FEDERAL COURT OF AUSTRALIA

BZAID v Minister for Immigration and Border Protection [2016] FCA 508

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court on 24 December 2015 be set aside.

3.    The decision of the Refugee Review Tribunal made on 10 October 2014 be quashed, and the matter be remitted to the second respondent for hearing and determination according to law by another Tribunal member.

4.    Other than the order as to costs of the vacated hearing on 11 May 2016, the first respondent pay the appellants’ costs of the appeal.

5.    The appellants pay the first respondent’s costs thrown away by reason of the vacation of the hearing on 11 May 2016.

6.    By noon on 23 May 2016 the parties file and serve brief submissions concerning the costs of the review application before the Federal Circuit Court.

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

REASONS FOR JUDGMENT

EDELMAN J:

Introduction

1    The appellants are husband and wife. The wife (who I will refer to as the appellant) accompanied her husband (the second appellant) to Australia in January 2007. She was dependent upon his Temporary Work (Skilled) visa (subclass 457). In mid-March 2011 she returned to Vietnam to assist her ailing father. After various events in Vietnam, she returned to Australia and in October 2013 she brought an application for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth). Her husband, the second appellant, also sought a visa but he did so only on the basis that he was part of her family unit. His appeal is dependent upon hers.

2    The appellant was refused a Protection visa by a delegate of the Minister. She applied for a review of that decision to the Refugee Review Tribunal now the Administrative Appeals Tribunal, (the Tribunal). The Tribunal affirmed the decision of the Minister’s delegate. The appellant sought review of the Tribunal’s decision before the Federal Circuit Court. One focus of her grounds of review was concerned with defects in the interpretation and translation of her evidence before the Tribunal.

3    The primary judge in the Federal Circuit Court considered a number of alleged mistranslations and omissions alleged by the appellant. As the primary judge observed, some of those were trivial. Others were more substantial. Many of the individual conclusions reached by the primary judge are impeccable. The primary judge focused upon particular passages upon which submissions were made, and analysed those passages carefully. Any single one of the errors or mistranslations would not have been sufficient, individually, for a conclusion that there was a denial of the procedural fairness required by Division 4 of Part 7 of the Migration Act, even errors which were incorporated into the reasons of the Tribunal. As counsel for Minister eloquently submitted in relation to each mistranslation, many of the mistranslations still managed to convey the substance of the appellant’s evidence even when the translation was only a summary of the evidence. However, when the sheer number and substance of the mistranslations and omissions are considered as a whole in light of the issues before the Tribunal, a conclusion of a denial of procedural fairness is inevitable.

Background

4    The appellant and her husband are Vietnamese citizens.

5    On 29 April 2007, they entered Australia. The husband entered on a Temporary Work (Skilled) visa (subclass 457). The appellant entered on a dependent visa. On 18 October 2013, the husband and wife applied for Protection visas. The primary applicant was the wife (who I have described in these reasons as the appellant although both are appellants). The husband’s application was dependent upon the wife’s application.

6    In broad summary, the appellant’s case was as follows. She said that while she was studying at university she had worked part time for a village radio station as an editor and radio broadcaster. She held that job from April 2002 until December 2005. She said that all broadcasting and print media is controlled by the Vietnamese government and that she began to disagree with the restrictions on Vietnamese people. She said that she wanted to advocate for political reform.

7    The appellant said that she was encouraged to obtain Communist Party membership so that she could obtain a permanent job at the village radio station. She obtained that membership. She thought that she would be given more freedom regarding the content of her programs. However, her proposals had to be approved by the Communist Party central propaganda department. She made several proposals including (i) that the government should permit local businesses to obtain foreign investments in order to create more jobs, and (ii) the government should facilitate a proposed expansion project of the Swedish HIV Aid program.

8    The appellant said that she wanted to broadcast her political opinions to her village but was told by the head of the village police that she was not allowed to do so. From that point on everything she edited and every script she intended to broadcast was closely followed by her supervisors.

9    The appellant described how she was a public figure in her village. She explained that: she was the president of the Women’s Association for women farmers in 2003 where she advocated for economic reforms; she was the secretary of the People’s Committee of her village in 2004; and she was a member of the village Women’s Association from August 2006 until about January 2007.

10    The appellant left Vietnam in 2007 to accompany her husband to Australia. She took four years’ leave from her work. Her colleagues at the radio station somehow obtained her details in Australia and sent them to the Women’s Association in Australia. The appellant said that she was frightened at how much control the government still had over her despite her leaving the country. She believed that enquiries were made of her life in Australia by the Women’s Association at the behest of the Vietnamese government. She soon stopped paying her membership fees to the Women’s Association and ignored calls from the Vietnamese authorities and the Women’s Association. The calls soon stopped.

11    In March 2011, the appellant’s father became ill. She returned to Vietnam for a little over a month to care for him. She said that she remained in the house for the first few weeks because of her unease and knowledge that the authorities had enquired about her whereabouts. After a few weeks she went out to the market where she was taken to the police station by two police officers. She said that she was asked about her life in Australia, her work there, and why she had not paid her membership fees to the Women’s Association. She was told that there would be consequences if she did not pay. She said that she would do so. She was asked to surrender her passport, which she did. The passport was then returned. The police then warned her not to publish anything that would be detrimental to Vietnam. They told her that they wanted to talk to her again.

12    The appellant said that one day before she was due to return to Australia, the head of the police station called her parents’ house and told her to come to the police station for a few more questions. She was asked the same questions. Her name was mentioned by another police officer in a phone call while she was present. She told the police that she was leaving in a couple of days because she feared that they might not let her leave if they knew she was flying out the next day. After she returned to Australia, the police visited her parents’ house again and asked about her whereabouts. Her parents told the police that she had left as planned and that they did not know when she would return.

