FEDERAL COURT OF AUSTRALIA
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
IN THE FEDERAL COURT OF AUSTRALIA | |
| Appellant |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent LUKE HARDY IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER Second Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
2. The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 810 of 2013 |
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA |
BETWEEN: | SZRMQ Appellant |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent LUKE HARDY IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER Second Respondent |
JUDGES: | ALLSOP CJ, FLICK AND ROBERTSON JJ |
DATE: | 29 November 2013 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
ALLSOP CJ
1 I have had the considerable advantage of reading in draft the reasons to be published of Flick J and Robertson J. Their detailed reasons make it unnecessary for me to set out the facts in any detail. I agree with the orders proposed by Robertson J and with his reasons and would only wish to add the following.
2 The central issue in the appeal is whether an independent merits review of an assessment made by a delegate of the Minister, that the appellant did not meet the criterion in the Migration Act 1958 (Cth), s 36(2) (the Act) that he was someone in respect of whom the delegate was satisfied Australia had protection obligations under the Refugees Convention and Protocol, was affected in its legitimacy by the standard of interpreting afforded the appellant.
3 In the present statutory context, that issue is one of procedural fairness. There was no dispute about the requirement for the appellant to receive a hearing prior to the reviewer making his recommendation. That hearing was required to be fair.
4 At the outset, it can be stated that the reviewer’s reasons were comprehensive and meticulous, and no criticism of the execution of his task was made by the appellant.
5 Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.
6 The requirements of procedural fairness are not generally apt for precise delineation. Some aspects can be reduced to a verbal expression of law. The test for apprehended bias is perhaps an example of that. The difficulty in precise formulation of many aspects of the requirements is that the informing norm and root of the principle is fairness: Kioa v West [1985] HCA 81; 159 CLR 550 at 583-585. Even in relation to the proper test for apprehended bias, however, the use of the fair-minded observer in the construct imports the norm of fairness: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].
7 Fairness is normative, evaluative, context specific and relative. As such, its assessment is sometimes imprecise in articulation and open to debate. Nevertheless, subject to any clear contrary statutory intention, fairness is an inhering requirement of the exercise of state power: Jarratt v Commissioner of Police for NSW [2005] HCA 50; 224 CLR 44 at 56-57 [26]; and SZRUI at [5].
8 The requirement of power to be exercised fairly will generally carry with it the requirement to exercise the power in a way that is apparently fair. This derives from the recognition of the importance of the process of the exercise of state power and not just the correctness of the outcome. The process of the exercise of state power is integral to the legitimacy of the outcome of the exercise of that power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at 97 [19]; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 295 ALR 638 at 693 [209]; NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; 115 FCR 561 at 583[84]; and SZRUI at [2].
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. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing: cf Assistant Commissioner Condon v Pompano 295 ALR at 693 [209]; NIB Health 115 FCR 561 at 583 [84]; R v Tran [1994] 2 SCR 951 at 988, Lamer CJ, writing for the Canadian Supreme Court otherwise comprised of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, in a passage cited by Kenny J in her Honour’s influential decision in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 at 19-20 [30]. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially 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?
11 That rhetorical question should not be taken as intended to encapsulate any complete evaluative principle. Fairness of the process will fall to be judged by reference to the particular circumstances. In some circumstances, the interpretation may be so inadequate as to deny the fact of any hearing. In such circumstances, it may not even be necessary to show that the errors may well have affected the decision in a real way, because there has been no hearing, to which the person was entitled.
12 Subject to the above comments, I agree with the expression of approach of Robertson J in [65]-[75] of his reasons.
13 There are a large number of decisions of the Court, in the Full Court and at first instance, dealing with the question of the adequacy or not of interpretation. Most were focused upon the satisfaction or not of specific statutory provisions under the Act, in particular ss 425 and 427. It is unnecessary to refer to all of them.
14 In Perera, Kenny J, in a detailed and considered judgment, examined the place of adequate interpreting in the undertaking of a hearing under s 425(1) of the Act. The expression of reasoning in Perera is to be understood against the background of the form of the Act. Section 476(2)(a) of the Act specifically excluded natural justice as a ground of review. Thus, the principles of procedural fairness did not shape her Honour’s approach expressly. Rather, Kenny J focused upon the failure to provide an adequate or proper interpreting service as an error of law. After examining the transcript of Mr Perera’s “unresponsive” and “virtually incoherent” evidence in translation, Kenny J examined the place of interpreting under the Act. The applicant was “entitled to appear… to give evidence”: s 426(1)(a), and the Tribunal (if it could not make a decision favourable to the applicant without a hearing) “must give the applicant an opportunity to appear before it to give evidence”: s 425(1)(a). Kenny J said that if the Tribunal were to proceed with a hearing without an “effective opportunity” to give evidence, the decision would be reviewable under the then s 476(1)(b) or (c) or (e) (lack of jurisdiction, or lack of authorisation, or an error of law): 92 FCR at 16-17 [20]-[21]. Her Honour then examined at 18-20 [24]-[31] the role of the interpreter and the necessary standard of interpretation. In that context, the focus was on the minimum requirement of the content of the right, being the right to an interpreter and to a hearing. In Tran, the Supreme Court sought to define a standard of interpretation by reference to criteria that included continuity, precision, impartiality, competency and contemporaneousness. Kenny J was concerned with the need for precision or accuracy (as in a sense, we are here) and competency of the interpreter and the interpretation. At 92 FCR 22-25 [38]-[50] Kenny considered whether the standard of interpretation fell short of what was required. Her Honour put the question in [38] as “whether the material…is sufficient to make out his case that the interpretation…was so incompetent that he was prevented from giving his evidence”. Expressing the matter thus reflected the statutory context of the decision. Her Honour concluded that through repeated inadequacies the evidence was not given with any coherent accuracy. Kenny J recognised that the departure from the standard “must relate to a matter of significance for the…claim or the…decision”: 92 FCR at 23-24 [45].
15 In Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; 59 ALD 773 Lee J said that the essential requirement was that the interpretation be of a sufficient standard “to ensure that justice is done” 59 ALD at 782 [26]. I respectfully agree with that short statement of principle.
16 In Habtegebriel v Minister for Immigration and Multicultural Affairs [1999] FCA 1470, Tamberlin J accepted that there were misinterpretations but refused to set aside the decision because it had been based on objective country information and other evidence independent of the failure of communication. It is unnecessary to consider the correctness of this decision and whether or not questions of a denial of procedural fairness and a proper engagement of relief were elided.
17 In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, the Full Court (Spender, Lee and Tamberlin JJ) at [18] referred to the need to place evidence before the Court “that material errors occurred in the interpreting of the appellant’s statements and, therefore, that miscarriage in the decision-making process had occurred”. That expression of principle, correctly, with respect, places emphasis on the importance of the process. The decision-making process is not limited to the articulation of reasons by the Tribunal. It extends to the process granted to the person to place such material before the Tribunal as she or he desires.
18 In W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788, French J referred to Perera and found various errors going to matters of significance. His Honour then said at [35] in relation to the reasons for decision:
It is plain that there was a variety of factors operating upon the Tribunal’s determination that the second applicant was not to be believed. It may be that without the interpreter errors the Tribunal would have come to the same conclusion. However, I cannot exclude the possibility that had the accepted defects in translation to which [the applicant] deposes not existed, the Tribunal might have come to a different decision. That goes to the utility of the grant of relief.
Material irregularity in the process and the correctness of the outcome were thus separate.
19 In Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; 115 FCR 1 at 6 [28], the Full Court (Tamberlin, Mansfield and Emmett JJ) referring to s 427(7) of the Act stated:
the proficiency in English [required]…is the proficiency necessary to enable an applicant to give evidence and present arguments in English in order to communicate the substance or his or her case and to respond to issues raised. It does not require any greater expertise in English.
20 That simple and, with respect, correct way of expressing the matter might, nevertheless, be seen to mask the factual difficulty in evaluating the adequacy of interpretation and the relationship between the materiality and number of errors and overall coherence of expression and understanding.
21 In Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230, Mansfield and Selway JJ, with whom Emmett J agreed, discussed the cases dealing with s 425. After referring to Singh, Ismail, Perera and Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; 183 ALR 188, their Honours said:
[17] … In its written submissions the respondent [the Minister], after referring to these cases, submitted that in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
[18] The respondent’s acknowledgment in those terms seems to reflect the views of the Court in Singh (at 6[27]) and in Perera (at 22[38]-[41]) as to the first proposition and in Soltanyzand…at [18] as to the second. The appellant did not contend that a more stringent obligation lay upon the Tribunal. It is therefore not necessary to determine whether the existing authorities go so far as the respondent acknowledged.
