Federal Court of Australia
GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application for an extension of time in which to appeal is dismissed.
2. The applicant is to pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1 This is an application for an extension of time in which to appeal from a decision of the Federal Circuit Court of Australia (FCC). By that decision, the FCC dismissed an application for review of a decision of the Immigration Assessment Authority (IAA), which, in turn, had affirmed the decision of a delegate of the Minister for Home Affairs not to grant the applicant a protection visa. At the hearing, the parties also made submissions with respect to the proposed appeal on the basis that the extension of time would be granted.
2 The applicant is a Vietnamese national who arrived in Australia as an unauthorised maritime arrival on 17 March 2013.
3 He participated in an extensive Entry Interview on 30 March 2013, assisted by an accredited interpreter.
4 On 9 July 2016, he applied for a Safe Haven Enterprise visa (a SHEV). Relevantly, his claims for protection included:
That he had been persecuted by the Vietnamese government and police because of his Catholic religion, political beliefs, and disability;
That in 2011 he had been arrested by the police while working on a construction to enlarge an existing Catholic church. He claimed to have been detained for two days, during which time he was beaten and interrogated. Subsequent to this event, he was followed by security forces, and frequently stopped and interrogated about his activities and associations;
That he has been an active supporter of the Viet Tan political party since 2006, and in February 2012 he was part of a group of people who were attacked and beaten by the police for attending a court hearing in support of other Catholics and Viet Tan members who were charged with anti-communist activities;
That he participated in an anti-government protest in July 2012, where he was beaten by police, but not arrested; and
That he fled Vietnam in February 2013 after having been constantly monitored and frequently stopped and questioned by the police.
5 The visa application was refused by a delegate of the Minister for Home Affairs on 24 September 2018.
6 The delegate’s decision was automatically referred to the IAA for review on 27 September 2018 under the “fast track” review process set out in Part 7AA of the Migration Act 1958 (Cth) (the Act). The IAA considered the material provided to it by the Secretary of the Department under s 473CB of the Act which included a recording of the Entry Interview.
7 The IAA affirmed the Minister’s decision on 15 November 2018.
8 The IAA accepted the applicant was raised a Catholic, and was a parishioner at various churches registered with the Vietnamese authorities: at [6]. However, it found key aspects of his evidence relating to his claim to have been persecuted on account of his Catholic faith and political views to be “inconsistent, unconvincing and implausible”, to the extent that his claims were found to have been contrived for the purpose of strengthening his application.
9 In its reasons, the IAA noted that it had reviewed the audio recording of the applicant’s Entry Interview and observed the applicant had provided detailed and highly specific responses to questions about the circumstances of his departure from Vietnam and his reasons for leaving. It then observed that he had omitted to mention in that interview many of the matters on which he subsequently relied in support of his SHEV application. It summarised the extent and significance of those omissions at para [14] of its reasons:
Given the extent of the omissions, the centrality of his role as a Catholic and human rights activist to his protection claims, and the matters that he did raise, I do not accept that the applicant’s complete omission of any part of his claim to be a religious and civil freedoms activist, or his involvement with the Viet Tan, or his complete omission of having been subject to long-term surveillance, detention and repeated beatings by police can be plausibly attributed to the interviewer’s instruction to the applicant to provide brief responses, or to the applicant’s fear of providing responses about his political views.
10 In further considering the applicant’s claim to have been arrested, detained, interrogated and beaten by the police in 2011, the IAA observed at paras [16] – [17] in relation to his Entry Interview:
The applicant provided a substantially different account of his circumstances and reasons for leaving Vietnam in the Entry Interview to that presented in the SHEV application. When asked during the Entry Interview why he had left Vietnam he responded that he had problems with his eyes and that he faced discrimination and disrespect from people for this reason. He claimed to have been denied work on the basis of his disability. When asked if there were any other reasons he left Vietnam he indicated that Catholic people are not offered freedom of religion, and are not given opportunities to get a good job. He stated he wished to work and have treatment for his eye and when asked if there were any other reasons he left Vietnam he stated that the Vietnamese government’s policies on human rights and elections are unfair.