13    In June 2014, after the decision of the Minister’s delegate to refuse her Protection visa, the appellant participated in Vietnamese freedom and anti-war campaigns (candlelight vigils).

The decision of the Minister’s delegate

14    On 11 December 2013, an officer of the Department of Immigration and Border Protection wrote to the appellant and invited her and her husband to an interview.

15    On 6 and 17 January 2014, the appellant and her husband were interviewed by a delegate of the Minister.

16    On 25 February 2014, a delegate of the Department of Immigration and Border Protection wrote to the appellant and her husband explaining that their application for a Protection visa had been refused. The Minister’s delegate gave detailed reasons but it is unnecessary to focus on those reasons because the issue in this case is the hearing before the Tribunal. Essentially, as the Tribunal explained, the Minister’s delegate refused to grant the Protection visa due to the conclusions that (i) the appellant was not being monitored by the Vietnamese authorities and was not living in constant fear, (ii) the appellant was not targeted for interrogation in Vietnam during her visit in 2011 as a result of prior knowledge of her background, and (iii) the warning issued to the appellant by the police was a general warning issued to any person living overseas.

The decision of the Tribunal

17    The appellant and her husband sought review of the Minister’s delegate’s decision by the Tribunal. The Tribunal considered the statutory declaration from the appellant which had accompanied her application for a Protection visa. The Tribunal also considered a recording of the appellant’s interviews with the Minister’s delegate. The Tribunal considered a supplementary statutory declaration provided by the appellant concerning the date when she joined the Communist Party as well as a final statutory declaration that she provided to the Tribunal.

18    The appellant and her husband were represented at the hearing by an agent who spoke Vietnamese. They filed written submissions on 22 September 2014. They attended a hearing on 7 October 2014.

The Tribunal hearing

19    The Tribunal hearing encountered immediate difficulties. At the commencement of the hearing, and during the course of the Tribunal’s introductory remarks, there were technical difficulties with the recording equipment. The Tribunal adjourned twice to ensure that the recording was working. After the second adjournment the Tribunal informed the appellant and her representative that the recording equipment was working. The appellant was offered an adjournment but she declined.

20    The appellant’s evidence to the Tribunal began with her explanation about her village which had over 1,000 people living there. The radio station for which she worked made broadcasts over loud speakers. The appellant explained that she was initially entitled to express her opinions freely but later was prohibited from doing so when she joined the Communist Party in 2003 because she had to follow the Communist Party principles.

21    At this point in the appellant’s evidence, the appellant’s agent objected to the interpreter. The Tribunal discussed matters with the interpreter and was satisfied that there were issues with the quality of the interpretation. The Tribunal arranged for another interpreter to interpret by telephone. The Tribunal recapped the earlier version of the appellant’s evidence with the new interpreter. The new interpreter confirmed the evidence.

22    The appellant then gave oral evidence which was broadly consistent with, and in some areas elaborated upon or added to, her statutory declarations.

The Tribunal’s findings

23    The Tribunal accepted the appellant’s evidence on many matters. In particular, the Tribunal accepted all of the following.

24    The appellant was a radio announcer from April 2002 to December 2005. She was president of the village Women’s Association from March 2003 to January 2007 and president of a district Women’s Association from August 2006 to January 2007. She was secretary of the People’s Committee of her village from April 2004 to January 2007, and that committee supported the Vietnamese Communist Party. And the appellant has been a member of the Vietnamese Communist Party since October 2003. The appellant received monthly payments of 1,000,000 Dong per month for her activities with these organisations.

25    The Tribunal accepted that the appellant’s membership of these committees limited her ability to advocate views in public. However, the Tribunal found that this limitation was only consequent upon the employment of the appellant in those positions. In that sense, the limitation upon the appellant’s expression was voluntarily accepted as a condition of her employment.

26    The Tribunal accepted that the appellant was warned by telephone when she arrived in Australia not to express anti-government views. The Tribunal also accepted that the appellant was warned again when she returned to Vietnam in 2011. As I explain below, however, the Tribunal concluded that the appellant did not hold any anti-government views.

27    The Tribunal accepted that the appellant received requests to pay her fees to the Women’s Association both after she arrived in Australia and on her return to Vietnam in 2011.

28    The Tribunal accepted the appellant’s evidence that the police had visited the appellant’s father on two occasions after she left for Australia. Her evidence was that the first occasion was after she left Vietnam and the second was in September 2014. She said that on the second occasion the police had left after her father said that he did not know where she was or when she was returning to Vietnam.

29    The Tribunal found adversely to the appellant on the following matters.

30    First, the Tribunal did not accept that any of the appellant’s views would attract adverse attention by the Vietnamese authorities. In particular:

(1)    the appellant’s view about increased foreign investment was consistent with the view of the Prime Minister of Vietnam;

(2)    the appellant’s support of foreign HIV Aid programs was not contrary to government policy and a Canadian program near where the appellant lived was reported favourably in a government publication; and

(3)    the appellant’s positions on working hours, on work being done locally, and on greater transparency did not appear to represent a challenge to the government.

31    Secondly, the Tribunal did not accept that the appellant left her employment with the village radio because she could not broadcast her views freely. The Tribunal held that the appellant chose to resign from her radio position rather than from the Communist Party because her activities with the Communist Party were more lucrative.

32    Thirdly, the Tribunal found that the appellant’s participation in Vietnamese freedom and anti-war campaigns in June 2014 was solely for the purpose of strengthening her Protection visa application. The Tribunal considered that it was not plausible that the appellant would delay for seven years in engaging in anti-government activity and only engage in that activity when the Minister’s Delegate refused her Protection visa. The Tribunal therefore disregarded that conduct as it was required to do by the then s 91R(3)(b) of the Migration Act.