22 These passages are not without difficulty. Singh at 6 [27]-[28] referred to the reality of the opportunity to give evidence and present arguments. Perera at 22-23 [38]-[41] referred to the interpretation being sufficiently incompetent that the applicant was prevented from giving his evidence. In Perera at 23-24 [45]-[46] it was clear, however, that Kenny J was referring to matters of significance involving important issues, not to a complete incapacity to interpret. Thus, if what appears in (a) in [17] of Appellant P119/2002 were to be understood as the need to show the prevention from giving any evidence, it is not supported by Singh or Perera and would, in my view, be wrong. Further Soltanyzand at [18] does not squarely support para (b). The expression of the matter (albeit by reference to a submission of the Minister) in [17] of Appellant P119/2002 overly defines what is a more easily expressed and broader requirement: a fair hearing. That is best explicated by the kinds of considerations referred to above, by Robertson J in his reasons, and by the kinds of consideration referred to by Kenny J in Perera, recognising that the purpose of interpretation is to enable the matters referred to in Singh to occur: the applicant to give evidence and present arguments in order to communicate the substance of his or her case and to respond to issues raised. This implicitly incorporates understanding what the decision-maker is saying.
23 In WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131, Ryan J at [29] (with whom Tamberlin J and Middleton J agreed) referred to Perera, Soltanyzand, Appellant P119 of 2002 and WACO Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230; (2003) 131 FCR 511 at [63]–[68] in considering a ground of appeal that the mistranslation vitiated a hearing of the Tribunal, by reference to the Act not the principles of procedural fairness. His Honour referred to the need to “establish that he was effectively prevented from giving his evidence … [or]… that errors had occurred in translation which were so material as to cause the decision-making process to miscarry”. Once again those passages should be read with care, and should not be understood as establishing a requirement to show that the person was prevented from giving any evidence at all, as opposed to the simple expression of a qualitative test in Singh.
24 It is unnecessary either to consider the operation of statutory provisions such as s 425 or to refer to any further decisions. None of these earlier cases was directed to the basic requirements of procedural fairness. Although following authorities of the Federal Court, it was an error in the approach of the primary judge to apply these cases as determinative of the governing principle of the operation of procedural fairness. 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. The place for the appearance of justice being done lies in the rejection of the proposition that the matter is to be analysed solely by reference to causation directed by the reasons of the decision-maker. Even if it be the case that it cannot be demonstrated that there has been an error in the reasoning process materially caused by the misinterpretation, the misinterpretation may be such as to have prevented material and substantive information being communicated to the decision-maker in a way that leads to the conclusion that the hearing was not fair.
25 In those circumstances, while it can be put that administrative justice must be seen to be done, the preferable way of expressing the matter is that, irrespective of the lack of proved causal connection between the misinterpretation and the reasons, the misinterpretation may be of such character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard.
Was there a denial of procedural fairness here?
26 Robertson J has analysed in detail the identified mistranslations and their materiality, both as to their place in the reasoning process of the reviewer and otherwise as to their apparent importance and repetition.
27 For the reasons given by Robertson J, I do not consider that, taken individually or together, such misinterpretation as has been proven to occur so impeded the consideration as to render the hearing unfair. I agree that the first asserted mistranslation was minor and immaterial. The second asserted misinterpretation was cleared up and nothing of substance turned on it. The third asserted misinterpretation involved long passages about the passport and the circumstances of its obtaining. Whilst there was undoubtedly a degree of confusion in the passages, I agree with the judge of the Federal Circuit Court that the substance of what was sought to be conveyed was communicated to the reviewer. What was said to be the fourth misinterpretation involved evidence that was adequately conveyed. The fifth asserted misrepresentation did involve a failure to translate for the applicant the reviewer’s view that he (the applicant) was evading discussion on the topic of travel abroad. It was clear, however, from the discussion that the reviewer was not satisfied with answers being given and that he persisted in asking questions. Looked at in the totality of the exchanges, there was no unfairness in any lack of appreciation as to the information required by or attitude of the reviewer. The sixth asserted misinterpretation did involve errors in the translation of questions. Accepting that it is not determinative that the error did not find its way into the reasoning of the reviewer, the matters of misinterpretation are not of a character, in light of the other evidence, to be material to either the process or the outcome. Such confusion as there was in the seventh asserted misrepresentation was cleared up in the course of the hearing. The eighth asserted misinterpretation involved the failure to interpret the UNHCR guidelines as they were put to the applicant by the reviewer. That error, real though it was, did not prevent the applicant from putting any part of his case or claims to the reviewer. No unfairness, in substance, arose.
28 For these reasons, I agree with the orders proposed by Robertson J.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. |
Associate:
IN THE FEDERAL COURT OF AUSTRALIA | |
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 810 of 2013 |
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA |
BETWEEN: | SZRMQ Appellant |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent |
JUDGES: | ALLSOP CJ, FLICK AND ROBERTSON JJ |
DATE: | 29 November 2013 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
FLICK J
29 At the heart of the present appeal are the legal consequences that flow from errors in translation and a failure to translate what was being said between the Appellant and an Independent Merits Reviewer during the course of an interview conducted on 9 December 2011.
30 The relevant facts are within a narrow compass. The Appellant arrived in Australia on 20 March 2010 and participated in an entry interview on 23 April 2010. He indicated he was seeking refugee status and applied on 12 June 2010 for a Refugee Status Assessment. That assessment was unfavourable and on 30 July 2010 he applied for an Independent Merits Review. The outcome of this review was also unfavourable.
31 In October 2011 a Federal Magistrate made orders, by consent, setting aside the adverse recommendation. A second Independent Merits Review was then undertaken, and on 9 December 2011 an interview of the Appellant was conducted. On 19 March 2012 the second Independent Merits Reviewer recommended that the now Appellant not be recognised as a person to whom Australia has protection obligations.
32 An application was subsequently filed with what is now the Federal Circuit Court seeking judicial review. On 26 April 2013 that Court dismissed the application: SZRMQ v Minister for Immigration & Anor [2013] FCCA 12. The primary judge concluded that the errors in translation and the failure to translate what was being said did not lead to any prejudicial error. The primary judge thus concluded (in part) as follows:
[141] … I have formed the view that the applicant has not been deprived of the opportunity to present any element of his claim or been denied the opportunity to contribute evidence because key exchanges were not translated for the benefit of the applicant. There is no incident of the nature described by his Honour Finkelstein J in VWFY [[2005] FCA 1723] at [22]-[24], nor is there any combination of the factors depriving the applicant the opportunity to advance his case as described by his Honour in the same case at [27]. I take into consideration that the existence of a perfect interpretation is not possible and in this matter the interpreter has intended to paraphrase some questions. I have formed the view that the very substantial part of the Reviewer’s hearing was fully and accurately interpreted.
A Notice of Appeal was filed in this Court on 16 May 2013. The Grounds of Appeal assert that there had been “a denial of natural justice resulting from errors in interpretation during the … interview with the appellant on 9 December 2011”.
33 Both the Appellant and the Respondent Minister appeared before this Court represented by Counsel.
34 The errors in translation that occurred during the course of the interview on 9 December 2011, and the two instances of failure to translate particular statements, have been set forth in considerable detail by Robertson J. They need not be repeated. Notwithstanding considerable reservation in departing from the reasons for conclusion expressed by both the Chief Justice and Robertson J, it is concluded that those errors did deny the Appellant procedural fairness and that the appeal should be allowed.
35 There was no disagreement between the parties as to the need for the Independent Merits Reviewer to comply with the rules of procedural fairness. There was, however, some disagreement as to both:
the standard of competence required to be demonstrated by an interpreter; and
the consequences which flowed from admitted errors in translation.
PROCEDURAL FAIRNESS
36 It was common ground that the Independent Merits Reviewer was bound by the rules of procedural fairness and was required to provide to the Appellant a “fair hearing”: Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41, 243 CLR 319. When considering a claim against the Minister for Immigration and Citizenship and the role played by those conducting the assessment and review process which preceded a decision to be made by the Minister under s 46A or 195A of the Migration Act 1958 (Cth) (“Migration Act”), French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ observed:
[77] … once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant's liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the Minister to be informed of matters …
37 The statement of the rules of procedural fairness, without more, says little as to what those rules require. Thus, in Mobil Oil Australia Pty Ltd v Commissioner of Taxation (1963) 113 CLR 475 at 503-504 Kitto J referred to “the impossibility of laying down a universally valid test by which to ascertain what may constitute an opportunity … [to correct or contradict any prejudicial statement] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place”. See also: Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 526 per Gibbs J.
38 In the present proceeding, “the variety of circumstances” include:
the fact that those conducting the Independent Merits Review are doing so not pursuant to any immediate source of statutory power but doing so in a context where the Executive Government has considered it of importance to afford a “face-to-face” opportunity to claimants to present their claims;
the fundamental importance of the interview process to those claiming refugee status, it being recognised that some claimants are “engaged in an often desperate battle for freedom, if not life itself”: Abebe v The Commonwealth of Australia (1997) 197 CLR 510 at 577-578 per Gummow and Hayne JJ;
the fundamental importance to an applicant for refugee status of the opportunity of an oral hearing, it being the reality in many cases that the fate of the applicant’s claims are dependent upon the oral hearing alone as many claims are not verifiable by means of corroborative documentary materials or even corroborating evidence of other persons;
the reality that many cases are resolved by those conducting the hearing upon the basis of adverse findings of credit, with those adverse findings being founded upon inconsistencies or perceived inconsistencies in the oral explanations being advanced by a claimant and the limited ability of those conducting judicial review to scrutinise any such adverse findings with a view to discerning any reviewable error without straying into impermissible merits review; and
the fact that in many circumstances claimants are not able to communicate their claims in English.
