FEDERAL COURT OF AUSTRALIA

SZSEI v Minister for Immigration and Border Protection [2014] FCA 465

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made below on 13 December 2013 be set aside.

3.    The decision dated 15 October 2012 of the second respondent be set aside.

4.    There be an order in the nature of mandamus requiring the second respondent, differently constituted, to determine according to law the appellants’ applications for review of the delegate’s decision refusing to grant a protection visa to either of the appellants.

5.    The first respondent pay the appellants’ costs of and incidental to both the appeal and the proceeding below.

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

REASONS FOR JUDGMENT

Introduction

1    The issues in the appeal are whether the Court below erred in finding that the hearing conducted by the second respondent (the Tribunal) complied with s 425 of the Migration Act 1958 (Cth) (the Act) and in particular whether:

(a)    the interpreter was permitted to engage in exchanges with the first appellant to the extent that the Tribunal member in effect permitted a delegation of the function of conducting the hearing to the interpreter other than as authorised by s 428 of the Act; and

(b)    non-translation and mistranslation by the interpreter of the Tribunal member’s questions and the appellants’ answers were such as to prevent the hearing being a lawful exercise of the Tribunal’s function and powers pursuant to ss 414 and 425 of the Act.

Summary of background facts

2    The following summary of relevant background facts draws primarily on the reasons of the Federal Circuit Court, which themselves drew on the facts as set out by the appellants in their submissions below. The summary also draws on materials in the amended appeal book in the appeal.

3    The appellants are citizens of Nigeria. They arrived in Australia on 30 October 2011 as tourists and lodged protection visa applications shortly thereafter on 4 November 2011 (the first appellant (the husband) lodged a form “C” and the second appellant (the wife) a form “D” as a member of the family unit).

4    The appellants’ claims were first set out in a statement, which formed part of the first appellant’s application for a protection visa. He claimed that his father, who was a part-time Christian clergyman, had clandestinely become a member of a cult in Nigeria, which the first appellant described as a “secret society”. The first appellant said that he was unaware of the cult until after his father died on 1 October 2011. The first appellant claimed that he had then come under a lot of pressure from the secret society when he indicated that he did not wish to join them. He said that he was threatened with serious consequences for his refusal to cooperate. He said that on 24 October 2011, he and his wife arrived home after having visited a travel agent with a view to selecting flights to travel to Australia for a planned holiday. The first appellant claimed that, on returning home, he “found out” that their twin sons (aged 8 years at the time) “were strangled to death by an unknown assailant, while my mother-in-law who takes care of them was out buying some goods”. He claimed that, moments later, he received a telephone call from a member of the secret society who claimed responsibility for the murders and threatened to inflict more harm unless he cooperated with them. At that point, he and his wife fled Nigeria.

5    It is to be noted that, from the outset, the first appellant claimed that he had “found out” about his sons’ deaths. He did not say that he had seen their bodies. As will emerge below, this has some significance to the issue of his knowledge of the cause of their deaths.

6    In his protection visa application, the first appellant described how he only became aware in October 2011 of his father’s membership of the secret society and how he had been approached by them to replace his father within the group. He said that he had refused to do so because he was a Christian and did not want to join any secret society. He said that they applied a lot of pressure to him when he refused to cooperate and that they threatened him to expect serious consequences for his continuing refusal. He said that he was subsequently visited at his home by four members of the secret society, who tried to convince him to join their group. He said he refused and that they then left but that he continued to receive threatening phone calls, including threats that he would be killed.

7    The first appellant subsequently prepared a detailed written statement dated 13 December 2011 in support of the applications for protection visas. The written statement repeated many of the matters set out in his original protection visa application. Paragraph 9 of the statement described the events which occurred on 24 October 2011 against the background of the appellants’ plans to holiday in Australia starting on 30 October 2011:

On 24 October 2011, I returned home with my wife from the air tickets sales agent office, I found out that my children were strangled to death by an unknown assailant, while my mother-in-law who takes care of them was out buying some goods. Moments later, I received a call from an unknown caller supposedly a member of the fraternity claiming responsibility for the tragic event. They threatened me to expect more if I still continue to remain adamant in my decision. At this point, this horror now dawned on me that my life and that my wife is in real danger. This tragic event therefore knocked me off balance and compels me to take decision that will secure out safety because it is obvious from this that the country is no longer safe for me to live any more. Instead of leaving Ibadan on the 29th October, we left Ibadan on 24th October for Legos (sic) and then to Australia. (Emphasis added).

8    It should again be noted that the first appellant used broadly similar language in his written statement to that which he had used in his earlier protection visa application, in that he referred to having “found out” that his children “were strangled to death”. He did not claim to have seen their bodies.

9    The protection visa applications were rejected on 2 May 2012. The delegate expressed serious concerns regarding the first appellant’s credibility and he did not believe that the appellants’ children had been murdered. In his reasons for decision, the delegate also summarised the first appellant’s evidence concerning the circumstances surrounding the discovery of his children’s deaths (it should be noted that a transcript or recording of the interviews conducted by the delegate were not in the amended appeal book). The delegate wrote:

When asked to describe the events that occurred after he discovered the deaths of his sons, the applicant’s answers became vague, inconsistent and hesitant. The applicant stated that when he found the bodies “everyone” in his building was called to attention. (Emphasis added).

10    The delegate also wrote:

I find highly vague and implausible the applicant’s account of events subsequent to the discovery of his children’s bodies. For instance I do not accept that after finding their bodies that he would not have alerted the authorities, sought assistance from any number of other people including the paramedics or ambulance service, attempted to resuscitate or assist his children or arranged to have the custody of his children’s bodies handed over to the appropriate persons… (Emphasis added).

11    The application for review of the delegate’s decision was lodged on 4 May 2012.

12    The Tribunal held a hearing on 15 August 2012 at which the appellants gave evidence, both separately and together. Amongst the documents submitted for the first time by the appellants at the hearing were medical reports to the effect that two boys bearing the husband’s surname were recorded as being dead on arrival at hospital on 24 October 2011 after one had suffered a “punctured hole injury to the frontal skull scalp with massive brain haemhorage (sic)”, while the other was recorded as having died from “multiple internal abdominal bleeding arising from sharp object penetrating through the navel and L inguinal (sic) region of the abdominal cavity”. Death certificates dated 27 October 2011 were also provided to the Tribunal, together with an affidavit sworn on 26 October 2011 in Nigeria by a friend of the first appellant, which the appellants claimed was used by the friend to obtain the children’s death certificates. They also produced at the Tribunal hearing a document which purported to be an “Extract from Crime Diary” from the Nigerian Police in Ibadan stating that the first appellant’s friend had reported the children’s deaths to the police on 26 October 2011.

13    The Tribunal member did not believe the appellants. His reasons for decision make clear that the inconsistencies in their documentation and evidence were a primary reason for that disbelief. Amongst the issues regarded by the Tribunal as important were that in the husband’s written statement he said that his children had been strangled, whereas the medical reports referred to them as having died of puncture injuries ([104]). The Tribunal did not accept the appellants’ explanations for the discrepancies ([105] - [106]). Paragraphs [104] - [106] of the Tribunal’s reasons were as follows:

Furthermore, in his original application and in his statement the applicant said that their two children had been strangled. However at the hearing before me the applicant and his wife produced medical reports stating that one of their sons ‘suffered punctured hole injury to the frontal skull scalp with massive brain haemorrhage’ and that their other son ‘suffered multiple internal abdominal bleeding arising from sharp object penetrating through the navel and L inguinal region of the abdominal cavity’.

When I put this inconsistency to the applicant and his wife in the course of the hearing before me the applicant said that he had written his application and statement according to his own understanding but he was not aware of how they had actually died and it might be different or they might have put in these documents the way they understood it. He added as referred to above that his friend in Nigeria had asked him why he had forgotten part of it and had reminded him that he used to forget things easily. He said that once he was under stress he could not think straight. He said that this was why his friend had handled the case. He said that when he had come to Australia he had been under stress and he had not been able to think straight and he had made a lot of mistakes.

As I put to the applicant, I have great difficulty in accepting that he would be confused as to whether his children had been stabbed or had suffered puncture wounds on the one hand or whether they had been strangled on the other. I accept that, as the psychologist at STARTTS said in his report, poor memory and an inability to recall certain past events are common symptoms for a person who has been traumatised. However this is not a case where the applicant has said that he is unable to remember how his children died because the event was so traumatic for him. He specifically stated in his application and his statement that they were strangled. He and his wife then produced to the Tribunal medical reports indicating a quite different cause of death. I do not accept that it is credible for the applicant to claim that he made a mistake when he wrote that his children had been strangled if, as he and his wife now claim, they were stabbed or suffered puncture wounds.

14    The Tribunal also drew adverse inferences from the first appellant’s evidence relating to events which occurred after he and his wife had left Nigeria. During his interview with the delegate, the first appellant had said that he had been told by his friend that his friend had buried the children on the same day in the burial ground and that his friend had told him that he had not contacted the police because they would not have done anything. The first appellant also told the delegate that he could not get death certificates for the children because he or his wife would need to be physically in Nigeria for that to occur. However, at the Tribunal hearing, medical reports and death certificates for the children were provided by the appellants. The documents were dated around the time the children had allegedly been murdered.