33    Fourthly, the Tribunal concluded that the reason why the appellant failed to publish anti-government views in Australia for seven years, although she could have done so, was because she did not hold any anti-government views.

34    Fifthly, the Tribunal concluded that the requests for the appellant to pay her fees to the Women’s Association were the result of her promises to pay them. The appellant had not claimed a lack of financial capacity. And the requests were not serious harm for the purposes of the Migration Act.

35    Sixthly, the Tribunal did not consider that the interest that the Vietnamese police had in the appellant was an adverse level of interest beyond her outstanding membership fees and ensuring that she did not engage in any anti-government activities. The Tribunal noted that on the two occasions that the police had visited the appellant’s father, they had left quietly.

36    The Tribunal concluded that the appellant was not a person to whom Australia owed protection or complementary protection obligations. As her husband had advanced no independent claims, his application was also dismissed.

The decision of the Federal Circuit Court

37    The appellant applied to the Federal Circuit Court for review of the Tribunal’s decision. The appellant had three grounds of review. In broad terms those grounds of review were:

(1)    denial by the Tribunal of procedural fairness or error of law under s 422B of the Migration Act due to the inability of the appellant to give detailed evidence about her activities at the village radio station, including in relation to the finding by the Tribunal that she was free to broadcast her views before she became a member of the Communist Party;

(2)    failure by the Tribunal to consider relevant information in the appellant’s statutory declarations, contrary to s 36(2)(aa) of the Migration Act, concerning whether the appellant was at risk of harm arising from two interrogations by the Vietnamese police in 2011 and was living in fear (and not publishing anti-government information) as a result of these interrogations; and

(3)    failure by the Tribunal to satisfy the requirements of s 425 of the Migration Act because the interpreters’ translations were so inadequate that the appellant was denied a proper opportunity to put her claims to the Tribunal. This ground alleged inadequacies of almost every aspect of the hearing: the procedural information provided by the Tribunal; the questions asked by the Tribunal; the answers given by the appellant about her involvement with the radio station; her views and opinions; and the expression of her views and opinions.

38    The first ground of review was not pressed at the hearing because the appellant’s counsel (who was not counsel on this appeal) accepted that the first ground did not require separate consideration from the other two grounds. He accepted that the matters contained within the other two grounds adequately covered the issues in the first ground.

39    The primary judge dismissed the second ground. His Honour observed that the Tribunal had set out the appellant’s statutory declaration and her evidence of the two interrogations by local police in 2011. His Honour also noted that the Tribunal had referred on four occasions to the appellant’s fears. Although the Tribunal did not reach a conclusion about whether the appellant’s fears were genuine, it expressed some doubt about them, assumed the existence of the appellant’s fears and moved to an assessment of the risk of harm to the appellant and a determination of whether the appellant’s fears were well founded. Those reasons involved the appellant’s memberships, the views that the appellant advocated, and the visits by the police to the appellant’s father.

40    As for the third ground, the judge observed that the appellant had essentially three submissions. First, that she was effectively prevented from giving evidence at various stages of the hearing. Secondly, that there were mistranslations that were so material that they caused the decision making process to miscarry. Thirdly, that the overall process was such that the hearing did not provide the appellant with a fair or proper opportunity to be heard.

41    The judge considered each of the passages where there were alleged mistranslations relied upon by the appellant. The first of these was found to be minor and of no consequence. His Honour accepted that the second had merit. He held that the answer that was translated into English was in a “garbled and incomprehensive way” (at [58]). However, his Honour held that the force of this submission was ameliorated by (i) a change in interpreters, (ii) a repeat of the evidence by the appellant, through the new interpreter, albeit in a slightly different form, and (iii) the Tribunal understanding the evidence. The third mistranslation, of “political party” to “some secret party” was found to be immaterial. The fourth group of alleged mistranslations were found not be material misinterpretations. The fifth alleged mistranslation was found not to involve any substantial mistranslation. Each of these translations is considered in more detail below.

42    Ultimately, his Honour rejected the submission that the character and frequency of the misinterpretations in the transcript, considered in totality with all matters affecting the translation, had denied procedural fairness to the appellant.

The ground of appeal and the particulars in this Court

43    The appellants’ ground and particulars of appeal are as follows (with the emphasis in the original):

The Federal Circuit Court Judge made an error of law by failing to find that the Second Respondent denied procedural fairness and or committed an error of law pursuant to s 422B of the Migration Act 1958 (Cth) by failing to consider the claim made by the First Appellant and by not acting in a fair and just manner.

Particulars:

(a)    His Honour Judge Jarrett at para 19 of the decision record has said that the First Appellant “had the assistance of an interpreter at the hearing” and the Appellants were “also represented at the hearing by their agent who spoke Vietnamese”. He also said that the First Appellant had “some difficulty with the interpretation at the hearing”. At para 55 his Honour went on to conclude that: “misinterpretation was minor and of no consequence”

(b)    His Honour failed to recognise that the lack of proper translation was affecting the First Appellant’s ability to present evidence at the hearing. His Honour also failed to recognise that improper translations affected the Second Respondent’s consideration of genuineness of the First Appellant’s claimed fears. His Honour at para 30 said that “a finding about the existence of the fears expressed by the applicant was unnecessary because, on a fair reading of the tribunal’s reasons, that matter was subsumed in the tribunal’s findings about the foundation of those fears.”

(c)    His Honour failed to recognise the true ramifications that resulted from the inadequate translations that occurred at hearing of the Second Respondent. These being that the hearing before the Second Respondent was interrupted, the questions that were interpreted for the Applicant were incorrect and the Appellants’ agent was not able to translate questions for them.

