FEDERAL COURT OF AUSTRALIA

SZGYM v Minister for Immigration and Citizenship [2007] FCA 1923

MIGRATION – procedural fairness – whether a Tribunal hearing should have proceeded where a real doubt existed as to the ability of the applicant to comprehend what was being said

Held:  appeal allowed, decision quashed and mandamus ordered

Migration Act 1958 (Cth) s 425(1)  

SYYB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 24

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401

SZGYM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1837 OF 2007

GRAHAM J

12 NOVEMBER 2007

SYDNEY

THE COURT:

1.                  Orders that ‘Refugee Review Tribunal’ be added as a second respondent to the appeal.

2.                  Grants leave to the second respondent to file in court a Notice of Appearance for the second respondent.

3.                  Orders that the appeal be allowed.

4.                  Orders that the orders of the Federal Magistrate of 23 August 2007 be set aside.

5.                  Orders that the decision of the Refugee Review Tribunal made on 28 June 2005 and handed down on 19 July 2005 be quashed.

6.                  Orders that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application made on 14 March 2005 for review of the decision of the delegate of the first respondent to refuse to grant the appellant a protection visa.

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

REASONS FOR JUDGMENT

1                     The appellant was born in Fujian in the Peoples’ Republic of China on 25 January 1965. 

2                     In her application for a Protection (Class XA) visa, which was lodged on 3 December 2004, it was indicated that her relevant language was Mandarin.  Question 8 in section C of her application asked:

‘If you are called for an interview, will you need an interpreter?’

If the question was answered in the affirmative, as it was, it was followed by a further question:

‘In which language(s) and dialect?’

To which the answer provided was ‘Mandarin.’

3                     The appellant arrived in Australia on 24 October 2004.  Her application for a Protection (Class XA) visa was refused by a delegate of the Minister on 8 February 2005. 

4                     The appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision, her application having been filed on 14 March 2005.  In that part of the application form which asked:

‘Do you need an interpreter?’

her application included an affirmative response.  In relation to the further question:

‘If yes, in what language?’

The form was completed with ‘Mandadin (sic)’ and no dialect was indicated. 

5                     The appellant was invited to attend a hearing of the Tribunal, following advice that the Tribunal had considered the material before it in relation to her application, but was unable to make a decision in her favour on that information alone.  The appellant completed the ‘Response to Hearing Invitation’, indicating that she wished to attend a hearing.  In response to the question ‘Do you need an interpreter?’ her response was in the affirmative.  The language specified was ‘Mandarin’ and no dialect was indicated. 

6                     It would appear that the appellant was originally notified of a Tribunal hearing which was to take place on 27 May 2005. 

7                     Following a discussion between the appellant’s husband and an officer of the Tribunal on 18 May 2005, it was indicated that the appellant’s hearing would be rescheduled to a date on which both her application for review, that of her husband and that of a son, could all be dealt with by the Tribunal on the one day.  The revised date for her hearing was 9 June 2005.  The court book includes a file note of 18 May 2005 that noted a conversation between an officer of the Tribunal and the appellant’s husband.  Amongst other things, the file note recorded:

‘… they preferred “Fuzhou” dialect interpreter to “Mandarin”; though they could go ahead with “Mandarin” interp., but would be with difficulty; …’

8                     In a letter from the Tribunal to the appellant of 19 May 2005, the following sentence appeared in English:

‘As requested by your husband, the Tribunal will try to arrange a Fukkien/Fuzhou dialect interpreter for this hearing.’

9                     Subsequently, in a letter dated 27 May 2005 to the appellant, advising her of the revised hearing date of 9 June 2005, a sentence appeared reading:

‘Please be advised that an interpreter in the Fuzhou dialect has now been secured for your hearing.’

Once again the letter recording that information was expressed in English.

10                  A further ‘Response to Hearing Invitation’ provided by the appellant indicated that she needed a Mandarin interpreter and no dialect was nominated. 

11                  The Tribunal’s hearing record of 9 June 2005 discloses that a hearing commenced at 12.55 pm and an interpreter was provided.  The interpreter’s name was recorded in the record, along with his agency.  The language recorded was, ‘Mand’, which has been crossed out, followed by ‘Fuzhou-Mandarin’.  There was also an indication ‘Lvl – 3 Mand.’ 

