FEDERAL COURT OF AUSTRALIA

Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172

MIGRATION - application to review decision of Refugee Review Tribunal - provision of an interpreter below the professional standard - Tribunal member did not complete section of form that made provision for the member to approve an interpreter of below professional level - misinterpretations of applicant’s evidence by interpreter during hearing - whether misinterpretations had an effect on the Tribunal member’s assessment of applicant’s credit - whether in circumstances the inadequate standard of interpretation denied applicant the opportunity to be heard or to appear to give evidence (ss 425(1) or 427(6) of Migration Act 1958 (Cth)).

Migration Act 1958 (Cth) ss 65(1), 415, 424, 424A, 424B, 424C, 425, 425(1), 425A, 426, 427(6), 427(7), 476(1)(a), 476(1)(b)

Migration Legislation Amendment Act (No 1) 1998 s 2(2), cl 20(1) of Sch 3

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 applied

Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555 discussed

Khelifi v Minister for Immigration and Multicultural Affairs [2000] FCA 791 discussed

Habtegebrial v Minister for Immigration and Multicultural Affairs [1999] FCA 1470

referred to

Paramananthan v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren and Merkel JJ, 21 December 1998, unreported) cited

Meadows v Minister for Immigration and Multicultural Affairs (Merkel J, 23 December 1998, unreported) cited

Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 288 cited

Saadik v Minister for Immigration and Multicultural Affairs [1999] FCA 825 applied

Abebe v The Commonwealth (1999) 197 CLR 510 referred to

Yi Gui Stone v Minister for Immigration and Ethnic Affairs (Hill J, 28 June 1996, unreported) referred to

KEO LONG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S 7 OF 2000

MANSFIELD J

ADELAIDE

23 AUGUST 2000

THE COURT ORDERS THAT:

1.         The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) given under the Migration Act 1958 (Cth) (“the Act”) on 23 December 1999.  The Tribunal affirmed a decision of a delegate of the respondent, made on 4 February 1998, to refuse to grant the applicant a protection visa under the Act.

2                     It is a criterion for the grant of that protection visa that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (“the Convention”):  s 36(2).  The delegate of the respondent, and on review the Tribunal, must be satisfied that the criterion exists before granting the visa  s 65(1) and s 415 of the Act.  In practical terms, that means that he had to satisfy the delegate of the respondent, and on review the Tribunal, that he was a refugee as defined in Article 1A(2) of the Convention.  That Article of the Convention relevantly defines a refugee as any person who:

“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …”

3                     The applicant is of Cambodian nationality and was born in July 1950.  He is a Buddhist.  Before the Tribunal he claimed that he had worked as a trader in machinery parts between 1971 and 1975.  He was then forced to undertake labour during the Pol Pot regime from 1975 before returning to his former occupation.  Between 1990 and 1994, he was a director of planning for an import/export company called Sarimexco Company (“Sarimexco”).  He claimed that that company was owned or controlled by General Toch Sakhan, who was also the Commander of Planning in the personnel office of the Ministry of National Defence.

4                     The applicant told the Tribunal that General Toch Sakhan supported the Funcinpec Party in Cambodia.  As his employer did so, the applicant also adopted support of that party.  He claimed to have become engaged in getting information on behalf of that party concerning supporters of other political parties in Cambodia, and in supervising others who were doing that work.  He also claimed that his work took him frequently to the Cambodian Vietnamese border where he was required to undertake checks of Vietnamese troop movements and on the movement of Vietnamese who had developed positions close to government in Cambodia.  As a result, he claimed that in 1994 the Cambodian Peoples Party (“the CPP”), the principal political party in Cambodia opposed to Funcinpec, learnt of his activities.  He was threatened by two men in February 1994 and was told that if he continued his activities on behalf of Funcinpec he would be killed.

5                     In October 1994, the applicant left Cambodia and came to Australia.  He entered Australia under a Business Visa, in which he was described as the Director of the Planning Department of Sarimexco (although he did not hold that office).  He said that this was a fabrication by his employer who helped him to get out of Cambodia, including helping him to avoid security checks.  In July 1995, his first wife died in a motor vehicle accident in Phnom Penh.  He claimed that she was killed as an act of revenge against him.  Whilst in Australia he kept a low profile and, he said, did not associate much with other Khmer people.  He said that was because he had a fear of being sent back to Cambodia.