… He was asked whether he was ever arrested or detained by the police or security organisations, and responded ‘No’. He was asked whether the police and security or intelligence organisations impacted on his day to day life in Vietnam and he asked for clarification on the question. The interviewer rephrased the question as ‘Were you bothered by authorities on a regular basis? Did authorities impact on your life?’ The applicant paused and then responded ‘When I was little I was playing in the street and I was assaulted on the street’. The interviewer clarified that the applicant should describe his more recent experiences. The applicant responded ‘No, because I haven’t done anything wrong’. I find it telling that during the Entry Interview the applicant has made no mention of having been arrested, harmed or harassed by police, or having been involved in any political parties or anti-government activities or protests.
11 At para [19] of the IAA’s reasons, the conclusion was drawn that the applicant’s account of having been identified as an activist by Vietnamese authorities, and then subjected to targeted and intensive harassment and surveillance was not substantiated by any evidence apart from his own claims, and was implausible. If it were true, the IAA thought it unlikely that the police would not have arrested him and charged him either as a known dissident or as a suspected member of the Viet Tan. It also found it to be unlikely that he would have been provided with travel documents or permitted to leave the country had he held an adverse profile with the Vietnamese authorities: at [20].
12 Critically for the purposes of the appeal, the IAA went on at para [21] to find that the applicant’s claims to have been a religious and civil freedoms activist in Vietnam were entirely fabricated:
The applicant made no mention in the 2013 Entry Interview of having participated in any dissident activities, or having been harmed or harassed by police. He has not provided any independent evidence to corroborate his claims; such as photos, social media, news reports, police documents, or corroborating testimony from other church members or activists. Considering the extent of the omissions, inconsistencies and the overall scantness of the applicant’s evidence, and the lack of any independent evidence to substantiate them, I find that the applicant is not a credible witness in this regard and that his evidence in relation to having been a religious and civil freedoms activist in Vietnam is entirely fabricated.
13 It also did not accept his claims of involvement with the Viet Tan, particularly due to the following inconsistent information which he had provided:
(a) although he claimed to have been a Viet Tan party supporter in Vietnam since 2006, he only joined that organisation four months after lodging his SHEV application and one month prior to submitting his claims for protection;
(b) although he asserted that he had a Facebook profile on which he re-posted Viet Tan party commentary and opinions, he provided no corroborating information (such as screen-shots) to support this claim; and
(c) although he said that he had been associated with the Viet Tan party for more than ten years, he only had a “basic familiarity” with the party’s policies.
14 Having rejected his claims to have been a religious and civil freedoms activist, the IAA went on to find, on the basis of the available Country Information, that as an “ordinary parishioner” he did not face a real chance of harm due to his Catholicism. It was not suggested by him that he had or would in the future involve himself in unauthorised religious celebrations.
15 The IAA was also not convinced that he would be subject to persecution because he met and gave his name to a Vietnamese official who visited a detention centre where he was located. It was not convinced that he would be mistreated on his return to Vietnam as a person who had sought asylum in Australia on the basis that he was a Catholic. Further, it did not accept that he would have an adverse profile with Vietnamese authorities as a result of his very limited involvement in political activity in Australia so as to engage the complementary protection grounds.
16 On 14 December 2018, the applicant applied to the FCC for review of the IAA’s decision. That application was dismissed on 22 October 2019 and ex tempore reasons delivered.
17 Several grounds of review were agitated before the FCC, although only one remains relevant for the purposes of the appeal; being that there were sufficient errors or inadequacies in the interpretation of the applicant’s Entry Interview so as to render it an inaccurate account of the applicant’s case which thereby undermined the IAA’s findings at paras [17] and [21] set out above.
18 In support of this ground, the applicant relied upon two affidavits of Ms Tam Pham, a receptionist in the employ of the applicant’s solicitors. In her primary affidavit, Ms Pham set out the discrepancies she claimed to have identified between what the applicant said during his Entry Interview, and the translation provided by the interpreter. Her second affidavit deposed to the fact that she is completely fluent in both Vietnamese and English, having been born in Vietnam and lived there until she was 10 years old. The FCC, not without reservation, considered these affidavits, noting that Ms Pham is not an accredited interpreter.