12                  The ‘FINDINGS AND REASONS’ of the Tribunal Member of 28 June 2005 included:

‘The Applicant’s claims may be summarised as follows.  The Applicant claims to be a Christian and to have organised religious gatherings at her home.  She claims that for these reason (sic) the authorities in China sought to arrest her and she fears arrest should she return to China.  The Tribunal finds as follows.

The Tribunal has come to the conclusion that the Applicant is not credible in respect of key aspects of her claims for protection.  Not being satisfied in respect of these aspects of her claims, which are discussed below, leads the Tribunal to conclude that the Applicant is not in genuine fear of persecution nor is there a real chance of persecution on her return to China.

The Tribunal considers that the Applicant’s oral evidence in respect to (sic) her religious beliefs and practises (sic) was equivocal and hesitant.  She was unable to provide any meaningful detail on her claimed religious convictions or her religious associations such that the Tribunal cannot be satisfied that the Applicant is a Christian.  The Tribunal does not accept as plausible the Applicant’s claim that her inability to elaborate on her claimed religious beliefs is for reasons that she easily forgets things, is illiterate and that she was unable to participate in the religious gatherings in her home because she was busy preparing refreshments and therefore has limited religious knowledge. …’

13                  The Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa to the appellant.

14                  It would appear that by an application filed 12 August 2005 the appellant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the decision of the Tribunal.  An Amended Application dated 11 October 2005 was apparently filed on 13 October 2005.  That application was the subject of some adjournments before it was heard on 9 August 2007 by Federal Magistrate Barnes.

15                  On 23 August 2007 the learned Federal Magistrate ordered that the application be dismissed and that the appellant pay the first respondent’s costs fixed in the sum of $5,500. 

16                  A Notice of Appeal was filed in this Court on 11 September 2007.  The grounds of appeal were expressed as follows:

‘1. Refugee Review Tribunal had bias against me and did not make fair decision for my application

2. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge did not give me a chance to provide more document.  The Judge refused my application on my hearing date.  It is not fair.  I am Christian.  I will be persecuted if I return to China.

3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court.’

17                  When asked to amplify her grounds of appeal the appellant had little to say.  She indicated that she was very nervous and one can understand her circumstances in that regard.  She said in relation to ground 1 words to the effect ‘I am a Christian.  I told the truth in the hearing.’  In respect of ground 2 she really pleaded for the Court to give her a ‘fair judgment’, indicating that she was a Christian.  In relation to ground 3, she indicated that she had told the Tribunal Member the truth and that because of her limited education she could not express herself well.

18                  She indicated that whilst the matters of herself, her son and her husband had all been before the Tribunal at the one time they ‘went inside separately’.  When asked by me whether she was able to understand the interpreter’s interpretation of English she said ‘I was able to understand some of it, some of it I was unable to understand’.  She then made an observation about her lack of education and lack of knowledge of the law.

19                  Her observation that she was able to understand some of the interpreter’s interpretation from the English language and that she was unable to understand some of it is not a matter in respect of which she provided any evidence in the hearing before the learned Federal Magistrate.

20                  There is one aspect of this case which causes me concern.  It is to be found in a passage from the ‘DECISION RECORD’ of the Tribunal Member which, under the heading ‘Claims as stated at the Hearing’, included the following:

‘The hearing was conducted with the assistance of an interpreter.  The interpreter spoke both Mandarin and Fuzhou dialect.  At the commencement of the hearing the interpreter raised some concerns about in which language he would be interpreting.  He stated that he had already spoken with the Applicants and he did not feel that Fuzhou dialect is their particular dialect.  The Tribunal then raised with the Applicants the possibility of the hearings being conducted in Mandarin.  The Tribunal noted that the Applicants had, in lodging their protection visa application, each listed that their language was Mandarin, and in their application for review had also stated that their language was Mandarin.  Also, in their response to the hearing invitation, both the Applicant husband and the Applicant wife had requested an interpreter, and had stated that they wished to have a Mandarin interpreter, and did not nominate any particular dialect.  The Applicant husband and wife agreed that they could conduct the hearing in Mandarin and it was agreed that if the Applicants experienced any difficulties with interpreting, then questions could be repeated and they were invited to raise their concerns as the hearing progressed.’