15    At [109] and [110] of his reasons for decision, the Tribunal member found:

Once again the applicant did not say at the Departmental interview, as he could have done, that he did not know what had happened after he had left Ibadan or that he could not remember what his friend had told him. He said that his friend had told him that his friend had buried the children on the same day in the burial ground, that his friend had not contacted the police and that he could not get death certificates for the two children and he gave reasons as to why his friend had not called the police and why he could not obtain death certificates.

As I put to the applicant and his wife, what this suggests is that they decided after the Departmental interview to obtain some documents which supported their story. As I put to them, the information available to me indicates that official documents can be readily obtained through bribery in Nigeria and that any official document can be forged in Nigeria (UK Home Office, Country of Origin Information Report - Nigeria, 15 January 2010, paragraphs 30.01-30.02). The applicant said that this was not how it was. He said that his friend back home had given him all the documents which they had produced and he had never bribed anyone. He said that these documents were original documents and not forgeries. He said that maybe he had not known what he had been saying at the Departmental interview. However it is difficult to accept that the applicant did not know what he was saying at the Departmental interview when he said, for example, not only that he could not get death certificates for the two children but that this was because he or his wife would have needed to be there in Nigeria in person in order to obtain death certificates.

16    In [116] of his reasons the decision, the Tribunal member concluded:

Having regard to the problems I have identified with the evidence of the applicant and his wife I do not accept that, having found their two children murdered, they did not call a doctor or the police, even though the applicant claims he received a telephone call from the secret society claiming responsibility for the murder. I do not accept that they left Ibadan a matter of hours later, leaving a friend of the applicant to bury their children. I do not accept that the medical reports, the affidavit, the ‘Extract from Crime Diary’ and the death certificates which the applicant and his wife produced at the hearing before me in purported corroboration of their claims are genuine.

17    The Tribunal also considered other aspects of the appellants’ claims to be implausible. Having regard to the Tribunal’s findings of fact, including its adverse findings concerning the credibility of both the appellants, the Tribunal did not accept that there was a real chance that the appellants would be killed or otherwise persecuted by members of the secret society if they returned to Nigeria.

The Tribunal hearing

18    An Auscript transcript of the Tribunal hearing was tendered at the hearing before the Court below. Another copy of that transcript, annotated in bold typeface, was annexed to an affidavit of an expert Yoruba interpreter situated in the United Kingdom, and was tendered at the hearing below by the appellants. The annotations are translations into English of what was said in Yoruba where that differed from what was translated at the hearing. It is important to note that the annotated transcript does not set out passages which the expert interpreter considered were correctly translated by the interpreter who was present at the Tribunal hearing. A copy of the annotated transcript was included in the amended appeal book and will be referred to below as “AB-B”.

19    The appellants submit that the annotated transcript reveals that:

(a)    the husband understood some English. This is clear from the questions that he answered directly and from the English that he said that he understood;

(b)    throughout the hearing the interpreter paraphrased into Yoruba a great deal of what was said in English by the Tribunal member, and into English what was said in Yoruba by the appellants;

(c)    the interpreter was given considerable freedom to ask her own questions of the appellants. They complain that the Tribunal member made no attempt to control these exchanges or to follow what was being said by asking the interpreter to translate these exchanges;

(d)    at times the interpreter asked the husband questions to ensure consistency of evidence, and suggested answers to him; and

(e)    there are, in the appellants’ submission, significant mistranslations.

The proceedings below

20    In their amended judicial review application, the appellants raised essentially the same grounds as those now agitated in the appeal.

21    Ground 1 of the amended judicial review application (and grounds 1 and 2 in the appeal) relates to an alleged breach of s 425 of the Act in that the Tribunal member permitted lengthy exchanges in Yoruba between the interpreter and the appellants, parts of which were not interpreted, and a claim that this amounted to an unlawful delegation of the Tribunal’s power to take evidence.

22    In respect of the unlawful delegation grounds of review, the primary judge held that:

(a)    to have jurisdictional significance, a Tribunal member’s permitting an interpreter to engage in undirected conversation with an applicant must bear on the opportunity for a fair hearing under s 425 ([14] of his Honour’s reasons for judgment);

(b)    the inquisitorial nature of the Tribunal’s processes, together with the discretion to exercise a power of inquiry did not authorise a person other than the Tribunal member to conduct the review or the hearing ([15]-[16]);

(c)    the annotated transcript did not support the appellants’ contentions. The Tribunal member was present at all times and asked questions. The relatively lengthy exchanges in Yoruba were usually because the husband had asked the interpreter questions or his answers did not address the questions asked by the Tribunal. It would not have been appropriate for the Tribunal member to intervene unless it appeared that the exchanges did not relate to the questions asked ([19]); and

(d)    in the circumstances, there was no jurisdictional error in the Tribunal permitting these exchanges ([20]).

23    Ground 2 of the amended judicial review application (and grounds 3 and 4 in the appeal) concerns an alleged breach of s 425(1) of the Act because of mistranslations or inadequate translations.

24    The primary judge described this ground as having “more substance”, but he ultimately rejected it. In [21] of his reasons for judgment, the primary judge described the relevant issue as whether “the quality of the interpretation at the Tribunal hearing significantly impacted upon the fairness of the hearing in relation to the critical issue of the applicants’ claims concerning the death of their children”. As will shortly emerge (see [29] below), later in his reasons for judgment the primary judge expressed the legal test in somewhat different terms.

25    His Honour referred to some leading cases on the issue at [22] and [24], including Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 (Appellant P119/2002); Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 (Perera) and WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 (WACO) at [66]). It might also be noted that in footnote 11 of his reasons for judgment the primary judge erroneously stated that, at the time of the delivery of his judgment, the decision of the Full Court of the Federal Court in SZRMQ v Minister for Immigration (which had been heard on 23 July 2013 and which dealt with the issue of mistranslations in a context other than s 425 of the Act) was still reserved and had not been handed down. The judgment of the Full Court in that matter (SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 (SZRMQ)) had in fact been delivered on 29 November 2013 and prior to delivery of the primary judge’s decision on 13 December 2013. Indeed, later in his reasons for judgment the primary judge acknowledged that this was the case in footnote 21. His Honour said there that the standard of interpretation had been addressed by the Full Court in SZRMQ “in a non-statutory context”, and that the majority and dissenting judgments of the Full Court “showed that reasonable minds can differ in a particular case about what procedural fairness, and the need for the appearance of procedural fairness, requires”. Accordingly, it may safely be assumed that the primary judge had the benefit of reading the Full Court’s decision in that matter. I will return below to say something further about the significance of SZRMQ to the issues raised in this appeal.

26    The primary judge also observed that, as was conceded, the first appellant understood some English and could understand the interpreter. Having regard to those circumstances, the primary judge observed at [32] that “it could not be submitted that the applicant husband was prevented from giving evidence” and that “a clear case would need to be made out that there was nevertheless a breach of s. 425 because of materially inadequate interpretation”.

27    As to the alleged mistranslations and non-translations concerning the cause of the children’s deaths, the primary judge held at [34] that the first appellant’s response as recorded in the annotated transcript “contains elements from the earlier discussion, and then conveys the explanation that the applicant husband was stressed and could not think straight when he arrived in Australia, which was his response to the inconsistency perceived by the Tribunal”. The primary judge found that there was no material misinterpretation.

28    As to the alleged mistranslations and non-translations concerning the issue of the children’s burial, the primary judge found at [35] that “the applicant husband’s rather unclear response, when the discrepancy between his claims concerning his friend’s role in the burial of his children was raised with him was in my view adequately conveyed” and that any “lack of clarity in what is stated there reflects the lack of clarity in the applicant husband’s answers to the interpreter rather than error by the interpreter”.

29    The primary judge concluded at [36]:

The applicants have not identified any interpretation error material to an adverse conclusion by the Tribunal, as would be required to establish a breach of s. 425. Rather they speculate that defects in interpretation might have been of significance. This is not in my view sufficient to establish a breach of s. 425, although I readily concede that the manner and quality of interpretation was imperfect. Accordingly this ground fails. (Emphasis added).

30    There is a real question whether that passage reveals that the primary judge applied the wrong legal test, an issue which is addressed at [111]-[114] below.

The appellants’ submissions in the appeal summarised

(a)    Grounds 1 and 2

31    Section 414 of the Act requires the Tribunal to “review” an “RRT reviewable decision” if a valid application is made to it, and where the exclusion in s 414(2) does not apply. In conducting that review the Tribunal must issue the invitation referred to in s 425(1) (i.e. invite an applicant “to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”) unless the exceptions in ss 425(2) and (3) apply, and must raise with the applicant the issues relating to the review, unless those issues have been raised previously: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] and [43]. The Tribunal is permitted to take evidence on oath or affirmation (s 427(1)(a)) and to adjourn a hearing (s 427(1)(b)). The Tribunal may also summons a person to appear or produce documents (s 427(3)). Section 427(7) provides:

(7)    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.

32    Section 428(1) of the Act provides:

428    Tribunal Member may authorise another person to take evidence

(1)    The power of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation for the purpose of a review may be exercised by the Tribunal or on behalf of the Tribunal by:

(a)    a person appointed or engaged under the Public Service Act 1999; or

(b)    another person approved in writing by the Minister for the purposes of this section;

who is authorised in writing by the Tribunal.

33    The effect of these provisions, so the appellants submit, is that the Tribunal itself must conduct the s 425 hearing, subject to there being a lawful delegation under s 428. In addition, s 427(7) carries with it the implication that the purpose of an interpreter is to act as a means of communication at the s 425 hearing. The interpreter has no other purpose.