19 The applicant’s submissions to the FCC had focussed on one particular “discrepancy” in the Entry Interview; namely the interpretation of his answer to the following question posed by the interviewer: “How are you prevented from taking part in your religion in Vietnam?” The transcript of the interview provides that his answer, as translated by the interpreter, was:
Like, um, they stop you – they stop the vehicle to build the church. They over controlled, and …
Ms Pham deposed that what the applicant had in fact said was:
It’s like, they interfere with church to be built, and when people go there to worship there are many times when they would assault us and will take people away. They – the police – won’t ask you anything but they will bash you first.
20 The FCC judge opined that there could not be a denial of procedural fairness because of defective interpreting unless it was shown that the standard of interpretation was so inadequate that the applicant was actually prevented from giving evidence, or that the errors made in the interpretation were material to a conclusion of the decision-maker and adverse to the applicant: at [27]. Ultimately, his Honour rejected this ground of review as the “misinterpretations” identified did not cast doubt on or undermine the IAA’s findings, particularly when viewed in context. Relevantly, his Honour held:
91. Even if I were to accept as a matter of weight what it is that Ms Tam has said, and taking it at its highest, it does not seem to me that anything that was said truly does anything to cast doubt or undermine what it is that the IAA have said.
92. The first sentence in paragraph 21 has to be seen in the context of the whole of the reasons, rather than just by itself. The Applicant had made claims that he had been arrested by police while working on construction to enlarge the church; that he was detained for two days; that he was beaten and interrogated; and that he was released with a warning not to make trouble but he defied that order and continued to work on the church; and that he was followed by security forces and frequently stopped and interrogated about his activities and associations (those associations being his support and attendance of Viet Tan meetings since 2006).
93. It is clear when one looks at the whole of the entry interview, that the Applicant made no such claims in that entry interview. When asked about being harmed or harassed by police he is not specific and has not said that he himself was assaulted or taken away or bashed. Taking it at its highest, he says that:
There are many times when they would assault us, would take people away. And the police won’t ask you anything, but they will bash you first.
94. And then, if one looks at the actual transcript, he says in English, when asked about stopping the vehicle he himself says:
To build the church and they assaulted the people when arrested.
There is no iteration at all that he, himself, was bashed; that he, himself, was assaulted; that he, himself, was taken away. What he says is simply, that “this is what the police would do”. The way in which this was spoken, it could hardly be seen, if one looks at the entry interview as a whole, as an expression of an engagement in dissident activities. Neither was it a claim that he himself had been personally bashed.
95. There was plenty of opportunity for him to make that claim (that he had been personally bashed by the police because of his Catholicism), but he did not do so. As this ground, as to the interpretation, will rise and fall on there being an error in the interpretation material to a conclusion, I cannot see that, even if there were the statements uttered as Ms Pham says they were, and I have not accepted that that is the actual case, it was not material to a conclusion of the decision-maker.
96. When that sentence in paragraph 21 is read as a whole, it is a summary that is based on everything else that had been said and nothing that was said, even at its highest, by Ms Tam, would derogate from that particular conclusion.
97. There are no other matters in the interpretation in the entry interview that could even be thought to come to that standard, and there has been nothing put before me to say that the Safe Haven Enterprise Visa interview had any interpretation problems in it whatsoever. For those reasons ground 3 fails.
21 The applicant’s opportunity under r 36.03 of the Federal Court Rules 2011 (Cth) (the Rules) to appeal from the decision of the FCC expired on 19 November 2019. Unfortunately, he failed to avail himself of it. On 5 December 2019, he applied for an extension of time in which to appeal and his draft notice of appeal proposed several grounds which he sought to agitate. Although an amended proposed notice of appeal was included in the appeal book filed on 13 April 2020, by his written submissions filed on 17 July 2020, he indicated that he no longer intended to press the grounds set out in that document, but rather to rely solely upon ground 2.1 of the original proposed notice of appeal.
22 The sole ground now pressed is that the FCC erred in finding that the mistranslation error in the Entry Interview was not material to a conclusion of the decision-maker. The particular to that ground is as follows:
The Court should have found there was a critical error of interpretation in the Entry Interview which infected the Authority’s assessment of the credibility of a central claim that the Appellant made for the purposes of his Safe Haven Enterprise Visa, and thus it was an error going to the Authority’s jurisdiction.
