FEDERAL COURT OF AUSTRALIA

SZUYU v Minister for Immigration and Border Protection [2018] FCA 786

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The main question raised by this appeal is whether the appellant was given a real and meaningful opportunity to give evidence and present arguments at the hearing of his review application in the Refugee Review Tribunal, as is implicitly required by s 425 of the Migration Act 1958 (Cth). The appellant required the assistance of an Arabic interpreter at the hearing. Issues arose in the course of the hearing about whether the interpreter could fully understand, and therefore properly interpret, some of what the appellant was saying. Was the standard of translation sufficient to enable the appellant to communicate the substance of his case? Were the problems with translation that occurred at the hearing such as to support a finding that the hearing process was materially flawed, or that the translation issues could have affected the outcome?

Procedural background

2    The appellant is a national of Iran. He arrived in Australia on 10 May 2012 and applied for a Protection (Class XA) visa shortly thereafter. In November 2012, a delegate of the Minister for Immigration and Border Protection refused to grant the appellant a Protection visa. The appellant then applied to the Tribunal (now the Administrative Appeals Tribunal) for a review of that decision. That application was unsuccessful. The appellant then challenged the Tribunal’s decision in judicial review proceedings in the Federal Circuit Court of Australia. He contended, in short terms, that he was denied a real and meaningful hearing before the Tribunal by reason of inadequate translation services. He also argued that the Tribunal acted unreasonably in not aborting or adjourning the hearing when issues arose about the translation. The primary judge rejected those contentions and dismissed the appellant’s application.

3    The appellant appealed the judgment of the primary judge. He contended, in broad terms, that in dismissing his case that he was denied a real and meaningful hearing in the Tribunal, the primary judge made two errors: first, his Honour considered wrong issues and made an erroneous finding; and second, his Honour applied the wrong test and, in doing so, misconstrued the error that the appellant had contended had been made by the Tribunal.

the appellant’s claims

4    It is unnecessary to set out at length the claims and evidence that provided the basis for the appellant’s visa application before the delegate and on review before the Tribunal. In short, the appellant claimed to have a well-founded fear of persecution if he was to return to Iran because he was an Arab born and living in Ahwaz, had handed out pamphlets which promoted Arab Ahwazi rights and sought to discourage people from voting in forthcoming elections, and because he was a “failed asylum seeker” from the West.

5    The appellant claimed that his father was a farmer who advocated for Ahwazi rights and was later kidnapped by the Iranian authorities and killed. The appellant was a child at the time of his father’s death and was not aware of his father’s political activities. As an Ahwazi, the appellant claimed he was not permitted to speak Arabic, wear certain clothing or congregate in groups of five or more. Ahwazis were also discriminated against in employment and otherwise forcibly removed from certain areas by the government. The appellant felt very frustrated by this and did not feel safe in Ahwaz.

6    The appellant claimed that he and his friends decided to speak up for their rights. They distributed pamphlets that raised awareness of the persecution and basic denial of rights for Ahwazis and expressed opposition to the Islamic Republic of Iran during the 2012 elections. His friend was subsequently arrested with the pamphlets and was taken for questioning. The appellant was told by his friend’s brother that his friend had given the police the appellant’s name.

7    The appellant claimed that, following his friend’s arrest, he stayed at home for some time before going to his sister’s house, which was about 90 kilometres from Ahwaz. He stayed there for about 20 days. He then went to Mashad for another 20 days before leaving Iran via Tehran with a people smuggler and his own passport. The appellant claimed that the authorities went to his house searching for him. He maintained that if he returned to Iran he would be considered to be against the government and, as a result, would be killed or deported by the authorities.

8    The Minister’s delegate was not satisfied that the appellant satisfied the criteria for the grant of a Protection visa in s 36(2) of the Act. It is unnecessary to set out the delegate’s findings in any detail. Suffice it to say that, having considered and assessed the appellant’s claims and evidence, the delegate was not satisfied that the appellant was a non-citizen to whom Australia had protection obligations.

in THE TRIBUNAL

9    The appellant lodged his application for review of the delegate’s decision with the Tribunal on 5 December 2012. On 21 December 2012, the Tribunal invited the appellant to appear before it to give evidence and present arguments relating to the issues arising in his case. The appellant’s migration agent responded to that invitation on 4 January 2013. In the response form, the appellant indicated that he needed an Arabic interpreter. In the covering letter, the appellant’s migration agent also requested that he be permitted to attend the hearing by telephone. The Tribunal initially indicated that it was unwilling to allow the adviser to attend by telephone but, ultimately, “reluctantly” agreed to that course. The appellant’s migration agent provided lengthy and detailed written submissions to the Tribunal on the appellant’s behalf on the day prior to the hearing.

10    The appellant appeared at a hearing before the Tribunal on 23 January 2013. The Tribunal’s reasons record that the hearing was conducted with the assistance of an Arabic interpreter and that the appellant’s migration agent attended the hearing by telephone.

11    It appears from a transcript of the hearing that was in evidence before the primary judge that, at certain stages of the hearing, the interpreter brought to the Tribunal’s attention some difficulties that she was having in understanding what the appellant was saying. The precise nature and extent of those difficulties is addressed in detail later. Suffice it to say, at this stage, that the source of those difficulties appeared to be that the appellant and the interpreter used different Arabic dialects and that, at times, the appellant used non-Arabic words. At the request of the appellant’s legal adviser, the Tribunal gave the appellant time to provide post-hearing written submissions to the Tribunal in respect of any issues that arose during the hearing, including any issues in relation to the translation.

12    Shortly after the hearing, the appellant’s legal adviser asked the Tribunal to provide him with a copy of the hearing tapes. The Tribunal promptly complied with that request. On 6 February 2013, just prior to the expiry of the 14-day period within which the appellant was able to provide post-hearing submissions to the Tribunal, the appellant’s legal adviser wrote to the Tribunal and stated:

We note that the interpreter raised concerns that she may not have fully conveyed certain phrases that were important to the applicant’s claims for Protection. Accordingly, we have obtained a copy of the audio from the Hearing and we are awaiting clarification of the interpretation.

Given the delay in receiving the audio recording, we are still awaiting clarification of the same. Given the importance of this matter, to our client’s case, we kindly request an extension of time of one week, namely until close of business, Wednesday 13 February 2013 to provide further submissions in support of the applicant’s matter.

13    The Tribunal acceded to the request for an extension of time in which to file the submissions.

14    The appellant’s migration agent forwarded a written submission to the Tribunal on 13 February 2013. The submission was said to “address the issues raised by the Tribunal at the applicant’s hearing”. Importantly, the submission raised only one specific issue concerning the translation at the hearing. That issue concerned the translation of the appellant’s evidence concerning the pamphlets that he claimed he had handed out prior to the 2012 elections. The submission stated:

We note the Tribunal contended that it was unusual that the pamphlets distributed by the applicant and his friend on Election Day did not provide directions regarding how they believed individuals should vote. While the applicant clarified at the Hearing that the pamphlets encouraged voters to boycott the election, the Tribunal noted that this information was not forwarded until late in the Hearing.

The Applicant reiterates that the pamphlets did encourage individuals not to vote. The Applicant notes that he stated on numerous occasions that he did not believe in the Islamic Republic of Iran and wanted to make sure people did not support the oppression that was occurring. We note that the applicant advised that he had indicated at the beginning of the interview that he was encouraging individuals not to vote. Furthermore, we note the interpreter indicated that the applicant may have previously disclosed such information however she may not have accurately conveyed what he was saying. Upon listening to the recording with the assistance of a native Arabic speaker, it is apparent that the applicant continually submitted that the pamphlets encouraged individuals not to support the regime. The Applicant instructs that when he stated that they advised people not to support the Iranian Regime, he meant the [sic] discouraged them from voting.

We respectfully submit that it would be unfair to discount the genuineness of the applicant’s claim on the basis that the Tribunal did not believe he disclosed at the beginning of the hearing that the pamphlets discouraged people from voting. It seems that the applicant’s failure to explicitly submit early in the Hearing that the pamphlets encouraged individuals to boycott the election was nothing more than a communication issue. Further, the applicant did clearly signify that the aim of the pamphlet distribution was to encourage individuals not to support the regime.

Furthermore, we note that the Tribunal contended that it was unusual that the applicant would attempt to distribute pamphlets during the day at the time of the election, especially given the increased security presence at the time. The Applicant reiterates that they would provide pamphlets to young children who would then distribute the pamphlets to other people in the area. The Applicant instructs that he would travel to different areas to distribute the pamphlets rather than continue to stay in a specific area for a prolonged period of time. This strategy was relied upon by the applicant to decrease the likelihood of being identified as a political dissident by the authorities. The Applicant reiterates that his friend was not wearing traditional Arabic dress while distributing pamphlets. He submits that when he mentioned his friend being radical, he meant that at times, he often wore traditional dress. The Applicant submits that he never meant to infer his friend was wearing traditional dress while distributing pamphlets. The record of interview supports this fact.