(d)    His Honour failed to recognise that the Second Respondent’s assessment of the “foundation” of the First Appellant’s fears was affected by improper interpretation of evidence at the hearing causing procedural unfairness to the Appellants. At para 34 His Honour states: “Whilst the tribunal doubted the genuineness of the applicant’s fears, it did not reject her application on the basis of her credibility concerning those claimed fears”.

(e)    His Honour failed to recognise that the Second Respondent’s [sic] has failed to consider country [sic] information in assessing the First Appellant’s subjective fear of return. At para 38 his Honour states that: “to the extent that the applicant invites me to infer that the tribunal did not consider her evidence about her fears of harm should she return to Vietnam by reason of the experiences set out in her statutory declarations and in her oral evidence, I decline to draw that inference”.

44    Counsel for the Minister submitted that the appellant required leave to appeal in reliance upon this ground. She initially submitted that although this ground of appeal is similar to the first ground of the application for review before the Federal Circuit Court judge, significantly different ‘particulars’ are relied upon and the judge had not been required to consider the first ground separately. For this reason, she submitted that the appellant was attempting now to raise a new argument on appeal. She submitted that the appellant should be bound by the manner in which the case was conducted in the Federal Circuit Court and that it was not “expedient in the interests of justice” to grant leave: see Francuziak v Minister for Justice [2015] FCAFC 162; 329 ALR 268, 271 [11] (the Court).

45    I do not accept these submissions. First, the only reason why the first ground of review was not pressed before the Federal Circuit Court judge was because the same subject matter was encompassed within the other two grounds. Secondly, although the particulars of the ground of appeal in this Court are verbose and repetitive in parts, the essence of the ground of appeal is the same as the content of the third issue raised in the Federal Circuit Court. Counsel for the Minister properly volunteered this concession. That essence is that the appellant was denied procedural fairness by reason of the defects in interpretation during the hearing. As the primary judge observed (at [46]-[48]) that issue was put on broad bases before the Federal Circuit Court. It was alleged that the mistranslations effectively prevented the appellant from giving evidence at various stages of the hearing, that they were so material as to cause the decision making process to miscarry, and that they denied the appellant a fair or a proper opportunity to be heard.

46    In oral submissions, counsel for the appellant accepted that the particulars of appeal were all directed towards establishing that when the record of the Tribunal hearing is viewed as a whole, the Federal Circuit Court erred by failing to conclude that the appellant was denied procedural fairness. As counsel for the Minister properly accepted, the issue of procedural fairness necessarily must be considered by examining the hearing as a whole. During the oral appeal, counsel for the appellant then properly made submissions on most parts of the transcript of the hearing.

The rules of procedural fairness in relation to interpreters

47    Section 422B of the Migration Act provides as follows:

Exhaustive statement of natural justice hearing rule

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)    Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

48    Counsel for the Minister submitted that although s 422B(3) may inform the exercise of the Tribunal’s obligations under Division 4, it has no independent substantive force. She clarified that this submission was not intended to suggest that there is no obligation of procedural fairness in the interpretation process. As Hayne, Kiefel and Bell JJ said in Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 361 [57], it is “firmly established that the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction, for which prohibition will go under s 75(v) [of the Commonwealth Constitution]”.

49    It is unnecessary to determine whether s 422B(3) has any substantive force. Before the primary judge and, in effect before this Court, the appellant relied upon a statutory obligation of procedural fairness which, at least, is instantiated by s 422B(3). Section 425(1) is part of Division 4 so, by s 422B(3), s 425(1) must be applied in a way that is fair and just. Section 425(1) obliges the Tribunal (subject to exceptions not relevant here) to 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. As Hayne, Kiefel and Bell JJ said in Minister for Immigration & Citizenship v Li (361 [60]) concerning a similar provision, its purpose “is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review”. That purpose is complemented by s 427(7) which provides as follows:

(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.

50    In Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6, 19 [29], Kenny J said of an earlier version of s 425 that:

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.

51    That statement has been described as the “seminal” statement in this area and has been applied to s 425 in its current form: SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 [29] (Jacobson J).

52    The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, “Working with Interpreters: Judicial Perspectives” (2015) 24 JJA 207. The relevant principles are summarised below:

(1)    interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;

(2)    whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;

(3)    in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;

(4)    where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;

(5)    where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;

(6)    where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;

(7)    if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;

(8)    however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.

53    The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (215 [9]):

The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

54    In some circumstances it might be the case that a process is procedurally unfair even if a conclusion cannot be reached that the irregularity might reasonably have led to an adverse finding. One reason for this is that the reviewing body, and the appellate court, does not have the benefit of all of the advantages of the Tribunal which sees and hears the witnesses and considers that evidence in the context of the whole record, usually with less time constraints. Those disadvantages of the review or appellate court could require a finding of procedural unfairness in some circumstances even if the reviewing or appellate court is unable to conclude that the irregularity might reasonably have led to an adverse finding. It is not necessary to consider that issue further in this case because, as I explain below, I consider that the irregularities in this case, when viewed as a whole, might reasonably have led to an adverse finding.

The defects in translation and interpretation

55    The Minister filed an affidavit affirmed by a solicitor. The solicitor had listened to the recording of the Tribunal hearing. She corrected a transcript of the hearing and also colour coded it to represent the words spoken by (i) the interpreter to the applicant in Vietnamese, (ii) the interpreter to the Tribunal in English, and (iii) the applicant to the interpreter in Vietnamese. In relation to the Vietnamese portions of the transcript, the solicitor relied upon a translation prepared on behalf of the appellant.