34    The appellants acknowledge that occasionally an interpreter may attempt to engage in a conversation with an applicant, or ask further questions of him or her. The appellants submit that, in such a case, the interpreter would be acting outside his or her statutory function.

35    The appellants contend that the Tribunal member permitted lengthy exchanges which he did not understand, in which the interpreter took over the questioning and in some cases seemed concerned to ensure that the evidence of the appellants would be consistent. They contend that, elsewhere, the interpreter suggested answers to the husband. In permitting such exchanges, and in permitting them to go unchecked, the appellants contend that the Tribunal member effectively delegated part of his statutory function to the interpreter, and so acted outside his jurisdiction. They say that whether or not the resulting hearing was “fair” is not to the point, and the primary judge was in error in suggesting otherwise in [14] of his reasons for judgment.

(b)    Grounds 3 and 4

36    The appellants submit that the purpose of an interview in the current circumstances was to give the appellants an opportunity to present evidence and arguments and to address any concerns that the Tribunal may have had about their case. An issue therefore is whether the appellants truly had an opportunity to be heard, and to address the issues arising in relation to the decision under review as was required by s 425(1) of the Act.

37    On the issue of the standard of translation in the context of s 425 of the Act, the appellants draw attention to the following passage from Kenny J’s influential decision in Perera at [29]:

Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.

38    They also rely on the following summary of the relevant principles by Jacobson J in SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 (SZOYU) at [29]-[32]:

The seminal authority on the standard of interpretation is the decision of Kenny J, in Perera. Although that case was decided before s 425 of the Act was amended, it has been accepted that what her Honour said in Perera is equally applicable to s 425 in its current form: WACO at [64].

The relevant principles may be stated briefly. The standard of interpretation is not one of perfection. It need not be at the very highest standard of a first-flight interpreter but it must express in one language, as accurately as the language and circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [26]-[29]; WACO at [66].

Importantly, not every departure from the standard of interpretation denies an applicant the opportunity to obtain a hearing under s 425 so as to give rise to jurisdictional error. The onus is on an applicant to demonstrate that the departure related to a matter of significance to his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision: Perera at [38], [45]; Applicant P 119/2002 at [16]-[18]; WACO at [69]; see also SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109 at [72]-[73] (Buchanan J).

Whether any inadequacy in translation has been such as to deprive an applicant of the opportunity to have a hearing in accordance with s 425 involves a qualitative assessment of the conduct of the hearing before the tribunal as a whole: SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] (Jagot J).

39    The appellants submit that there must be reasonably efficient communication. They contend that whether or not an idea or submission is eventually communicated may not be sufficient, for mistranslations can produce the perception of evasion, of inconsistency, and of dishonesty, all of which go to credit.

40    The appellants’ submission, as noted by the Court below at [26], was that the translation before the Tribunal was so incompetent that the first appellant was prevented from giving his evidence (citing Perera at [38]), and addressing those matters which the Tribunal considered to be issues arising in the review.

41    At AB-B 36:11-14, the Tribunal member referred to medical reports “… in relation to your two children who you claim were killed in Nigeria” (see extracts from the annotated transcript at [106] below), and that in his written statement the husband said that they had been strangled. This was clearly an issue in relation to the review so far as the Tribunal was concerned. Indeed it formed a part of the reasons for refusal at [104]-[106] of the Tribunal’s reasons for decision (see [13] above).

42    Following this there was an extended exchange between the interpreter and the husband. It was not until AB-B 37:9-11 that the interpreter mentioned the Tribunal’s real concern, that the husband had said that the children were strangled and that the medical reports said that they were stabbed. After that, at AB-B 37:21-30, the interpreter, made a statement, which ostensibly translated what the first appellant had said. These extracts are set out at [106] below.

43    According to the appellants, the problems with that translation are that:

(a)    nothing in the exchange at AB-B 36-7 was translated to the Tribunal member; and

(b)    after the issue was communicated to the first appellant, the interpreter’s translation of the husband’s response was garbled and appears to have had little resemblance to what the husband actually said.

44    The Tribunal member then asked a question about the obtaining of death certificates and the circumstances of the children’s burial (AB-B 38:14-24; see extracts from the annotated transcript set out in [118] below). There followed another exchange between the interpreter and the husband which the appellants submit was not adequately interpreted (commencing at AB-B 39:7), in that it did not reflect what the first appellant had said (see [118] below).

45    The appellants submit that, contrary to the finding of the Court below, the mistranslations were material. What was before the Tribunal was a sometimes inaccurate paraphrase of what the appellants said in response to the Tribunal’s questions as inadequately translated, and in response to additional questions asked by the interpreter. They submit that the mistranslations were material in that the first appellant especially was not given the opportunity to give his evidence (citing Perera at [38]).

46    The appellants contend that it cannot be known what attitude the Tribunal member may have had if the relevant passages had been translated accurately, or indeed in some cases if they had been translated at all. In those circumstances it is impossible to say whether accurate translations would have made a difference. The most that can be said is that they may have done so.

47    It is important to note that the appellants did not argue in the appeal that the Tribunal hearing was procedurally unfair for reasons which were unconnected with the alleged mistranslations or non-translations. Mr Karp, who appeared for the appellants, confirmed that there was no separate allegation of procedural unfairness arising from the Tribunal member’s failure squarely to put to the appellants that they had seen their sons’ murdered bodies and, therefore, might reasonably be expected to have known the cause of their sons’ deaths.

The Minister’s submissions summarised

48    The Minister submits that, on a fair reading of the transcript, there was no delegation to the interpreter to conduct the hearing. He emphasises that the Tribunal member was present at all times and asked the appellants several questions in an unremarkable manner. The relatively lengthy exchanges between the interpreter and the first appellant were explained on the basis that the first appellant was asking the interpreter questions or the interpreter was seeking to clarify his answers. As those exchanges were in Yoruba, they could not have been understood by the Tribunal and there was no basis for the Tribunal to intervene unless it was patent that the exchanges did not relate to the questions asked by the member.

49    As to the appellants’ third and fourth grounds of appeal, relating to inadequate interpretation, the Minister submits that the relevant test is whether the standard of interpretation was so inadequate that the appellants were effectively prevented from giving evidence, or whether errors made in interpretation were material to adverse conclusions reached by the Tribunal against the appellants, which requires a qualitative assessment of the conduct of the hearing as a whole (citing cases such as Appellant P119/2002 at [17]-[18]; WALN v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29]-[30] (WALN) and SZRMQ (which, as noted above, dealt with the issue in the context not of a s 425 hearing, but a non-statutory hearing to which the common law requirements of procedural fairness applied)). Mr Reilly, who appeared for the Minister, accepted that the earlier cases need to be read now in light of the qualifications and comments made by the Chief Justice about the relevant principles in SZRMQ. Mr Reilly also accepted that the application of those principles requires a qualitative assessment of the conduct of the hearing as a whole.

50    Applying those principles here, the Minister submits that there was no material misinterpretation or denial of the appellants’ right to give evidence. With particular reference to the passages in the transcript complained of, the Minister contends that:

(a)    the passages at AB-B 35-37 were concerned with the discrepancy between the alleged cause of death of the twin sons as claimed by the first appellant in his protection visa application and written statement (i.e. strangling), and the contents of the alleged medical reports provided to the Tribunal (i.e. puncture and penetration wounds). While the Minister acknowledges that “there seems to have been some misunderstanding by the interpreter and the [first] Appellant at AB 36, possibly due to their not realising that the member’s concern had not yet been completely explained”, he contends that any confusion was resolved by what followed. That refers to the translation which was ultimately given of the first appellant’s evidence that he was stressed and could not think straight when he arrived in Australia; and

(b)    the passages at AB-B 38-39 were concerned with the discrepancy between the first appellant’s claims to the delegate that he could not obtain death certificates for his children and his later providing such purported certificates. The Minister contends that the explanation is adequately conveyed by the interpreter and that, although the explanation was “somewhat unclear”, this simply reflected the lack of clarity in the first appellant’s answers themselves rather than any error on the interpreter’s part. Similar submissions are made by the Minister in respect of related alleged errors in interpretation at AB-B 40:4-21 relating to the Tribunal’s doubts concerning the genuineness of the documents which were belatedly produced at the hearing.

51    In oral address, Mr Reilly drew the Court’s attention to the delegate’s finding, as set out in [9] and [10] above, to the effect that the first appellant had stated in his interview with the delegate that he had found the bodies of his children. He also emphasised that the Tribunal member said in his reasons for decision that he had the Department’s file (which presumably included the delegate’s reasons for decision) and had listened to the recording of the interview with the delegate.

Consideration

52    It is convenient to deal with the grounds of appeal under the following two broad headings: ‘unlawful delegation’ and ‘mistranslations and non-translations’.

(a)    Unlawful delegation

53    As to the alleged unlawful delegation of the conduct of the hearing to the interpreter, I accept the Minister’s submission that, on a fair reading of the annotated transcript, this did not in fact occur. The annotated transcript records that the Tribunal member caused the interpreter to take an oath of interpretation. He also had the first appellant confirm that he was not having any difficulty understanding the interpreter. He also explained to the first appellant how the process of interpretation would occur and he urged him to break up his evidence into parts so as to give the interpreter an opportunity to interpret what he was saying.