15    The submission did not suggest that there were any other issues with the translation at the hearing. It did not refer to any, or any other, specific mistranslations that were believed to have occurred during the hearing. Nor did it contend that the standard of translation at the hearing was insufficient to enable the appellant to give evidence and present arguments at the hearing, or insufficient to enable him to communicate the substance of his case and present arguments in relation to the issues raised. It certainly did not go so far as to suggest that the hearing was not fair, or that the appellant was denied a real and meaningful hearing, either by reasons of the standard of translation, or for any other reason.

16    The Tribunal decided to affirm the decision of the delegate to refuse the grant of the Protection visa. In its Statement of Decision and Reasons, the Tribunal found that the appellant’s evidence regarding his claims was inconsistent and lacked credibility, that the appellant was not a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a Protection visa: Reasons at [73].

17    The Tribunal gave detailed reasons for rejecting the appellant’s evidence and claims. Before addressing those reasons, it should be noted that the Tribunal’s Reasons briefly refer (at [63]-[65]) to an issue concerning the translation, which arose at the hearing, and the appellant’s post-hearing submission concerning it:

63.    The applicant referred to documents that he had provided. The interpreter brought out some issues regarding what was contained in the pamphlets, particularly whether they said not to vote. The adviser was asked to clarify this in the submission. The adviser was given 14 days to provide a submission that allowed them to provide alternative translations to those given today. The applicant clarified that he had said in the pamphlets that people should not vote.

Post-Hearing Submission dated 13 February 2013

64.    The submission reiterated that the pamphlets the applicant distributed encouraged people not to vote. It also claimed that the applicant meant that the applicant’s friend Abu Thar was at times radical which meant that he wore the dishdash and that he never meant to infer he was wearing a dishdash while distributing pamphlets. The submission claimed that the interview supported this fact.

65.    The submission also claimed that the delay in authorities searching the applicant’s house may have been to collect further evidence before arresting him and the security authorities often work in random ways in Iran. It also submitted that the applicant was not entirely sure how Abu Thar’s brother became aware that the authorities became aware that the applicant had been distributing pamphlets.

18    The Tribunal’s reasons for rejecting the appellant’s evidence and claims concerning the distribution of pamphlets were as follows (Reasons at [75]-[78]):

75.    I do not accept that the applicant or his friend Abu Thair handed out pamphlets over two days in 2012 advocating Ahwazi nationalism and urging voters to boycott the parliamentary election. Such an action is at odds with his level of politicisation prior to the alleged incident. He claimed that he had never been a member of a political party and that he only talked about Ahwazi nationalist issues in private with his friends but that he was always careful because he feared being exposed.

76.    For someone who eschewed public expression of Ahwazi political opinions because of his fear I find his claim that he and a friend spent two to three hours a day over two days handing out pamphlets criticising the Islamic Republic in broad daylight in the middle of Ahwaz to lack credibility.

77.    To begin with, he claimed that on election day lots of police were brought into Ahwaz because of Arab demonstrations and that ‘wherever you went you found policemen’. Yet, despite this allegedly very high security presence he and a friend were able to hand out anti-regime pamphlets for up to six hours without being seen by the police. I do not accept that this was because they moved locations frequently given that two men on a motorbike handing out pamphlets would have been easy to spot over the four to six hour period they claimed to have done this.

78.    I also find their method of delivery of the pamphlets to lack credibility. They claimed they chose around midday because there was no one on the street, and yet he also claimed that they gave them to children to hand to their parents. I do not consider it plausible that around midday that the only people on the street to hand pamphlets to were children playing on the street. It is reasonable to assume that children would either be in school or at home for lunch and that if they were on the street other adults would also be on the street and would have seen the pamphlets being distributed.

19    The Tribunal also noted the inconsistencies in the appellant’s evidence regarding his friend’s arrest and did not accept that it was credible that he came to know of his friend’s confession within days of the friend’s arrest. The Tribunal stated that the appellant’s claim that the authorities did not search for him until some four weeks after his friend had given them his name strengthened its reasons for rejecting the appellant’s claims. It found that the reasons proffered by the appellant for the delay on the authorities’ part were not credible.

20    Having dismissed the appellant’s evidence that he distributed pamphlets in the lead up to the 2012 elections, and having found, in effect, that the appellant had not been a member of any political organisation or had any political profile at all, the Tribunal rejected the appellant’s overarching claim that he was or would be considered to be an opponent of the regime. The Tribunal accepted that the appellant exited Iran on a legal passport but found that, given its finding that he was not of any interest to the authorities, he would not have required the assistance of a people smuggler to assist him to exit the country through the airport.

21    Having found that the appellant was not politically active in Iran, or since he arrived in Australia, and therefore would not come to the attention of the Iranian authorities, the Tribunal concluded that it was not satisfied that the appellant would be subjected to serious harm for being a failed asylum seeker from the West.

22    As for other aspects of the appellant’s claims, while the Tribunal accepted that Ahwazis face discriminatory employment practices, the Tribunal did not accept that this amounted to persecution. Further, the Tribunal did not accept that the appellant had been subject to discrimination in his access to employment. It noted, in that regard, that the appellant had been employed continuously since he had left school and that his employment profile in unskilled positions was commensurate with his education and qualifications. The Tribunal also did not accept that the appellant was unable to speak his language, wear traditional dress, or observe traditional Arab customs in the absence of independent country information to support those claims. The Tribunal was not satisfied that the disproportionate distribution of the economic benefits of the oil and gas deposits in the Ahwaz region represented serious harm to the appellant. To the extent that the appellant referred to the cessation of a $40 a month payment to his family by the government, the Tribunal noted that it was impossible to determine the reason for the cessation of the payment. Finally, the Tribunal said that it was not satisfied on the basis of the country information before it that a person who was a failed asylum seeker would necessarily be mistreated upon return to Iran.

23    Having effectively rejected virtually all of the appellant’s evidence and claims, the Tribunal found that the appellant did not have a well-founded fear of persecution for any “Convention reason”, and did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Iran, there was a real risk that he would suffer significant harm on the basis of his claim: Reasons at [96]-[98]. The Tribunal was accordingly not satisfied that the appellant was a person to whom Australia had protection obligations and therefore found that he did not meet the criteria for the grant of a Protection visa in s 36(2) of the Act: Reasons at [99]-[100].

in THE CIRCUIT COURT

24    The appellant filed an application for an extension of time to apply for judicial review of the Tribunal’s decision on 25 August 2014. The primary judge granted the appellant an extension of time pursuant to s 477(2) of the Act on 17 March 2017. The primary judge also granted the appellant leave to rely on an amended application dated 20 March 2017. That application contained the following two grounds (as drafted):

1.    The Tribunal erred in failing to afford the applicant an opportunity for a fair hearing as required by s425 of the Act.

Particulars

a.    The applicant was assisted by an IAAAS migration agent;

b.    There was notification of a change of agents 2 days before the hearing (CB166-7);

c.    The agent faxed a 63 page written submission the night before the hearing;

d.    No one attended the hearing and the migration agent listened to the hearing by telephone;

e.    The agent failed to specify that the Arabic interpreter should speak the Iraqi dialect and instead an Egyptian Arabic interpreter attended the hearing;

f.    During the hearing the interpreter often raised that there were difficulties between the interpreter and applicant understanding each other at T7, T19, T22, T24, T25, T27-28 and T31;

g.    At T31 the interpreter asks to speak to the agent about the interpreting problems then the recording is switched off; and

h.    At [74] the Tribunal noted that the agent did not provide a translation of the father’s death certificate as requested during the hearing.

2.    The Tribunal acted unreasonably in continuing the hearing when the agent could not attend the hearing in person, a lengthy written submission of 63 pages was lodged the night before the hearing, the interpreter voiced her difficulty in communicating with the applicant due to differing Arabic dialects.

25    It would appear from the Judgment of the primary judge that, despite the breadth of the two grounds in the amended application, the main contention that was pressed by the appellant in support of his judicial review application was that he had been denied a real and meaningful hearing before the Tribunal by reason of “inadequate translation services”: Judgment at [7].

Evidence in the Circuit Court – The Tribunal hearing transcript

26    In support of the contention that the translation at the hearing was inadequate, the appellant relied on an English language transcript of the Tribunal hearing. There does not appear to have been any objection to the tender of that transcript. Nor was its accuracy disputed by the Minister. There is, however, a certain lack of clarity in parts of the transcript, mainly because it is unclear at times whether some of the words attributed to the interpreter represent statements by the interpreter personally, or represent the interpreter’s translation of answers or statements by the appellant.

