so deficient to warrant the conclusion that he was not afforded a real and genuine hearing. That said, the above identified errors and the seriousness of them support that conclusion. The errors were frequent and significant. They were not isolated and limited to minor variations in lexicon.

82    On that basis the submission that the translator lacked a sufficient standard of proficiency is well founded. Mr Blount on behalf of the appellant referred to the following:

(a)    The appellant gave evidence that, “My mother died in 2012. This went on for about a year”. To, “Since my Mum passed away in 2012, they have been moving around like that”.

(b)    The answer “Very scared” became “not in good shape”.

(c)    The answer “No” became “Not that I know of”. That mistranslation might have suggested the appellant had prevaricated in giving his answer rather than expressing what he understood to be the case.

(d)    The answer “They threw stones and hurled abusive remarks” was mistranslated as “They threw some things passed bad comments”. That answer diminished the level of abuse which the appellant sustained.

(e)    Evidence which the appellant gave was not translated. In particular the evidence that he gave that a neighbour had taken his land and did not want to give it back was not conveyed at all.

83    Mr Kaplan’s submissions on behalf of the Minister sought to diminish the impact of the mistranslations and, in particular, these latter ones relied upon by the appellant. He submitted that the mistranslations did not have any impact on the perception of the appellant by the Tribunal. He relied on the observations of the Tribunal member at paragraph [40] that she:

had the opportunity to observe [the appellant] over a lengthy period of time during the hearing and to discuss his claims with him. The Tribunal is satisfied he understood what was happening and was able to participate in the hearing in a meaningful way.

84    Unfortunately for the Tribunal member, she did not know that her observations of the appellant were adversely impacted in a significant manner by the failure of the translator to interpret what she said to the appellant and what the appellant said to her. The appellant did not have a fair opportunity to advance his claims as matters of importance were not accurately conveyed to him and his answers on important issues were also not conveyed to the Tribunal member. These inaccuracies were causative of adverse credibility findings

85    When all of the mistranslations are taken together it is more than possible, and even approaching probable, that the Tribunal perceived the appellant in a way which it would not have had the translations been accurate. The mistranslations misled the Tribunal and, on occasion, caused it frustration.

86    On the evidence before this Court there is sufficient to conclude that the standard of translation provided to the appellant was inadequate to enable him to have a real and genuine hearing and he was, therefore, denied the benefit of compliance with s 425. Had there been compliance there was more than a realistic possibility that a different decision would have been made.

Errors of the FCC

87    As the reasons above show, there were numerous failures in the translation provided for the appellant before the Tribunal. Their regularity and seriousness were noticeable as was the combined effect of them on the adequacy of the hearing. The primary judge failed to detect the import of the errors and the consequences of them for the purposes of ascertaining whether they satisfied the requirements of s 425(1). His Honour erred in failing to determine that the mistranslations had the effect that the appellant was not afforded a real and genuine hearing and that the Tribunal had committed a material breach of s 425. He further erred by failing to grant the relief sought on the application for review.

Conclusion

88    It follows that the appeal should be allowed. The decision of the primary judge must be set aside and, in lieu thereof, an order should be made issuing a Constitutional writ of certiorari to the Tribunal quashing its decision. The matter must be remitted to the Tribunal for further hearing.

89    For a number of reasons, but particularly because the Tribunal member from whose decision review was sought has made a finding on credibility, the matter must be determined by a differently constituted Tribunal.

Costs

90    As in the ordinary course, costs are to follow the event. In respect of the appeal, the first respondent is to pay the appellant’s costs on the standard basis.

91    In respect of the costs of the interlocutory application filed by the Minister on 26 October 2018, as amended on 6 October 2018, for the following reasons the appellant is to pay 50% of the Minister’s costs on the standard basis.

92    In the ordinary course, costs ought to follow the event and, in respect of the interlocutory application, towards the end of the hearing the appellant conceded the relief sought. The Minister submitted that the costs should be paid on an indemnity basis. However, the appellant’s conduct in relation to the application was far from the standard of moral obloquy generally required to award indemnity costs. Indemnity costs ought be reserved for exceptional circumstances and awarded to deter serious misbehaviour. In this instance, while the benefit of hindsight might illuminate to the appellant that it was likely the Minister would be successful on his application, the appellant had reason to contest it. This is especially so considering that, perhaps, the consent orders – which were drafted by the Minister’s solicitors – could have been more clearly worded to highlight that the Minister intended to file new evidence that responded to the new particulars contained in the appellant’s submissions filed on 10 August 2018. Instead, the orders were somewhat vaguely drafted and stated that the respondent be granted leave to file any affidavit evidence. Considering the appellant conceded the application as soon as it was apparent during the hearing that relief was warranted, it is not proper for indemnity costs to be ordered against them.

93    However, some deduction must be made for the fact that ultimately the Minister’s response to the appeal went beyond seeking to contest the real issues in dispute. As mentioned, a number of the arguments advanced by the Minister lacked any veracity whatsoever and it seems a somewhat fevered approach was taken to defend every translation error no matter how obvious. In addition, the evidence of Ms Davyskib which was the subject of the interlocutory application did not substantially advance the real matters in issue. In the result the Minister’s recovery of costs on the interlocutory application ought to be substantially reduced.

Associate:    

Dated:    3 April 2019