54    It is evident from the annotated transcript that there were several relatively lengthy exchanges between the first appellant and the interpreter which did not directly reflect questions asked by the Tribunal member. At times the interpreter took it upon herself to add her own gloss on matters raised by the Tribunal. For example, when the Tribunal member asked which church the first appellant belonged to in Nigeria and the first appellant responded in Yoruba that he was a member of the Baptist Church, the interpreter, without any evident prompting from the Tribunal, asked the first appellant whether he had mentioned that in his statement. And when the interpreter translated the Tribunal member’s request that the second appellant should wait outside while her husband was interviewed, the annotated transcript records the interpreter translating the request to the second appellant but then asking the first appellant in Yoruba: “Does she know everything you are talking about?”. Later, when the Tribunal member was asking questions about which church the first appellant belonged, the annotated transcript records the interpreter as asking the first appellant in Yoruba (and without any prompting from the Tribunal): “Does your wife know about this, because they may ask her?”.

55    Another illustration of the interpreter taking it upon herself to ask questions of the first appellant which had not been raised by the Tribunal member (as well as mistranslating) is reflected in the following extracts from the annotated transcript at AB-B 21:30-41 and 22:20-30:

30    MR SHORT:    And you say that after your father died you were approached by members of a secret society.

    I: “He says you stated that after your father’s death you were attacked by members of the secret society”

35

    A: I did not hear that!

I: That these cult members visited you?

40    A: Yes, they approached me and asked me to join them

    I: OK

    ...

20    A: It was when my father died

    I: “Is it when he actually died, or after his burial?”

    A: Before I buried him, they approached me

25

    I: “Is it the first week after he died that they approached you?”

    A: On the very day he died, because they actually knew of the day he died.

30    THE INTERPRETER:    He said before even bury – before they buried him.

56    The interpreter’s propensity to go beyond being a mere medium of communication between the Tribunal and the first appellant and vice versa is also evident in the following extracts from the annotated transcript at AB-B 24:24-49, which also contain various exchanges which were not translated by the interpreter:

MR SHORT:    When you say they kept on calling do you mean they telephoned you?

25    THE INTERPRETER:    He said yes, that they call him on phone, but the first time when they left – he said they just call him once on phone, but after the persuasion he can’t even remember most of those things they said to him, but all he remember was he told them he’s not interested and they left the same day. After that day they left they called him I think once and he – when he

30    said “No” still, think that’s the end of it.

    A: They left but kept calling me to join

    I: “Were you given time?”

35

    A: Yes they did but I told them I had no interest because my Dad… and I can’t join.

    I: “So, did they keep calling and threatening you.?”

40    A: They kept calling that I should join…

    I: “Did they leave in anger?”

    A: No

45

    I: “They were not angry… just left”

    A: They said I should join, but I said that I have no interest.

57    Similarly, at AB-B 31:26-32:10 there are lengthy exchanges between the interpreter and the first appellant which were not translated:

MR SHORT:    So what do you fear will happen to you if you return to Nigeria now?

A: Number one (firstly), we have had another baby. If we are to go back to Nigeria in the state that we are in…

30    

    I: So you will not know what will happen to you?

    A: I will not know what will happen, and I will not continue to loose my family Because as I am now, I am not secure

35

    I: So you are not secure?

    A: I am not secure. I am not OK. So, if I go back to Nigeria, what will be my gain, because we have been expecting this baby for so many years. I

40    was hoping to have 4 or 5 babies and my wife was pregnant when the incident happened.

    I: Is it when the incident happened?

    A: When the incident happened. So now, the one she has now… if I have to…

45

    I: … Return back home?

    A: They will kill this child, and I see that this child is a gift from God to me.

…

    I: He said after the incident, it took his wife several years to conceive. So now that they have the baby, he is very scared to take the baby back home.

    THE INTERPRETER:    He said after the incident it took his wife some years

5    before she was able to conceive. So now that he has a baby that he’s very scared of taking the baby back home because he said his dream is to have, like, four to five children, but they’ve killed two now. Now they are starting all over again. So he said he doesn’t know… - by the time he go back home with his family again he don’t know where they will attack; maybe they will

10    kill the children or one of his family, so he’s scared to go back there.

58    The following extracts reveal further exchanges between the interpreter and the first appellant which were not translated and also contain mistranslations (at AB-B 35:35-36:9):

35    MR SHORT:    What I’m going to do now, Mr and Mrs XX, is I’m going to give you some information which I consider would be the reason or part of the reason for affirming the decision under review. I will explain the information to you both so that you understand why it’s relevant to the

40    review. I will also explain the consequences of the information being relied upon in affirming the decision under review. I will ask each of you to comment on or to respond to the information. If you want additional time to comment or to respond to the information, you can tell me – okay? – and I will then consider whether to give you additional time.

    I: He says that what he is going to do now is to pass to the Review Panel,

45    all that he has written down, as evidence of what you told me has happened. I will explain to you what the outcome will be of what you have told me. He said he will allow you to respond to whatever he says.

    A: Is it me?

    I: Maybe it is the two of you.

    I: He said he will give you time to think before you reply. Let him know. Then he will consider giving you more time after you have thought about it.

5    A: What?

    I: That you should reply to whatever he will ask of you. He said you should think of it before you reply. He wants you to let him know after you have thought about it.

59    Other exchanges as recorded in the annotated transcript were not translated. They include exchanges at AB-B 36:16-50, AB-B 37:6-19 and 38:26-39. Those passages are also relied upon by the appellants in support of their contentions concerning mistranslations and non-translations and some of the relevant passages are set out at [106] and [118] below.

60    At other times, the annotated transcript records the interpreter suggesting to the first appellant answers to some of the Tribunal’s questions. For example, when the Tribunal asked the first appellant whether he called a doctor after his wife fainted, the annotated transcript records the first appellant as saying in Yoruba that he did not, but the interpreter is then recorded as asking him in Yoruba (again without any prompting from the Tribunal): “Is it because you were confused?” (AB-B 26:25). The first appellant responded to that question from the interpreter by saying that he was not ok. The interpreter is then recorded as saying in English to the Tribunal: “He said he was so confused that he didn’t call the doctor, so… people that was helping... was actually attending to her, that he was so confused crying” (AB-B 26:29-31).

61    There was also an unsolicited exchange between the interpreter and the first appellant in the context of the Tribunal’s questions to the first appellant as to whether he called the police. After the first appellant said that he had not, the annotated transcript records the interpreter asking the first appellant, without any prompting from the Tribunal, “Is it because of your fear?” (AB-B 28:26). No response from the first appellant to that question is recorded in the annotated transcript.

62    Later, in the context of the first appellant responding to the Tribunal’s questions regarding packing for the trip to Australia and saying that they had left hurriedly and packed only a few things, the annotated transcript records the interpreter as saying to the appellant: “That is OK!” (AB-B 30:45).

63    Other aspects of the translation of other parts of the first appellant’s interview are relied on by the appellants. For example, in the annotated transcript at AB-B 35-37 (large parts of which are set out at [106] below), the Tribunal member is recorded as drawing the first appellant’s attention to the fact that he said in his application and in his written statement that his two children were strangled. After starting to translate by saying in Yoruba to the first appellant that “He said in that application that you wrote…”, the interpreter then stopped the translation and added her own comment in Yoruba to the first appellant that “You should know what he is talking about…”. There are many other examples in those extracted passages (see [106] below) where the interpreter added her own observations and commentary to the first appellant in Yoruba on what the Tribunal member was saying, rather than simply faithfully and accurately interpreting the Tribunal’s questions and the first appellant’s answers.

64    The same may be said in respect of the second appellant’s interview where there are also instances of incorrect translation. That is the case in the exchange which is recorded in the annotated transcript at AB-B 34:25-44 on the important issue of the second appellant’s knowledge about the cause of her sons’ deaths (relevant passages are set out in [102] below). It is to be noted that the Tribunal member initially put to the second appellant that her husband had said that “when you returned home you found that your two children had been killed”, which was then erroneously translated by the interpreter as “when you returned home that you noticed that your two kids have been killed” (emphasis added). The annotated transcript then records the second appellant as saying in Yoruba that “It was when we returned home that we found out that….”, which is then translated by the interpreter as “He (sic) said yes, that when they go home that was when they saw the incident” (emphasis added), which is a very different thing.

65    When the Tribunal member then asked what the second appellant and her husband did after that, the annotated transcript records the second appellant as saying in Yoruba: “When we got home and saw what had happened, I fainted and even didn’t realise when I fainted. I did not know what happened after that”. That is then interpreted by the interpreter as follows: “Okay. She said when she saw the incident that she collapsed. Now, so every other thing that was happening she was not aware of it, that because she is already – she didn’t even know where she was”. It is unclear whether the second appellant’s recorded use of the word “saw” in that exchange was a conscious and deliberate use of that word, or simply adopted the interpreter’s mistranslation of her earlier evidence, which was broadly consistent with her husband’s evidence, namely that it was when they returned home that they found out that their children had been killed.

66    I do not consider that these examples substantiate the appellants’ claims of unlawful delegation, but many are relevant to the separate claims of mistranslations and non-translations, which I will deal with below (and involve some repetition of relevant parts of the annotated transcript).

