Interpreting Problems Means There is no Valid Hearing
In SZGWN v MIAC [2008] FCA 238 (24.7.08) the appellants used the technique of getting a NAATI 3 qualified interpreter to do a table setting out what was actually translated and what the translation should have been. This was a highly effective way of showing how the interpreting was plainly wrong. The RRT relied upon some of this misinterpreting in its decision. The Federal Court in particular noted that incorrect interpreting would have an impact on the RRT coming to conclusions about credibility.
The RRT in its decision observed that it had taken steps to sort out the incorrect interpreting. But the Federal Court did not agree. Gilmour J concluded:
33 I do not share the Tribunal’s confidence. It is the case that certain, but not all, matters were to an extent clarified by the post-hearing written submissions contained in the letter to the Tribunal from the appellant’s migration agent dated 27 October 2006, as well as by the transcript. For example the Tribunal in its reasons acknowledged that its view that the appellant’s claim to have become a Falun Gong practitioner in China some nine years before he had previously claimed to be one, and which had raised credibility concerns in respect of the appellant, had arisen as a result of a misunderstanding. The misunderstanding was created by the woefully inadequate interpretation on this topic. The relevant passages are set out under para [27] above.
34 Nonetheless, I regard the balance of the errors, some in isolation, but certainly in totality, as significant, concerning as they do central issues raised in the application. For example, confusing and at times seemingly incoherent evidence was given by the appellant concerning his involvement with a Falun Gong study group at Burwood: see paras [25]-[26], [53]-[62] in these reasons. In its findings the Tribunal did not accept “on the evidence” that the appellant had been involved, relevantly, with the Burwood Park Group. This led it to conclude that the appellant’s familiarity with Falun Gong teaching had been acquired by means other than attendance at the Burwood Park Group. It observed that the “appellant’s evince (sic) about belonging to this group and about how long he had belonged to it and where and when it met, is riddled with inconsistency”. This, in turn, may have had repercussions in relation to the Tribunal’s findings in respect to s 91R of the Act. Such inconsistencies significantly were caused by inadequate interpretation. This is not to review the facts found by the Tribunal. However such a finding demonstrates that on this central issue the appellant did not, in my opinion, receive a fair hearing because he was, in effect, prevented from giving relevant evidence in respect of it.
35….
36 In my opinion, neither the post-hearing written submissions nor the transcript were capable of curing fundamental problems created by the poor interpretation. First the incorrect interpretation of questions asked by the Tribunal Member could not be cured. The correct questions were never asked because they were poorly interpreted and it cannot be assumed what his answers would have been if this had not occurred.
37 Furthermore, 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: Perera at [49]. The negative impression in the mind of the Tribunal Member conveyed by the appellant’s answers, incorrectly interpreted, is, in my opinion, difficult if not impossible to eradicate, after the hearing. Such a negative impression, in one area of evidence, such as the question of when the appellant began to practice Falun Gong in China, will often affect a decision-maker’s conclusions in other areas. It is impossible to discern the affect such impressions made at the time may have had on the Tribunal’s conclusions as a whole: cf Applicant NAAF of 2002 at [40]. The subsequent characterisation of this evidence as a “misunderstanding” by the Tribunal does not inevitably overcome the unfavourable impression obtained at the hearing by the Tribunal concerning the appellant’s credit.
This is the second recent case of RRT decisions being overturned on appeal by the Federal Court. The other is the Full Federal Court decision of M175 /2002 v MIAC [2007] FCA 1212 (10.8.07). Both those cases set out the modern law on errors by interpreters.