ERRORS IN TRANSLATION – THE STANDARD OF COMPETENCE REQUIRED
39 There was also no real dispute between the parties that procedural fairness may require, in an appropriate case, the provision of an interpreter. Left to one side may be those cases in which a party may be otherwise protected by the rules of procedural fairness but where the circumstances do not readily permit of an opportunity to locate or provide an interpreter before a decision has to be made. In the present case, an interpreter was in fact provided. It is the standard of the interpretation that was provided which has given rise to some dispute.
40 Counsel for the Appellant relied upon eight instances of what were characterised as “mistranslations”, including two failures to translate two statements made by the Independent Merits Reviewer. Counsel for the Respondent Minister accepted that each of these instances did expose errors.
41 With the emerging number of people seeking refugee status in this country, it was inevitable that the competence of those providing interpreter services to those who cannot speak English would attract judicial consideration.
42 One of those decisions – being a decision which itself has since attracted further judicial consideration – is that of Kenny J in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507, 92 FCR 6. There under review was a decision of the Refugee Review Tribunal (“the Tribunal”) that had affirmed a decision of a delegate of the Respondent Minister not to grant the applicant a protection visa. As the Migration Act then stood, s 425(1)(a) required the Tribunal to extend to a claimant “an opportunity to appear before it to give evidence” and s 427(7) provided that if the claimant was “not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter…”. Within that statutory context, Kenny J identified the role of an interpreter as follows:
[24] “The right to a hearing is a vain thing if the [applicant for refugee status] is not understood.”: Gonzales v Zurbrick (6th Cir 1930) 45 F 2d 934 at 937. In this country, the function of an interpreter in courts and tribunals is to convey in English what has been said in another language (and vice versa). The function of an interpreter in the Tribunal (as in a court) is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication: see Gradidge v Grace Bros Pty Ltd [(1988) 93 FLR 414] at 425 per Samuels JA. An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end.
Her Honour then reviewed the authorities and concluded:
[29] … Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, 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…
Part 7 of the Migration Act, including sections 425 and 427, has been amended a number of times since the decision of Kenny J. But those amendments are of no present relevance.
43 Subsequently, Jacobson J in SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 had the occasion to revisit Perera when a claim was made that the Refugee Review Tribunal had “misunderstood” the claims there being made and “did not apply the law correctly”. In addressing the question whether the applicant had been denied the right to a hearing guaranteed by s 425 of the Migration Act, his Honour extracted from some of the available authorities the following:
The relevant principles
[29] The seminal authority on the standard of interpretation is the decision of Kenny J in Perera. Although that case was decided before s 425 of the Act was amended, it has been accepted that what her Honour said in Perera is equally applicable to s 425 in its current form: WACO [v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511] at [64].
[30] The relevant principles may be stated briefly. The standard of interpretation is not one of perfection. It need not be at the very highest standard of a first-flight interpreter but it must express in one language, as accurately as the language and circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [26]–[29]; WACO at [66].
[31] Importantly, not every departure from the standard of interpretation denies an applicant the opportunity to obtain a hearing under s 425 so as to give rise to jurisdictional error. The onus is on an applicant to demonstrate that the departure related to a matter of significance to his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision: Perera at [38], [45]; Applicant P 119/2002 [v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230] at [16]–[18]; WACO at [69]; see also SZJBD v Minister for Immigration and Citizenship (2009) 179 [FCR] 109 a[t] [72]–[73] (Buchanan J).
[32] Whether any inadequacy in translation has been such as to deprive an applicant of the opportunity to have a hearing in accordance with s 425 involves a qualitative assessment of the conduct of the hearing before the tribunal as a whole: SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] (Jagot J).
See also: Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773; NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1319.
44 It is unnecessary for present purposes to determine whether the common law requirement to provide in an appropriate case an interpreter is different in content to a requirement to invite a person to give evidence and afford that person a “real opportunity” to be heard. It is sufficient for present purposes to conclude that where the common law rules of procedural fairness apply and where those rules require an interpreter, the standard of competence to be demanded of that interpreter is such that a claimant has a meaningful opportunity to be heard.
45 A claimant must be provided with a standard of interpretation such that he is afforded a meaningful opportunity to communicate his claims, evidence and submissions to a decision-maker and a meaningful opportunity to respond to that which a decision-maker may wish to say. All that the rules of procedural fairness require is the provision of such an opportunity. A claimant may not wish to avail himself of that opportunity or may present his claims in such an incoherent manner that they cannot be readily understood by the decision-maker. But the task of the interpreter is to translate that which is said; it is no part of the task of an interpreter to make comprehensible that which may be incoherent. It is the opportunity that remains of primary importance; whether a claimant avails himself of that opportunity to the best advantage is of no concern to the interpreter. What course should be pursued by the decision-maker when confronted with a manifestly incoherent claimant is a question that need not be presently pursued. It would, perhaps, be surprising should procedural fairness not require a decision-maker to take some steps to render meaningful an opportunity to be heard in those circumstances where a claimant is experiencing obvious difficulties in presenting his claims. But such questions as may there arise are best left to another occasion to resolve.
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.
47 That which the common law exacts, however, remains procedural fairness; procedural imperfection does not of itself lead to reviewable error.
48 There will inevitably be cases where claims for refugee status are being assessed where an error in translation – or even repeated errors in translation – may be exposed. For such errors to have the consequence that an administrative decision should be set aside by reason of a denial of procedural fairness, a claimant must establish both the error or errors and procedural unfairness. A single error in translation may be sufficient; on other occasions even multiple errors may not have led to any unfairness. The integrity of the administrative process does not require or depend upon perfection or unachievable accuracy in translation.
THE NEED FOR A HEARING TO BE SEEN TO BE FAIR
49 The difficulty, it is respectfully considered, lies not in stating the objective sought to be achieved by a fair hearing; the difficulty lies in identifying those circumstances in which errors in translation transform an otherwise fair hearing into one that is procedurally unfair. That difficulty cannot be resolved by any form of words or any more certain test than the generally expressed test of procedural fairness.
50 It is, with great respect, a fundamental mistake for a reviewing Court to focus its attention too narrowly upon errors in translation and whether any such errors materially affected findings of fact made by an administrator and whether such findings were relevant to the ultimate conclusions reached. Such an approach has the potential to divert the Court’s attention away from the need for any administrative process of decision-making to be seen to be procedurally fair.
51 Natural justice or procedural fairness requires more than an opportunity in which a claimant may meaningfully advance his claims. Natural justice or procedural fairness requires that the hearing be one which is both procedurally fair and one which is seen to be procedurally fair.
52 The insistence upon justice being administered in a way which is both fair and seen to be fair is nothing new.
53 When delivering judgment in 1924 in R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, Lord Hewart CJ observed at 259:
… a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done ...
Lush and Sankey JJ agreed. Those observations were made in the context where Mr McCarthy had been convicted of driving a motor vehicle in a manner dangerous to the public. He had collided with a vehicle driven by a Mr Whitworth. The difficulty arose because the acting clerk who had retired with the justices was a partner of the firm of solicitors who had acted for Mr Whitworth in a claim for damages and the brother of the acting solicitor. The conviction was quashed. Subsequently, when considering cases in which a judge has held a pecuniary interest in the outcome of a proceeding, Lord Goff of Chieveley has said that such “cases attract the full force of Lord Hewart CJ’s requirement that justice must not only be done but must manifestly be seen to be done”: R v Gough [1993] AC 646 at 661. Such circumstances, it was said, are “such that they must inevitably shake public confidence in the integrity of the administration of justice if the decision is to be allowed to stand”.
54 Some statements made in seemingly innocuous cases, however, have thereafter assumed a life of their own and have been called upon to support conclusions in diverse areas of judicial decision-making far removed from their humble origins. Such has been the fate of the comments made by Lord Hewart CJ. His comments have been repeated many times since 1924: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at 301 per French CJ; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 475 per Kirby J; Webb v R (1994) 181 CLR 41 at 47 per Mason CJ and McHugh J. Not long after 1924, however, words of caution were being expressed that the “continued citation” of “the integrity of the principle reasserted by Lord Hewart … in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done”: R v Camborne Justices; Ex parte Pearce [1955] 1 QB 41 at 52.
55 Not surprisingly, the comments of Lord Hewart CJ have continued to be relied upon and the observations have oft been invoked in a public law context where an application for judicial review of an administrative decision is being advanced upon the basis of a reasonable apprehension of bias: e.g., Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 519. Barwick CJ there set forth the observations of Lord Hewart CJ, and further observations of Lush J, and concluded:
I fully agree, with respect, with the above statements of principle which have been reinforced by their adoption and application in subsequent cases. The citations I have made from the judgments in R. v Sussex Justices; Ex parte McCarthy sufficiently bear out the views I have expressed of the circumstances of this case as to leave no need for further discussion of the decided cases. The basic tenet that justice should not only be done but be seen to be done does not, of course, warrant fanciful and extravagant assertions and demands. What justice requires will ever depend on circumstances, and the degree to which it should be manifest that it is being done will likewise be related to the particular situation under examination by a supervising tribunal: (1972) 128 CLR at 519.