67    I accept the Minister’s submission that, because many of these exchanges took place in the Yoruba language and involved only the interpreter and the first appellant, the Tribunal member was presumably unaware of their content. Plainly, the Tribunal member ultimately produced a decision which is based on the English translation of what was said by the first and second appellant in Yoruba and not on the exchanges in Yoruba between the interpreter and the appellants which were not translated into English. It may well be that the Tribunal member should have kept a tighter rein on the interpreter and sought to confine her to the task of interpretation and to avoid commentary or glosses, but his failure to do so is probably explicable by the fact that he was not aware of what was happening. Such an awareness could only be achieved if the relevant exchanges in Yoruba were translated, which in many instances only occurred after the Tribunal hearing and when the appellants obtained the annotated transcript. In circumstances where the Tribunal member had reasonably asked the first appellant to give his answers in a way which would facilitate effective translation, by breaking them up, it would have been all the more difficult for the Tribunal to know whether or not the interpreter was overstepping the mark because of a series of exchanges in another language between the interpreter and the witness.

68    In my view, while it is evident that the interpreter exceeded the proper role of interpreter on various occasions, this does not demonstrate that the Tribunal member unlawfully delegated the conduct of the hearing to the interpreter or that the interpreter unlawfully usurped the Tribunal’s statutory role. I reject this aspect of the appeal.

(b)    Mistranslations and non-translations

69    In my view, more difficult questions arise in relation to the appellants’ complaints of mistranslation and non-translation. As noted above, the primary judge also considered that this aspect of the case had more substance.

70    Before specifically addressing the alleged mistranslations and non-translations, it is convenient to say something more about the relevant legal principles.

(i)    Some relevant principles

71    The principles concerning mistranslations were recently discussed and analysed at some length in SZRMQ and, in particular, in the judgments of the Chief Justice at [13]-[24], Flick J at [42]-[44] and Robertson J at [65]-[75] (noting that his Honour also expressed his agreement at [74] with the Chief Justice’s general comments and his analysis of the authorities). As noted above, that case arose in a context other than s 425 of the Act. It was primarily concerned with the application of common law procedural fairness requirements to mistranslations or non-translations. It is evident, however, that there is some overlap in the relevant principles in a statutory and non-statutory context, even though, as Robertson J observed in SZRMQ at [74], s 425 of the Act may pose a “blunter question” of whether the Tribunal has given an applicant an opportunity to appear before it to give evidence and present arguments relating to the relevant issues. I consider that it is unnecessary in this appeal to define with precision the extent of that overlap.

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

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

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

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

75    Nor did the Minister contest the following observations of Allsop CJ in SZRMQ at [17]-[18]:

In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, the Full Court (Spender, Lee and Tamberlin JJ) at [18] referred to the need to place evidence before the Court “that material errors occurred in the interpreting of the appellant's statements and, therefore, that miscarriage in the decision-making process had occurred”. That expression of principle, correctly, with respect, places emphasis on the importance of the process. The decision-making process is not limited to the articulation of reasons by the Tribunal. It extends to the process granted to the person to place such material before the Tribunal as she or he desires.

In W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788, French J referred to Perera and found various errors going to matters of significance. His Honour then said at [35] in relation to the reasons for decision:

It is plain that there was a variety of factors operating upon the Tribunal's determination that the second applicant was not to be believed. It may be that without the interpreter errors the Tribunal would have come to the same conclusion. However, I cannot exclude the possibility that had the accepted defects in translation to which [the applicant] deposes not existed, the Tribunal might have come to a different decision. That goes to the utility of the grant of relief.

76    In SZRMQ, Robertson J agreed with the Chief Justice’s view that there is no requirement, at least for the purposes of procedural unfairness, to establish a causal connection between a mistranslation and the decision-maker’s ultimate conclusion. At [67]-[69], Robertson J said:

Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated.

The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.

If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness. (Emphasis added).

77    I respectfully agree with those observations, which were not challenged by the Minister here. I consider that they apply equally to a complaint that there has been non-compliance with the requirements of s 425.

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

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

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

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

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

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

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

(ii)    Application of the relevant principles

82    Having regard to these principles, it is convenient now to consider the mistranslations, non-translations and unprompted remarks made by the interpreter which are the subject of the appellants’ complaints. The complaints generally relate to the following three broad topics, which I will deal with in turn:

(A)    some miscellaneous matters;

(B)    the appellants’ knowledge of the cause of their sons’ deaths; and

(C)    the burial of the children and the belated production of their death certificates.

A.    Errors in translation concerning miscellaneous matters

83    The following passage at AB-B 10:39-45 contains a clear mistranslation of the Tribunal member’s description of the interview process which was about to take place (noting that the exchanges in Yoruba are in bold type):

What I propose to do today is to ask you some questions and you will have

40    the opportunity to mention anything to me which you haven’t already mentioned to the department.

I: He says that he is going to ask you some questions that you were unable to answer at the Immigration. This is the place that you have the

45    opportunity to answer all.

84    Obviously there is a significant difference between the proposition that the first appellant could now raise anything which he had not already mentioned to the delegate and the translation, which refers to the Tribunal member asking questions which the first appellant was unable to answer before the Department.

85    The appellants also complain of the interpreter’s non-translation of an exchange which occurred between her and the first appellant which appears in the annotated transcript at AB-B 12:36-49 where, in the context of the Tribunal member having asked some questions concerning whether the first appellant had obtained assistance from anyone in preparing his written statement in support of his claims, the following appears:

THE INTERPRETER:    He said the first one he wrote was not his – like, is the same but I think they reconstructed the statement or so – the sentence and the other thing, they have to write it again.

    40    I: “Is it the one that was re-written that you gave them?”

        A: When I filled the form, the solicitors re-filled it.

        I: “Did they re-fill it?”

    5

        A: They reconstructed it

        I: “they re-wrote it, but was it different from what you wrote before?”

86    Viewed in isolation those non-translations may not have any particular significance, but the failure to translate these exchanges forms part of a pattern of conduct on the part of the interpreter of taking it upon herself to raise matters, particularly with the first appellant, which went beyond merely translating what the Tribunal member had said.

87    The following separate passage in the annotated transcript is also relied upon by the appellants as involving several mistranslations which are self-evident (at AB-B 20:1-39):

MR SHORT:    Now, you said that it was during the preparation for the burial ceremony that the members of the secret society contacted you.

I: He says that you mentioned that it was when you were preparing for

5    the burial that you talked about the secret society.

    A: The fact is that we didn’t want to delay the burial, because, he, being an elderly man, we had to do it in a simple manner.

10    THE INTERPRETER:    He said the reason why he said that was that in their own culture they are not permitted to leave a dead person for a long time and moreover the – so that the bill would not get increased, so they have to do the burial immediately. So he said the next one they’re planning to do is when they invite all their friends, all of…, but that one is just the one, they have

15    to do it because of their culture and because of the bills.

    I: “So your culture did not allow you to delay the burial?”

    A: It does not allow that. We have to pick another date, so as to give him the respect he is due. At such a time, we shall invite people from

20    home and abroad, especially the people I know and who are my friends. We just had to bury him because I didn’t want to delay it. Also I didn’t want a huge mortuary bill.

    I: OK!

25    MR SHORT:    Well, did your father have a Christian burial?

    I: He is asking for your opinion on Christian burial.

30    THE INTERPRETER: He said he’s…, he doesn’t still gets what you are trying to ask.

    A: I do not understand what he is asking…

35    MR SHORT:    Well, if you’re a Christian, you can have a Christian funeral service and a Christian burial, which means a minister presides over it.

    I: He says that since you are a Christian, you should know that there is a method on how this is done. But how do you see it?

88    It is evident from these exchanges that, perhaps not surprisingly, in view of the number of mistranslations and unprompted comments by the interpreter, the first appellant was confused.

89    There are also various mistranslations in the passages at AB-B 21:30-41 and 22:20-30, which are extracted above at [55].

90    It is evident from the first appellant’s initial response as recorded in those extracts at [55] that he appreciated that there had been a mistranslation of the member’s first question. Viewed in isolation the mistranslation appears not to be significant but, in my view, it is relevant to the assessment of the impact on the quality of the process of the numerous mistranslations, non-translations and unprompted interventions by the interpreter when viewed in aggregate.

91    Further mistranslations which the appellant says gave rise to the Tribunal member and the first appellant speaking at cross-purposes are reflected in the following passages at AB-B 25:4-19:

MR SHORT:    Right. So they came to see you once at your home?

5    

MR XX:    Yes.

A: They called me at home, but it is not all they told me that I can remember, only what they said when they came to my house!

10

    I: Surely you did not remember all they said, but what he is asking you is whether they called you on your phone the second time?

    MR SHORT:    Did they ever come back again to your home?

15

    A: They visited me at home…

    I: But you mentioned that when they left the first time, they still called you. What he is asking now is how you were called?

92    These passages not only contain mistranslations, but they also provide further examples of the interpreter overstepping her legitimate province and adding her own gratuitous commentary.

93    The following extracts from AB-B 28:13-42, which are in the context of questions regarding the children’s deaths and how other people came to find out about them, also contain mistranslations:

A: As they were passing in front of my house, they got to know what was happening

15

    I: “As to whether they called you, did you tell them?”

    A: Yes, when I was there I told them, especially when the incident occurred.

20    I: Okay.

MR SHORT:    Did you call the police?

    A: No, I didn’t call anybody.

25

    I: “Is it because of your fear?”

    THE INTERPRETER:    He said due to the fact that there’s no good security that he’s more scared even when he call them what will come out of it. So he

30    said because of the lack of security that he don’t know what will come out of it when he call – ring the police. Maybe they will not turn up and at the same time they will come… He said that was when the friend now told him that he should not worry, that he’s going to handle everything for him to just leave, that calling the police would not sort him out.