6                     On 14 January 1998 the applicant was arrested by the Department of Immigration and Multicultural Affairs Compliance Officers.  That was over three years after his arrival in Australia.  He then, for the first time, applied for the visa on 16 January 1998.  He claimed that, as an active member of Funcinpec but without any international profile (so that he was not likely to be protected on the basis of the existence of a risk of exposure to adverse publicity if he was disadvantaged), he was vulnerable to persecution if he returned to Cambodia because of his profile in Funcinpec.

The Tribunal’s reasons

7                     The Tribunal was not satisfied that the applicant was a refugee.  To qualify as a refugee, it was necessary for the applicant to satisfy the Tribunal that:

(a)                he had a fear of being persecuted for one of the Convention reasons, and

(b)               that his fear of persecution was “well-founded”.

See Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

He failed to satisfy the Tribunal on each of those elements.

8                     The Tribunal first addressed whether, having regard to the timing of the application for the visa, the applicant did have a fear of being persecuted for a Convention reason if he returned to Cambodia.  It noted that the applicant had made no attempt to seek a protection visa until he was apprehended by compliance officers, long after his arrival in Australia.  It noted the applicant’s explanation that he was fearful that he would be returned to Cambodia if he were to make such an application.  However, the delay, and the circumstances which apparently prompted the application, “make it difficult to accept that he believed he had a strong claim”.  The Tribunal noted that Australia in 1994 had established a reputation for receiving refugees from Cambodia, and one which was well known and readily recognised.  It therefore considered that the applicant could have expected his claims to have been understood and properly assessed at that time.  After arriving in Australia, the applicant came to live in Adelaide.  The Tribunal noted that that is a city with an active Khmer community.  It also noted that he married his second wife, also of Cambodian origin, after meeting her at a Cambodian community event in Adelaide.  It was therefore not satisfied that he was so anxious about his safety that he avoided contacts with other Cambodian people, despite his claim to the contrary.  It therefore concluded:

“The Tribunal is not satisfied that the applicant had a genuine convention-related fear [of persecution] which explains his failure to make an application for protection within a reasonable time of arriving in Australia.  However, it has gone on to assess the claims he has made as though this was a genuine fear.”

9                     The Tribunal then addressed the question of whether, assuming the applicant had a genuine fear of persecution for a Convention-related reason if he returned to Cambodia, that fear was well-founded.

10                  It accepted that he had suffered terribly during the Pol Pot regime.  However, because there had been a substantial change in Cambodia since the break-up of the remaining Khmer Rouge groups, it was not satisfied that that experience provided a reason for an ongoing well-founded fear of persecution.

11                  The Tribunal accepted that the applicant was a member of Funcinpec, and for a time worked as an informer for Funcinpec.  It also accepted his evidence that he joined that party because it was the one favoured by his employer, rather than because he himself held strong political opinions.  Nevertheless, it accepted that the joining of that party led to the possibility of a political profile being imputed to him.

12                  However, the Tribunal was not satisfied that the applicant’s account of his role as an informer who went to the Vietnamese-Cambodian border on work and so that he could report back on Vietnamese troop movements was accurate.  It gave reasons for that view:  his inexperience in military matters; the fact that there were many more people better placed than he to provide such information, including other Funcinpec members, even though his work as a trader may have taken him to the border areas; and his inability to relate in detail any particular piece of information which he took back with him from a visit to the border.  It therefore did not accept that he played any significant role in that respect.

13                  It also addressed the applicant’s claim that he had acted as an informer within Phnom Penh itself.  The Tribunal accepted that he may have done so, particularly in the 1993-1994 period, and that the identify of Vietnamese who were serving the Cambodian regime were of interest to Funcinpec.  However, it did not regard the applicant’s role as an informer as sufficient to explain a continuing interest in him, nor why his employer should go to elaborate lengths to get him out of the country.  It noted that the applicant was able to provide a description of only one Vietnamese person working in a significant position who he had identified, and the applicant could not indicate why he and he alone, compared to others, was able to obtain that information.  It regarded it as implausible that his employer should need to rely upon his role as an informant, rather than others within the government.  The applicant did not identify any other activities which, even on his own evidence, warranted him holding an ongoing fear of reprisal, although he continued to assert that he was at risk for his role as an informer about Vietnamese activities.