27    The following parts of the transcript are directly relevant to the arguments that were advanced by the parties before the primary judge, or the arguments that were advanced on appeal.

28    Towards the beginning of the hearing, shortly after the interpreter was sworn in, the following exchange occurred (at transcript page 3 lines 6 to 32):

MEMBER: Thank you. Okay, the Interpreter is here to interpret anything that anyone in the room says. And she has just made a promise to do that to the best of her ability. The Interpreter cannot advise you, or explain anything to you, so if you have any questions, please ask me through the Interpreter.

APPLICANT: Okay.

MEMBER: If you have any problems with the way the Interpreter is doing her job, please let me know so we can fix the problem straight away.

APPLICANT: Okay.

MEMBER: So if you think something hasn’t been interpreted correctly, or the way that I’m asking questions doesn’t appear to be um, in line with the responses that you’ve been given … you have been giving, just put your hand up and we’ll um, sort out any problems on the spot.

APPLICANT: Okay.

MEMBER: Do you understand the Interpreter?

A. INTERPRETER: Yes.

MEMBER: And Interpreter, you understand the client?

INTERPRETER: Yes, I do.

29    The Tribunal member subsequently began to question the appellant concerning his claims. Not long into that questioning, the interpreter raised an issue concerning her ability to fully understand and accurately translate some of what the appellant was saying. The following exchange occurred (at transcript page 6 line 35 to page 7 line 44):

Q. Can you tell me what um, persecution you fear? And remember you need to say this in terms of what you personally fear, not what everybody else or you believe everybody else um, occurs to them. You need to give me examples of um, persecution that you yourself have suffered, or are likely to suffer. I have … I understand some Arabic and I’ve lived in the region for quite some time. I understand Arabic is quite a broad language, but I need you to be very specific for the purposes of this hearing.

A. APPLICANT: Okay.

Q. Okay. So, please tell me what persecution you fear because of your ethnicity as an Arab. What … what has happened to you in the past, what happened to you at the time that you left, what you fear would happen to you in the future, as an Arab. (Member interrupts Applicant) … just break … break it up a bit.

A. APPLICANT: No worries.

A. INTERPRETER: Well, I’m fearful of dying, um, I was fearful for my soul up until I left Iran because I was talking against the Iranians, against the Persians, and we were talking about wanting our freedom, and there were the pamphlets that I distributed, one day because of the rep … representative of the council ah, we do not support the Islamic ah, Iranian Republic, and we were telling people, all people you know, be aware, we want our culture, we want to study, we want our freedom.

Q. Okay. Yep.

A. APPLICANT: Okay.

Q. (Interrupting Applicant) … Remember you need … break it … break it up.

A. INTERPRETER: Ah well, the … the name that we talk about …

INTERPRETER: Member, can I please … Interpreter speaking, can I just clarify something?

MEMBER: Yeah, yeah.

INTERPRETER: Um, because of the Iranian background, so he’s really not speaking proper Arabic …

MEMBER: Yep.

INTERPRETER: … and this is why the structure of the sentences is a bit messed up and some words are not very Arabic, um, so, I’m trying my best and if what I say does not seem to be well structured, it’s because I’m maintaining the accuracy and saying word for word. I’m very quick in taking notes …

MEMBER: Sure.

INTERPRETER: … so I’m just repeating word for word.

MEMBER: Okay. Can you just um, reiterate the fact that because of um, some dialectic variations, it’s very important that you break your ah, sentences up into smaller groups, so we can get a more accurate ah, interpretation. Your … your sentences are too long at the moment. Break your sentences up into smaller groups.

INTERPRETER: Ah, I’ll also let him know what I’ve just said.

MEMBER: Yeah.

A. INTERPRETER: Ah, well we don’t speak Arabic very well because that was one of the problems over there, we were fearful for ourselves, we were unable even to study Arabic and sometimes when I have an Egyptian or a Lebanese dialect, I can understand what he’s saying, but he cannot understand me. And this is also due to our problem.

INTERPRETER: Now Member, this is the Interpreter speaking again. I’ll interpret what you said before …

30    A number of points can be noted concerning this exchange.

31    First, it would appear that the Tribunal member himself had some familiarity with the Arabic language.

32    Second, the issue or difficulty with the translation appeared to be related to the fact that, at least from the interpreter’s perspective, the appellant was not speaking “proper Arabic”. The difficulty arose because of the appellant’s Iranian background and from the fact that, according to the appellant at least, he was unable to study Arabic in Iran. It may have also had something to do with different dialects.

33    Third, it would appear that while the interpreter was having some difficulties understanding all that the appellant said, the appellant could understand what the interpreter was saying in Arabic.

34    Fourth, there is no indication that the appellant could understand what the interpreter was saying in English. It could not, therefore, be suggested that the appellant was in any position to determine whether the interpreter had correctly interpreted his answers into English.

35    Following that exchange, the Tribunal’s questioning of the appellant continued for some time without any apparent major issues with the translating. It is tolerably clear from the transcript, however, that the interpreter was being particularly careful and astute to raise or clarify any difficulty she had with understanding the appellant or translating his evidence. That is clear from some very minor issues that were raised by the interpreter. For example, at one stage, the interpreter indicated that she was confused as to whether a name referred to by the appellant was the name of a person or a place (transcript at page 10 lines 14 to 21). That issue was clarified. On another occasion, the interpreter asked the appellant to clarify a word she did not understand (transcript page 13 lines 14 to 19), and, on another occasion, the interpreter made it clear that she could not find the exact word for something the appellant said (transcript page 19 lines 18 to 23). On each of those occasions, the issue raised by the interpreter appears to have been satisfactorily clarified or resolved.

36    At one stage of the questioning, an issue arose concerning one aspect of the appellant’s evidence. The issue concerned whether the appellant had said that his friend, Abu Thar, who the appellant claimed was also handing out pamphlets, was wearing a form of traditional Arabic dress, a “dishdash” or “dishdasha”, when he was handing out the pamphlets. The following exchange occurred (at transcript page 21 line 31 to page 23 line 2):

Q. Um, I also have concerns about how you went about this. You said that they brought lots of ah, lots of police were brought in to uprise during election time, and you said before that there are intelligence officers all over the streets, and yet here is your friend wearing a dishdash on a motorbike with you for two to three hours in the middle of the day, giving pamphlets out to children, putting pamphlets in houses, and yet, nothing happens to you over the space of two days. A … if you were concerned about this degree of security, why weren’t you much more careful? Like even choosing to do it at night, putting it under people’s doors where you couldn’t be seen, and as you said, you know, at that time of day the shops are closed, children aren’t running around the street playing at that time of day, they’re normally at lunch at home as well. Why … why are you handing them to children who at this time of day when children aren’t going to be the ones likely to be around, and even if they are, are they likely to pass them onto their parents, or if they are, then you only need one of these pamphlets to fall into the wrong person’s hands and then here, you are over several hours over two days, somebody knowing exactly what you’re doing.

A. APPLICANT: Okay.

Q. On … on the one hand you’re telling me you’re too scared to speak publically and you only spoke about this amongst friends, but yet you would spend two to three hours a day in the middle of the day, one person wearing dishdash, going on a motorbike when you know there’s – according to you – there’s security and police everywhere, and yet you’re taking enormous risks when normally you’d take no risks at all because you believe it’s too dangerous.

A. INTERPRETER: Can I answer what you’re saying? In regards to the children, it’s not like we would know that there are children on a certain street and we would go to them, we would be driving around and when we would see a child, just by coincidence, and we would give him a … a few pamphlets and he or she would distribute them. They don’t know what’s in these pamphlets. Ah, in regards to the night or noontime, it’s because it’s the elections time, so we don’t … at night it’s more dangerous. We don’t go out at night, it’s very dangerous. They can ah, stop us, ah, we don’t have a license for the motorbike. However, during noontime it’s normal ah, and we were putting pamphlets underneath the doors, or when we would see a child we would give him one.

Q. It’s normal for a person on a … in a dishdash on a motorbike on election day and the day before election day handing out pamphlets for two to three hours on a motorbike, to go unnoticed?

INTERPRETER: Can I please just clarify one (indistinct) please?

A. INTERPRETER: Okay. And ah, in regards ah about um, in regard to distributing the pamphlet ah, we were … every now and then we would be in a different street, doing things very quickly ah, it’s not like we spend from 1 o’clock to 3 o’clock and that was our set time in … in the one street. Ah, we did spend 2-3 hours but going from one area to the other, from one street to the other. And there’s sometimes ah, we … we would need some time to get from one street to the other and to be in the street just for few minutes and then drive to the other street. So we were not distributing the pamphlets all through the two to three hours, there was some driving time.