Application for extension of time
23 A party may apply for an extension of time in which to appeal under r 36.05 of the Rules. In determining whether to exercise its discretion to grant an extension of time, the Court will take into account the explanation for the delay: Australian Prudential Regulation Authority v Holloway (2001) 48 ATR 59; and the merits of the proposed grounds of appeal: Howard v Australian Electoral Commission [2000] FCA 1767 [7]; Jess v Scott (1986) 12 FCR 187 at 188; Spires v Secretary, Department of Family and Community Services (2002) 68 ALD 577. In relation to the latter point, it can be observed that the principles relating to the granting of an extension of time in which to appeal and those concerning leave to raise a new ground on appeal overlap to some extent: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 [13]. When, on an application such as the present, the Court is called on to determine whether a proposed ground has any merit, the issue is to be determined at a relatively impressionistic level: NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 [31]. The relative prejudice which the parties might suffer if the application is allowed or disallowed is also a relevant factor.
24 In this case, the delay was explained by way of an affidavit of Ms Kate Hoang, the solicitor with carriage of this matter, filed on 9 March 2019.
25 It appears that, from 7 November 2019, the applicant made several genuine attempts to obtain representation for the purpose of instituting an appeal, although he was experiencing financial hardship which hampered those efforts. Generally speaking, a party’s financial circumstances or difficulties alone are an insufficient excuse for delay and will not provide a justification for an extension of time: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 [7]; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 [12].
26 Ms Hoang had accepted instructions from the applicant on 19 November 2019. It appears that she did so with full knowledge that the “clock was ticking” and that that was the last day for the filing of the appeal. She deposed that she briefed counsel immediately and a notice of appeal was drafted by 3:13pm that day. It is not entirely clear why this notice of appeal was not then expeditiously filed. Ms Hoang provides the following explanation:
(1) She could not personally file the document electronically in time as she was not registered for eLodgment (the Federal Court’s online filing system). However, she only attempted to register for eLodgment at 4:12pm, almost an hour after the notice of appeal was drafted. No explanation is provided for this delay.
(2) She could not physically file the document as the nearest Registry was a 30 minute drive away. However, given the applicant had until 4:30pm that day to file the notice of appeal, this excuse is unconvincing.
(3) She suggested that the applicant contact his previous representation to have them file the notice of appeal, and emailed the applicant the notice of appeal at 4:15pm for this purpose. Putting to one side the propriety of shifting responsibility for the timely filing of a document to one’s client (particularly where no explanation appears to have been given as to the significance of filing that document out of time), it does not appear that Ms Hoang followed up with the applicant until the next morning, at which time she was told the document was not filed.
27 It was not until 28 November 2019 that an application for an extension of time was filed, albeit in the wrong form. There is no proper explanation for this further delay. The Registry rejected this filing on 4 December 2019, and an application for an extension of time, in the correct form, was filed on 5 December 2019.
28 The delay was a period of some 16 days in total. While that delay was not, in all the circumstances, inordinate, the explanation for it provided by the applicant’s solicitor was somewhat unsatisfactory and reflected a lack of care in the handling of this matter, particularly in circumstances where she was aware of the high degree of urgency required to have the appeal regularly filed. Indeed, where a document is required to be filed by a certain date and there exists some impediment to this occurring, it is common practice for solicitors to email the relevant documents to the Registry. At the very least, one would expect a solicitor in Ms Hoang’s position to call the Registry to ascertain whether this was an option. It is not at all clear from the evidence why this was not done.
29 It should not be thought by litigants or the profession that extensions of time in which to appeal are “for the asking” or are more or less automatic. Once the time limited for appealing has expired, the litigant faces an entirely new legal hurdle and is required to provide some justification for why the court should extend the time otherwise limited for filing an appeal.
30 In all the circumstances, the explanation for the delay was somewhat insufficient.
31 The Minister very properly did not suggest that he would suffer any particular prejudice in this case were the time for appealing to be extended. However, he will suffer the general prejudice of delay in the administrative process of dealing with the applicant’s visa application. On the other hand, if the applicant has a good claim for the correction of error in relation to his protection visa application, any refusal to allow it to be agitated may result in his being returned to a country where he might suffer persecution.
Merits of proposed ground of appeal
32 In assessing whether the proposed ground of appeal has some merit to support the grant of an extension of time, the court is to adopt a somewhat impressionistic approach. It ought not descend into a complete or full determination of the point which is sought to be raised. However, where the proposed ground of appeal involves some factual analysis and an understanding of the relationship between the decision under consideration and the evidence on which a party relies, some scrutiny of the point needs to be undertaken before even an impressionistic view might be formed.
