If The Language Interpreting Is Bad, There Is No Effective Hearing

TABLE OF CONTENTS

Introduction

In M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 (10 August 2007), the Full Federal Court considered what the effect of inadequate interpreting on the quality of a hearing before the Migration Review Tribunal.  In doing so the Court revisited one of the seminal cases on interpreting where is Gray J observed:

34 Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 (1999) 92 FCR 6 was also a case in which a Sinhalese person from Sri Lanka sought a protection visa and gave his evidence to the Tribunal through an interpreter. After a detailed analysis of the transcript of the hearing before the Tribunal in that case, and a thorough analysis of the authorities about the role of interpreters in proceedings in the various kinds, Kenny J set aside the decision of the Tribunal. The case is authority for a number of propositions relevant to the present case. At [20], her Honour held that, if not proficient in English, an applicant is effectively unable to exercise his or her right to give evidence without the assistance of an interpreter. The Tribunal is therefore unable to provide an applicant with an opportunity to appear before it to give evidence, unless it provides an interpreter to assist. If an applicant is unable to give evidence in English, the effect of s 425(1) is to require that the Tribunal give a direction pursuant to s 427(7) that communication proceed through an interpreter. At [21], her Honour held that, without an interpreter, the Tribunal is unable to afford an effective opportunity to a non-English speaking applicant to give evidence. As a consequence, the Tribunal lacked jurisdiction to continue the hearing unless it provided an interpreter. If the Tribunal were to proceed, it would fail to observe procedures required by the Migration Act.

35 At [29], Kenny J endeavoured to express the standard of interpretation required for a Tribunal hearing:

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

36 After citing American authority, her Honour emphasised the requirements of accuracy and completeness of interpretation.

37 At [42], her Honour expressed the departure from the required standard in the following terms:

Whilst it is possible to divine the general thrust of the applicant’s case from the transcript as a whole, his evidence, as given through the interpreter and transcribed, was, as we have seen, repeatedly unresponsive to the questions asked by the Tribunal. It was at times incoherent and inexplicably inconsistent with other evidence given. There are a number of exchanges between the interpreter and the Tribunal which evidence confusion on the interpreter’s part as to the subject and direction of the Tribunal’s inquiry; and it would seem that from time to time difficulties in communication actually led the Tribunal to abandon avenues of relevant inquiry. Speaking more generally, it is difficult to believe that the interpretation given is adequately expressive of Mr Perera’s unchallenged account

38 At [46], her Honour found that the departure from the standard of interpretation in Mr Perera’s case related to matters significant for the Tribunal’s decision. At [47]-[49], her Honour dealt with the question of findings adverse to the credit of an applicant, concluding that inadequate interpretation might lead to an adverse decision on credit.

39 Perera has been followed in several cases. See particularly WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (2003) 131 FCR 511 at [64], and the cases cited there. The Full Court accepted that, although s 425(1) of the Migration Act has been amended since Perera, what Kenny J said in Perera remains applicable to the section as amended.

Then Gray J continued:

48 It is apparent from this analysis of the flaws in the interpreting at the Tribunal hearing that the appellant was not able to give the evidence that he wanted to give in its entirety. His account of the number of trips that he made with his Tamil friend was not given. Nor was his attempt to emphasise that he had left Malate in 1994 because he felt that he was at risk. His explanations in relation to documents that he had tendered were also not put before the Tribunal. Further, things that the appellant had not said were presented to the Tribunal as if he had said them. It would have appeared to the Tribunal that the appellant was describing the LTTE as communists. The Tribunal would have been left with a misleading impression of the appellant’s account of the authorities coming to his place. The Tribunal member may well have wondered what the reference to Omantai was. The Tribunal would also have been left with the impression that the 1999 letter was the only one issued, whereas the appellant had said that letters were sent from 1992 onwards.

49 As I have said, some of these errors can be traced directly to findings in the Tribunal’s reasons for decision. The Tribunal’s finding about the appellant going to Colombo with the Tamil friend’s driver, but not the Tamil friend, was based on what the interpreter had volunteered. The Tribunal’s finding that there was a delay that it would not have expected between the appellant’s escape from custody and the taking of action by the authorities was based on the failure to translate the appellant’s evidence that letters were issued at the time of his escape.

50 It is also important to bear in mind that the appellant failed to satisfy the Tribunal that he had a well-founded fear of persecution for a Convention reason because the Tribunal did not believe his claims. It is true that the Tribunal set out in its reasons for decision a chain of reasoning on which it said it disbelieved the appellant, but it is impossible to say that the Tribunal excluded from consideration its impression of the appellant as a witness. Even if the Tribunal did not fall into the trap of attempting to judge the appellant’s credibility from his demeanour, without regard to possible cultural differences and to the inherent difficulty of determining whether someone is lying, there was plenty in the content of the appellant’s evidence, as it was presented to the Tribunal through the interpreter, that must have caused the Tribunal to doubt that the appellant was being truthful. The reference to communists may well have caused the Tribunal to think that the appellant was overstating his case, because he was otherwise being untruthful. The failure to translate all of the appellant’s answers in relation to the documents was almost certainly a factor in the Tribunal’s findings that the documents were contrived and manufactured. The apparent unresponsiveness of the answers, as translated by the interpreter, gave rise to the risk that the Tribunal would perceive that the appellant was being evasive.

51 In all of these ways, the interpreter’s errors were of significance, or at least of potential significance, to the outcome of the case. The errors deprived the appellant of a fair opportunity to succeed. They therefore amounted to a denial of procedural fairness. To the extent to which the appellant was not able to put before the Tribunal the evidence that he wanted to, because elements of his answers were omitted from the interpreter’s translation of them, he was deprived of the opportunity to give evidence to the Tribunal. Section 425(1) of the Migration Act obliged the Tribunal to invite the appellant to appear before it to give evidence relating to the issues arising in relation to the decision of the Minister’s delegate. It is now well-established that this obligation is much more than a formality. Even though the invitation be issued, if an applicant is not afforded a real opportunity to give evidence, so that the promise of the invitation has not been fulfilled, then the Tribunal will have failed to comply with its obligation under s 425(1). See Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33]-[41]. See also SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 (2006) 231 ALR 592 at [33].

52 It is beyond doubt that both a denial of procedural fairness and a failure to comply with the Tribunal’s essential statutory obligation in s 425(1) of the Migration Act constitute jurisdictional error. Jurisdictional error means that the Tribunal’s decision is not a “decision” for the purposes of the definition of “privative clause decision” under s 474 of the Migration Act, because the decision is not made under the Migration Act. The provisions of the Migration Act that would deprive the Federal Magistrates Court, and this Court, of jurisdiction to deal with the Tribunal’s decision, if it were a privative clause decision, are therefore inapplicable. See Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476. Because the Tribunal’s hearing took place before the amendment to the Migration Act that inserted s 422B, it is unnecessary to discuss what, if any, impact that provision would now have.