14                  The applicant claimed that it was in response to the fear of persecution by reason of his role as a Funcinpec informer that he was forced to flee Cambodia.  The Tribunal also rejected that claim.  It was satisfied that he left Cambodia on a valid passport, under his own name, and in the normal way.  It concluded that he was not a person wanted by, or at risk from, the government or one of its agencies.  It observed that, although February 1994 was the month in which he claimed to have been threatened, he did not leave Cambodia until October 1994.  It noted his claim to have been in hiding in the interim, but in fact he remained employed by his employer and he came to Australia following and pursuant to a contract with an Australian company signed on 29 June 1994 which led to the invitation to three members of his employer visiting Australia.  He procured his passport in his own name in June 1994.  Correspondence between his employer and the Australian company identified him as one of the proposed travellers, which led to him seeking a visa in his own name.  The Tribunal did not accept that the applicant only avoided the security arrangements by being treated differently from other passengers.  At the time, it noted that the police and army were mostly under the control of Hun Sen and the CPP, rather than Funcinpec (the winner of the 1993 election) so the Tribunal regarded it as unlikely that he would have been able to bypass security exit procedures.

15                  The Tribunal noted that his claim that his first wife was killed in revenge for what he had done as an informer was not substantiated in any way.  The applicant had made no contact with her after he left Cambodia.  He had made no contacts with any others in Cambodia since his arrival in Australia, apart from one letter from his children and one brief contact with his employer.  It was therefore sceptical of his claim that he was notified of the death of his wife, and the reasons for it, by Funcinpec through Funcinpec knowing his address.  It had serious doubts that he was a person who attracted serious retaliation in that manner for something he had done.  It was not satisfied that his wife’s death was other than accidental.

16                  Finally, the Tribunal addressed the current situation in Cambodia.  Following the coup in July 1997, there had been elections in November 1998 and a new government formed.  The Tribunal described these as being “changes which effect [sic] his claims”.  Funcinpec has joined in government with the CPP, and Funcinpec politicians are members of Cabinet and its supporters and members are found in various parts of government and civil service.  It is an active and recognised party in the Cambodian political scene.  Those matters led the Tribunal to the view that although Cambodia continues to have many problems including political problems:

“… the party supported by the Applicant is involved in the government.  The government was elected.  It is working.  These facts give support to a finding that the Applicant does not have a real chance of persecution for being a Funcinpec member should he return to Cambodia.”

17                  The Tribunal did not overlook the possibility that the applicant, as an individual Funcinpec member, might be the target of politically motivated violence.  It was satisfied, however, that he did not fall into that category.  It noted that he has been out of the country for five years, and that he was never a party functionary, nor a Funcinpec official of any level.  It found that, at most, the applicant had provided some intelligence information to a senior Funcinpec member.  The Tribunal concluded that “these are not the characteristics of a person whose fear of persecution for political reasons is well-founded.”

18                  The Tribunal added, however, that it accepted that the applicant continues to fear for his safety in Cambodia because he is not convinced that the 1998 election heralds a new stage of stability in Cambodia’s history.  It accepted that there are substantial criticisms of the level of recognition of human rights in Cambodia by reputable agencies.  It added:

“However, the conclusion is not that any Cambodian is thereby a refugee under the Convention.  There must still be a differential risk for a Convention reason.  The Tribunal is not satisfied that the applicant’s claims permit such a conclusion.  It is not satisfied that he has a political profile which places him at risk of harm on his return.”

It was moved to that conclusion by the changed circumstances in Cambodia, and the applicant’s absence for some five years.  It concluded that he would no longer be considered an active supporter of Funcinpec in a way which would lead to violence or threats of violence being made against him.  It also found that his low profile whilst in Australia did not give rise to any well-founded fear of persecution for a Convention reason.

The grounds of review

19                  The applicant, by amended application, seeks review based upon s 476(1)(a) of the Act.  That is, he contends that procedures required by the Act or the regulations to be observed in connection with the making of the decision were not observed.  The two particulars upon which that claim is made are:

(1)               the interpreter provided by the Tribunal failed to translate the applicant’s replies to the Tribunal’s questions accurately and in so doing failed to give the applicant the opportunity to present his evidence as required by s 425(1)(a) of the Act; and

(2)               the interpreter provided by the Tribunal pursuant to s 427(7) of the Act to enable communication to take place between the Tribunal and the applicant did not enable accurate communication between the Tribunal and the applicant to take place.