56    The transcript discloses a multitude of defects, errors and omissions caused by the process of translation and interpretation. In the discussion which follows, I have relied upon the written translation of the appellant’s evidence which was prepared by the appellant. The Minister also relied on that translation for the purposes of comparison. The exercise is not one of a word for word comparison between that translation and the words spoken by the interpreter. As I have explained, one reason why it would be an error to do so is because no translation can ever be precise. Most sentences require an exercise of evaluative judgment in the process of translation. That is the process of interpretation. The relevant errors and omissions upon which I focus can be grouped into three categories. The first is where there are errors in the translation of the appellant’s evidence to the Tribunal. The second is where there are omissions from the translation of the appellant’s evidence to the Tribunal. The third is where there are errors in the translation of instructions or information from the Tribunal to the appellant.

57    The errors and omissions in the translation must be assessed in the entire context. In particular, as counsel for the Minister submitted and as the primary judge found (at [20]), in broad terms, the appellant’s claims of a well-founded fear of persecution made in the Tribunal were based on the following matters (separately or cumulatively):

(1)    her political opinion against the Vietnamese government;

(2)    her political opinion in relation to forbidden topics including criticisms of the government’s economic management, proposed changes to the government’s involvement in local economic and other programs, and the facilitation of the proposed expansion to the Swedish HIV Aid project;

(3)    the non-payment of membership fees to the Communist Party, the Women’s Association and the People’s Committee of her village; and

(4)    the questioning and warnings from the police during her visit to Vietnam in 2011.

58    There was some overlap between categories (1) and (2). For instance, the primary judge also described the Swedish HIV program and the expansion of foreign investment as matters that fell within (1). But, as I explain below, there were other matters which fell within (2), including the appellant’s views on equal rights for women and her views about corruption. Some of those matters were the subject of mistranslations.

The mistranslations

59    On a number of occasions the interpreters mistranslated the appellant’s evidence to the Tribunal.

60    As the primary judge recognised, some of the mistranslations, if they were mistranslations or misinterpretations, were very minor and of no consequence. Numerous examples can be given of minor and insignificant mistranslations or possibly even just alternative translations. For instance, before the Federal Circuit Court, counsel for the appellant relied upon alleged mistranslations of the explanations of the process early in the hearing, such as when the Tribunal said the following:

So I was explaining the meaning of refugee last time we were talking … And I’ll just recap on that for you. So the definition requires you to have a well-founded fear of persecution for one of five reasons.

61    This was translated as follows by the first interpreter:

The meaning of this requires you to have the cringing fear (so set) that is right and logical for five reasons.

62    Another example of an early mistranslation in the process was when the Tribunal said:

The complementary protection limb for the grant of a protection visa is met if there is substantial grounds for believing that there is a real risk that you will suffer significant harm if you were returned to Vietnam.

63    But the first interpreter translated this as:

For the special circumstances, for example if you have a real reason to be harmed when you return to Vietnam.

64    Ultimately, these mistranslations are insignificant for several reasons. One reason is that in the context of the whole of the explanation provided by the Tribunal, the definition of a refugee and the nature of the complementary protection limb was satisfactorily explained. Another is that, as the Tribunal observed, the appellant’s agent had explained to her before the hearing the requirements of the refugee convention and the concept of complementary protection.

65    There were, however, a number of other mistranslations that had real or potential significance. The first of these was not the subject of submissions so I do not place reliance upon it but mention it only in passing to illustrate that the other mistranslations to which I refer were not isolated instances. This first example is that when the Tribunal asked the appellant about her interview with the police in Vietnam she responded:

Yes, when I saw the police they did ask about the fees for the Women’s Association and they said that if I don’t pay I will later bear the consequences. And they said when I go over to Australia I am not allowed to write or publish anything that will affect the system of government in Vietnam. And they asked about my work in Australia and that was all. They stressed that when I go to Australia I cannot write or publish anything that would affect the system of government in Vietnam.

66    This was translated by the second interpreter as follows:

And police asked me to pay the fee and say that if I don’t pay the fee I will suffer the result, bad result. And another thing they told me is not publishing any document against government in Australia.

67    The Tribunal immediately replied “I suspect that answer”. The Tribunal asked the agent for the appellants to confirm the accuracy of the translation. The agent, who was not a qualified interpreter, said that he was happy with it. But the translation was not accurate. Even assuming that the translation “not publishing any document against government in Australia” were to be understood as not publishing any document, while in Australia, against the Vietnamese government, much of the emphasis of the appellant’s response was lost. The stress put on these matters by the police combined with the repetition of them by the appellant lost the emphasis which might have been construed as a matter of importance to her. This was in the context where her explanation for why she did not speak out for seven years in Australia was not accepted by the Tribunal.

68    A second example of a mistranslation of real or potential significance is related to the important issue of the views that the appellant said that she expressed which were not consistent with the government’s views, and her evidence about the government’s reaction to them. The appellant said:

And when we actioned the SIDA [Vietnamese for HIV] project we were working within a small funding and when the project was actioned I wanted to expand but the authorities were suspicious that I had my own political agenda.

69    This was interpreted by the second interpreter as follows:

When I was doing the SIDA program of Switzerland, everything was alright, but when I like to expand this bigger and the government was suspicious that I get involved in some secret party. (Emphasis added).

70    Shortly after this, the agent for the appellant explained that SIDA was Vietnamese for HIV and then the interpreter responded to the Tribunal as follows:

Tribunal: Okay alright. So when she was doing the Swedish HIV program that was ok but ….

Interpreter: It’s ok but it was in small scale but when I would like to expand it to make it larger and the government was very suspicious that I got involved in some secret party. (Emphasis added).

71    In the transcript it does not appear that this response by the interpreter was a translation of anything that the appellant had said, other than a possible reiteration of her earlier remarks. In any event, the applicant did not make any reference to a secret party.