Q. Nobody ever pulled you over ‘cause your friend was wearing a dishdash?

A. INTERPRETER: Ah, not … not even once on the motorbike when distributing pamphlets. When I spoke about the dishdasha, I … I was referring to the elderly people, they’re the ones who it, ah, and also the elderly put, ah, red head cover.

Q. (Indistinct).

A. INTERPRETER: Yeah. But um, but I … up until today, nobody is able to put this red ah, (indistinct) on, and for us young ones, we can’t wear the dishdasha.

Q. But your friend was wearing it.

A. INTERPRETER: Yes, he was.

Q. Okay. Um …

A. INTERPRETER: No, on the day when my friend and I were distributing the pamphlets, my friend was not wearing a dishdasha. I did not say he was wearing (indistinct). I did not say he was wearing a dishdasha.

Q. Ah, I think you did. You said he was very … get the exact words, ah, very, very brave, or foolish or crazy, and he was wearing a dishdasha.

A. INTERPRETER: Ah yes, he does, he wears a dishdasha but not on the day of distributing the pamphlets.

MEMBER: Okay. We’ll find out um, for your advisor if you think there is a problem with the ah, interpreting that supports that claim, then you can include that in your submission.

ADVISOR: (Indistinct).

MEMBER: And if not, then we’ve got to … if I hear nothing, then we’ll go with um, what I believe was on the ah, tape.

37    The following points may be made concerning this exchange.

38    First, it is not entirely clear that this issue arose as a result of any problem with the translating. Rather, the issue appeared to be whether, at some earlier stage, the appellant had said that his friend was wearing a dishdasha on the day he was handing out the pamphlets. The transcript does not record the appellant giving that evidence at the time, or shortly before, the issue arose. Earlier in his evidence, however, the appellant had said, in the context of the arrest of his friend, that “he [Abu Thar] was a bit radical and he was wearing his dishdasha, which is the Arabic clothing, and they were there and he was on his motorbike”. That evidence was somewhat ambiguous as to whether Abu Thar was wearing his dishdasha when he was handing out the pamphlets. It may well have been the source of the issue or misunderstanding.

39    Second, this issue was specifically addressed in the appellant’s post-hearing submission, though the appellant did not suggest that the issue concerning this aspect of his evidence arose as a result of any problem in relation to the translating.

40    Third, while the Tribunal did not believe the appellant’s evidence concerning the handing out of pamphlets with Abu Thar, the Tribunal’s reasons for disbelieving the appellant’s evidence do not appear to have anything to do with any issue about whether or not Abu Thar was wearing a dishdasha at the time of his arrest. The Tribunal ultimately did not resolve the question whether or not the appellant had initially given that evidence. It is unclear whether that was because the Tribunal accepted the post-hearing submission on that point, or because the Tribunal did not consider it to be a material issue, or for some other reason.

41    At the conclusion of the Tribunal’s questioning of the appellant, and shortly before a break in the hearing which had been requested by the appellant’s migration agent so that she could confer with the appellant, the following exchange occurred (at transcript page 27 line 42 to page 28 line 52):

INTERPRETER: … actually when he was talking I could hear him saying, “supporters, supporters”, and I thought, no, I’m sure he meant, “not supporters of the regime”. Um, I’m trying to say, you know how he said that in the pamphlets we said, “do … we are not supporters and if you elect that means you are supporters of the regime”, so that was not very clear because when he says, “you are not supporters (speaks Arabic)” and sometimes he’d say (speaks Arabic), so it … it was a bit confusing. So I … either if you like I can listen to the recording again and confirm whether the pamphlets did say “do not vote” because that means you are a supporters of the regime, or if the solicitor would like to get another interpreter to confirm that.

MEMBER: Did you um, I’m more interested in whether um, in his evidence he said um, I didn’t in my notes see it, didn’t hear him say that um, they urged them not to vote …

INTERPRETER: Hmmm.

MEMBER: … in fact didn’t talk about voting at all, and I specifically asked about voting. If he um, where he said supporters or not supporters, that’s not necessarily relevant to the question. The question was about whether you heard the word “voting” or “not to vote”.

INTERPRETER: That’s another problem because in Arabic he never used the word … the word “vote” and I don’t think he knows what the word “vote” means in Arabic. But he was saying (speaks Arabic word) … and then later on when you spoke about the … you know, later in the hearing, that it made sense to me that he means you know, “vote”, so, (speaks Arabic word) in Arabic means you know, “move forward” …

MEMBER: Yeah.

INTERPRETER: … or a approach this thing. But he was actually, when he was using this word, he was referring to “vote” or “do not vote”. So he might have touched base on that …

MEMBER: Can we … can we just clarify here what um, phrase um, you would use for elections and voting?

INTERPRETER: Well, if I’m going to say to him in Arabic, then he might use my words.

MEMBER: Yeah.

INTERPRETER: But he repeatedly later on in the hearing said, ‘cause he repeats himself a lot, he said um, ah …

MEMBER: Okay.

INTERPRETER: … (speaks Arabic) as in (indistinct).

MEMBER: In fact I don’t … yeah, I don’t think it’s going to be, ah, the thing’s going to hinge on that particular, um, translation.

INTERPRETER: Okay. I …

MEMBER: Yep.

INTERPRETER: … just needed to say that because …

MEMBER: Sure.

INTERPRETER: … it might be important.

MEMBER: Um, but by all means to the representative, if you want to bring that out in your um, ah, submission pre or post, ah, feel free.

ADVISOR: Not a problem, thank you, we’ll definitely address that.

42    A number of points should be noted concerning this exchange.

43    First, it is clear that a potential issue in relation to the translation was again raised by the interpreter. The issue concerned the appellant’s earlier evidence concerning the contents of the pamphlets: specifically, whether when he first gave evidence concerning the contents of the pamphlets he had said, or perhaps had intended to say, in substance, that the pamphlets encouraged people not to vote. The interpreter was saying that it appeared that when the appellant was first questioned about the contents of the pamphlets, he had not used the Arabic word for “vote”, but that it had become apparent to the interpreter, when the appellant was subsequently questioned, that this may have been because the appellant did not know the Arabic word for “vote”. He had used some other word instead. The interpreter appeared to be saying that the appellant may have been intending to refer to “vote” or “do not vote” in his initial answer.

44    Second, the specific context in which this exchange occurred is readily apparent from the transcript. When the appellant was first questioned about the contents of the pamphlets, his answers, translated into English, did not include the word “vote”. Rather, they suggested that the pamphlets simply said that the authors of the pamphlets did not support the Islamic Republic (see, for example, transcript page 8 lines 15 to 20). The Tribunal subsequently questioned the appellant about why the pamphlets did not contain instructions for how to vote. The appellant’s response was to the effect that the pamphlets did, in effect, encourage people not to vote: “we are against the Republic, we are against the regime. So we wanted people to be aware and not to vote” (transcript at page 21 lines 10 to 15). The Tribunal then appeared to suggest to the appellant that there had been an inconsistency in his evidence because he had initially said that the pamphlets were about general issues to do with Ahawazi Nationalism. The appellant’s evidence in response was that the pamphlets said, in effect, that people should not vote because voting for anybody would be supporting the Islamic Republic.

45    Third, this issue was potentially significant because, if there had been such an inconsistency in the appellant’s evidence, that could have reflected adversely on the appellant’s credibility.

46    Fourth, the Tribunal appeared to understand what the interpreter was saying about the translation issue concerning the use of the Arabic word for “vote”. The Tribunal’s response was that it was unlikely that anything was going to “hinge on that particular … translation”. The Tribunal indicated that the appellant’s post-hearing submission could address that issue.

47    Fifth, the appellant’s post-hearing submission did directly address that issue. It was submitted, in short, that there was no inconsistency in the appellant’s evidence concerning the content of the pamphlets. Rather, it was a “communication issue”.

48    Sixth, while the Tribunal ultimately did not accept or believe the appellant’s evidence concerning him handing out the pamphlets, the Tribunal’s reasons for rejecting that evidence did not include any inconsistency in the appellant’s evidence concerning the contents of the pamphlets. Like the issue concerning the appellant’s evidence about his friend wearing a dishdasha, the Tribunal ultimately did not resolve the question of whether or not the appellant’s initial evidence concerning the pamphlets was or was not consistent with his later evidence that the pamphlets encouraged people not to vote. It is unclear whether that was because the Tribunal accepted the post-hearing submission on that point, or because the Tribunal did not consider it to be a material issue, or for some other reason.