20                  The applicant has provided to the Court a copy of the transcription of the questions asked and the interpreter’s translation of the answers given at the hearing before the Tribunal, apparently as available to the Tribunal (“the transcript”).  He has also provided a certified copy of the answers of the applicant to questions by the Tribunal certified as duly translated from Khmer to English (“the translation”).  The parties are agreed that the translation is an accurate translation of the answers of the applicant given in the course of the hearing before the Tribunal as recorded at the hearing.  It is possible to compare the numbers attributed to the answers in the translation to the answers recorded in the transcript to determine the accuracy of the transcript.  It is apparent that the Tribunal may have had regard to more than the transcript, or that the Tribunal had regard to the interpretation given at the hearing (now reflected in the transcript) rather than the transcript itself.  That is because the transcript has certain answers recorded as dots or “indecipherable”, but the Tribunal has in its reasons made certain findings of fact on a topic where no clear answer is recorded in the transcript.  It is not suggested, however, that for the purpose of this application the transcript should not be taken as an accurate record of what was interpreted to the Tribunal during the hearing.

21                  The amendments to Pt 7 of the Act effected by the Migration Legislation Amendment Act (No 1) 1998 (“the Amending Act”) came into force on 1 June 1999:  s 2(2) of the Amending Act and Gazette No S 51, 5 February 1999.  As the application for review to the Tribunal had not been completed by 1 June 1999, those amendments applied to the review by the Tribunal:  cl 20(1) of Sch 3 to the Amending Act.

22                  Section 425(1) of the Act obliges the Tribunal to invite the applicant to appear before the Tribunal to give evidence and to present arguments relating to the issues arising on the review application.  Section 425A requires the Tribunal, in inviting the applicant to appear before it, to notify the applicant of the time, date and place of the hearing and of the consequences of non-appearance.  Section 426 requires that notice also to inform the applicant of his right to inform the Tribunal that the applicant wants the Tribunal to obtain oral evidence from other persons.

23                  In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 (“Perera”), Kenny J found that a failure by the Tribunal to provide a competent interpreter to assist non-English speaking applicants for refugee status may constitute a ground for review under s 476 of the Act at [17].  That, her Honour said, follows from ss 425 and 427 of the Act.

24                  Perera was decided on the terms of the Act before the Amending Act came into force.  It repealed ss 424 and 425, and substituted ss 424, 424A, 424B, 424C, 425 and 425A.  It also made certain other amendments to Pt 7 Div 4 of the Act, but they are not of moment to the present issues.  Section 427 remained unchanged.  Section 427(6) provides that a person appearing before the Tribunal to give evidence is not entitled to be represented or to examine or cross-examine any other witness.

25                  Section 427(7) provides:

“If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.”

26                  Section 425(1) previously provided that the Tribunal “must give the applicant an opportunity to appear before it to give evidence.”

27                  In Perera, Kenny J said at [20]:

“If not proficient in English, the applicant is effectively unable to exercise his right to give evidence unless an interpreter assists him.  The Tribunal is unable to give the applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter to assist.  Thus, in my view, if an applicant for refugee status is unable to give evidence in English, the effect of s 425(1)(a) is to necessitate the making of a direction, pursuant to s 427(7), that communication proceed through an interpreter.  The terms of any such direction extend to the whole of the hearing and are not limited to the applicant’s evidence.”

28                  Her Honour regarded the absence of an interpreter, where the visa applicant is unable to give evidence in English, as necessary to afford an effective opportunity to give evidence.  The absence of an interpreter in such circumstances would mean that the Tribunal lacks the jurisdiction to continue the hearing (so as to provide a ground of review under s 476(1)(b) if the Tribunal were nevertheless to proceed) or that the Tribunal if it proceeded would have failed to observe a procedure required by the Act to be observed in connection with the making of the decision (so as to provide a ground of review under s 476(1)(a)).

29                  This application has been argued on the basis that, notwithstanding the difference in wording between s 425(1) as previously expressed and as presently expressed, the decision of Kenny J in Perera on those matters should be followed.  No argument was addressed that her Honour’s reasoning was not applicable to the Act as amended by the Amending Act.  I shall, therefore, proceed on the basis that the Tribunal was obliged to provide to the applicant an effective opportunity to appear before it to give evidence by providing an interpreter at the hearing.

30                  The respondent’s contention is that the relevant issue on this application is accurately expressed by questions posed by Kenny J in Perera as follows:

“… whether the material relied upon by [the applicant] in this appeal is sufficient to make out his case that the interpretation before the Tribunal was so incompetent that he was prevented from giving his evidence.”