72    In the Tribunal’s decision (at [42]), the Tribunal described the appellant’s evidence on this point as follows, reiterating the error about her involvement with a “secret party”:

The applicant stated that she wanted to expand the Swedish HIV program, but the government was very suspicious that she was involved with a secret party. She was not allowed to broadcast matters where government officials were doing wrong things, like pumping salt water instead of fresh water.

73    The Tribunal repeated later in its reasons (at [45]) that the appellant had “stated that she wanted to expand the… HIV program she was working [on]. The government did not want another party to get involved, and wanted to control foreign investment too much”.

74    A third example of mistranslation is what immediately followed the second example. The appellant gave evidence of the detail of her proposal in relation to the HIV program in response to two questions:

And during the time I was actioning the project I had written an article for a competition about understanding human equality and in my article I wrote about women equality and I had sent my article but I placed second in the competition but when I proposed to the Committee for me to broadcast I was not allowed to broadcast.

75    The second interpreter then engaged in a conversation with the appellant, asking her what she had broadcast and whether it was broadcast on the radio system, to which she replied:

The article I sent to the competition to understand human equality.

…

Yes, I mean broadcast on the radio system. So from this personal opinions I began to feel pressured. There were points that I did not fully oppose them but there were other points that I followed my own personal views.

76    All of the appellant’s evidence in the two paragraphs quoted above was translated as follows:

When I was on the plan, the HIV plan, I did attend an argument like um I talked about the equal I asked for the equal way around the male and female worker and I got the second prize and I would like to broadcast my argument on the radio but it was refused.

77    This translation was almost incoherent. It involved both mistranslation and omission. The evidence about the appellant’s article on women’s equality became an argument that she “attended”. Her proposal for equal rights became an “equal way around the male and female worker”. There was no mention of the second placing of her article which was the content that she wanted to broadcast. There was no mention of her evidence that matters in the article were areas where she followed her “own personal views”.

78    These mistranslations and omissions were exacerbated by the interpreter stepping out from the role of interpretation and conducting a conversation with the appellant and asking questions of the appellant. During the evidence I have described, the interpreter asked the appellant: “What did you broadcast?” To which the appellant replied “The article I sent to in the competition to understand human equality”. The interpreter then asked her: “Yes, and you mean broadcast on the radio system?” The Tribunal would have seen this exchange going on but only the summary I have described above was translated for the Tribunal.

The omissions

79    There were many omissions in the translations. Although the omissions were prolific, many of the omissions were inconsequential and can be disregarded. For instance, the appellant was asked about her employment at the radio station. She replied to the Tribunal as follows:

That’s right. So I was an editor from February 2002 to December 2005, then I left my position.

80    The first interpreter translated this without mention of the role of editor:

Yes I worked at the radio station from February 2002 and then I left in December 2005.

81    This was a minor and insignificant mistranslation. On another occasions this minor omission was compounded. For instance, the appellant’s reference to her role as editor was omitted from the translation, together with an omission of a matter that the appellant repeated, when the Tribunal asked the appellant what she did between December 2005 and January 2007. She replied as follows:

So you mean during the time between the time I left my position as an editor in December 2005 to January 2007. I still worked as the President of the Women’s Association and the secretary of the [Village Organisation]. So even after I left my position as an editor I still participated as the President of the Women’s Association and the secretary of the [Village Organisation].

82    This explanation was interpreted as follows by the second interpreter:

Well after I left the radio station in 2006 I have been involved in the Women’s Association and secretary of the [Village Organisation].

83    Although compounding the earlier omission, this was still a trivial omission which can be disregarded.

84    Other omissions were more significant. The appellant argued that one example of these significant omissions was the evidence that she gave, and her questioning, in relation to the “content of her views” that she was “unable to express”. There was some initial confusion about what the Tribunal meant by this but I accept the submission by counsel for the Minister that any confusion was neither the result of mistranslation nor was it a matter which affected the hearing in any way. The appellant plainly understood the question and then gave evidence about the content of her views. It is the mistranslations of that evidence by both the interpreters which is significant.

85    The appellant gave evidence that in 2003 she joined the Communist Party. This meant that she did not have the freedom to express the views that she had expressed while she was an editor. She said that everything had to comply with the principles of the Communist Party. The Tribunal then asked her what views she was unable to express. The Tribunal had to explain several times what it meant by the content of the views that the appellant was unable to express. The Tribunal said:

Hang on, so in your statutory declaration, the most recent one, you talked about some views on foreign investment and HIV aid programs so I’m just wondering if you could tell me what the content of the views that you felt you were unable to express was.

86    This was translated by the interpreter as follows:

According to your statutory declarations you talked about your view on HIV and at the same time your views on foreign investment.

Can you please tell us the content of those views.

87    The appellant replied:

Yeah. So when I was already a member of the Party, I expressed my view on expanding business in the area from the large suppliers and changing it to smaller companies. So it is convenient to complete transactions between local businesses and international businesses so that we can generate capital from international businesses investments. I put forward this proposal.

So, I suggested to open companies from the large suppliers so that it is more convenient for transactions between local businesses and international businesses. So for example when we form a company we need a director, a treasurer and a secretary so this form makes it easier to communicate with overseas companies.

88    This evidence was translated in a summary form by the interpreter, omitting much of the appellant’s detail, as follows:

My view is that I wanted to develop the big enterprises to facilitate the joint investment with foreign companies for the benefit of the local business.

89    This translation was from the first interpreter. It was at this point of the translation that the agent for the appellants interrupted and informed the Tribunal that the first interpreter was not translating the appellant’s evidence but was instead summarising it and missing many points. The agent had also pointed out mistranslations when the Tribunal had explained to the appellant the definition of “refugee” and “complementary protection” which I have already mentioned.