Gleeson CJ, McHugh, Gummow and Hayne JJ placed similar reliance upon the observations of Lord Hewart in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6], 205 CLR 337 at 344. But, in the specific context of administrative – or public – law, the requirement is not confined to those circumstances in which an allegation of a reasonable apprehension of bias is relied upon. The requirement that the administrative process of decision-making be conducted in a manner which is both just and seen to be just is inherent in both limbs of the rules of procedural fairness – i.e., the audi alteram partem limb and the nemo debet judex esse sua in propria causa limb. Both limbs are directed to ensuring the integrity of the administrative decision-making process. The opportunity to be heard thus requires more, for example, than a mere opportunity to attend before a decision-maker and present evidence and submissions. An invitation to participate in an oral hearing must be a “real and meaningful” invitation: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [37], 128 FCR 553 at 561 per Gray, Cooper and Selway JJ. An opportunity to be heard, the Courts have insisted, is not a “hollow shell or an empty gesture”: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31] per Goldberg J; W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788 at [31] per French J (as his Honour then was). A party entitled to a procedural fairness is entitled “to give evidence and present arguments in a meaningful way”: cf. Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 at [39], 122 FCR 322 at 332 per Mansfield J. And the limb that requires an impartial decision-maker requires, for example, a decision-maker free from a reasonable apprehension of bias: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6], 205 CLR 337 at 344 per Gleeson CJ, McHugh, Gummow and Hayne JJ; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [184], 205 CLR 507 at 564 per Hayne J. Whether a decision-making process is free from such bias is to be judged by reference to the reasonably informed bystander. And, as to the knowledge to be attributed to such a bystander, see: Johnson v Johnson [2000] HCA 48 at [52] – [54], 201 CLR 488 at 507-509 per Kirby J. Whether a claimant has been given a procedurally fair opportunity to present his claims does not depend upon attributing any fault upon an administrator; it is a standard to be judged objectively.
56 The requirement that justice is both done and seen to be done is a hallmark of both judicial decision-making and administrative decision-making. In the context of administrative decision-making, public confidence in the integrity of the administrative process is just as much shattered by a decision-maker who is not seen to be impartial as by an administrative process seen to be fundamentally and procedurally flawed. Indeed, with the ever expanding manner in which administrative decision-making may impact prejudicially upon the rights and expectations of individuals, it is ever more necessary to ensure that administrative decision-making remains open to meaningful judicial scrutiny that insists upon the procedures pursued by administrative decision-makers being both just and seen to be just.
CONCLUSIONS
57 It is concluded that the appeal should be allowed.
58 Even though the errors in translation in the present proceeding cannot be shown to have prejudicially affected any finding of fact made by the Independent Merits Reviewer or the ultimate recommendation that was made, the hearing afforded the present Appellant cannot be characterised as one which can be seen to be procedurally fair.
59 A reasonably informed bystander would conclude that the hearing was not one which could be seen to be fair. That conclusion, it is respectfully considered, follows in the present proceeding from:
the failure to translate two asides made by the Independent Merits Reviewer;
the number and extent of the errors in translation that were made;
the fact that the errors did not arise out of one particular line of inquiry being pursued by the Independent Merits Reviewer but arose throughout the hearing process; and
the fundamental importance of the interview process conducted by an Independent Merits Reviewer to the present decision-making process, that importance being underlined by the fact that it is only during such an interview that a claimant is given the opportunity to advance the factual merits of his claims for consideration.
The concerns of the reasonably informed bystander would not be allayed by a careful process of parsing and analysing the reasons for decision and an ultimate realisation that “no harm was done” by the errors in translation.
60 The cases where errors in translation will have the consequence that an administrative hearing may not be seen to be procedurally fair may be few; but when they occur this Court should be vigilant to ensure the continued vitality of the principle that “justice should not only be done, but should manifestly and undoubtedly be seen to be done …”.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. |
Associate:
Dated: 29 November 2013
IN THE FEDERAL COURT OF AUSTRALIA | |
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 810 of 2013 |
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA |
BETWEEN: | SZRMQ Appellant |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent |
JUDGES: | ALLSOP CJ, FLICK AND ROBERTSON JJ |
DATE: | 29 NOVEMBER 2013 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
ROBERTSON J
Introduction
61 This appeal concerns errors in translation in the hearing before the Independent Merits Reviewer (the Reviewer) on 9 December 2011. The recommendation of the Reviewer was made on 19 March 2012. The appeal is from a judgment of the Federal Circuit Court of Australia given on 26 April 2013. The primary judge dismissed the application filed in that Court on 21 May 2012 and amended on 11 December 2012.
62 As amended the single ground of the application to the Federal Circuit Court was as follows:
1. The decision is affected by one or more breaches of natural justice.
Particulars
(a) The information or evidence given by the applicant at the reviewer’s interview with him was affected by material mistranslations of the reviewer’s questions including, but not limited to;
(i) “Agents” who arrange to procure passports for Sri Lankan citizens.
(ii) The applicant’s travel in and out of Sri Lanka in 2009 and whether he was evading discussion of that subject.
(iii) Whether he had more friends than enemies in officialdom in Sri Lanka.
(iv) Why the authorities needed to see a photograph of the applicant with his cousin before concluding that he was an LTTE supporter.
(v) The reviewer’s putting adverse country information to the applicant.
(b) The information or evidence given by the applicant at the reviewer’s interview with him was affected by material mistranslations of the applicant’s answers to the reviewer’s questions including, but not limited to;
(i) The applicant’s cousin’s state of health at the time she was permitted to leave the LTTE.
(ii) Whether he made a “wrong statement’ on the basis of information or advice given to him.
(iii) “Agents” who arrange to procure passports for Sri Lankan citizens.
(iv) Whether the applicant was “targeted” by the security forces.
A paragraph (c) was not pressed.
63 The grounds in the notice of appeal to the Federal Court were:
1. The Court Below erred in finding that the recommendation of the second respondent that the appellant is not a person to whom Australia owes Protection obligations pursuant to section 36 of the Migration Act (the recommendation), was not affected by a denial of natural justice resulting from errors in interpretation during the second respondent’s interview with the appellant on 9 December 2011.
2. The Court Below should have found that those errors, either individually or cumulatively;
(a) Resulted in the appellant not being truly given an opportunity to be heard by the second respondent, and,
(b) Could have made a difference to the recommendation of the second respondent.
64 The submissions on behalf of the appellant made it clear that he relied on the eight mistranslations or non-translations with which the Federal Circuit Court was dealing.
The principles to be applied
65 The issue in the present appeal being procedural fairness under the general law, the analysis must be focused on the particular circumstances of the case: whether or not there has been a denial of procedural fairness is fact-sensitive.
66 The question is whether the mistranslation or non-translation, singular or plural as the case may be, individually or in the aggregate, led to a material unfairness, that is, relating to a matter of significance or potential significance for the applicant’s case and what the applicant was putting about the claim or for the decision-maker’s decision.
67 Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated.
68 The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.
69 If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness.
70 It will often be important to distinguish between a case where the mistranslation or non-translation is frequent or continuous, on the one hand, and a case, such as the present, where the errors are intermittent.
71 In the former case it will be easier to conclude that there has been a denial of procedural fairness because, considered overall, the process has miscarried. The cause may be incompetence of the translator in English or in the particular non-English language but the cause is of very little relevance in my opinion.
72 In the latter case, where the errors are intermittent, care must be taken to evaluate the overall fairness of the hearing as well as the individual instances in order to assess the quality of the process and whether it amounts to the applicant having had a reasonable opportunity to be heard and to present his or her claim.
73 It is also important, in my view, to keep separate questions of mistranslation and non-translation, on the one hand, and mere errors of fact on the other hand. Similarly, it may be that a translation is confused and confusing because what an applicant has said is confused and confusing.
74 I have had the advantage of reading in draft the reasons of the Chief Justice. I agree with his Honour’s general comments and his analysis of the authorities. It is significant that the errors of translation in the present case are to be tested against procedural fairness under the general law rather than by reference to the blunter question of whether the Tribunal has given the applicant an opportunity to appear before it to give evidence: s 425(1)(a) of the Migration Act 1958 (Cth) as considered by Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.
75 I should add however that what is in my view the correct approach under the general law was, with respect, stated too narrowly by Logan J in SZQLS v Minister for Immigration and Citizenship [2012] FCA 1274; (2012) 134 ALD 267 at [33] with reference to the decision of the Full Court in WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131 at [29], which concerned the terms of the Act, that either or each of the following needed to be established:
(a) that the standard of interpretation at the interview by the reviewer was so inadequate that the appellant was effectively prevented from giving evidence at the hearing; or
(b) that errors were made by the interpreter at the reviewer interview, which were material to the conclusions which the reviewer made adversely to the appellant.