21                  It seems clear upon the authorities that an applicant seeking a review before the Tribunal cannot complain about imperfection in translation unless evidence is called to establish what was said and what ought to have been the relevant translation in circumstances where a misinterpretation might be seen to be of importance.  What concerns me about the present case is not one of interpretation so much as one of comprehension.  There is also the added difficulty that the hearings of the husband and the wife and the son proceeded together. 

22                  In the Tribunal’s reasons the Tribunal Member pointed out that because the husband, wife and son had lodged separate applications for review they were each entitled to a separate and distinct hearing.  The Tribunal Member then recorded:

‘… The Applicants each stated that they were happy to do the hearing jointly.  The Tribunal suggested that it could conduct the initial stages of the hearing -that is the explanation of the Refugee Convention and the process that the Tribunal will follow in the hearing with all three present but would then take evidence distinctly and individually from each Applicant with out the presence of the other two Applicants.  The Applicants agreed to this process.’

23                  In SYYB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 24 Mansfield J considered a case where an issue was raised in respect of an Albanian interpreter who was said not to have been proficient in the Tosk dialect.  In his reasons for judgment his Honour said at [11]-[12]:

‘11     The Tribunal conducted a hearing on 28 January 2005.  An Albanian interpreter was present.  The applicant had asked for a Tosk dialect Albanian interpreter, and the interpreter present did not speak that dialect well.  The hearing was adjourned.  It next took place on 18 February 2005.  Again, the interpreter was said by the applicant not to be specifically a Tosk dialect speaker, although the interpreter said he commonly interpreted in the Tosk dialect.  The Tribunal observed that the applicant and her husband appeared to be speaking fluently with the interpreter, and that the interpreter had previously in a number of other matters interpreted in the Tosk dialect.  In the course of the discussions about the competence of the interpreter, the applicant in English said she wished to proceed with the hearing.   Thereafter, at her election, she conducted the hearing in English, although on a number of occasions she sought the assistance of the interpreter, and the interpreter appears to have interpreted parts of the course of the hearing to the applicant’s husband.  The applicant had her migration agent present during the hearing.

12      In my view, the applicant has not shown that she was in effect deprived of a hearing by the Tribunal by any failure to provide a competent interpreter for her at the hearing.  It provided an Albanian interpreter, and there is nothing to indicate the interpreter could not effectively interpret the applicant’s statements, or the Tribunal’s statements to the applicant, using the Tosk dialect.  Indeed, the applicant herself said she could understand the interpreter, and that the difficulty arose only in the case of her husband.  The transcript of the hearing does not demonstrate any apparent difficulties in interpretation.  It flows naturally, and there are no obvious examples of inappropriate answers to questions or answers which are not responsive or meaningful so as to suggest there was any misunderstanding between the applicant and the Tribunal, either when she was speaking in English or when she was speaking through the interpreter.  The particular references to the transcript to which I was taken by the applicant do not indicate any interpretation difficulties.’

24                  In the present case it seems clear to me that the appellant does not have a proficiency in the English language and one may infer that she did not have any such proficiency at the time when her matter was before the Tribunal.  It is true that she has offered no evidence of any misinterpretation. 

25                  Procedural fairness in the present case required a fair hearing.  The particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]-[26]).

26                  Section 425 of the Migration Act 1958 (Cth) (‘the Migration Act’) relevantly provided:

‘425(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.’

27                  Whilst there is no provision in the Act dealing with the engagement of interpreters it is evident that a meaningful opportunity to give evidence and present arguments in the case of a person who is not fluent in the English language will only be afforded if an interpreter is present and it is evident that, subject to a reasonably accurate interpretation, that which the applicant wishes to convey to the Tribunal and that which the Tribunal wishes to convey to the applicant is fairly interpreted. 