90    As counsel for the Minister observed, after the new interpreter was provided after an adjournment, the Tribunal returned to this topic with the appellant. When the appellant was asked to provide detail of the matters that she did not have the freedom to express on radio she replied:

Yeah, so after I joined the Communist Party I had my own personal views that I put forth and they did not accept. The first view I had, that I put forth, was to suggest the government department should form businesses in the area, and these businesses would be from large suppliers turned into smaller businesses so that the duty of conversing and transacting with other companies overseas.

91    There were significant omissions when this was translated as follows:

The first one I would like to do is to ask the government to extend its part the investment company so that the local one can contact with the overseas company.

92    I accept the submission by counsel for the Minister that, by itself, this summary translation conveyed the substance of the appellant’s answer. But, nevertheless, some detail was lost including the detail about the manner in which the government would, in the translated words which are difficult to understand, “extend its part the investment company”.

93    The appellant gave another example of a matter where her activities had been brought to the attention of the Party officials. She gave evidence as follows:

And another task, when I had caught the attention of these officials there was one day, one of the meetings, as part of the principle of the Party for group participation, we pumped water against drought and there was a village leader he didn’t participate and did not follow the principle of the Party to work as a group so he pumped the water but it was salt water and it killed the crops of the villagers so I raised the point and the officials had a sense to cover each other so I felt injustice in this matter.

94    The interpreter summarised this evidence as follows:

Another time when I told about the government officer doing wrong thing instead of pumping water to the garden they pump salt water so it damage the garden of the people they try to cover their wrong doing and I was in trouble.

95    This summary omitted all the following details: (i) the pumping of water was a measure against drought, (ii) the pumping of water was part of the Party principle of group participation, (iii) the wrongdoer was a village leader, and (iv) the village leader did not follow the Party principles to work as a group.

96    This was potentially another significant matter. On one view it might have fallen into the category with which the Tribunal was concerned as a political opinion expressed by the appellant in relation to a “forbidden topic”.

97    Another omission in an important part of the appellant’s evidence was her explanation for why she ceased to work for the radio station. As I have explained, the Tribunal concluded that the reason why the appellant left the radio station was so that she could maintain a more lucrative position with the Communist Party which required her not to express critical views, not because she was constrained in what she could say independently of that Communist Party position. When she was asked why she stopped working for the radio station, she replied as follows:

Because, at the beginning when I started working I really enjoyed the work with broadcasting and I wanted to do even better in relation to the improvement of the government in my village. But when I worked for a few years I felt pressure so afterwards all the opinions I wanted to say I couldn’t say and that in turn borne injustice and so I left. I became bored and I left.

98    This was translated as follows:

Well initially I liked the work in the broadcasting business. But when I wanted to make political changes I was subjected to pressure and we weren’t allowed to express our opinions freely so I was dissatisfied.

99    Again, by itself, this difference in translation might not be significant, even in relation to this matter on which the appellant was disbelieved, namely her reason why she stopped working for the radio station. The appellant’s emphasis on improving “the government in her village” might be thought merely to be a more specific example of “political changes”. But the detail of the points of “improvement”, as I have explained, had been previously mistranslated.

100    Yet another omission in an important part of the appellant’s evidence was the evidence that she gave in relation to her interrogation by the police. The Tribunal said that the fact that the police left without saying anything didn’t necessarily mean that the appellant was of a high level of interest to them, apart from perhaps their desire to obtain membership fees. The appellant replied:

According to me, that wasn’t the case that was only one part of it. Because prior to that I had participated in the broadcasting station of the Party and when I went overseas they were scared I had done things and went to live with another country that supported freedom and that I would leave the government measures in Vietnam. And from these personal views I have they thought of me as a target and not only the membership fees for the Women’s Association, I think I was still a target and that I was being watched. (Emphasis added)

101    This was translated as:

I don’t think that they came to see me with the only reason to take the membership money. Really beside that I am a person of their interest already because I already get out of the country. I am in the free country so I might do something so when they came to visit me it is not only for the reason of membership.

102    The Tribunal replied to this saying that it was not sure why the appellant could not explain to the police that the appellant had not done anything in Australia (at least until June of that year) which might have reflected adversely on her in Vietnam.

103    The appellant said:

But I think that even if I explained they would not believe me because previously when I was in Vietnam I already had the views that opposed the government and when I left overseas they think that I had abandoned the position in the politics in Vietnam and that I will do things to affect the government of Australia. I think that I was a target that had been watched from previously so I thought even if I explained they would not believe me because I was already a target they had their eyes on. (Emphasis added).

104    This was translated again in summary form, omitting detail and emphasis, as:

Even I explain I think that they did not believe me because in Vietnam I already did a lot of thing against the government so they will not believe my explanation.

Mistranslations of information about the process provided by the Tribunal

105    Some mistranslations also impacted upon the way in which the appellant understood the procedures of the Tribunal. One mistranslation of the words of the Tribunal could have caused the appellant to omit details from her evidence. Towards the end of the hearing, the Tribunal explained to the appellant that she should not repeat what was in the statutory declaration, but that, instead, she should inform the Tribunal of any details that were not contained in that statutory declaration. This was mistranslated as:

He has already read your statutory declaration so you don’t need to repeat it because he has already read it.

106    The importance of this mistranslation is that the appellant was not told that she should inform the Tribunal of any details that are not in her statutory declaration. Indeed, at this point the interpreter appears not be involved in the process of interpretation of words but, instead, the interpreter is conducting a dialogue with the appellant and speaking about the Tribunal in the third person.

107    This mistranslation was compounded when the Tribunal reiterated that the appellant need not repeat matters from her statutory declaration in full. This was translated as follows:

The matters that you have written in the statutory declaration he has already read. Today he only wants to confirm if the matters are correct or not correct. (Emphasis added).