This is significant because that was the test which the primary judge, it seems, applied in the present case, see at [30] and [103] and [109]. That test is in substance the same as the test stated in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17]-[18] which Allsop CJ has considered and questioned. In my opinion this test should not be applied to cases, such as the present, which involve the general law. It follows that I do not agree with the reasoning of the primary judge in various instances although I do agree with his Honour’s conclusion.
76 I set out the errors in translation as follows, the material in bold being accepted as the correct translation. Each extract is followed by what it is the appellant submits was the use made by the Reviewer of the error in translation and my consideration of that submission. The submissions on behalf of the Minister supported the reasoning of the primary judge.
Analysis
77 In the present case the interview occurred on 9 December 2011 by videolink, with the Reviewer and the appellant’s migration agent being in Sydney and the interpreter and the appellant being in the Curtin Immigration Detention Centre near Derby in Western Australia. The appellant’s migration agent is referred to as “Advisor” in the transcript I set out below. The present appellant is referred to as “the applicant” or “Applicant”.
78 I consider first the mistranslation of material relating to the appellant’s cousins, referred to as sisters.
Mistranslation 1
Applicant: The reason is the younger sister is a bit unwell. She has to be released. But there should be one person in the LTTE without failure. And for that reason. [Applicant’s answer translated from Tamil].
Interpreter: Because my younger sister she was ill at the time. And she was totally sick. In order to release my younger sister from that LTTE unit she actually joined in that unit.
79 The appellant submitted that the relevant use of this material by the Reviewer was as follows:
[199] Evidence to the effect that both were LTTE recruits was presented in the form of the photograph of the two women in what were said to be LTTE military uniforms. On reflection, the problem with this evidence is that, on [the applicant's] evidence to me, the sisters were not serving as soldiers in the LTTE at the same time. One was purportedly so sick in 2003 or 2004 that she was [replaced] by the other, and then taken across the country to the Vanni, the sister replacing her then disappearing in 2006 before the family even moved back to Ponnalai South. I do not accept on this evidence that the two uniformed women in the same photograph are the two cousins as described by [the applicant].
80 The appellant submitted that the tone of the Reviewer’s finding on this issue suggests disbelief as to the extent of the relevant sister’s sickness, which went to credit.
81 In my opinion, the mistranslation was minor and nothing turned on it. The Reviewer’s reasoning was that there was one photograph showing two uniformed women but the two sisters were not serving as soldiers at the same time. On that basis the mistranslation as to the degree of sickness was immaterial. I am not persuaded that anything could have turned on this mistranslation, whether as a matter of credit or as going to an issue in the decision-making.
82 I consider next the mistranslation concerning the appellant’s responsibility for an earlier misstatement.
Mistranslation 2
Reviewer: Now you don’t understand my question. Now you don’t understand my question. The question is about back in the entry interview you said that Naguleswary joined the L…was cons…recruited to the LTTE in two thousand and four. And you acknowledge that that was a wrong statement. And you have said that she was recruited in two thousand and one. But why did you go into such detail about her joining in two thousand and four if that’s not the truth?
Interpreter: In the initial interview you said that Naguleswary was recruited in 2004. But now you say that Naguleswary joined in the year 2001. [Interpreter’s interpretation into Tamil translated into English].
Applicant: Yes. [Applicant’s answer translated from Tamil]
Interpreter: Why was there such a discrepancy? [Interpreter’s interpretation into Tamil translated into English]
Applicant: At that time I made a wrong statement about it. But later in the lawyer’s interview, and later in the RSA interview, I corrected it and said correctly… clearly that it was in 2001 that Naguleswary joined and in 2004 Jegatheeswary joined. [Applicant’s answer translated from Tamil]
Interpreter: So that time I was given a wrong information. Then after the RSA interview then I met my lawyer then I actually advised my lawyer and other authorities there was a wrong… and then I changed the whole thing. And then I dedicated Nagulewary joined in two thousand and one and Jegatheeswary was joined in two thousand and four.
Reviewer: What do you mean you were given wrong information? Des… Describe to me the wrong information you were given and who gave it to you…please.
Interpreter: What do you think what wrong information was given? Can you now describe it in detail. [Interpreter’s interpretation into Tamil translated into English]
Applicant: Wrong information in the sense that I was in Vanni during this time and I was insisted by the LTTE to join their movement… at that time I gave this wrong.
83 The appellant submitted that the relevant use made by the Reviewer of this material was as follows:
[197] Also, even after admitting false claims given at the entry interview (claims about the cousins both being recruited in 2004,… [The applicant] went on to give somewhat inconsistent evidence about when his sisters were recruited into the LTTE;…
84 The appellant submitted that the import of the mistranslation was that it made the appellant appear to be making an excuse rather than accepting full responsibility for his misstatement. This could not but reflect on his credit.
85 I do not accept the appellant’s submission that what is set out at [197] of the Reviewer’s reasons about inconsistencies in the claims related back to the previous paragraph and the Reviewer’s observation that the appellant received “what he described as poor advice”. In my opinion the distinction on which the appellant relies was not carried forward into and did not form part of the findings and reasons of the Reviewer at [197]. I agree with the primary judge’s conclusion. In my opinion it was not shown that Mistranslation 2 and the claimed appearance of making an excuse rather than accepting full responsibility for the appellant’s misstatement affected or could have affected the quality of the hearing or the findings and reasons.
86 In addition, although there is a reference at [91] of the Reviewer’s reasons to the appellant having been given wrong information, which may suggest that the Reviewer had forgotten that the distinction between being given wrong information and giving wrong information had apparently been cleared up by later questions and answers, nothing of substance turned on this.
87 I consider next the mistranslation which concerned the replacement of a passport:
Mistranslation 3
Reviewer: It’s not unusual to have these matters passed through agents… through travel agents or travel brokers or people like that. It’s not unusual to have passport matters handled by intermediaries in Sri Lanka.
Interpreter: This is how it is done usually. This was not done unusually. [Interpreter’s interpretation into Tamil translated into English]
Applicant: Normally if to obtain a new passport, the old passport has to be handed over. But I did not go in person. I gave it to another person. He is the one who obtained the passport. [Applicant’s answer translated from Tamil]
Interpreter: Usually if you want to renew a new passport you always have to submit your old passport.
Reviewer: Mm.
Interpreter: That’s the common thing over there. But in this case I never present physically but I only did it through somebody else.
Reviewer: My point though is that if that were not an acceptable practice the passport would not be replaced.
Interpreter: When you look at this, this is not something that is in common practice. [Interpreter’s interpretation into Tamil translated into English]
Applicant: What is that? [Applicant’s answer translate from Tamil]
Interpreter: Which one?
Reviewer: It is not an unacceptable practice in Sri Lanka for you to return a damaged passport through an intermediary or through some service to have it replaced.
Interpreter: When you look at Sri Lanka this is not something in practice. That is if you want to get your passport changed that has to be given through someone else and obtained. That is how it is, isn’t it? [Interpreter’s interpretation into Tamil translated into English]
Interpreter: Yes. I agree with that because that is not in the routine process because I had a fear that time as a result only I sent somebody else to get a passport for me.
Reviewer: Mm. I hear you say you had a fear but you adopted a practice which is not unusual in Sri Lanka to have passport matters… passport and ticketing matters handled through intermediaries.
Interpreter: Now look here. You say that you had fear. But when you look in Sri Lanka for passport and ticketing matters they do this normally… people impersonate. That is how it is, isn’t it? [Interpreter’s interpretation into Tamil translated into English]
Applicant: What do you mean by impersonate? I do not understand? [Applicant’s answer translated from Tamil]
Interpreter: Sorry I didn’t understand.
Reviewer: A while you were… a moment ago you agreed with what I was saying. And now you say you don’t understand. I’ll just make sure that you were agreeing with something that you understood. So we will go back a little bit.
Interpreter: I think you did not understand. We will go through it again. [Interpreter’s into Tamil translated into English]
Applicant: Yes. [Applicant’s answer translated from Tamil]
Reviewer: Mm. Firstly I will ask you though a little bit of detail. This person who helped you get your replacement passport – specifically what did this person do?
Interpreter: Look here. A person helped you… your passport… to obtain another passport.
Applicant: Yes. [Applicant’s answer translated from Tamil]
Interpreter: What does he normally do? [Interpreter’s interpretation into Tamil translated into English]
Applicant: He normally does this kind of work. That is to obtain and hand over passports illegally. He is like an agent. [Applicant’s answer translated from Tamil]
Interpreter: Yeah. He usually does this sort of a job because he is actually he… he was an agent.
Reviewer: So he does it for a lots of people in quite normal situations. Is that right?
Interpreter: Yes.
Advisor: There is a word missed there.
Reviewer: What word was missed?
Advisor: Word ‘kalavu’ is forged.
Reviewer: Mr Interpreter is the word forged omitted from your…
Interpreter: What’s the word?