35

    A: I was not secure because there was no solid security. If I wanted to call the police…

    I: “There is no…

40    

    A: They can strike because we don’t have good security in Nigeria. My friends said I should not worry. They promised to help me handle everything.

94    These exchanges also contain unsolicited commentary by the interpreter, as well as a failure to translate all that the first appellant said.

95    There are further mistranslations in the following passages (at AB-B 32:12-31):

MR SHORT:    In your statement you said that you fear they will kill you. Is that not right?

15    I: You said in your statement that you are afraid of being killed.

    A: Because in the country I came from, there is no security. If I go there they are going to “waste me” because I did not do what I was asked to do. I am a Christian and therefore I cannot do that. Although it is

20    certain I am going to die one day, but I am sure I was born for a purpose in life.

    I: He said…

    A: Can I leave all these?

25    I: “Why don’t you take your things… they may…

    THE INTERPRETER:    He said the reason why he said that is because he is thinking because he refused their offer for him to come for a holiday with the wife that they might be thinking, maybe okay, maybe his wife. So he said

30    that was why he included that maybe they can waste his life. And he said he know he will still have a purpose to live. So that’s why he said he’s scared to go home.

96    The interpreter’s translation is not accurate. Reference to the first appellant refusing “their offer for him to come for a holiday with the wife” bears no resemblance to what the first appellant had said in Yoruba. This mistranslation may have undermined the force of what the first appellant was attempting to communicate or confused its meaning.

97    Viewed individually, the various mistranslations, non-translations and unprompted interjections by the interpreter may not have material significance. But they also need to be looked at in aggregate as they contribute to an overall pattern during the hearing which involved numerous other instances of the interpreter not discharging her proper role. I will return to deal with this important matter at the end of the next section, which deals with the appellants’ knowledge of how their sons died.

B.    Appellants’ knowledge of how their sons died

98    The Tribunal member asked the first appellant about this topic during the initial part of the hearing during which the first appellant was also asked (in his wife’s absence) many questions about other aspects of his claims. The topic was again raised with the first appellant towards the end of the hearing after the second appellant had given her evidence in the absence of the first appellant. The topic was also raised with the second appellant during that part of the hearing when her husband was absent, and also later when they were both present. The topic was plainly one of particular concern to the Tribunal member.

99    The annotated transcript contains the following relevant passages on the topic during the first appellant’s interview, when he was giving evidence alone and in the absence of his wife (at AB-B 25:33-26:31):

MR SHORT:    Right. Well, you said that on 24 October 2011 you and your wife went to see the air ticket sales agent.

35    

I: “You said on the “25th” you and…

THE INTERPRETER: He said yes, that they both went there together to buy the tickets to come to Australia.

40    

    MR SHORT:    And you say that when you returned home you found that your children had been killed.

    MR XX:    Yes.

45

    THE INTERPRETER:    He said yes.

    MR SHORT:    So what did you do after that?

50    A: I was tired and wasn’t OK. When I returned home with my wife, she fainted

    THE INTERPRETER:    He said he wasn’t so good because number one he said his wife collapse so it was not okay because he have to – he’s crying at

5    the same time he have to see to his wife that is – that has collapse. So he said he wasn’t good at all.

    MR SHORT:    Right. So what else did you do?

    A: My mood was not good because when my wife fainted, I tried to

10    revive her so that she may not pass out.

    I: “So you didn’t have time to…?”

    A: I too was crying…

15    

    THE INTERPRETER: Okay. He said when he was crying he was even confused on how to help the wife, so people have to guide us, to help her, see that she didn’t pass away by helping her, I think firstly to beat her chest so that she will not pass away. So - but he said he was so confused crying on the floor and---

20

    MR SHORT:    Right. Well, did you call a doctor?

    A: I didn’t call anybody…

25    I: “Is it because you were confused?”

    A: I was not OK

    THE INTERPRETER: He said he was so confused that he didn’t call the

30    doctor, so… people that was helping… was actually attending to her, that he was so confused crying.

100    It is relevant to note this was the first time in the course of the oral hearing that any reference was made by the Tribunal member to the first appellant’s claim that when he and his wife returned home they found that the children had been strangled. The first appellant answered affirmatively that it was when he returned home that he found that the children had been killed. That response is broadly consistent with the previous claims made by him in both his protection visa application and the subsequent written statement he provided to the Department.

101    It is also relevant to note that the extracts above indicate that the interpreter evidently went further than merely translating what was said by the Tribunal member and the first appellant. First, after the first appellant made reference to trying to revive his wife, instead of translating what he said, the interpreter asked the first appellant, without any prompting from Tribunal: “So you didn’t have time to….?”. Secondly, towards the end of the extract and in the context of the Tribunal member having asked whether the first appellant called a doctor, the interpreter interrupted the first appellant’s response to ask of her own accord: “Is it because you were confused?”. This is a further example of the interpreter overstepping her proper role and not accurately interpreting what the Tribunal member had said.

102    The following passages of the transcript record the part of the interview with the second appellant which dealt with the topic of discovering the children’s deaths, noting that the exchanges occurred in the absence of the first appellant (who had been asked to leave the interview room while his wife was being interviewed) (at AB-B 34:25-44):

25    MR SHORT:    Right. And you’ve said that your husband said – and you’ve confirmed, I think – that when you returned home you found that your two children had been killed?

I: He said that your husband told him that it was when you returned

30    home that you noticed that your two kids have been killed.

    A: It was when we returned home that we found out that…

THE INTERPRETER:    He said yes, that when they go home that was when

35    they saw the incident.

    MR SHORT:    Right. So what did you and your husband do after that?

    A: When we got home and saw what had happened, I fainted and even

40    didn’t realise when I fainted. I did not know what happened after that.

    THE INTERPRETER:    Okay. She said when she saw the incident that she collapsed. Now, so every other thing that was happening she was not aware of it, that because she is already – she didn’t even know where she was.

103    There are several points to note about these exchanges. First, instead of correctly translating the Tribunal member’s use of the word “found” (which would have substantially reflected the first appellant’s claims that on returning to the family home they found out that the children had been strangled), the interpreter used the word “noticed”. Secondly, the second appellant responded by saying in Yoruba that it was when she and her husband returned home “that we found out that…”. Her answer was broadly consistent with that of a husband, namely that they had “found out” about the deaths. The interpreter translated her response as saying that it was when they went home that the appellants “saw the incident”. That was an erroneous translation.

104    If the Tribunal member had appreciated the interpreter’s mistranslation of the second appellant’s initial response, one might reasonably expect that at some stage there would have been a line of questioning by the member which was specifically directed at ascertaining whether or not the appellants had actually seen their sons’ murdered bodies and could therefore reasonably be expected to know whether they had been strangled or stabbed. Similarly, it might have been expected that the Tribunal would have made some attempt to clarify what the second appellant meant when she said they “saw what had happened” and whether that involved actually seeing the bodies. No such questions were asked of either the first or second appellant according to the copy of the annotated transcript relied on by the appellants in the appeal.

105    The Minister submits that no significance should attach to these matters in circumstances where, in summarising the first appellant’s evidence before him, the delegate made reference in his reasons for decision to the first appellant having stated that he “found the bodies”. The Tribunal member also said that he had listened to the recording of that interview and had access to the Department’s file. I do not consider that this overcomes the problems created by the interpreter’s actions. A central question is the fairness of the process afforded by the Tribunal. The mistranslations occurred in the context of a matter which was of primary concern to the Tribunal. In my view, it is no answer to say, in effect, that the first appellant cannot complain because of what the delegate said he had been told by the first appellant. The Minister’s approach diverts attention from the central focus, which is the fairness or quality of the process provided by the Tribunal. The Tribunal never put to either of the appellants what the delegate had to say on this topic and, more significantly as will be developed below, the interpreter’s actions denied the appellants the opportunity to give evidence and present arguments on the important issue of their knowledge of the cause of the children’s deaths.

106    The first and second appellants were then interviewed by the Tribunal together. The annotated transcript contains the following passages concerning the topic of the appellants’ knowledge of the cause of their children’s deaths (at AB-B 35:35-37:44):

35    MR SHORT:    What I’m going to do now, Mr and Ms XX, is I’m going to give you some information which I consider would be the reason or part of the reason for affirming the decision under review. I will explain the information to you both so that you understand why it’s relevant to the review. I will also explain the consequences of the information being relied

40    upon in affirming the decision under review. I will ask each of you to comment on or to respond to the information. If you want additional time to comment or to respond to the information, you can tell me – okay? – and I will then consider whether to give you additional time.

    I: He says that what he is going to do now is to pass to the Review Panel,

45    all that he has written down, as evidence of what you told me has happened. I will explain to you what the outcome will be of what you have told me. He said he will allow you to respond to whatever he says.

    A: Is it me?

50

    I: Maybe it is the two of you.

    I: He said he will give you time to think before you reply. Let him know. Then he will consider giving you more time after you have thought about it.

5    A: What?

    I:That you should reply to whatever he will ask of you. He said you should think of it before you reply. He wants you to let him know after you have thought about it.

10

    Now, you’ve produced some documents to the tribunal today. Two of those documents are medical reports in relation to your two children who you claim were killed in Nigeria. Now, you, Mr XX, have said in your application and in your statement that your two children were strangled.