33 As mentioned, the applicant’s sole ground was that the FCC erred by failing to conclude that the IAA’s decision was affected by jurisdictional error consequent upon its reliance upon the incorrect interpretation of his answer as identified by Ms Pham. That is, that the mistranslation of his answer in the Entry Interview concerning the alleged persecution of him for religious reasons prevented the IAA from considering his claims. Broadly speaking, it was submitted that the error was a “critical” part of the IAA’s credibility findings in respect of him which was its foundation for rejecting his claims that he was persecuted by the Vietnamese authorities.
The relevance of errors in translation
34 This appeal was originally set down for hearing on 31 July 2020, however that hearing date was vacated as a result of the High Court having granted special leave to appeal the decision of the Full Court in DVO16 v Minister for Immigration and Border Protection (2019) 271 FCR 342. Special leave was later granted to appeal from the decision of a single judge in BNB17 v Minister for Immigration and Border Protection [2020] FCA 304. Those two appeals each concerned how the IAA’s reliance on translation errors might result in its decisions being vitiated by jurisdictional error and they were heard and decided together. The High Court’s decision in the appeals was handed down on 14 April 2021: DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375 (DVO16); and the hearing of this matter was duly relisted.
35 There is no need to recite the facts of either matter the subject of the decision in DVO16. In relation to the central issue on appeal, it is sufficient to identify that the majority (Kiefel CJ, Gageler, Gordon and Steward JJ) held:
(1) “Whether and if so in what circumstances mistranslation might result in invalidity of an administrative decision turns necessarily on whether and if so in what circumstances mistranslation might result in non-compliance with a condition expressed in or implied into the statute which authorises the decision-making process and sets the limits of decision-making authority”: at 379 [8].
(2) In the context of a process which is conditioned on the requirement to accord a party natural justice, the question is whether the mistranslation has resulted in any unfairness in the decision-making process amounting to practical injustice: at 379 [8].
(3) In circumstances where the requirement of natural justice has been excluded or reduced to compliance with specific statutory requirements, the question is whether the mistranslation resulted in one or more of those requirements not being met: at 379 [8].
(4) The IAA’s duty is to consider the review material which has been provided to it so as to form its own assessment of the relevance of that particular material to the review of the decision and to weigh the material in making its decision on the review, and it is not disabled from performing that duty merely because of translation errors which might exist in any part of the review material: at 381 [17].
(5) There are two potential ways in which mistranslations in the material might result in non-compliance with the express or implied duties imposed on the IAA under Pt 7AA. First, the requirement of reasonableness in considering the review material and in the exercise of the power to receive new material may necessitate the IAA taking into account evidence of the mistranslations: at 381 – 382 [19]. If aware of the existence of errors of that nature, the IAA may act unreasonably if it were to fail to interview the referred applicant and then consider the applicant’s testimony as correctly translated, or if it were to proceed to undertake the review without having exercised its powers to obtain new information which addresses the errors: at 382 [20].
(6) The second way in which translation errors might result in non-compliance with Part 7AA of the Act is by preventing the IAA from performing its overriding duty to “review” the referred decision and in doing so undertake a proper assessment of “the claims to protection in fact raised by the referred applicant against the criteria for the grant of a protection visa in order to determine whether or not to be satisfied that those criteria have been met”: at 382 [22]. Mistranslations in the material before the IAA may have the consequence that it misunderstands the substance of the applicant’s claim and is therefore unable to discharge that core element of its overriding duty to assess the claims in fact made against the criteria for the grant of the visa: at 382 – 383 [23].
36 In the matter before this Court, the error in question might only fit within this second category of cases. It was not suggested that the mistranslation had the consequence of denying the applicant procedural fairness.
The alleged mistranslation in context and the alleged consequences
37 As set out above, the alleged error in translation relates to the applicant’s answer to the question posed to him in his Entry Interview: “How are you prevented from taking part in your religion in Vietnam?”
38 As transcribed, the answer was given as follows:
543 A: **Like, um, they stop you - they stop the vehicle to build the church. They over controlled,
544 and ...