28                  Section 425 was considered by the High Court in its recent decision in SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401 (‘SZFDE’).  In that case the High Court held that the fraud of a migration agent upon his clients, which resulted in a non-attendance before the Tribunal, merited the description of ‘the practice of fraud’ on ‘the tribunal’.  The Court said at [32]:

‘[32]    … Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution, the subversion of the processes of the tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.’  (footnote omitted)

29                  This of course is not a case where the effect of a notice inviting an applicant to a hearing before the Tribunal was stultified by fraud, as was the notice in SZFDE.  However, in my opinion a fair hearing requires that there be no doubt at the outset that an applicant seeking review can comprehend that which is being spoken and interpreted. 

30                  The very fact that the Tribunal found it necessary to record that the interpreter in this case had concerns about which language he would be interpreting and about the fact that he did not feel that the Fuzhou dialect was the dialect of the appellant casts doubt upon any agreement which may thereafter have been made to the hearing before the Tribunal proceeding in Mandarin, with any difficulties in interpretation to be resolved by inviting questions to be repeated and concerns to be raised.

31                  It would appear that the relevant dialect with which the appellant was conversant was the Fuqing dialect.  At [24] of her Honour’s reasons for judgment the learned Federal Magistrate said:

‘24.      On 30 January 2007 the applicant’s husband told the Court that while he spoke a little Mandarin he had not understood the Tribunal questioning and that he had told the Tribunal that he needed an interpreter who spoke his dialect, which he said was “Fuqing”.  The same issues were said to arise in relation to his wife, the applicant in these proceedings.’

32                  It may be seen that when the application for review of the present appellant was before the learned Federal Magistrate, she also had before her the application for review of her husband.  It is also apparent that the appellant’s husband appears to have been the main spokesman for the applicants in the hearing before her Honour.

33                  Orders had previously been made for the provision by the first respondent of copies of the relevant Tribunal tapes and these were duly provided; no transcription was made nor were the tapes tendered and played on the hearing before the learned Federal Magistrate where the appellants appeared in person.  There was some playing of one of two tapes before the Federal Magistrate but that was for the purpose of confirming that the tape was indeed one in which the voice of the appellant’s husband had been recorded.  The learned Federal Magistrate, who apparently did not have the tapes before her in evidence, said at [29]:

‘… Those parts of the tapes played accorded with the Tribunal account of the hearings in its reasons for decision.  There was no suggestion by the applicant or by her husband that any interpretation or comprehension difficulties were raised with the Tribunal at any time by either of them.’

34                  The learned Federal Magistrate proceeded to deal with what she described as, ‘The interpreter issue’ at [30]-[43] of her reasons for judgment, and I will not repeat her Honour’s findings in detail.  At [37] she did, however, say:

‘37.      Insofar as the conduct of the hearing is recorded in the Tribunal reasons for decision it is not established that there were any difficulties in interpretation, comprehension or communication through the Mandarin-speaking interpreter.’

35                  At [43] her Honour concluded as follows:

‘43.      In all the circumstances, on the evidence before me I am not satisfied that the use of an interpreter who spoke Mandarin and Fuzhou meant that the interpretation was inadequate or that it could be said that the applicant was effectively prevented from giving evidence at the Tribunal hearing.  No breach of s.425, actual or apparent bias or other jurisdictional error arising out of use of the Mandarin-speaking (rather than Fuqing dialect) interpreter is established.’

36                  I regret to say that I have reached a different conclusion.  I am not satisfied that by proceeding with the available interpreter, in the face of his concern about the language to be interpreted and his feeling that the dialect which he spoke was not the appellant’s dialect or that of her husband or of her son, a fair hearing could ensue. 

37                  In my opinion the appellant was denied procedural fairness in circumstances where, in the light of the interpreter’s comments, an adjournment was not ordered to facilitate the provision of an interpreter who could make himself understood in the appellant’s own dialect.  The possibility of difficulties of comprehension could not properly be addressed by proceeding with an interpreter who did not speak the relevant dialect on the basis that if there were any difficulties experienced the appellant could ask for questions to be repeated and could raise her concerns as the hearing progressed.

38                  In my opinion, the appeal should be allowed and the matter should be reconsidered by the Tribunal. 

Associate:

Dated:         6 December 2007