[per Kenny J in Perera at [38])

and that the measure of incompetence was to be determined as follows:

“Whilst the interpretation at the 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.”  (per Kenny J in Perera at [29])

31                  The respondent submits that, having regard to the responsiveness of the interpreted answers as recorded in the transcript, the coherence of those answers, the consistency of those answers both internally and with other evidence, and the absence of any evident confusion between the Tribunal and the applicant, there was no material impairment of the applicant’s hearing before the Tribunal.  Those factors were ones identified in Perera (at [41]) as touching upon the effectiveness of the interpretation, and so upon whether the applicant in that case was given an effective hearing.

32                  Kenny J in Perera was confronted with a submission that the inadequacy of the interpretation could be discerned from the terms of the transcript of the Tribunal hearing.  Her Honour did not have, as I have, a translation of the hearing and one which the parties acknowledge to be accurate.  It is clear that comparison of the transcript with the translation may itself provide information relevant to the adequacy of the interpretation at the hearing before the Tribunal.

Consideration of Submissions

33                  On 11 October 1999, the applicant was duly invited to appear before the Tribunal to give evidence, in accordance with s 425(1) and s 425A of the Act.  The applicant responded on 25 October 1999, accepting that invitation.  He indicated that he needed a Khmer interpreter to give evidence.  On 27 October 1999, an officer of the Tribunal booked a Khmer interpreter; the booking was confirmed.  In that confirmation, the Interpreter Service indicated that the interpreter was National Accreditation Authority for Translators and Interpreters (“NAATI”) Level 2.  It also ticked two boxes against the section “Reason for interpreter not professional level or above” to indicate that the reasons were

·                      very limited availability of professional level interpreters in this language/dialect,

·                      no professional level interpreter available at requested date/time.

34                  There was a section on that confirmation for the Tribunal member to complete.  It made provision for the member to approve the interpreter, despite having been informed that the interpreter was not of or above “professional level” (an expression not explained in this matter), or to reschedule the hearing when a professional level interpreter is available, or to seek an interpreter from another agency.  That section is not completed, nor signed by the member.

35                  It is clear that, for some reason, the Tribunal’s attention did not come to the information provided in the confirmation.  The respondent acknowledges that:

“The Tribunal had failed to book an interpreter of the appropriate standard.  The Member of the Tribunal had failed to consider, at the time of booking the interpreter, whether or not the interpreter was of the appropriate standard.  The hearing commenced without the interpreter identifying himself and putting on record his qualifications.  The interpreter was not sworn in until after he had commenced interpreting.

Approximately half way through the hearing the Member noticed that the friend that the applicant had brought to the hearing was writing.  When the member asked the friend what he was doing she was informed that he was noting down where the interpreter was misinterpreting and missing out segments.

The Member told the friend to stop immediately and the hearing continued.  The Member made no attempt to inquire into the possibility that there might be problems with the interpretation.”

36                  The respondent also acknowledges that the “professional level” for an interpreter is NAATI Level 3.

37                  In Perera, at [27-31], Kenny J addressed the standard of interpretation.  Her Honour noted that the following questions had not, until then, received detailed consideration in Australian cases:

·                      How bad must an interpretation be to render reliance on it reviewable error?

and

·                      By what criteria is the quality of interpretation to be assessed?

She indicated that criteria to measure the standard of interpretation include continuity so that breaks in interpretation and mere summaries of a proceeding are not acceptable.  They also include precision and competence or accuracy.

38                  Lee J in Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555 found that the Tribunal’s decision that the applicant in that case was not credible was influenced by reliance upon an erroneous interpretation of the applicant’s answers in evidence.  The errors of interpretation lead the Tribunal to make adverse findings material to the claim.  That meant that the ground of review under s 476(1)(a) had been made out.  His Honour in Khelifi v Minister for Immigration and Multicultural Affairs [2000] FCA 791 reached a different conclusion on the facts of that case.  The interpreter had indicated some difficulty with the applicant’s “heavy dialect”, and the Tribunal was aware of that difficulty and required the interpreter to repeat questions and answers to satisfy itself that the applicant had an adequate opportunity to put his case before the Tribunal.  In addition, none of the errors of interpretation concerned matters of substance able to support the submission that the applicant had been denied the opportunity to adduce evidence in support of his claim.  See also the decision of Tamberlin J in Habtegebrial v Minister for Immigration and Multicultural Affairs [1999] FCA 1470.