The appellant’s grounds and submissions in the Circuit Court

49    As noted earlier, the main contention that was advanced by the appellant in the Circuit Court was that he had been denied a real and meaningful hearing before the Tribunal by reason of inadequate translation services. He submitted that the transcript showed that the Arabic interpreter was unable to interpret adequately, that the communication difficulties must have been apparent to the Tribunal and that, in those circumstances, the Tribunal should have taken further steps to ensure that the interpreter and the appellant could understand each other, or aborted or adjourned the hearing. The appellant contended that the Tribunal’s failure to do so was unreasonable. The appellant also submitted that the deficiencies in the interpretation had a material effect on the Tribunal’s assessment of his credibility.

The primary judge’s reasons

50    The primary judge accepted that “if an applicant before the Tribunal is denied the real and meaningful hearing implicitly guaranteed by s.425 of the Act by reason of inadequate interpreter services at a Tribunal hearing, then the subsequent decision on the review will be affected by jurisdictional error”: Judgment at [9]. His Honour also said that the assessment of whether there has been such an error is “an evaluative process by reference to the whole hearing and will be determined by reference to the effectiveness of the communication at the Tribunal hearing, through the medium of the interpreter” and that “[w]hether any deficiencies in interpretation will ground a finding of jurisdictional error will depend, amongst other things, on their materiality to the Tribunal’s decision on the review”: Judgment at [9]. The appellant did not contend that any of those general statements of principle were erroneous.

51    The primary judge identified and extracted the passages of the transcript relied on by the appellant in support of his contention that the translation services were inadequate. Those passages broadly correspond with the passages extracted and considered earlier in these reasons. His Honour did not, however, analyse or discuss the specific issues raised by those passages in any detail.

52    The primary judge concluded, apparently based on the transcript, that the Tribunal “took the necessary steps” to conduct the review: Judgment at [12]. His Honour found that “[t]o the extent that interpretation difficulties became apparent at its hearing, the Tribunal enabled clarification of those matters” and that it could be inferred that “the Tribunal was, not unreasonably, satisfied with the opportunities that it had provided to the applicant to communicate his claims on matters it considered relevant”: Judgment at [12].

53    The primary judge plainly considered that it was significant that the Tribunal had invited the appellant to make submissions after the hearing in relation to the interpretation difficulties, and that the appellant took up that invitation. That is understandable. Regrettably, however, that consideration seems to have caused his Honour to go off on an unhelpful tangent. After setting out the parts of the appellant’s post-hearing submissions that addressed the translation issues, the primary judge stated (at [14] to [17] of the Judgment):

14.    Plainly the applicant’s advisers had reviewed the sound recording of the Tribunal hearing with the assistance of “a native Arabic speaker” and were not moved to comment on the quality of the interpretation at the Tribunal hearing other than to the extent of those comments in the post-hearing submission.

15.    When conducting a hearing, the Tribunal is not obliged to prompt or stimulate an elaboration upon which the applicant chooses not to embark: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 per Gummow and Heydon JJ at 1919 [58], Gleeson CJ agreeing at 1910 [1]. It is for an applicant to advance whatever evidence or arguments he or she considers relevant to the claim for a protection visa. The Tribunal must then decide whether that claim is made out: Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gummow and Hayne JJ at 576 [187], Gaudron and Kirby JJ agreeing at 546 [90] and 584 [212] respectively. The inquiries which the applicant argues should have been undertaken by the Tribunal could have been undertaken just as well by him or the adviser who assisted him at the hearing or by the provision of expert translation evidence in the post-hearing submissions. The Tribunal does not fail in its duty of review by not making inquiries which an applicant is also reasonably able to undertake effectively. Consequently, the Tribunal had no obligation in this case to inquire into the adequacy or accuracy of the interpreter and so the fact that it did not did not amount to a failure to discharge its statutory duty of review, in the sense discussed in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]- [26].

16.    In any event, there was no evidence of a persuasive nature that the applicant was, in fact, denied a real and meaningful hearing by reason of interpretation deficiencies. This was because no person expert in the English and Arabic languages gave evidence that the interpreter at the Tribunal hearing had actually made a mistake. The applicant relied on the above passages from the transcript of the Tribunal hearing to raise questions concerning whether a legitimate concern might have existed, during the Tribunal hearing, that the translation was inadequate or incorrect but it is not possible to determine, from that material alone, whether such a concern was well-founded.

17.    In SZIAI at 1129 [25]-[26], the High Court found that, where there is no evidence to indicate that any further inquiry could have yielded a useful result, the Tribunal does not err if it does not make such an enquiry: SZTDD v Minister for Immigration and Border Protection [2016] FCA 136. In this case, because there was no expert interpreter evidence to show that there had been a material inadequacy in the interpretation at the Tribunal hearing, there is no proper basis to conclude that inquiries of the sort propounded by the applicant could have yielded a useful result and consequently that the Tribunal erred because it did not make them.

54    Those passages from the Judgment were the main focus of the appellant’s arguments on appeal.

55    The primary judge rejected the appellant’s contention that the deficiencies in the translation had a material effect on the Tribunal’s assessment of his credibility. His Honour reasoned that the difficulty with that submission was that the appellant “[had] not demonstrated that there were any material inadequacies in the interpreter’s translations” and that as a result “it [had] also not been demonstrated that any error attache[d] to the Tribunal’s credit findings”: Judgment at [19].

56    The primary judge also rejected the appellant’s contention that it was unreasonable of the Tribunal not to adjourn the hearing by reason of the translation difficulties. Having regard to the nature of the issues revealed by the transcript, and the manner in which they were dealt with by the Tribunal during the hearing, his Honour was “not persuaded that no reasonable decision-maker would have acted as the Tribunal did in relation to those matters”: Judgment at [20]. His Honour also noted that the appellant was represented at the hearing and did not seek an adjournment.

57    Finally, his Honour stated that even if he was wrong to conclude that it was not unreasonable for the Tribunal to continue with the hearing, it was in any event “not demonstrated that any practical unfairness flowed from the hearing proceeding” because there was no evidence that “the interpretation at the Tribunal hearing was inadequate in any material way and that an adjournment had been necessary in order that applicant’s [sic] hearing could be real and meaningful”: Judgment at [21].

58    The primary judge concluded that the appellant had not demonstrated jurisdictional error in the Tribunal’s decision and dismissed the application.

APPEAL grounds and submissions

59    The appellant’s notice of appeal contains one ground of appeal in the following terms:

1.    The Federal Circuit Court erred in considering wrong issues.

Particulars

a.    The Federal Circuit Court at [14] found that a Native speaker checked the quality of the interpretation and at [15] found that expert translation evidence was provided in the post-hearing submissions:

i.    There is no evidence that the native speaker was not an accredited interpreter; and

ii.    The native speaker only checked the interpretation relating to the issue of whether the pamphlets the appellant was handing out instructed people not to vote in the election, or not.

b.    The hearing interpreter as the independent third party expert attending the hearing told the Tribunal on a number of occasions that there was a problem with the interpretation as the interpreter could not understand the appellant as he did not speak standardised Arabic:

i.    The interpreter was an Arab speaker from Egypt and the appellant is an Ahwazi from Iran with very little formal education;

ii.    Neither the applicant or the agent could give any evidence as to the interpreter’s ability to understand the appellant; and

iii.    Only the interpreter could judge whether the inability to understand the appellant affected the quality of the interpretation.

60    The appellant’s submissions did not entirely coincide with his appeal ground and the particulars thereto.

61    The appellant submitted that it was “not open” to the primary judge to find, at Judgment [14], that the appellant’s advisers had reviewed the hearing tapes with a “native Arabic speaker” and were not moved to comment on the quality of the interpretation beyond what was included in the post-hearing submission. There was, in the appellant’s submission, no evidence that the “native Arabic speaker” referred to in the post-hearing submissions was asked to listen to, or had actually listened to, the entire recording of the hearing in order to determine the accuracy of the translation. There was also no evidence that the “native Arabic speaker” had the qualifications or accreditation to carry out such an evaluation, or in fact carried out such an evaluation.

62    The appellant also submitted that the primary judge identified the “wrong issue” and applied the “wrong test” in addressing his complaints concerning the adequacy of the translation at the hearing. That submission was directed primarily at his Honour’s reasoning, at Judgment [15] and [17], where his Honour appeared to address the issue on the basis that it turned on whether the Tribunal had a duty to make inquiries about the adequacy or accuracy of the interpreter, or whether that was an inquiry that should have been undertaken by him. The appellant submitted that the primary judge’s reliance on cases, such as Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39, which broadly concern whether the Tribunal has a duty to conduct investigations into a review applicant’s claims, entirely missed the point. It was a matter for the Tribunal to ensure that a review applicant was given a real and meaningful hearing. The appellant had no duty to make inquiries about the adequacy of the translation at the hearing. Nor was the appellant in a position to make such inquiries.