545 Q: They stop the vehicle to?
546 A: To build the church and they assaulted the people when arrested.
(A double asterisk is used to identify when the interpreter is translating from Vietnamese).
39 Ms Pham deposed that the answer in fact given was:
It’s like, they interfere with church to be built, and when people go there to worship there are many times when they would assault us and will take people away. They – the police – won’t ask you anything but they will bash you first.
40 The applicant submits that the correctly translated statement conveyed that while he was involved in work on a church building, he had personally been detained, interrogated and assaulted by the authorities. This, so it was said, corresponded to one of the grounds articulated by him in a statutory declaration attached to his subsequent application for a protection visa. It was as follows:
17. In 2011, some other Catholics and I were building a Church in Giao Ho Yen Thinh, a town where I was living at the time. While building the Church, the Government security forces came to the Church, arrested me and 7 or 8 other people and took us to a local government building. At this building they put each of us in separate rooms. The Government security forces then came in to my room and hit me on my face and on my body using sticks. While they beat me, they interrogated me. The Government security forces asked me a lot of questions about my involvement in the Catholic Church, like if I was involved in building the Catholic Church, whether I was Catholic, whether I get paid by the Catholic Church. The interrogation and beating lasted for a few hours. I was forced to stay in the room overnight and the police locked me in there. The Government security forces gave me water, and the following day, they gave me food.
18. The Government security forces released me after 2 days and warned me that if I continued to protest against the government and make trouble, they would arrest me again and they would put me in prison.
41 These allegations were referred to by the IAA in para [18] of its reasons where it said:
The applicant’s account of having been identified as an activist and then subjected to targetted [sic] and intensive harassment and surveillance by Vietnamese police after his 2011 arrest is unconvincing and implausible and is not substantiated by any evidence apart from his claim. He claimed that he was one of a number of people who were arrested in 2011 after undertaking works to expand a registered church building. He claimed to have been beaten and interrogated whilst in police custody for two days and then released with a warning to not cause further trouble. The police threatened that they would arrest him and put him in prison if he did. He claimed to have defied this order by continuing to work on the church, but also that the ‘government security forces’ followed him a lot after this incident and frequently stopped him and interrogated him.
(Emphasis added).
42 At paras [17] and [21] of its reasons, the IAA made reference to the applicant’s failure to raise certain matters at the Entry Interview, including any claim about being detained by security forces and beaten. For the IAA, this had the consequence that those claims were not believable and the applicant should not be regarded as a person of credit. It expressed this conclusion fulsomely in para [21]:
21. The applicant made no mention in the 2013 Entry Interview of having participated in any dissident activities, or having been harmed or harassed by police. He has not provided any independent evidence to corroborate his claims; such as photos, social media, news reports, police documents, or corroborating testimony from other church members or activists. Considering the extent of the omissions, inconsistencies and the overall scantness of the applicant’s evidence, and the lack of any independent evidence to substantiate them, I find that the applicant is not a credible witness in this regard and that his evidence in relation to having been a religious and civil freedoms activist in Vietnam is entirely fabricated.
43 It appears clearly from the IAA’s reasons that its conclusion at para [21] was informed by its perception that the applicant had not mentioned in his Entry Interview the incident in 2011 where he was allegedly arrested whilst constructing a church building and detained for two days. The applicant submitted that this conclusion arose from an erroneous understanding of the evidence consequent upon the alleged mistranslation.
Was there an operative mistranslation?
44 It is first necessary to ascertain whether the mistranslation had any operative effect by preventing the IAA from understanding, and therefore considering, the substance of the applicant’s claim. If it had such an effect, then the IAA would have failed to assess the claims made against the statutory criteria: DVO16 at 382 – 383 [23].
45 The evidence as to the veracity of the translation as advanced by Ms Pham is somewhat unusual. Before the FCC, the applicant submitted the translation which was recorded at the Entry Interview was inaccurate and the affidavit of Ms Pham was read in support of that submission. Ms Pham deposed that the words spoken by the applicant in Vietnamese were as set out above. Although the Minister opposed the reading of that affidavit, it was admitted into evidence. The Minister did not then seek an adjournment nor seek to cross-examine the deponent upon its accuracy. In those circumstances, the accuracy of the translation given by Ms Pham must be accepted.