39                  In the present matter the Tribunal was clearly not sensitive to any difficulties of interpretation, even when the applicant’s friend raised that issue.  It was critical of the friend for making notes of alleged interpretation inadequacies, and asserted that the Tribunal had arranged for the hire of a professionally competent interpreter.  It forbade the friend from making further notes of any perceived interpretation difficulties.  Although the Tribunal did invite the applicant to tell the Tribunal of any difficulties with the interpreter, the invitation was not of particular help when the applicant could not understand the English version of the questions of the Tribunal or of his answers to the Tribunal.  His friend was directed not to note any difficulties and had no right himself to raise them.  The transcript does not disclose, either before or after that incident during the hearing, that the Tribunal took any particular steps to be satisfied that the interpretation was accurate; its questioning appears to assume accuracy.

40                  In my judgment, it is also important in a matter such as the present to have regard to the inquisitorial role of the Tribunal.  That role is clear from the Tribunal’s powers and functions, from provisions limiting the entitlement of the applicant to call witnesses, and the fact that the respondent or his Department is not in any sense a proponent of a “case” before the Tribunal.  The Tribunal decides what witnesses are to be called, and what investigations are to be undertaken (although the applicant is given the rights contained in Pt 7 Div 4 of the Act).  It conducts the hearing to which the applicant is invited to appear to give evidence and present arguments.  In practice, it conducts the questioning of the applicant, and of other witnesses at the hearing, generally by reference to written materials already received.  That role has been the subject of judicial comment in other cases:  eg. Paramananthan v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren and Merkel JJ, 21 December 1998, unreported); Meadows v Minister for Immigration and Multicultural Affairs (Merkel J, 23 December 1998, unreported); Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 288.  In Saadik v Minister for Immigration and Multicultural Affairs [1999] FCA 825, Hely J said at [19]:

“… proceedings before the RRT are essentially inquisitorial in character.  It is not an adversarial proceeding in which the applicant has a “case” raised against him or her which he or she has to answer.  RRT is not in the position of a contradictor of a case being made by the applicant:  Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [187] and [295].  The opportunity which s 425(1)(a) gives to an applicant is the right to appear before the Tribunal and give evidence.  As s 425(2) makes plain, that is not the same as a right to be heard; which carries with it the right to know the case which is to be answered.”

See also per Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 (“Abebe”).

41                  There are other provisions also directed to ensuring the Tribunal’s review is made on adequate material.  Section 418 provides for the Secretary of the Department of Immigration and Ethnic Affairs to provide the Tribunal with a statement of the findings of fact of the person who made the decision and the reasons for the decision, as well as identifying the evidence on which those findings were made and copies of documents relevant to the review.  The applicant is entitled under s 423 to provide to the Tribunal a statutory declaration, and written arguments, on relevant issues.  The Tribunal is empowered also, under s 424, to get information which it considers relevant, and to invite a person (including an applicant) to give additional evidence.  Section 424A obliges the Tribunal to take steps to give an applicant notice of certain material adverse to the applicant’s claim and to ensure, so far as is reasonably practicable, that the applicant understands why it is relevant to the review, and to invite the applicant to comment on it.  The Tribunal’s general powers include power to subpoena persons to give evidence or to produce documents and to require the Secretary to arrange for the making of such investigations as it considers necessary.

42                  In that context, the significance of the provision of a competent interpreter where one is required, and thus an accurate interpretation, should not be underestimated.  In Abebe, Gummow and Hayne JJ at 577-578 discussed the difficulties of inquiring whether a person has a well-founded fear of persecution for a Convention reason.  Amongst those difficulties, their Honours said:

“… the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.  But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.”

43                  In seeking to ascertain the facts surrounding a claim to be a refugee, an applicant’s credit is often critical.  The Tribunal in many instances has rejected an applicant as a reliable reporter of past events because of inconsistencies in, or inadequacies in, the evidence given by an applicant at the hearing.  The Tribunal’s task of identifying inconsistencies, or inadequacies, where the applicant’s evidence is being given through an interpreter, is a challenging one.  The continuity of the interpretation, and its accuracy, will be critical to the Tribunal’s ability properly to form judgments on such matters, as well as on other matters such as demeanour which may influence its finding on the issue of credibility.  Often, the way an applicant answers questions will be important.  So, too, may be the detail given in answer to questions.  That is so not merely because it may give coherence to the answer, but also because it may lead to further questioning by the Tribunal which might then, in the light of its questions and the responses, form a different conclusion about the reliability of the applicant’s evidence than it was first minded to do.  Answers bereft of detail, where detail may have been expected, may be detrimental to the applicant’s credit.  Answers bereft of detail may also result in the Tribunal not being given the insight into the applicant’s claims which the applicant wishes to give, and may deprive the applicant of the opportunity to promote or provoke further questioning by the Tribunal.  An interpretation which is not accurate, particularly if it either gives brief translated answers when a longer answer has been given, or if it presents a summary of the effect of an answer rather than the full answer, may therefore result in the applicant not having been given an effective opportunity to appear before the Tribunal to give evidence.