108    That misconception lingered. Shortly afterwards, the Tribunal said that there were no further questions and asked if there was anything that the appellant wanted to raise. She replied:

Because if you ask me, in my statutory declaration, whatever part you ask I will answer up to that part. Because whatever you ask I just answer truthfully but I don’t.

109    That was translated, in similar terms, as:

I’m here only to answer your questions. If you have any questions I’m happy to answer to verify.

110    Ultimately, I do not place any weight upon these mistranslations. The reason for this is that although they had the potential to cause serious error, and although the appellant appears to have been initially confused, the prejudice caused by these misinterpretations was soon corrected. The Tribunal iterated and reiterated, in adequately translated remarks, that the appellant had “the chance to raise any matters that you have never said before in the document statement of yours” and “Was there anything else you wanted to say?” On each occasion the appellant added further detail.

Conclusions

111    By themselves, I do not consider that any of the errors, omissions or mistranslations would have been sufficient for a conclusion that there was a denial of the procedural fairness required by Division 4 of Part 7 of the Migration Act. Even the more substantial errors need to be read, as the primary judge explained and as counsel for the Minister cogently submitted, together with (i) the comprehensive statutory declarations provided by the appellant, (ii) the essential elements of the appellant’s evidence that were conveyed, and (iii) the involvement of a Vietnamese speaking representative of the appellant who actively participated in the hearing.

112    Nevertheless, the appellant’s claims were also assessed by the Tribunal in the context of the detail of her oral evidence, and the Tribunal rejected parts of her oral evidence. In particular the Tribunal rejected the appellant’s evidence that she held anti-government views and rejected her evidence that her views would (and did) attract adverse attention from the Vietnamese government. In relation to these matters, as counsel for the Minister properly accepted, if the appellant’s fears, and the basis for them, were not properly translated then the conclusion by the Tribunal that those fears were not well founded might have been affected. For that reason, I respectfully disagree with the conclusion of the primary judge (at [93(b)]) that none of the matters of interpretation relate to whether the appellant had well founded fears upon her return. The matters of interpretation do relate to whether the fears were well founded because if the fears were not adequately interpreted then a conclusion that they were well founded could not have been reached.

113    There is a real possibility that the combination of all of the errors, omissions and mistranslations by both the interpreters contributed to the Tribunal’s rejection of key aspects of the appellant’s evidence. In some areas, the mistranslations formed part of the reasons for the Tribunal’s decision. In others, the omissions could have affected the reasoning on matters which the Tribunal found against the appellant. The errors and omissions must also be considered in the context in which there were two breaks at the start of the hearing due to technical difficulties with the recording equipment, followed by the termination of the interpretation from the first interpreter due to inadequate translation, and another adjournment followed by the second interpreter, also taking part by telephone. The errors and omissions also occurred in a context in which, on occasion, the interpreter asked the appellant questions which the Tribunal had not asked and incorrectly summarised information that the Tribunal provided. When all of the errors and defects to which I have referred above are considered as a whole and in light of all of the circumstances of the hearing, I am satisfied that they might reasonably have led to an adverse finding. This is not a conclusion that the errors and defects in the interpretation process did lead to an adverse finding.

114    Although the primary judge approached the assessment of procedural fairness with diligence and with considerable focus on detail, I conclude that the number of errors and defects, in combination, permits no conclusion other than a finding of a denial of procedural fairness required by Division 4 of Part 7 of the Migration Act. The appeal must be allowed.

115    The unfortunate occurrences in the hearing placed the Tribunal in an extremely difficult position. When the recording equipment problems occurred twice at the start of the hearing the Tribunal generously, and properly, offered the appellant an adjournment. When the Tribunal realised that the first interpreter had been inadequately interpreting the evidence, the Tribunal properly dismissed the interpreter. When the second interpreter translated an answer to the Tribunal, the Tribunal explained to the appellant’s agent that it was suspicious of the answer given and asked the agent to confirm it. If the agent had made the Tribunal aware of the number and extent of other errors in translation, including on matters which were important to the Tribunal’s determination, then the Tribunal would almost certainly have vacated the hearing and relisted it. The Tribunal was dependent upon the agent to point out the errors and omissions in translation. After the hearing resumed with the second interpreter the Tribunal pointed out to the agent that he should inform the Tribunal whether there was any issue in the interpretation. However, the appeal cannot be dismissed on this ground. The agent was not an interpreter. And although I take into account the agent’s apparent fluency in Vietnamese and his understanding of the appellant’s claims, his consideration of the adequacy of the translation had to be performed concurrently with considering the evidence, preparing submissions, and assisting his client.

116    With two exceptions, the orders proposed by the appellants are appropriate. The first exception is that the appellants should pay the costs thrown away by the respondent arising from the vacation of the hearing on 11 May 2016. This hearing was listed to be heard on that day last week. About 10 minutes before the hearing, the respondent and my associate received an email from the solicitors for the appellants explaining that the solicitor with the conduct of the matter was ill and the appellants would seek an adjournment. A medical certificate was later provided which said no more than that the solicitor had “a medical condition”. The appeal was adjourned until today. The appellants should pay the costs thrown away by the respondents by reason of that adjournment.

117    The second exception arises after hearing submissions about the form of orders following the delivery of these reasons. After hearing brief oral submissions, my preliminary view is that the first respondent should not be required to pay all of the costs of the appellants from the hearing before the Federal Circuit Court. Although the issue before the Federal Circuit Court concerned whether procedural fairness was afforded in light of the proceedings as a whole, counsel for the Minister submitted that there were some matters of mistranslation, and some omissions, including some which I found to be significant, which were not the subject of particulars or submissions before the primary judge. I granted leave to the parties to file brief written submissions on this issue of costs by noon on 23 May 2016, identifying these matters, so that this order can be determined on the papers.

Associate:    

Dated:    17 May 2016