46 The Minister submitted that this Court should give preference to the translation provided by the accredited translator at the Entry Interview over that of Ms Pham. However, the accuracy of the original translation was put in issue in the FCC proceedings and sworn evidence was adduced as to the existence of a relevant error. In those circumstances, it was necessary for the Minister to challenge that evidence then if he wished to dispute it in the course of submissions. He chose not to do so with the consequence that the FCC was left with only one translation where the interpreter had deposed to its accuracy. For present purposes, the Court can proceed on the basis that the translation given by Ms Pham is correct.
The Pham translation did not raise the claim subsequently made in the SHEV application
47 The applicant’s initial difficulty is that the evidence which might be derived from the Pham translation does not raise the claim on which the applicant subsequently relied upon in his SHEV application. It does not suggest that he was detained while he was working on building a church which presumably was regarded as a dissident activity. All that is said is that the authorities interfered with the construction of a church. The remainder of the paragraph is stated in vague terms and tends to refer to the intimidation of Catholics generally rather than the applicant specifically. The expression “us” appears to be used generically rather than personally, referring to the people who went to church to worship. That is reinforced by the reference to the police taking “people away”. Additionally, the Pham translation does not mention that the applicant was arrested, detained or taken away as was subsequently alleged in his statutory declaration made in support of the SHEV application. No mention is made of him being kept in a room for two days, the occurrence of beatings or interrogation.
48 It follows that, even if the answer identified in the Pham translation is accepted as being accurate, had it been given to the interviewer at the Entry Interview it would not have altered the substance of what the applicant advanced on that occasion. The “correctly” translated answer would not have raised the incident of an alleged arrest, detention and interrogation as the applicant subsequently outlined in his statutory declaration and the IAA’s conclusion that he had omitted to raise it at the Entry Interview would have remained valid.
The context of the Entry Interview as a whole
49 To the above it can be added that the complexion which the applicant now seeks to put on the words of the Pham translation is inconsistent with other parts of the Entry Interview. In particular, the applicant articulated different reasons for leaving Vietnam and positively denied that he had been detained by the police or security forces. The following parts of the Entry Interview bear this out:
491 Q: So apart from what you've already told me, are there any other reasons why you left
492 Vietnam?
493 A: **And in Vietnam especially for the Catholic people, they are not offered much of their right
494 and not have opportunity to get a good job.
495 Q: Keep going. So what's this got to do with why you're here?
496 A: **I wish that, um, I can work and I have money for to - to have the treatment for my eye.
…
507 Q: Have you come to Australia to get treatment for your eye?
508 A: **Um, yes, it's for the treatment and have job to do and I'd expect that
I’m going to be offered
509 permission to stay in Australia.
510 Q: Why do you expect this?
511 A: **Because back home I have been discriminated. I was not respected as a normal person.
…
519 Q: Apart from what you've mentioned, are there any other reasons why you left Vietnam? So
520 apart from what you've already told me, are there any other reasons why you left Vietnam?
521 A: **I don't want to live in Vietnam because the policy of Vietnam is no good.
522 Q: What policy?
523 A: **Like, human right is not fair and election is unfair. Like, it has been arranged but election is
524 very unfair.
…
538 Q: Did your smuggler say anything else about Australia? Did your smuggler tell you anything
539 else about Australia?
540 A: **Yeah, I was told that there's freedom about religion and compared with Vietnam actually it
541 is said that freedom in religion but the reality is different. There's no freedoms in religions.
…
641 Q: Were you ever arrested or detained by the police or security organisations?
642 A: **No.
643 Q: Did the police and security or intelligence organisations impact on your day-to-day life in your
644 home country?
645 A: **What do you mean?
646 Q: Were you bothered by authorities on a regular basis or did organisations like the police
647 impact your day-to-day life?
648 A: **When I was little and I was playing in the street and I was assaulted by the people.
649 Q: Sorry, I'm not talking about when you were little. I mean now, did the authorities impact on
650 your day-to-day life now?
651 A: **No, as I haven't done anything wrong.
50 Significantly, the applicant was afforded a substantial opportunity to articulate his reasons for leaving Vietnam and seeking asylum in Australia. His responses were at a high level of abstraction in which he generally identified his dissatisfaction with the government’s attitude to religious freedom and human rights. On occasions when it might have been expected he would do so, he did not mention being detained while building a church, kept confined for two days, beaten and interrogated. Importantly, he was asked a direct question about whether he had been detained by the police or security agencies and he answered “No”. He was also asked whether he had been bothered by the authorities or police and as to their impact on him in his day-to-day life. Again, he answered in the negative. These responses are entirely consistent with the Pham translation as construed above and, in particular, that in that specific part of his interview, the applicant was speaking generally about the authorities’ attitude to Catholics and not about his personal circumstances.