44                  The applicant contends that the comparison of the transcript with the translation demonstrates that the interpretation of his evidence to the Tribunal was deficient in material respects, so that there was a failure on the part of the Tribunal to give him the effective opportunity to appear to give evidence at the hearing.

45                  There are 120 questions to which answers were provided during the course of the applicant’s hearing before the Tribunal on 7 December 1999.  As one might expect, many of them are straightforward questions, and the answers are equally straightforward.  There are in some respects slightly different answers given by the applicant (according to the translation) from those which were translated at the hearing (according to the transcript), but they are matters of expression only and do not affect the meaning of the answers given.  In some respects, clearly, the answers as indicated by the translation contain more detailed information than those given by the interpreter during the course of the hearing.  In most cases the additional information does not change the meaning of the answer as given to the Tribunal through the interpreter.

46                  The applicant identified four matters which, he contended, demonstrated that the transcript was inaccurate or inadequate.  He submitted that these matters were material, in the sense that the answers given (according to the transcript) played a significant part in the Tribunal’s assessment of his credibility.

47                  The first matter concerned his activities once he had come to Australia.  After agreeing that he had not applied for a protection visa until he was taken into custody some four years after his arrival, he was asked why he had not applied for the visa earlier.  He was then asked why, as Australia had a profile in Cambodia of accepting refugees from Cambodia, he did not make his claim earlier.  The answers given were:

Subsequently, on the same topic, the following exchanges occurred:

48                  The second topic concerned the ability of the applicant to have left Cambodia in 1994 through Phnom Phen airport.  The Tribunal pointed out that he was likely to have been “picked up” as there was heavy security at the airport.  His answer is recorded as follows:

49                  The third, and perhaps the main, topic about which the applicant has concerns about the accuracy of the transcript is his role as an informer for Funcinpec.  His answers, according to the transcript, were quite stilted and ungrammatical.  However, generally the essence of the answers, compared to the translation, is given.  The particular answers which, in my view, bear specific consideration are:

(This was the point in the hearing when the Tribunal queried the applicant’s friend about taking notes.)

50                  The fourth topic was the incident when the applicant was threatened in 1994.  His answer, according to the transcript, and as translated was:

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

52                  I do not consider that the comparison of the translation with the transcript on the topics identified by the applicant demonstrate that the interpretation given at the hearing provided unresponsive answers where in fact responsive answers were given.  Nor does that comparison indicate that answers were given (as interpreted) which presented information different from that which the applicant was providing.  The transcript does not, in my judgment, indicate confusion or lack of understanding on the interpreter’s part as to the direction of or subject of the Tribunal’s questioning, or as to the general nature of the applicant’s response.  In the questions and answers on the applicant’s role as an informer of Funcinpec, there is a point at which the Tribunal appears to have been given an inappropriate answer, as the next question commences with the observation that “this is getting very strange”.  The immediately preceding questions and answers, however, show that the apparently inappropriate response was in the first place given by the applicant, and then followed up by the Tribunal in the face of what is now clearly an interpreting error.  The questions and answers were:

53                  Both the translation of the last answer given and the transcript convey some discordance, but for different reasons.  The Tribunal was clearly worried about the strangeness of the answer, and sought to revisit the topic to clear up any misunderstanding.  The subsequent questions and answers indicate that it cleared up that discordance.  Apart from that one clearly incorrect answer given through the interpreter, the questions and answers identified by the applicant do not demonstrate any instances of clear misinterpretation at the hearing.