63    In any event, the appellant also contended that, having regard to the issues raised by the interpreter during the hearing, there was no way the Tribunal could have been confident that it was getting an entirely accurate translation of the appellant’s answers. He submitted that the issues raised by the interpreter were not taken seriously by the Tribunal.

64    Finally, the appellant contended that the primary judge applied the wrong test in determining whether the appellant had been afforded a real and meaningful hearing. In the appellant’s submission, the primary judge approached the issue on the basis that the appellant was required to lead expert evidence from an Arabic interpreter which showed that there were material errors in the translation. The appellant submitted that, in circumstances where the transcript showed that the hearing process was “so patently flawed”, it was not incumbent on him to go on to show that there were errors in the translation. Nor was it incumbent on him to show that the errors were material or impacted on the Tribunal’s decision.

Issues for determination

65    Having regard to the way the appellant ultimately put his case on appeal, there are four issues for determination.

66    First, did the primary judge err in finding that the appellant’s advisers had reviewed the recording of the hearing with a “native Arabic speaker” and had made no complaint about the translation at the hearing beyond what was referred to in the post-hearing submission?

67    Second, did the primary judge err in addressing the appellant’s arguments concerning the adequacy of the translation on the basis that the Tribunal was under no duty to investigate that issue, and that those inquiries could or should have been undertaken by the appellant?

68    Third, did the primary judge err in approaching the question whether the appellant received a real and meaningful hearing on the basis that he was effectively obliged to call expert evidence to prove that there were material errors in the translation? Did his Honour apply an incorrect test?

69    Fourth, and most significantly, should the primary judge have found that the appellant was not given a real and meaningful hearing? Did the hearing transcript alone show that the standard of translation was insufficient to enable the appellant to communicate the substance of his case? Were the problems with the translation that occurred at the hearing such as to support a finding that the hearing process was flawed, or that the translation issues could have affected the outcome?

70    Before addressing those issues, it is necessary to say something about the relevant statutory framework and the legal principles that apply where it is contended that a review applicant before the Tribunal did not receive a fair hearing because of deficient or defective translation or interpretation.

Relevant statutory framework and principles

71    There is a tendency, when considering issues that may arise where it is contended that the translation or interpretation provided at a Tribunal hearing was deficient or defective, to approach the issues through the prism of common law procedural fairness. Section 422B(1) of the Act provides, however, that Division 4 of Part 7 of the Act is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. If, therefore, a review applicant contends that they were not given a fair hearing by the Tribunal, that contention must be approached having regard to the provisions of Division 4.

72    Section 422B(3) provides that in applying Division 4, “the Tribunal must act in a way that is fair and just”.

73    Section 425(1) of the Act, which is within Division 4, relevantly provides that the Tribunal must invite the review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The invitation which the Tribunal must give is to a “real and meaningful” hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126; Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [61]-[63]. The evident purpose of s 425 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”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [60]. Having regard to the terms of s 422B(3), s 425(1) must be applied in a way that is fair and just: BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 at [49].

74    Section 427(7) of the Act provides that “[i]f 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”.

75    A failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground for review within s 476 of the Act, because it would involve a failure by the Tribunal to comply with ss 425(1) and 427(7): Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [17] and [20]. The same applies where an interpreter is provided, but the quality of the interpretation or translation was so poor or incompetent that it can be concluded that the Tribunal did not give the review applicant an effective opportunity to give evidence about important matters or matters of significance: Perera at [38]-[41]; SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 at [22].

76    In Perera, Kenny J said (at [29]), in relation to the required standard of interpretation, that while there is “rarely an exact lexical correspondence” between different languages, 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”. As for the question how bad must an interpretation be to render reliance on it a reviewable error, her Honour said (at [41]):

What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter: cf Gonzales v Zurbrick at 936-937; United States v Urena (10th Cir 1994) 27 F 3d 1487 at 1492; Acewicz v Immigration and Naturalization Service at 1062.

77    It will generally be easier to conclude that the hearing process miscarried where there were frequent or continuous mistranslations or non-translations: SZRMQ at [70]-[71] (per Robertson J). Where the errors are intermittent, the errors must be considered in the context of the overall hearing: SZRMQ at [72] (per Robertson J).

78    In Perera, Kenny J noted (at [45]) that not every departure from the standard of interpretation will effectively prevent an applicant for refugee status from giving evidence before the Tribunal; “the departure must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision”. It does not necessarily follow, however, that it is necessary to demonstrate a direct causal effect; it may be sufficient to show that “material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another”: SZRMQ at [10] (per Allsop CJ, with whom Robertson J agreed at [67]). It may be enough to show that “a mistranslation or non-translation could have affected the outcome” SZRMQ at [69] (per Robertson J); see also SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [75]-[77]; BZAID at [52].

79    In relation to the potential impact of deficient or defective translation on the Tribunal’s findings concerning the credit or credibility of the review applicant, Kenny J said in Perera (at [49]):

A witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation. In the present case, the incompetence of the interpretation cannot have assisted the Tribunal in making a reliable finding about Mr Perera’s credit. It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness: cf Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and Warren v Coombes (1979) 142 CLR 531 at 537 and 552-553.

80    It may be of considerable significance that initial errors in translation were either corrected by subsequent questioning and answers, or were otherwise detected in the course of the hearing. In SZRMQ, Flick J said (at [46]):

For present purposes, it is considered to be a mistake to fix the standard of interpretation by reference to touchstones such as whether a translation has been “accurate” or whether any particular interpreter meets the standard of a “first-flight interpreter”. Errors in translation will inevitably occur. Even in the absence of such errors, words or expressions used may initially fall short of conveying an intended meaning. Even when proceedings are being conducted in English by those fluent in the English language, it may require two or more attempts to accurately convey a particular meaning. In those contexts where a claimant is entitled to be heard, that entitlement necessarily demands that any hearing involves a meaningful opportunity where that which is sought to be conveyed by both the claimant and the decision-maker is conveyed in a real and meaningful manner. Initial errors in translation may be corrected by subsequent questioning and answers. A danger necessarily lurks in errors that may go undetected at a hearing and which only emerge after a hearing has concluded. But whether the error emerges during the administrative hearing itself, or subsequently, the fact that an error in translation may have occurred may assume no ultimate significance if the true meaning and content of that which is sought to be expressed ultimately emerges.

81    Flick J was in dissent in SZRMQ, though this statement was referred to with approval by Griffiths and Moshinsky JJ in Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309; [2017] FCAFC 51 at [87].

82    The focus, ultimately, is 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”: SZSEI at [74]; SZRMQ at [8] and [17]. The question whether the process was sufficient in that regard, or miscarried, 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”: SZRMQ at [9] (per Allsop CJ).

Resolution of the appeal

83    When close consideration is given to the legal principles that apply where, as here, a review applicant alleges that he or she was not given a real and meaningful hearing in the Tribunal because of mistranslations or other problems of communication at the hearing, it would be fair to say that the primary judge’s reasons are fairly superficial. More significantly, it is readily apparent that some of his Honour’s reasoning is at best unhelpful and confused, if not erroneous. It does not, however, necessarily follow that the appeal must be allowed. The unhelpful and potentially erroneous reasoning was essentially tangential and was not determinative. The critical or ultimate question is whether, in all the circumstances, the primary judge should have held that the Tribunal’s hearing process miscarried, or that the appellant had shown that he was denied a real and meaningful hearing because of translation problems.

Issue 1 – Was the finding at Judgment [14] open on the evidence?

84    The appellant’s criticisms of the primary judge’s finding at paragraph [14] of the Judgment have little merit.

85    It was open to the primary judge to infer, from the terms of the appellant’s post-hearing submission, that the sound recording of the Tribunal had been reviewed with the assistance of “a native Arabic speaker”. It is not to the point that the “native Arabic speaker” may not have listened to the entire recording in order to determine the quality or accuracy of the translation that occurred at the hearing. The primary judge did not find that he or she did. Nor is it to the point that there was no evidence that the “native Arabic speaker” had qualifications or accreditation to carry out such an exercise. His Honour did not find that he or she did. The main point is that the appellant had the opportunity to have the recording reviewed to ascertain whether there were any mistranslations or other problems with the translation, and had the opportunity to make submissions about those matters.