Advisor: ‘kalavu’ … ‘kalavu’ he said ‘kalavu’
Interpreter: Yeah ‘kalavu’.
Reviewer: Did you miss that word?
Interpreter: ‘Kalavu’… ‘kalavu’ is actually steal.
Reviewer: Steal. Okay.
Interpreter: Stealing… stealing…
Reviewer: Stealing, okay. So there is something suggestive… okay.
Interpreter: So the agent means means he is not legally practicing agent.
Reviewer: Mm. Okay we agree that you ask someone who doesn’t legally practice as an agent to be your agent in the replacement of your passport.
Interpreter: So you agree that he did not obtain this passport through proper means? That’s how it is, isn’t it? [Interpreter’s interpretation into Tamil translation into English]
Applicant: Yes. [Applicant’s answer translated from Tamil]
Interpreter: Yes.
Reviewer: Now there are legally practicing agents who do this all the time.
Interpreter: When you look at this, there are many who do it legally. They will do it through many ways, isn’t it? [Interpreter’s interpretation into Tamil translated into English]
Applicant: They will do. I do not understand not understand. [Applicant’s answer translated from Tamil]
Interpreter: Yeah. I didn’t understand.
Reviewer: I think it’s easy to understand that there… that there are legally practicing agents who handle passport matters as part of their legal practice. Their legal jobs… Lawful… I mean lawful jobs… lawful jobs.
Interpreter: Yes. There are people.
Reviewer: Ok. Why did you choose somebody who didn’t have that as their lawful job?
Interpreter: Why didn’t you ask them for help and get this done? [Interpreter’s interpretation into Tamil translated into English]
Applicant: At that time I did not give them owing to fear. I believed that if I gave him he will get it easily. [Applicant’s answer translated from Tamil]
Interpreter: Because that time it was a very hard time. And I got real fear about the place and that’s why I have given to this person. I thought this person is going to make very easily for me.
Reviewer: Ah… just what did he do though? What did he do? What… what… what physical procedure did he undertake?
Interpreter: I have given my passport and also I have given some money to him. Then he did everything for me.
Reviewer: What did he do?
Interpreter: I don’t know what he did actually but I got a brand new passport.
Reviewer: Mm… because if you go to somebody who does this for their job lawfully that’s what you do. Give him some money and you give him the old one. And they go and away and get another one for you.
Applicant: No. They would not do it for everyone. Now he… i … they will ask for a lot of things. So if you go to them, in a genuine way, there will be a lot of problems. [Applicant’s answer as translated from Tamil]
Interpreter: So they didn’t do it like that. If I go in a genuine way but I would have had a lot of hard time. And they… they don’t… and they are not… [unclear] for me. So that’s … that’s why I chose that person. [Interpreter’s interpretation into Tamil translated into English]
Reviewer: Why would you have a hard time in doing it on your own true a legitimate agent?
Applicant: If to do in a genuine way. I have already had some problems… Those matters might come to light. Or initially, I obtained my first passport by paying money. Sometimes that might be revealed. At the same time. And that is why I obtained it illegally. [Applicant's answer translated from Tamil]
Interpreter: Yeah. Because what happened actually if I choose a genuine way to obtain my passport and definitely they are going to trace back to me because I already had a problem with them. And they will probably find out what I had previously.
Reviewer: Please repeat. Please repeat what you said again, Mr Interpreter.
Interpreter: Yeah. Yeah. If I chose in a genuine way to get my passport I definitely probably face some sort of a problem because they already got some information about me. And as a result they would have [unclear] my passport. And that’s why I choose this person.
After a short break in the interview the following is recorded:
Applicant: He asked about the passport matter. In Sri Lankan it is not possible to get a passport through an agent legitimately as in other countries where it could be given to someone and obtained. One thing is to pay money and obtain or else we will have to go in person and obtain. [Applicant’s answer translated from Tamil]
Interpreter: So you have asked about my passport, how I obtained my passport. But when you look at the Sri Lanka this is not like other countries. But you are you can’t get your passport in a direct way, maybe legally what you call actually, usually but whatever actually i… I got a passport through the agency after I gave some amount of ransom to her… them.
Reviewer: Now anything else you want to say at this stage?
Applicant: Yes. That is to say it is not possible to get a passport legitimately by someone. Either we obtain by ourselves or else it has to be obtained by giving money. [Applicant’s answer translated from Tamil]
Reviewer: It seems odd to me that you were afraid to renew your passport legally… ah…you were afraid to renew your passport in person and yet the passport was renewed. And the passport that was renewed has been used by you six times out and in, out and into Sri Lanka.
88 The Court was then referred to the Reviewer’s statement of reasons at [95]-[96]:
[95] After a break allowing [the applicant] time to confer with his adviser, I asked him if he wanted to raise any matters or issues. In response, he said that obtaining a passport in Sri Lanka is not like the process in other countries. Having earlier acknowledged it was not unusual to lodge a passport application indirectly, he now said a person cannot obtain a passport in Sri Lanka unless he or she applies in person. He said he had to give his application to someone else to lodge for him.
[96] I put to [the applicant] that it seemed odd in the circumstances that he was able to use his February 2009 passport, issued in his own name, six times if, as suggested, he was somehow not able to obtain it in his own right. In reply, he said he obtained this passport "all illegally" by paying a "bribe". Again, I questioned whether [the applicant] had genuinely feared not being able to obtain and carry a passport in his own name as he had by his own evidence used it six times on journeys out of and back into Sri Lanka. In reply, he said that the passport office was "secure" and that he would have had to cross checkpoints in Sri Lanka to get there. He said it had not been safe to travel to the passport office. He said that had he gone there himself he would have been asked various questions. He said he therefore avoided all this by paying someone else to lodge his passport application for him.
89 In the Reviewer’s findings and reasons the following is stated:
[212] First, [the applicant] was in a position to apply for a passport a week or ten days after he returned from the UK. He says his mother fixed all of this while he was still languishing in detention, using her business contacts to have the state issue a passport they would or might otherwise never have issued: a genuine passport obtained and only obtainable by bribery without any personal input from the detained person to whom it was issued. I do not accept that claim to be true, even though I do not doubt that [the applicant's] family, as importers of goods for retail, would have cultivated and maintained helpful contacts in various sectors of Sri Lankan society. I find on the basis of [the applicant's] repeated ordinary use of this passport, issued in his own name, between March 2009 and October 2009, at least, that it was not issued under any extraordinary circumstances.
90 The view of the primary judge was that any confusion that arose during the discussion concerning the obtainment of the passport was immaterial in the Reviewer’s ultimate reasoning. Although the exchange was less than perfect, the essential elements that were being conveyed by the appellant were received by the Reviewer. The concept the appellant was advancing was that he had obtained his passport via a third party being some type of agent, which required an element of bribery. In the passage at [97] of the reasons the Reviewer accepted that evidence, but in fact was more concerned about the way in which the passport was subsequently used by the appellant without any intervention or apprehension by the authorities.
91 My analysis has two elements. First I accept the question of whether or not it was unusual to lodge a passport application indirectly in Sri Lanka was and remained a side issue and did not affect the main question which was the apparent inconsistency between having a forged passport, however obtained, and being able to use it on many occasions to travel to and from Sri Lanka. That was what the Reviewer said at [212]:
I find on the basis of [the applicant’s] repeated ordinary use of the passport, issued in his own name, between March and October 2009, at least, that it was not issued under any extraordinary circumstances.
92 Second, apart from that issue itself, I consider that there was enough in the interview unaffected by mistranslation to found what might be read as observations by the Reviewer going to the appellant’s credit, at [95] of the reasons, that there was an earlier acknowledgment by the appellant that it was not unusual in Sri Lanka for a passport application to be lodged indirectly. Whether or not the Reviewer could have come to a different conclusion of fact or made a mistake of fact is not the point.
93 I therefore conclude that there was no procedural unfairness in this respect.
94 I consider next the mistranslation which concerned the non-translation of the applicant’s reference to there being no search warrant in relation to him.
Mistranslation 4
Applicant: At that time I was not a person searched for by the Sri Lankan government. That is to say that I was not a wanted person… no search warrant on me [Applicant’s answer translated from Tamil]
Interpreter: So at that time what you mentioned I was not a person being suspected by the Sri Lankan government [unclear] by them.
Applicant: They had not targeted me. They had not targeted me as an important person. [Applicant’s answer translated from Tamil]
Interpreter: They didn’t target me at that time. They did not think that I am an important person for them.
95 The appellant submitted that a critical part of the appellant’s explanation for not being targeted was that he was not a wanted person – that there was no search warrant on him. The statement that he was not being targeted was lame in the absence of his explanation. The failure of translation of the explanation denied the appellant an opportunity to state his case in response to the Reviewer’s concerns.
96 The primary judge said at [106] that the appellant’s evidence was adequately conveyed by the interpreter’s statement “I was not being suspected by the government” and nothing turned on the fact that the additional statement “no search warrant on me” was not interpreted, as the essential point had been communicated that the appellant was not at that stage of interest to the government.