54                  However, it is also clear that the interpretation at the hearing often provided stilted and abridged answers to questions, rather than the fluent answers which the translation demonstrates were actually given.  In that respect, there was a departure from the standard of interpretation which was appropriate for the Tribunal.  That is a feature of many of the interpreted answers at the hearing, and not merely those to which counsel for the applicant has specifically drawn to the Court’s attention.  A further illustration is given by the answer to the question as to why Funcinpec used the applicant as an informer about Vietnamese troop border movements, rather than someone at the border.  The answer given was:

55                  There are two further illustrations of that laconic interpretation which indicate the nature of that departure from an acceptable standard.  They are, again, but illustrations:

56                  It is necessary to determine whether that persistent shortfall in the standard of interpretation is of significance to the determination of the applicant’s claim:  cp. Yi Gui Stone v Minister for Immigration and Ethnic Affairs (Hill J, 28 June 1996, unreported); Perera at [45].

57                  In my judgment, in the circumstances of this matter, the departure from the standard of interpretation at the hearing was not such as to result in the applicant not having been given the opportunity to appear before the Tribunal to give evidence.  The abridged form of answers, as interpreted, did result in lack of colour or detail in many of the applicant’s answers at the hearing, but I do not think that in any significant respect that caused the Tribunal to misapprehend what the applicant was saying on any important matter.  The Tribunal’s recital of the applicant’s claims, and its reasons, demonstrate in my view that it did in fact have an appropriate appreciation of his evidence given at the hearing.  The abridged interpretation has not been shown to have led the Tribunal to less than a full understanding of the applicant’s claims.  The Tribunal, when reciting the applicant’s claims, noted that the applicant said he had not applied for a protection visa earlier because he had thought that he would not be believed and would be sent back to Cambodia.  He was frightened he would be sent back.  The Tribunal in fact asked the applicant questions to test the plausibility of that claim.  When dealing with his claims about his role as an informer for Funcinpec, the Tribunal noted that the applicant claimed that his ability to speak Vietnamese was relevant to him being called upon to act as an informer.  The Tribunal accepted that he had joined Funcinpec, and that he had worked as an informer.  It rejected his claims as to the extent of that role, based in part on the applicant’s inability to identify any particular information he had gathered.  It did not receive, through the interpreter, a less than full picture on that topic.  As the Tribunal noted, it sought from the applicant on several occasions more detailed information about what he had done in that regard.  The translation confirms that the applicant’s answers through the interpreter provided the Tribunal with a sound basis for that conclusion.

58                  I also do not consider that the standard of interpretation has or might have resulted in the Tribunal failing to pursue matters which a more accurate interpretation might have provoked.  In most instances where the transcript shows less than the full answer was interpreted, the omitted words do not really add potentially significant detail to the answer translated.  Rather, the additional answer given (according to the translation) is expressed in more fluent or elegant or coherent language, sometimes with repetition or emphasis.  Moreover, the Tribunal can be seen by its questioning to have endeavoured to elicit from the applicant more specific detail of his activities and experiences.  The translation does not provide any additional information, which the Tribunal did not receive from the interpreter, and which might have led to a further line of questioning or which might have led to the applicant providing more persuasive detail of his activities or experiences.  For example, the translation does not provide any reason for the Tribunal to have further explored whether the applicant had identified more than one Vietnamese working in a prominent position in Cambodia, or for the Tribunal to have investigated whether the applicant engaged in any greater range of relevant activities than the Tribunal understood to be the case.

59                  I do not discern from the Tribunal’s reasons, that apparent unresponsiveness or incoherence or the applicant’s perceived demeanour generally played a part in its decision to reject his claims.  Had any of those factors played such a role, they may well have flowed from the unsatisfactory standard of the interpretation, rather than from the applicant in fact being unresponsive or incoherent or from him being seen to have presented himself in a way to which the interpretation may have contributed.  In my view, the Tribunal’s reasons for its findings adverse to the applicant are based upon objective matters which it identifies or upon facts of which the applicant gave evidence and of which both the translation and the transcript give a consistent picture.  One passage in the Tribunal’s reasons which indicates a qualitative assessment of his answer, namely that he did not provide any convincing description as to why he would obtain information about Vietnamese troop movements and others would not, is equally able to be drawn from the applicant’s answers on that topic in the translation as from those apparently given through the interpreter at the hearing.

60                  For those reasons, despite my view that the standard of interpretation provided at the hearing was not that which the applicant (and the Tribunal) were entitled to receive, I am not satisfied that the Tribunal failed to comply with ss 425(1) or 427(6) of the Act.  It has not been shown that in any relevant respect the applicant was not invited to appear to give evidence before the Tribunal or did not receive the opportunity to do so.

61                  In my judgment, this application should be dismissed.

Associate:

Dated:              23 August 2000