15

    I: He said in that application that you wrote…

I: “You should know what he is talking about…”

20    A: Yes

    I: In the medical report, it was mentioned that they were killed

I: “Or what was written in there?”

25

    A: Yes

    A: Are they asking if…

30    I: “That is what I am thinking too…”

    A: If somebody is killed, I wrote it as I understand it. I will not be able to write it as a medical term. That is the way I wrote it.

35    I: “As you wrote it at first?”

    A: Then the doctor wrote his own differently.

40    I: How he wrote his own is different?

    A: Because my friend, XY, has told me that I always forget things ever since that incident happened. He said that when I was still at home, I always forget whatever he tells me, and that maybe because of the hypertension I had.

45

    I: Was it that your friend who called you to say all these?

    A: I was the one who called him. He confirmed to me, when I asked, that because of what has happened to me, I cannot remember things. He only

50    writes down whatever comes to my memory.

    MR SHORT:    These medical reports say that they were killed as a result of puncture wounds. Perhaps if you – one at a time so the interpreter can interpret.

5

    I: He said he will look at it, but he doesn’t believe that you have given him concrete answers.

    I: He says that you have confused him when it was mentioned in one

10    report that your children were stabbed and in another that they were strangled.. He doesn’t seem to understand that!

    A: What happened was that I was under stress, even when I arrived here. I have slept on the streets before I got some assistant. I couldn’t think very well. I have had plenty of troubles since I arrived here. I do

15    not think straight.

    I: He said he has had this problem from time, and that once he is under stress, he can’t think straight. That is what he said when his children were killed. That he always makes lots of mistake when he is under stress.

20

    THE INTERPRETER:    They said he actually put those document – the initial one he submitted was a medical one. I wrote them as – according to our understandings the medical terminologies is not – the way they actually die is different. Maybe it might be different from the way they – maybe they

25    put the document there the way they understood it. Okay.. He said actually when he was writing it he wrote them according to his own little understanding about the whole thing. But even when he called the friend back home, when the friend was telling him some things he said, “Why do you have to forget some part of it?” So the friend after he wrote tell him that, “You used to forget things easily.” So the whole write-up he said is

30    according to his own understanding. That is how he put it down.

    MR SHORT:    Mr XX, I will consider that explanation but it’s really not a very good explanation, I’m afraid. I have great difficulty in accepting that you would be confused about whether your children were stabbed – were

35    stabbed or suffered puncture wounds or whether they were strangled.

    THE INTERPRETER:    He said he knows this but he has this problem right from… Once he’s under stress he can’t think straight, and that was what he said the other time when his children was killed. He said when he was under

40    stress he couldn’t think straight and that was why the friend handled the case. So he’s saying when he came to Australia there was sufficiently lot of stress, “So he couldn’t think straight or anything. They just come to… so we just say and sometimes we make a lot of mistakes.” That that was what happened, that when he’s under stress and under tension that he can’t do things successfully.

107    There are several points to be made about these extracts. First, the interpreter did not fully interpret the Tribunal member’s comments to the effect that the first appellant had said in his application and in his written statement that his two children were strangled. The interpreter embarked upon the task of interpretation then stopped and abruptly told the first appellant that he should know what the Tribunal member was talking about. The first appellant is recorded as saying “yes”, which suggests that he understood what the member had said. It might be noted in this context that notwithstanding that there was an interpreter at the Tribunal, the first appellant spoke some English (as noted by the primary judge, see above at [26]). Indeed, his interview with the delegate took place without the benefit of any interpreter. The delegate commented that he was aware that the first appellant had difficulty in understanding some questions, nevertheless those questions were rephrased “and despite having to repeat myself a few times I do not consider that the applicant was disadvantaged”. The first appellant did not dispute that finding. Nevertheless, I consider that it is a matter of some significance that, because of the interpreter’s actions, the first appellant did not receive a full translation of what the member had said on a matter of central importance to the Tribunal’s consideration of the appellants’ case. In my view, the quality of the hearing afforded to the appellants may have been adversely affected by the interpreter’s actions in this regard.

108    Secondly, the interpreter mistranslated what the Tribunal said about the medical reports. Instead of properly interpreting the member’s reference to the medical reports being in relation to the children and that the first appellant claimed that they had been strangled, the interpreter put to the first appellant that: “In the medical report, it was mentioned that they were killed” and then added “Or what was written in there?”. It appears that the first appellant was confused because he is recorded as immediately inquiring of the interpreter in Yoruba: “Are they asking if….”, to which the interpreter replied: “That is what I am thinking too…”. The interpreter made no reference at this point to the fact that the Tribunal was focusing upon the first appellant’s claims that his children had been strangled. Instead, the first appellant’s attention was effectively diverted from that matter by the interpreter’s erroneous reference to the medical reports mentioning that they were “killed”. The following exchanges then turned on the term “killed’, a term which had been used by the Tribunal member at the beginning of the relevant passage, but was followed in the very next sentence by the issue which was of particular concern to the Tribunal, namely the first appellant’s claim that they had been strangled. Because of the mistranslation the first appellant’s attention was not drawn at that point to the significance which the Tribunal was attaching to the fact that he had claimed that they had been strangled.

109    I am not satisfied that the problems created by the mistranslations were cured by the apparently accurate subsequent translation of the Tribunal member’s stated difficulties in accepting the first appellant’s explanation. Having regard to the frequency and character of the interpreter’s numerous mistranslations, I consider that it is probable that the first appellant was in a state of considerable confusion by the time the interpreter accurately translated the member’s concern as it was ultimately expressed by him.

110    In my view, the quality of the process afforded to the appellants may also have been adversely affected by other mistranslations. For example, after the Tribunal member commented that the medical reports “say that they were killed as a result of puncture wounds”, the interpreter told the first appellant in Yoruba that the member had said that he would look at it, but he did not believe that the first appellant had given him concrete answers. That was not an accurate translation of what the Tribunal member had just said. The interpreter then told the first appellant that the member had said “that you have confused him when it was mentioned in one report that your children were stabbed and in another that they were strangled. He doesn’t seem to understand that!”. That translation was wrong and did not reflect what the Tribunal member had in fact said. Moreover, and noting that the context was what was in the medical reports, it was factually wrong of the interpreter to say that one “report” had said that the children had been stabbed while in another that they were strangled. The inconsistency which was troubling the Tribunal member was not one which emanated from the two medical reports per se, but rather related to the different causes of death described by the first appellant in his protection visa application and written statement, in contrast with the description in the two subsequent medical reports.

111    As is evident from the passages and extracts set out above, not only on the broad topic of the appellants’ knowledge of the cause of their children’s deaths, but also in the sections dealing with alleged unlawful delegation (see above at [55] - [58] and [62]) and mistranslations etc relating to miscellaneous matters (see above at [83], [85], [87], [91], [93] and [95]), there were a significant number of mistranslations and non-translations and numerous instances where the interpreter went beyond being a medium of communication between the Tribunal and the appellants. The relevant question is whether they are of such a character, whether viewed individually or in aggregate, that the process mandated by s 425 of the Act miscarried. In my view, the relevant test focuses upon the relationship between the alleged mistranslations or non-translations and the quality or fairness of the process. I respectfully disagree with the primary judge’s description of the relevant test in [36] of his Honour’s reasons for judgment (see [29] above). Contrary to the view expressed there by the primary judge, to establish a breach of s 425, there is no requirement that the appellants identify a mistranslation or non-translation which is material to an adverse conclusion reached by the Tribunal. That is not the only way in which to establish a breach of s 425, noting in particular the central importance of focusing upon the quality or fairness of the process itself.

112    As noted above, I consider that the correct approach is that identified by both Allsop CJ and Robertson J in SZRMQ. The fairness of the process needs to be judged by reference to the particular circumstances and, in an appropriate case, the translation may be so inadequate or deficient as to deny the fact of any hearing (see SZRMQ at [11] per Allsop CJ). Moreover, in such a case, “it may not even be necessary to show that the errors may well have affected the decision in a real way, because there has been no hearing, to which the person was entitled” (see SZRMQ at [11] per Allsop CJ, and see also Robertson J’s observations at [116]).

113    In SZRMQ Allsop CJ further stated at [24]:

The place for the appearance of justice being done lies in the rejection of the proposition that the matter is to be analysed solely by reference to causation directed by the reasons of the decision-maker. Even if it be the case that it cannot be demonstrated that there has been an error in the reasoning process materially caused by the misinterpretation, the misinterpretation may be such as to have prevented material and substantive information being communicated to the decision-maker in a way that leads to the conclusion that the hearing was not fair.

114    Although those remarks were directed to common law procedural fairness, I consider that they also apply to a complaint that the hearing process envisaged by s 425 has miscarried because of mistranslations or other relevant conduct on the part of the interpreter which has the effect of denying a review applicant a proper opportunity to be heard in the context of provisions such as ss 414 and 425 of the Act, when read against the background of the exhortation in s 422B(3).

115    Having regard to the frequency and character of the numerous mistranslations, non-translations and unprompted interventions by the interpreter, I consider that the process required by s 425 (coupled with the obligation imposed upon the Tribunal by s 414 to conduct a review) miscarried and involved jurisdictional error. The quality of the hearing afforded to the appellants in this matter was not of an acceptable standard. Specifically, it did not provide them with an adequate opportunity to give evidence and present arguments concerning the issues arising in relation to the decision under review. In my opinion, the quality of the hearing or process was seriously wanting in this case as a result of:

(a)    the individual mistranslations and non-translations on the topic of the appellants’ evidence relating to their knowledge of the cause of their sons’ deaths and the medical reports (see analysis above at [101], [103] - [105] and [107] - [110]); and

(b)    the numerous mistranslations, non-translations and unprompted interventions by the interpreter relating to the topic described in (a) (see above at [99], [102] and [106]) and other topics (identified above at [111]).