97 I agree. In my opinion the Reviewer understood the substance of what the appellant was putting when the Reviewer said at [214] that the appellant said himself that he was not of serious negative interest to the authorities at the time.
98 I consider next the mistranslation which concerned the non-translation of the Reviewer’s statement that the appellant was being evasive in the sense of many of the Reviewer’s questions were missed by the interpreter.
Mistranslation 5
Reviewer: Okay. Look I think… I think you are evading discussion about the ease with which you travelled out of Sri Lankan on three occasions between February and December [2009].
Interpreter: Look here. You have travelled out and came back three times from February to December. [Interpreter’s interpretation into Tamil translated into English]
Reviewer: I don’t usually go far. Suffice to say I think you are evading. But I have tried to bring you back to this point a couple of times and told you why. And…and… on this last occasion you are leaping forward to December again. I want to… please help me understand why you would try to leave the country and come back three times if you had such a bad experience on return… in February… and why they would let you travel if as you claim if they were suspecting you to be an LTTE supporter?
Interpreter: Look here. You have travelled between February and December. At the same time they have detained you in February… they stopped at airport did… But even after that you have travelled two times. And you have come back. [This is said to be “Applicant’s answer translated from Tamil” but would appear from its content to be the interpreter’s interpretation.]
99 The appellant submitted that there was an omission of the suggestion that he was evading discussion. The suggestion that he was evading discussion could be traced back to part of the transcript where the appellant stated “there was no search warrant for me” and the interpreter said “he’s not a suspect.” The appellant earlier in the transcript tried to explain that he did not have a problem before December 2009, which was the date he said his cousins’ LTTE affiliations were found out. The fact that the issue of evasion of discussion was not translated was crucial because the avoidance of a question or discussion of an issue must damage credit and the appellant needed to know what the Reviewer was saying in order to attempt to rectify any damage.
100 In my opinion, the statement that the appellant was evading, twice repeated, in the hearing was no more than the expression of a passing frustration on the part of the Reviewer and provides an insufficient basis on which to conclude that the non-translation denied the appellant procedural fairness. The Reviewer persisted in asking the questions and in obtaining answers. There are no observations in the Reviewer’s reasons concerning the appellant evading questions about the ease with which he travelled out of Sri Lanka on three occasions between February and December 2009. It is not been established that there was any failure of process in this respect.
101 I consider next the error concerning the mistranslation of the Reviewer’s statement that the appellant had more friends in the system in Sri Lanka than he had enemies.
Mistranslation 6
Reviewer: Yeah okay. Thank you. Looking back at the history of scrutiny, detention, release a person might make the observation that you had more friends in the system in Sri Lanka than you had enemies. What would you… you say to that?
Interpreter: Look. We will look at one thing again. You have been questioned many times. Right? You have been detained. And then they allowed you to go. Not only that you have many friends there. At the same time you have enemies as well there. [Interpreter’s interpretation into Tamil translated into English]
Applicant: Not friends, there are only enemies, many of them. [Applicant’s answer translated from Tamil]
Interpreter: Not really friends but I have a lot of enemies.
The advisor then asked that the question be rephrased and the whole question asked again and the Reviewer said the adviser was a bit worried about whether the use of the word friends was correctly understood:
Reviewer: The whole question, yeah. A person in my situation listening to your story about detention, security, release, might wonder whether if you had more sympathetic people on your side in the system [unclear] in the system in Sri Lanka than enemies working in the system in Sri Lanka.
Interpreter: So you have been detained, then scrutinized and then released. I want to ask you one thing. Are there people who sympathize you? [Interpreter’s interpretation into Tamil translated into English]
Applicant: Yes. That is to say, there are many relatives who sympathized me, and wanted to help me as they wanted to help me. [Applicant’s answer translated from Tamil]
Interpreter: I have a lot of sympathizers from my family background so those actually my family friends and relatives… who actually helped me [unclear] from the condition which I had.
Applicant: That is to say that our relatives help when a life is in danger. [Applicant’s answer translated from Tamil]
Interpreter: Usually they are… if anybody is getting life threatening and they very often help those people.
Reviewer: Mm. You say you have a lot of sympathizers because of your family background. What’s the significant of your family background? How does that get you a lot of sympathizers?
Interpreter: How did they sympathize? Those who sympathized you and came forward to help you… mainly those from your background… he is asking how? [Interpreter’s interpretation into Tamil translated into English]
Applicant: Who? That is relatives. My mother’s relatives, father’s relatives. [Applicant’s answer translated from Tamil]
Interpreter: So basically they are my relatives is actually come from my father’s side, my mother’s side.
Reviewer: Mm. Did your father ever have an important position in the community?
Applicant: As father had a shop and did business, everyone in the native place knew him. [Applicant’s answer translated from Tamil]
Interpreter: Because my father was involved in business locally and therefore he was so popular among the community.
Reviewer: It sounds from your evidence that that helped you have friends among the Sinhalese and amongst the authorities.
Interpreter: Yes.
102 The appellant submitted that the question which the Reviewer asked was not accurately translated so he could respond. It was clearly relevant to the appellant’s ability to operate freely and to extricate himself from difficulties. The mistranslation not just of the question but of the relevant passages resulted in the appellant not having a chance to address the Reviewer’s concerns in that respect. This found its way into the Reviewer’s reasons at [113] where the Reviewer reported:
I put to [the applicant] that on his evidence he seemed to have more (and more effective) friends in the Sri Lankan system than enemies. In reply, he said he had a lot of supporters in Sri Lanka because of his family’s business background, on both his mother’s and his father’s side.
The appellant contended that this appeared to be more or less what the interpreter said but it was not responsive to the questions which were asked.
103 The primary judge said the disputed interpretation in this respect, although relatively short, was clearly not an accurate translation of the Reviewer’s initial question, nor was the response by the interpreter to the reformulated question after the intervention of the appellant’s adviser. Part of the problem may have been due to the use by the Reviewer of a commonly and frequently used colloquial expression in English “you appear to have more friends than enemies” which had been partly modified by the Reviewer in an attempt to clarify the question to the appellant. That expression appeared to be either unfamiliar or misunderstood by the interpreter which appeared to have led to the intervention by the appellant’s adviser seeking to have the question re-asked or reformulated. The reformulated question, which was more specific and more detailed than the original question, was more difficult to comprehend because of the removal of the more familiar and commonly used phraseology adopted in the initial question.
104 The primary judge agreed with the submissions made by the Minister that the question raised by the Reviewer was whether the appellant had more friends than enemies in Sri Lanka and the appellant responded by indicating that the people identified by the Reviewer as friends were, in the majority of cases, his relatives. That appeared to be the idea or concept of the Reviewer’s question, which was qualified by the appellant in his response and there was no material misunderstanding as a result of the exchange.
105 I accept that the idea of “friends in the Sri Lankan system” does not appear to have been understood by the appellant, although the context of detention, scrutiny and release was translated immediately before the question, which was also translated, “Are there people who sympathize you”. I do not see the miscommunication as having had any bearing either on the process or on the substance of the Reviewer’s decision. I am not persuaded that there was any denial of procedural fairness in this respect.
106 I consider next the mistranslation which concerned whether a naval officer, who apparently helped the appellant get out of custody, could have been approached when the appellant’s elder sister was said to have gone missing.
Mistranslation 7
Reviewer: … There is no one you could talk to about this… no one to contact. There is the naval officer.
Applicant: That was when I was arrested and taken away. But if we were to contact him and ask him, then we would have problem as a result of it. We approached him only after the problem arose, and as far as this problem is concerned, we searched on the basis of suspicion and, we did not go to him as we thought that we would have problems as a result of that. [Applicant’s answer translated from Tamil]
Interpreter: So because we only approached the navy officer after I had a problem. But I never approached the navy officer when my sister is actually disappeared. Because if we approach the navy officer probably that is going to impact on our whole family and he is also going to be in trouble so that is why I simply avoided the navy officer.
Applicant: He did it for money and not for any love or affection towards us. So if we had asked him that would be known to the top level … that is if we asked him. [Applicant’s answer translated from Tamil]
Interpreter: Because we never… we never bribed the navy officer. He just sincerely did that help for us.
Reviewer: He is a naval officer who is a friend of your family and you didn’t even try and find out if he had heard of anything where your sister-cousin has gone?
Applicant: He is not a friend he is an enemy. He is a person who comes to our shop and takes goods free of charge. He is an enemy. He is capable of doing anything for money. [Applicant’s answer translated from Tamil]
Interpreter: So look at here. That navy officer who was not a friend of us. And he is a enemy of us. And he simply comes and takes the grocery items from our shop without paying any money to the shop. And he can do anything for money.
Reviewer: He can… he can probably sought out what happened to your sister maybe. In this… you know… a person similar described might be [unclear] find out what’s happened to your sister.
Interpreter: So if you had told like this he would have found and handed your elder sister back [Interpreter’s interpretation into Tamil is translated into English]
Applicant: But because of that there could have been danger. Not that he will find and hand over. Danger would have befallen in the sense that he would have caused more problems to her when he goes to investigate about her. The other thing is we could have had problems as a result and because of this fear we did not approach him.