86    It was equally open to the primary judge to find that the only point addressed in the post-hearing submission that directly related to the translation at the hearing was the issue whether, when first questioned about the pamphlets, the appellant said that they encouraged people not to vote. The appellant did not contend that the submission raised any other issue concerning the translation. The appellant’s point appeared to be that it did not follow, as the primary judge effectively concluded, that the Tribunal gave the appellant the opportunity to clarify any problems with the translation (see Judgment at [12]). That complaint has no merit. The Tribunal did give the appellant the opportunity to make further submissions in relation to any problem or issue with the translation that occurred at the hearing. The Tribunal did not limit the post-hearing submissions to the issue that arose concerning the translation of the appellant’s evidence concerning the pamphlets.

87    The fact that the Tribunal gave the appellant the opportunity to review the hearing tapes and make submissions concerning any issue, including any translation issue, that was disclosed by that review, was clearly a relevant and material consideration. The primary judge did not err in having regard to it.

88    It should perhaps be noted, however, that the Minister, in his submissions, went further. He submitted that it was open to the primary judge to infer that the appellant had access to an “expert interpreter”. He also submitted that the fact that no expert evidence was adduced in relation to the translation that occurred at the hearing supported the inference that there were no issues or problems with the translation. It is at least doubtful that either of those inferences was available or should have been drawn. Importantly, however, the primary judge did not draw either inference. While his Honour did note that no expert evidence had been adduced, he did not positively infer that there were therefore no mistakes in the translation. Rather, his Honour found that the appellant had not demonstrated that there were material errors based on the transcript alone. That finding will be discussed later in these reasons.

Issue 2 – Did the primary judge identify the wrong issue

89    The appellant’s complaint concerning the primary judge’s reasoning at paragraphs [15] and [17] of the Judgment concerning the duty to investigate or make further inquiries, has more merit. The primary judge’s reasoning in that regard was unhelpful and confused, if not erroneous.

90    As the authorities referred to earlier demonstrate, the Tribunal is required to provide a review applicant with a real and meaningful hearing. Where the review applicant is not proficient in English and an interpreter is required, the requirement to provide a real and meaningful hearing carries with it the obligation to ensure that the standard of interpretation or translation is sufficient to enable the review applicant to give evidence, present arguments and to communicate the substance of his or her case. That could, in a broad sense, be characterised as a duty to ensure that the translation or interpretation at the hearing is sufficient and adequate.

91    Issues might arise in the course of a hearing conducted through an interpreter that might reasonably indicate to the Tribunal that the standard of translation is deficient or defective. That may occur where the interpreter himself or herself raises an issue about his or her ability to accurately translate because, for example, he or she speaks a different dialect to the review applicant. It may also occur where it is evident from the exchanges between the review applicant, the interpreter and the Tribunal, that there are communication problems; for example, if the answers given to questions are unresponsive, incoherent or inconsistent. In those circumstances, it would plainly be prudent for the Tribunal to takes steps to clarify or confirm with the review applicant and the interpreter whether there are, in fact, any translation or communication issues. Failure to do so may result in jurisdictional error by the Tribunal; not because there was a duty on the part of the Tribunal to make inquiries, but because, if it turns out that there were translation and communication issues or problems which effectively went undetected, or unresolved, at the hearing, those issues or problems might be such as to compel a conclusion that the review applicant was not provided with a real and meaningful hearing.

92    In this context, the primary judge’s consideration (at Judgment [15]) of authorities such as Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 and Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 was unhelpful and confusing. The principles established in those authorities were, and are, entirely beside the point.

93    Applicant S154/2002 concerned, in short terms, the inapplicability of the rule in Browne v Dunn (1893) 6 R 67 to inquisitorial proceedings in the Tribunal. The observations of Gummow and Heydon JJ referred to by the primary judge should be understood in that context. Similarly, Abebe concerned the question whether the Tribunal denied the review applicant procedural fairness because it was not expressly put to her that her story was untrue. In that context, the observation of Gummow and Hayne JJ at [187] that, in an inquisitorial hearing in the Tribunal, “it is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution”, has nothing whatsoever to do with the Tribunal’s obligation to provide a real and meaningful hearing.

94    Likewise, the primary judge’s discussion (at Judgment [15] and [17]) concerning the principles established by the decision in SZIAI entirely missed the point and, for that reason, was confusing and unhelpful. SZIAI concerned the question whether the Tribunal’s decision was vitiated by jurisdictional error because the Tribunal failed to make an inquiry concerning aspects of the review applicant’s claims and evidence. That question is entirely different and distinct from the question that was before the primary judge, which was whether the Tribunal erred in failing to provide the appellant with a real and meaningful hearing by reason of deficiencies or problems with the translation.

95    Worse still, the primary judge’s consideration of SZIAI led him to make what, at least considered in isolation, would appear to be an erroneous statement of principle; that “the Tribunal had no obligation in this case to inquire into the adequacy or accuracy of the interpreter and so the fact that it did not did not amount to a failure to discharge its statutory duty of review” (Judgment at [15]). The basis of that statement appeared to be that the appellant could equally have made those inquiries. That was and is, however, entirely beside the point. It is the Tribunal’s obligation to ensure that the standard of translation at the hearing is sufficient. If the Tribunal fails to satisfy that obligation in a material respect, it will fail to comply with s 425(1) of the Act and the process will likely be vitiated by jurisdictional error. It is not to the point that the review applicant may also have been able to make inquiries in relation to the sufficiency of the standard of translation.

96    This confusion, however, appears to have been the product, at least in part, of the way the appellant put his case before the primary judge. The appellant’s case before the primary judge was, in part, that the Tribunal acted unreasonably in continuing the hearing after the interpreter had raised the issue whether she could fully understand all that the appellant was saying. The appellant contended, in effect, that the hearing should have been abandoned or adjourned at that point. He also submitted that the process adopted by the Tribunal, which involved allowing the appellant to lodge post-hearing submissions which addressed any inaccuracies in the translation, was inadequate because, by that time, the Tribunal had formed an “impression” of the appellant. Considered in that context, the point that appears to have been made, or was at least intended to be made, by the primary judge at [15] and [17] of the Judgment, was that the process adopted by the Tribunal was not, in all the circumstances, unreasonable. That was because the appellant was given the opportunity to investigate whether the translation at the hearing was insufficient or deficient and to make submissions in relation to that point.

97    The difficulty for the appellant is that it was open to the primary judge to find, in effect, that it was not unreasonable for the Tribunal to address the issues that had been raised by the interpreter during the hearing in the way it did. As discussed in more detail later in these reasons, the issues raised by the interpreter were not such as to compel the Tribunal to find, without more, that the standard of interpretation or translation that had been provided at the hearing was substandard or deficient. Indeed, the transcript shows that the interpreter was careful and astute to raise any difficulties that she was having in relation to the translation with the Tribunal so that they could be clarified and dealt with at the hearing. It was not, in those circumstances, in any sense unreasonable for the Tribunal to continue with the hearing. Nor was it unreasonable for the Tribunal to deal with the issues that had arisen during the hearing in the way it did; by providing the appellant with an opportunity to review the recording and the translation and to make any submissions he wished to make in relation to any deficiencies. It should also be noted, in this context, that neither the appellant nor his adviser asked the Tribunal to abandon or adjourn the hearing in light of the issues that had arisen. Nor did they object to the course proposed by the Tribunal.

98    The question whether the Tribunal’s conduct of the hearing was, as had been contended by the appellant, unreasonable, was separate to and distinct from the question whether the Tribunal had failed to provide the appellant with a real and meaningful hearing as implicitly required by s 425(1) of the Act. Even if the procedure adopted by the Tribunal was not unreasonable, if the appellant was subsequently able to demonstrate that there were in fact significant and material mistranslations or non-translations at the hearing, it would follow that the hearing process miscarried and that the Tribunal’s decision would be vitiated by jurisdictional error. That may have been the case, even if the errors or deficiencies were not specifically addressed in the appellant’s post-hearing submissions to the Tribunal.

99    In those circumstances, while the primary judge’s reasoning at [15] and [17] of the Judgment was confusing and unhelpful, and in part erroneous, it does not amount to error which warrants setting aside the primary judge’s Judgment or orders. That reasoning appeared to primarily relate to the appellant’s case that the Tribunal acted unreasonably. The primary judge was correct to reject the appellant’s contention that the procedure adopted by the Tribunal was unreasonable and that this provided a basis for setting aside the Tribunal’s decision on the basis that it was vitiated by jurisdictional error. The reasoning did not directly relate to, or did not relevantly infect, the primary judge’s consideration of whether the appellant had been given a real and meaningful hearing.

100    The question whether the primary judge was correct to reject the appellant’s primary case, which was that he was denied a real and meaningful hearing, is addressed separately in these reasons in the context of issue 4. It is the critical question.

Issue 3 - Did the primary judge apply the wrong test?