116    It is well established that the right created by s 425 of the Act imposes an objective requirement for the Tribunal to provide a “real and meaningful” invitation (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 and SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 at [19] per Gilmour J). The standard of interpretation in this case fell well short of the required standard. It not only involved the interpreter making numerous gratuitous remarks by way of commentary on her part which did not reflect questions asked by the Tribunal, but it also extended to the interpreter making several gratuitous remarks on the credibility of some of the first appellant’s answers. Furthermore, it is evident that some of the mistranslations and unprompted interventions analysed above were the source of confusion by the first appellant on matters which were of particular significance to the ultimate disposition of the review.

117    While each case necessarily has to be looked at in the context of its own facts and circumstances, I consider that this case falls on the wrong side of the line. In my view, the process was not fair and did not meet the requirements of s 425 of the Act.

C.    The burial of the children and their death certificates

118    The section of the annotated transcript which deals with this matter is to be found at AB-B 38:14-40:21 and is as follows:

MR SHORT:    As I’ve said – as I said at the beginning of the hearing,

15    Mr XX, I’ve listened to what you said at the departmental interview. Now, at the departmental interview you said that your friend had told you that he had buried the children. He said he had buried them on the same day in the burial ground. He said that he hadn’t contacted the police. He said that if he had called the police they would – he said that he – you had said that he had told

20    you that if he had called the police they wouldn’t have done anything. He said you couldn’t get a death certificate for the two children. He said that you or your wife would have needed to be there in person in Nigeria in order to obtain the death certificates. Now, today you’ve produced me a report which your friend supposedly made to the police and death certificates for both your children.

25    

    I: He said he has listened to all that you have said at the interview.

    I: You said at the interview that your friend told you he has buried the children. You said both of your children were buried on the same day.

30    You said you have not contacted the police.

    A: “Hen…?” (what?)

    I: Let me finish speaking…

35

    I: You said that your friend told you it will make no difference if he called the police. That you did not obtain the death certificates of those children, because you and your wife must be present before you can obtain them. He said that is what you wrote in your statement.

40

    I: But today you brought a certified certificate that you got from… and you also brought the death certificates of the children.

    I: “say something to that…”

45

    A: I can just say that I was traumatised most of the time. When they tell me anything, I do not understand.

    I: He told me that it will not be possible to bury those kids without referring to the police. And that whether they want to conduct an investigation or not, they still have to contact the police. Because of the connection between us, and because I always forget things, he has let me know that he has explained all these procedures to me before. He said it may be because I am mad or that I do not know what I am doing that

5    made me not to recollect. He said I was not happy because of what has happened.

    THE INTERPRETER:    He said according to the way he sees all situations, ever since what happened – that… that happened to him he said the way… his friend testified… Those the only time he… because sometimes he would

10    say some things nobody would understand him. So he’s thinking maybe it was that problem he had initially that was what affected him, that because sometimes he himself – he doesn’t even understand himself that he says some thing that does not… So he said the friend told him, call him to tell him that it’s not possible for him to bury those kids without doing all the necessary

15    documents. So he said the friend explained this to him but he forgot that the friend said that to him, so it was when the friend now call him that, “What is wrong with you?” that I’ve done all the necessary documents, and that was why I come to… So it was the friend said, “What is wrong with you?” why we say such a thing.

20    MR SHORT:    Well, Mr XX, obviously I’ve had the opportunity of listening to you giving your evidence here today and I’ve also had the opportunity of listening to you giving your evidence at the department interview. I don’t think you were confused about what you were saying.

25    I: He said he has given you the opportunity to speak and he has listened to you at this interview today. He said he doesn’t believe that you are confused about all you are saying today.

    THE INTERPRETER:    He is making an illustration of Job in the Bible. He

30    said his case is like that, that some incident happened to Job and God knows that he will be able to handle it.

    A: Yes, because of what happened to me, it makes me think that my case is similar to what happened to Job in the Bible… that God tempted

35    him to see if he will not worship him again.

    MR XX: Because they don’t believe me so many times (foreign language spoken). Because if they don’t believe me, I have tried committing suicide so many times in this country. There has been so many problems to the

40    extent that I cannot cope. I have faced many problems in this country!

    THE INTERPRETER:    He said on several occasions he have attempted killing himself because of all the things that was happening. He said he couldn’t – he said he had actually experienced a lot of stress and it wasn’t

45    normal at all, so at the point he attempts killing himself. He said maybe what contributes to his problem was because he has this kind of stress he’s not used to it because in Nigeria he said he was okay, he has a business that sustain him, even he used to give people money, that he is okay. But this is not the first time he travels – used to travel outside Nigeria, so – he said he can’t claim and he can’t say something that does not exist, but if it’s not real

50    he will never say. That is because – that was the reason – that is the main thing that happened and that is why he’s saying they cannot come to Australia and he saying what does not exist.

    MR SHORT:    Well, Mr XX, as we’ve discussed, you said at the

5    departmental interview you couldn’t product these documents at all. You’ve now produced these documents – you’ve now produced these documents, and the documents in some respects contradict your own evidence. Now, the information available to me indicates that official documents can be readily obtained through bribery in Nigeria. Any official document can be forged in

10    Nigeria. Now, the information – this information is relevant to the review because it suggests that you may have, after the Departmental interview, have decided to obtain some documents which supported your story.

    THE INTERPRETER:    He said that’s not how it is. He said actually that he

15    can…what he’s saying today. Maybe once day…said it…That he was under stress, and once he’s under stress he can’t say anything. So maybe that was when – he said that’s when they put down all those…But he wants to say it’s not like that. All the documents he produced today are from back home, they give it to him, and…why did you have to say all that. I never bribe anybody

20    for any document. Maybe he said that, those things, out of unconsciousness. He doesn’t know what he was saying then. Those documents are original documents and can never forge anything.

119    The Tribunal member set out his findings on these matters in [107]-[110] of his reasons for decision, which were as follows:

As I likewise put to the applicant and his wife in the course of the hearing before me, at the Departmental interview the applicant was asked what had happened after he had left Nigeria. He said that his friend had told him that his friend had buried the children on the same day in the burial ground. He said that his friend had told him that his friend had not contacted the police and that if his friend had called the police they would not have done anything. The applicant said that he could not get death certificates for the two children because he or his wife would have needed to be there in Nigeria in person in order to obtain the death certificates.

At the hearing before me, however, the applicant and his wife produced a report which the applicant’s friend had supposedly made to the police and death certificates for both of their children. When I raised this issue with the applicant and his wife, the applicant said that he had forgotten that his friend had explained all this to him. He said that his friend had explained to him that it had not been possible for him to bury the two children without all the necessary documents. As referred to above he said that ever since this incident had happened, his friend had told him that he did not understand him any more.

Once again the applicant did not say at the Departmental interview, as he could have done, that he did not know what had happened after he had left Ibadan or that he could not remember what his friend had told him. He said that his friend had told him that his friend had buried the children on the same day in the burial ground, that his friend had not contacted the police and that he could not get death certificates for the two children and he gave reasons as to why his friend had not called the police and why he could not obtain death certificates.

As I put to the applicant and his wife, what this suggests is that they decided after the Departmental interview to obtain some documents which supported their story. As I put to them, the information available to me indicates that official documents can be readily obtained through bribery in Nigeria and that any official document can be forged in Nigeria (UK Home Office, Country of Origin Information Report – Nigeria, 15 January 2010, paragraphs 30.01-3-02). The applicant said that this was not how it was. He said that his friend back home had given him all the documents which they had produced and he had never bribed anyone. He said that these documents were original documents and not forgeries. He said that maybe he had not known what he had been saying at the Departmental interview. However it is difficult to accept that the applicant did not know what he was saying at the Departmental interview when he said, for example, not only that he could not get death certificates for the two children but that this was because he or his wife would have needed to be there in Nigeria in person in order to obtain death certificates.

120    I accept the Minister’s submission that the mistranslations complained of concerning this topic were relatively minor and, perhaps more importantly, simply reflected a lack of clarity and incoherence in the answers given by the first appellant himself on this subject, rather than any error on the part of the interpreter (see SZRMQ at [73] per Robertson J). I am not satisfied that the appellants have demonstrated any appellable error on the part of the primary judge in respect of this matter. I agree with the primary judge’s conclusion in [35] of his reasons for judgment. In my view, the mistranslations on this topic are of such limited significance that they do not add to the cumulative effect of the deficiencies in the interpretation relating to the other matters.

Conclusion

121    The appeal should be allowed, the orders made below should be set aside and the first respondent ordered to pay the appellants’ costs of and incidental to both the appeal and the proceeding below. The Tribunal’s decision dated 15 October 2012 should be set aside and an order in the nature of mandamus should issue commanding the second respondent to determine according to law the appellants’ applications for review of the delegate’s decision refusing them a protection visa. Having regard to the Tribunal’s findings of fact in its decision dated 15 October 2012, I consider that it is appropriate that the applications be heard by the Tribunal differently constituted.

Associate:

Dated:    16 May 2014