Interpreter: I think if we approached him and requested his help definitely he probably caused some problem to my sister. Probably my sister’s life is threatened by this particular navy officer
Applicant: It is not the case. By telling him he would ask the top whether such a person was arrested. As a result they could at that time inflict more torture to the elder sister. Or else he would have come to us, based on this incident, to extort money. [Applicant’s answer translated from Tamil]
Interpreter: Not like that. If we approached the navy officer he will probably inform the top officers. Then from [the] top level they will probably approach… approach our family and… we will be in trouble. And that’s why we simply avoided.
107 The appellant submitted that the above statement by the interpreter is entirely inconsistent with what was said in the passage he interpreted immediately above, namely “we never bribed the navy officer. He just sincerely did that help for us.” The specifics of the suggestion that the sister would be in more trouble or the family would be extorted were left out. This was reflected in the Reviewer’s reasons at [122] in the following passage:
I put to [the applicant] that when he himself was detained and interrogated as an LTTE suspect, his mother “pulled out the stops” to locate and release him, whereas with his cousin, adopted in effect by his mother as a daughter, he and his mother evidently did nothing similar to help her. I gave [the applicant] the example of the chain of individuals that included the naval officer as the kind of contemporary recourse followed by his mother in similar circumstances. In reply, [the applicant] said his mother sought out the naval officer when he was arrested but did not do the same for her adoptive daughter because she could not draw attention to the family’s problems. I indicated to [the applicant] that this did not yet seem to explain why his mother did so much to help him and virtually nothing except looking in other homes for his “sister”, and he said the naval officer was not a friend but an enemy who came to the shop and took groceries without paying and who therefore seemed like someone his mother could bribe. He said his mother could not ask this officer to help find [his sister] in case he had been involved in her arrest or abduction. He said the officer had to ask for help up the ranks and that if he had done so for [his sister] he could have caused his family trouble. [The applicant] seemed to be digressing here: the point he repeatedly did not address was that whenever he was arrested, his mother used his family’s standing and contact networks to try and locate and release him, whereas neither he nor she asked for help from or offered apparently customary inducements to anyone. I put to [the applicant] that I remained at this stage somewhat concerned at how little was done in the circumstances to help locate or ascertain the fate of [his sister], particularly when the same assumptions were made as to the identity of her captors as was made in [the applicant]’s own case.
108 The primary judge, at [127], said the argument advanced by the appellant was that the misinterpretation as to the actual relationship between the family and the naval officer led to the omission that any request directed to the naval officer could have resulted in either extortion of the family or further detriment to the sister’s/cousin’s situation, whereas the focus of the Reviewer was directed to the apparent inconsistency by the appellant’s mother regularly resorting to assistance from various parties, including the naval officer, to assist when her son was in trouble with the authorities. This contradicted the apparent reluctance to make any moves to seek assistance from the same parties when the sister’s/cousin’s disappearance arose.
109 I accept that there was an initial inconsistency, where the appellant said the naval officer helped for money and the interpreter interpreted this as the family never having bribed the naval officer but the officer doing it sincerely to help the family. But this particular confusion was cleared up in the course of the hearing and what the Reviewer said at [122], in my view, reflected an understanding of what the appellant was putting. For completeness on this issue I add a reference to [203] of the Reviewer’s reasons but that paragraph takes the matter no further. Both procedurally and substantively therefore the mistranslations on this issue had no impact or effect. I agree with the conclusion of primary judge.
110 I consider next the mistranslation which concerned the UNHCR guidelines in relation to Tamil males from the north-east of Sri Lanka.
Mistranslation 8
Reviewer: … perhaps I will throw some challenges to you and hear what you have to say. What do you have to say for example the UNHCR Guideline… that just being a Tamil or just being a Tamil male from the north east is not enough on its own to be of concern to UNHCR as a person who might face persecution.
Interpreter: There are certain guidelines from UNHCR. According to that you are a Tamil person. You are a male. And your age is this. So because of this if you return what danger will you have for your life… what problems will you have - based on that. [Interpreter’s interpretation into Tamil is translated into English]
…
Applicant: If I go to Sri Lankan I will be tortured and killed because… [Applicant’s answer translated from Tamil]
Interpreter: If I returned to Sri Lanka definitely I will be tortured and killed by them
Applicant: Because I am a Tamil from the north and east. [Applicant’s answer translated from Tamil]
Interpreter: Because I am a Tamil person who lives in north and east part of Sri Lanka
At that point the answers went off on the topic of people who were LTTE suspects. After a break in the hearing the Reviewer return to this subject matter as follows:
Reviewer: …I have just started to ask [the applicant] question about whether it’s enough for a person to be… simply be a Tamil male in north east to attract persecution in Sri Lanka. I’m just saying that for the purposes of the recording because we have [unclear].
Interpreter: Will the Tamil males in Sri Lanka will be persecuted in Sri Lanka? [Interpreter’s interpretation into Tamil is translated into English]
Applicant: Definitely there will be. Not to everyone but only those whom they will suspect. The other thing is that as they look at Tamil people with suspicious eyes. And their laws – the Prevention of Terrorism Act and Emergency Regulations – provide government army with more power to… Tamil people… [Applicant’s answer translated from Tamil].
Interpreter: Yeah, exactly… that’s correct. Not for all of them for certain people… they identify those people as suspected [unclear] particularly from the Tamil minority’s group – they look at with a different eye. And the government has actually imposed a number of laws… particularly the terrorist laws, emergency laws. And these laws can... can be utilised against the Tamil people by the government of Sri Lanka.
111 The appellant submitted as far as the interpretation was concerned, the information which the Reviewer wanted to put to the appellant was not put to him. A question was asked and the appellant went on to say he will be tortured and killed because of his being a Tamil from the North or East. He did not engage with the UNHCR information which was being put to him, partly because the information was not put to him. Simply to say, “Because I’m a Tamil from the north and east, I will be tortured and killed,” in response to UNHCR information saying that you will not be or you might not be, really did not advance the issue any further. To be able to actually address the information being put to the appellant, the nature of the information would have to be conveyed to him. What may address the information is something he may have or he may have known about the situation in the north or the north and east or the way the security forces operated or the UNHCR presence in the north and east, if there was any, and the way they were able to get information. This was not known because the appellant was not given the opportunity.
112 The Reviewer said, at [220]:
I accept that [the applicant] is a Tamil male from the North or East. I accept that this is [a] cognisable group, not defined by the harm it fears, and a “particular social group” for the purposes of considering eligibility for protection under the Convention. The claim relating to this profile is also, essentially, a claim about the political opinion imputed to such people. At our interview, I asked [the applicant] whether he believed that being a male Tamil from the North or East of Sri Lanka was on its own sufficient to give rise to a real chance of Convention-related persecution in that country. In reply, as noted, [the applicant] said this factor alone is enough to attract a real chance of Convention-related persecution in Sri Lanka. He then said that people are tortured in Sri Lanka and by this I took him to be drawing attention to reported human rights abuses against Tamils, including Tamil males from the North and East, in certain situations. I put to him that by contrast with the people to whom he was broadly referring, he had spent his time or a significant proportion of it back in Sri Lanka working, travelling and shopping. In reply, he said not all Tamils are tortured whereas LTTE suspects are. I do not accept that [the applicant] has been regarded as a LTTE suspect, and I do not accept on the evidence before me that he would be so regarded in the reasonably foreseeable future. The country information still suggests that male Tamils from the North or East of Sri Lanka could be disproportionately affected by the post-war security measures still in place in Sri Lanka, but looking at [the applicant]’s experience and, again, taking into account his having spent time in Australia, I do not accept that he faces a real chance of persecution in Sri Lanka for reasons of being, or being profiled along the lines of being, a male Tamil from the North or East of that country.
113 The primary judge said at [132] that he was satisfied that the misinterpretation had not adversely affected the outcome in the decision. The nature of the question asked in the context of the UNHCR Guidelines was later addressed in the context of other country information and the outcome of all of that questioning was reflected at [220] of the Reviewer’s reasons, reproduced above.
114 In my opinion, the appellant’s submissions on this point go not to the mistranslation but to the merits. Even though the content of the UNHCR Guideline was not accurately translated the appellant provided an answer which responded to the untranslated detail which was that he would be tortured and killed because he was a Tamil from the north and east. To submit that if more detail had been provided he could have given a fuller answer is, as I have said, to make a complaint not about the mistranslation but about the lack of detail in what the Reviewer was putting. That is not the present issue. I also consider that the later question and answer, after the break in the hearing, made it clear that the appellant’s position was that not every Tamil would be persecuted but only those Tamils whom the Sri Lankan government suspected.
115 In my opinion no denial of procedural fairness is established by the mistranslation complained of.
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.
Conclusion
117 The appeal should be dismissed, with costs. The name of the first respondent should be amended to “Minister for Immigration and Border Protection”.
I certify that the preceding fifty-seven (57) numbered paragraph are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. |
Associate:
Dated: 29 November 2013