101    The appellant’s contention that the primary judge applied the wrong test has no merit.

102    As noted earlier, the appellant contended that the primary judge approached the question whether the appellant received a real and meaningful hearing on the basis that the appellant was effectively obliged to call expert evidence to prove that there were material errors in the translation. That was, in the appellant’s submission, the wrong test.

103    The difficulty for the appellant is that a fair reading of the Judgment reveals that the primary judge did not apply any such test. It is true that his Honour considered that it was significant that the appellant had not adduced “expert interpreter evidence to show that there had been a material inadequacy in the interpretation at the Tribunal hearing” (Judgment at [17]; see also Judgment at [19]). That was, no doubt, a relevant consideration in circumstances where the appellant bore the onus of proving, in effect, that there were material errors or deficiencies in the translation at the hearing. The primary judge did not, however, suggest that the only way that the appellant could make out his case was by calling such evidence.

104    The question whether a review applicant was denied a real and meaningful hearing because of defective or deficient interpretation or translation is “fact dependent” or “fact-sensitive”: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [51]; Gill at [85]; SZRMQ at [65]. There may undoubtedly be cases where the inadequacies or deficiencies are readily apparent from the transcript or recording of the hearing. In such a case, there would be no need to call expert evidence concerning specific errors: cf Perera at [38]. As Kenny J said in Perera, in the passage referred to earlier in these reasons, the types of factors that might lead a court to conclude from the transcript that the translation was deficient include the unresponsiveness of the translated answers and the incoherence or inconsistency of the answers given by the review applicant.

105    It is apparent that the primary judge recognised that, in some cases, the hearing transcript alone may disclose errors or problems in the translation at the hearing. It is equally apparent that his Honour found that this was not such a case; that it was not possible to determine, from the transcript alone, that there were material deficiencies in the translation at the hearing: Judgment at [16]. It follows that the primary judge did not apply an incorrect test as contended by the appellant.

Issue 4 – Was the appellant given a real and meaningful hearing?

106    This was the critical question before the primary judge. It is also the critical question in determining the appeal. The primary judge found that the appellant was not denied a real and meaningful hearing by reason of difficulties or deficiencies in the translation at the hearing. Did his Honour err in so finding? Did the evidence before the primary judge, in effect, compel such a finding?

107    The short answer to those question is “no”.

108    The appellant’s case before the primary judge that the translation at the hearing fell short of the required standard, or that there were material deficiencies or problems with the translation, relied entirely on the hearing transcript. As noted by the primary judge, the appellant did not call expert evidence from an Arabic interpreter. Nor, it might be added, did the appellant himself give evidence, as he could have done, of any communication difficulties or problems he said he had encountered at the hearing.

109    It is clear that the primary judge was taken to, and considered, the transcript. The passages from the transcript that were relied on by the appellant are set out and considered earlier in these reasons. While the primary judge’s reasons do not include any, or any detailed, analysis or discussion of the relevant parts of the transcript, there is nevertheless no basis for concluding that his Honour erred in concluding that the transcript alone did not demonstrate any material mistakes, deficiencies or problems with the translation that occurred at the Tribunal hearing.

110    Translating or interpreting is “not a perfect science and, having regard to the difficulties which are inherent in the process, perfection cannot reasonably be expected”: SZSEI at [79]. As Kenny J said in Perera, there is rarely an “exact lexical correspondence” between different languages or even dialects. Some issues are likely to arise in almost any hearing that needs to be translated. While it is clear that certain issues or problems concerning the translation arose at the appellant’s hearing in the Tribunal, a careful review of the transcript reveals that, in all the circumstances, the issues or problems were either adequately addressed at the hearing itself, or via the post-hearing submissions. The issues or problems were not such as to suggest that they caused the hearing process to miscarry, or such as to suggest that the appellant was not able to adequately convey his evidence or submissions or the substance of his case.

111    The following points are significant.

112    First, at the commencement of the hearing the Tribunal asked the appellant and the interpreter whether they understood each other. Each confirmed that they did.

113    Second, at a relatively early stage of the hearing, the interpreter diligently and astutely alerted the Tribunal to the fact that she was having some difficulty in understanding some of what the appellant was saying. The issue appeared to arise from some dialectical differences which meant, at least from the interpreter’s perspective, that the appellant’s sentence structures were “a bit messed up” and some words used by the appellant were “not very Arabic”. The interpreter did not suggest that the issues or problems were major or insurmountable. Nor was there any suggestion that the appellant was having any difficulty understanding the interpreter. The Tribunal’s response was, not unreasonably, to ask the appellant, through the interpreter, to use shorter sentences.

114    Third, thereafter the interpreter diligently and astutely alerted the Tribunal to any occasion where she required the appellant to clarify a word. There is no suggestion from the transcript that the particular word or words on each of those occasions was not clarified to the satisfaction of the interpreter and the appellant. The transcript indicates that this occurred intermittently and on fairly few occasions.

115    Fourth, it is not apparent from the transcript that the issue that arose concerning the appellant’s evidence about his friend wearing a dishdasha was the result of a problem with the translation. In any event, the appellant was given the opportunity to address that issue in the post-hearing submissions. He took up that invitation. His submission did not suggest that there was any mistranslation or other problem with the translation of this part of his evidence.

116    Fifth, the issue that arose concerning the appellant’s evidence about the contents of the pamphlets was specifically addressed at the hearing. The interpreter clearly and competently identified that the issue may have arisen because the appellant may not have known the correct Arabic word for “vote” in the context of his evidence. The Tribunal said that it was unlikely that anything was going to hinge on that translation issue. The appellant was given the opportunity to address that issue in his post-hearing submission. He took up that invitation and made detailed and precise submissions on that point.

117    Sixth, in circumstances where the issue concerning the translation of this aspect of the appellant’s submissions was detected, articulated and addressed in the appellant’s submissions, it cannot be concluded that it could or even might have had any impact on the Tribunal’s findings or decision, including its findings concerning the appellant’s credit and credibility. That is reinforced by the fact that the Tribunal’s reasons do not suggest that the appellant’s evidence concerning the contents of the pamphlets had any bearing on its findings about the appellant’s credit or the credibility of his evidence and claims. That is not to suggest that it was necessary for the appellant to show a causal link between this, or any other irregularity, in the translation, and the Tribunal’s findings and decision. It is of some significance, however, that no causal link was shown.

118    Seventh, the transcript does not contain any other indications of any mistranslations, non-translation, or any other irregularities in the translation. None of the factors identified by Kenny J in Perera at [41] are present. Aside from the two specific exchanges already referred to (the evidence concerning the dishdasha and the contents of the pamphlets), both of which were addressed either at the hearing or in the post-hearing submissions, there is no lack of responsiveness of the interpreted answers, or any incoherent answers, or any inconsistencies between the appellant’s answers that could be attributed to mistranslations, or any evident confusion in exchanges between the appellant, the interpreter and the Tribunal. Considered as a whole, the transcript reveals that the appellant was able to give a detailed account of his claims and was able to respond in a coherent and comprehendible way to the Tribunal’s questions. The transcript also reveals that, subject to the two issues that were dealt with in the submissions, the Tribunal had no difficulty understanding the appellant’s answers.

119    Eighth, as already indicated, the appellant was given the opportunity to make post-hearing submissions in respect of any issues in respect of the translation. He apparently had the benefit of the recording of the Tribunal hearing and a “native Arabic speaker” to assist him in that exercise. He took up that opportunity and made submissions. There is nothing to suggest that the Tribunal did not have regard to those submissions. They are specifically adverted to in the Tribunal’s reasons.

120    On the whole, the transcript reveals that the interpreter was highly competent, diligent and careful. The few difficulties that arose in relation to the translation were exposed and properly and satisfactorily addressed either at the hearing, or by way of the post-hearing submissions. The transcript does not support a conclusion that the translation at the hearing was substandard, or that there were any material errors or irregularities in the translation. In the absence of any other evidence of any errors or irregularities in the translation, the primary judge was correct to reject the appellant’s contention that he was not given a real and meaningful hearing.

Conclusion and disposition

121    The appellant has failed to demonstrate any material error on the part of the primary judge.

122    The primary judge’s reasoning in relation to the appellant’s contention that the Tribunal acted unreasonably in not aborting or adjourning the hearing was confused and unhelpful. The primary judge was nevertheless correct to reject that contention.

123    The primary judge did not err in rejecting the appellant’s contention that he was denied a real and meaningful hearing by reason of errors or irregularities in the translation at the hearing. The appellant failed to demonstrate that there were any material errors, irregularities or any other issues with the translation that caused the hearing process to miscarry. Such issues that did arise were properly and adequately addressed at the hearing or by way of post-hearing submissions.

124    The appeal must accordingly be dismissed with costs.

Associate:

Dated:    30 May 2018