51 When read in the context of the whole of the Entry Interview, the Pham translation is benign insofar as it is relied upon to support the submission that it raised the claim which the applicant subsequently made in his statutory declaration. It would not have raised that claim in any manner which would have been apparent to the interviewer or to the IAA at the subsequent hearing. It follows that the Pham translation did not falsify the IAA’s conclusion that the applicant had failed to raise that claim at the Entry Interview.
52 It was further submitted on the applicant’s behalf that, had the answer been interpreted in accordance with the Pham translation, the interviewer would have obtained further information through follow-up questions. With respect, that submission necessarily involves substantial speculation and as the translation raised only generalised assertions about the activities of the police or security forces, it is difficult to see how any further questions would have altered the position. In any event, more specific questions were asked of the applicant later in the interview as to whether the authorities impacted his day-to-day life, and he answered “No, as I haven’t done anything wrong”. It might be presumed that had he been asked that question as a follow up question (in response to the answer identified in the Pham translation), he would have given the same answer.
53 Similarly, he was asked whether he had been arrested or detained by the police or security forces and he denied that he had. It is difficult to think that any more conclusive statement could have been given. Although it was submitted on his behalf that at the time when this question was asked of him the interviewer had moved on to questions of political activities, there is nothing which supports that contention. On the contrary, the immediately preceding questions were directed to the applicant’s religion as a Catholic.
54 It follows that if the proposed ground of appeal were allowed to be agitated it would fail at a basic and factual level. Even if the Pham translation is accurate, it could not be said that the applicant had raised by it the claim which he subsequently did in his statutory declaration.
55 Given the above conclusion, there is no need to consider whether, had the substance of the Pham translation actually raised the claim that the applicant had been arrested, detained and beaten, the result would have been any different. However, it is relevant to note that there were a not insubstantial number of other matters which the applicant had failed to raise at the Entry Interview and those omissions were also relied upon by the IAA to undermine his credibility.
Conclusion as to the existence of a translation error
56 Although it might be said that the relevant translation given at the Entry Interview was incorrect, it was not causative of any operative error. The relevant issue was the IAA’s determination that the applicant had not raised at that interview the claim which he subsequently did in the statutory declaration given in support of his SHEV application. Even if it is assumed that the Pham transaction was correct, it did not raise that subsequent claim with the consequence that the IAA’s conclusions as to credibility remained unaffected. The consequence is that the erroneous translation did not undermine the veracity of the IAA’s determination. To the extent there was an erroneous translation, it was irrelevant to the IAA’s determination.
57 That conclusion effectively renders it unnecessary to determine whether a mistranslation error leading to a finding that an applicant lacked credibility could fall within the type of error referred to by the High Court in DVO16. The Minister submitted that it could not, however, that would seem to be a rather too narrow reading of that decision. As the High Court observed, the core element of the IAA’s duty is to assess the claims to protection in fact made against the criteria for the grant of the visa in determining whether it is satisfied the criteria have been met. If a mistranslation has the consequence that the applicant’s credibility is destroyed such that his evidence is disbelieved, it might be said that the IAA will be prevented from performing its duty just as much as if, as a result of the mistranslation, the claim was not advanced at all.
58 That, of course, was not the case here. The mistranslation did not prevent the IAA from performing its function of assessing the applicant’s claim against the criteria for the grant of a protection visa. It did not prevent it from understanding the substance of the claims which were made or from considering their veracity as against the specified criteria.
Conclusion on the application for an extension of time
59 On analysis, the applicant’s proposed ground of appeal fails at a basic factual level. On the evidence, it does not raise a question which requires the application of the principles discussed in DVO16. It has insufficient merits to support the granting of an extension of time under r 36.05 of the Rules. In the result, the application for an extension of time should be refused.
60 There is no reason why the applicant should not pay the Minister’s costs of the application.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Collier, Rangiah and Derrington. |
Associate:
