BGA15 v Minister for Immigration and Border Protection

THE TRIBUNAL'S DECISION 7 The appellant was invited to appear before the Tribunal and present arguments. In his response to that invitation, the appellant indicated that he wished to give evidence through an interpreter in the Urdu language. 8 In support of his claims, the appellant told the Tribunal that he had been attacked on two occasions by people he believed were associated with the Taliban. He claimed the attacks occurred because of his religious views. He also claimed that there had been a bomb blast near his college which, he said, was the act of the Taliban and Wahabis directed toward educated people. He claimed that he had argued about religion with people who were against Shia Muslims. He said that his eldest brother had shunned, hit and verbally abused him as a result of his religious conversion and his having spent time in a Western country. 9 In its written reasons for affirming the delegate's decision, the Tribunal said (at [101]) that it found several key aspects of the appellant's claims to be: … vague and lacking in clarity, implausible and containing omissions and inconsistencies. The applicant was given several opportunities during the hearing to clarify his evidence and respond to the tribunal's concerns. For reasons set out below, the tribunal did not find his evidence persuasive or credible. 10 The Tribunal rejected the appellant's assertions that he was disturbed, confused and emotional when talking about his faith and did not accept there was any reason why any such emotional responses might affect his ability to participate in the hearing. It was not satisfied that the "significant deficiencies" in the appellant's evidence could be explained by nervousness, confusion, or by the appellant feeling disturbed, depressed or emotional. The Tribunal was "satisfied on the evidence before it that the applicant was able to meaningfully participate in his hearing". The Tribunal then proceeded to address, and reject, each of appellant's claims. 11 The Tribunal did not accept as credible the appellant's claim that he had converted to the Shia faith. The Tribunal said that the appellant had given confusing, vague and contradictory evidence regarding his knowledge and practice of Shia Islam, and regarding his alleged arguments with those who were against Shia Muslims. Significant to this finding was that the appellant initially said in a statutory declaration that he feared harm because he was a Sunni Muslim with moderate religious views and Shia friends. 12 Although the Tribunal accepted that one alleged attack on the appellant may have occurred, it concluded that the attack appeared to be a criminal act unconnected with the appellant's alleged religious views. 13 The Tribunal found that the appellant's claims regarding his eldest brother's purported religious extremism were vague and belatedly raised. 14 Finally, on the basis of country information, the Tribunal rejected the contention that educated or professional people, or failed asylum seekers returning to Pakistan from a Western country, would face a real risk of significant harm.

JUDICIAL REVIEW 15 The jurisdiction exercised by the primary judge was that conferred by s 476(1) of the Act and is equivalent to that conferred on the High Court by s 75(v) of the Constitution. Accordingly, it was necessary for the appellant to show that the Tribunal's decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); s 474, of the Act. 16 The appellant relied on a single ground of review, expressed as follows: The decision of the Tribunal is affected by jurisdictional error, in that the applicant was not afforded a real and meaningful hearing as required by s 425(1) of the Migration Act 1958 (Cth), by reason of inadequate interpreting. 17 In his oral submissions, the appellant complained that the interpreter provided by the Tribunal was a Hindi speaker, that the interpreter was not accredited to interpret between the Urdu and English languages and that the interpreter could not read Urdu. 18 In rejecting these submissions, the primary judge said: 14 The transcript of the Tribunal hearing makes clear that the Applicant was given an opportunity by the Tribunal to tell the Tribunal 'at any time' of 'any problems with (the Applicant) understanding (the interpreter)' and that the hearing was conducted mostly in English, at the election of the Applicant, who proceeded with it in an obviously competent way. 15 Near the commencement of the hearing, the Applicant told the Tribunal the interpreter spoke Hindi, and that 'some words' he did not understand. The following exchange then occurred between the Applicant and Tribunal member and interpreter:- [Applicant 'A']: Hindi, Urdu, a little bit different but I understand. [Tribunal Member 'M']: I think the majority of our Urdu interpreters are actually Hindi because my understanding is that the languages are so similar. [A]: Same, same, same, yeah. Yeah. M: Yeah, so ... [A]: A little bit different, yeah. M: But I mean it's really up to you. You've requested an interpreter to assist you. [A]: Yeah some- M: so if you're not comfortable, if you think there's going to be an issue, you should let me know. [A]: Okay. M: But maybe we can .... I mean, I was told before I came in that you actually wanted to speak in English. I'm not sure if that's because you felt uncomfortable… [A]: No, I speak in English but whenever I need interpreter, so I tell them M: Okay, so you feel comfortable conducting this hearing in English? [A]: Yeah. M: Okay, all right. Well ... Interpreter: Even before he heard me, anything saying, he mentioned that to [00:03:30- inaudible]. M: Ok alright. Well if that's the case then we'll just proceed in English, if that's what you want. If there is, at any time, any problems, use the interpreter, and if there's any problems with you understanding her, let me know and we'll try and see if we can sort it, okay? [A]: Thank you M: Good. All: [inaudible - 00:03:48] all voices can be heard. M: Perfect. Thank you very much. M: Okay. Then I'll just give you an introduction about what my role is and what we're going to be doing here today in English. If I'm speaking too fast or if you don't understand anything, just stop and ask for clarification because the interpreter will be listening to us the whole time, okay? [A]: Okay. 16 The Applicant claims in his affidavit evidence that for cultural reasons he could not complain to the Tribunal, nor his lawyer, about his claimed inability to understand the interpreter. However, in that same affidavit of evidence he subsequently admits that he did complain to his lawyer during a break in the proceedings and that his lawyer told him his English was good, and that he should continue in the manner he was proceeding. 17 The Applicant fails to put before the Court evidence, in admissible form, that supports a conclusion that as a matter of fact there was an error in interpretation. He put no evidence before the Court as to the interpreter's actual NAATI accredited status. It is accepted by both parties that the transcript suggests that the interpreter could not read Urdu. When that issue arose, the Applicant read to the interpreter what he required to be interpreted, and the interpreter interpreted it for the Applicant and the Tribunal, without complaint from the Applicant. There is no admissible evidence before the Court to the effect the interpreter could not interpret Urdu, or did so inaccurately, so as to render the Tribunal hearing unfair. What evidence there is, as set out in the transcript of the proceedings, is indicative of the Applicant having a clear comprehension of matters asked of him by the Tribunal and his giving of meaningful responses.

THE GROUNDS OF APPEAL 19 The grounds of appeal specified in the notice of appeal dated 7 February 2018 are to the effect that the primary judge committed appealable error by rejecting the single ground for judicial review. The Court refused the appellant leave to file an amended notice of appeal on the basis that the amendments did not add anything of substance to the principal complaint. The only issue to be determined is whether the primary judge erred in concluding that the appellant had not been denied a meaningful hearing "by reason of inadequate interpreting". 20 Section 425 of the Act is contained in Div 4 of Pt 7. Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 422B(1). Section 425 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: s 425(1). In accordance with s 422B(3) of the Act, the obligation under s 425(1) is to be discharged in a way that is fair and just. Section 427(7) of the Act provides that if a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct communication with that person during his or her appearance proceed through an interpreter. 21 It is firmly established that denial of procedural fairness by an administrative decision-maker may result in a decision in excess of jurisdiction: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [57] (Hayne, Kiefel and Bell JJ). 22 The question of whether defective interpretation is productive of procedural unfairness has been the subject of previous decisions of this Court. The principles emerging from the cases are conveniently summarised by Edelman J in BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310: 50 In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, at [29], Kenny J said of an earlier version of s 425 that: Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language. 51 That statement has been described as the 'seminal' statement in this area and has been applied to s 425 in its current form: SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [29] (Jacobson J). 52 The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, 'Working with Interpreters: Judicial Perspectives' (2015) 24 JJA 207. The relevant principles are summarised below: (1) interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a 'perfect' interpretation; (2) whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances; (3) in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker; (4) where interpretation is necessary, it must be adequate to convey 'the substance of what is said' or 'the essential elements that were being conveyed by the appellant' in order to communicate the substance of the appellant's case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair; (5) where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness; (6) where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness; (7) if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident; (8) however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context. 53 The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (at [9]): The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him. 54 In some circumstances it might be the case that a process is procedurally unfair even if a conclusion cannot be reached that the irregularity might reasonably have led to an adverse finding. One reason for this is that the reviewing body, and the appellate court, does not have the benefit of all of the advantages of the Tribunal which sees and hears the witnesses and considers that evidence in the context of the whole record, usually with less time constraints. Those disadvantages of the review or appellate court could require a finding of procedural unfairness in some circumstances even if the reviewing or appellate court is unable to conclude that the irregularity might reasonably have led to an adverse finding. It is not necessary to consider that issue further in this case because, as I explain below, I consider that the irregularities in this case, when viewed as a whole, might reasonably have led to an adverse finding. 23 The primary judge held that the principles summarised in BZAID were in large part inapplicable because the major part of the proceedings before the Tribunal had, at the appellant's own election, been conducted in English. The primary judge was otherwise not satisfied that there was admissible evidence to show that "as a matter of fact there was an error in interpretation". 24 On this appeal, Counsel for the appellant submitted that admissible evidence of erroneous interpretation was before the FCCA in the form of the following material: (1) an affidavit affirmed by the appellant on 20 December 2016; (2) two affidavits affirmed on 20 December 2016 and 20 February 2017 by Siran Nyabally; (3) an affidavit affirmed by Zheng Xi Lam on 17 February 2017. 25 The affidavit of Ms Nyabally affirmed on 20 December 2016 annexes a purported transcript of the Tribunal's hearing. It was not relied upon by the primary judge because it was not agreed by the Minister to be an accurate record. The second affidavit of Ms Nyabally annexed a further version of the transcript. It, too, was not accepted by the Minster as an accurate record. 26 A correct transcript of the Tribunal's hearing is annexed to the affidavit of Zheng Xi Lam affirmed on 17 February 2017. Unlike the previous versions of the transcript, the correct version expressly identifies the occasions on which the appellant and the interpreter speak in Urdu. Where the transcript does not indicate the appellant or the interpreter speaking in Urdu, it may be fairly inferred that they are speaking in English. That is the inference drawn by the primary judge and there was no attempt to show that inference to be affected by appealable error. Nor is there appealable error affecting the conclusion of the primary judge that the proceedings were conducted principally in English. Nor has it been shown that there is appealable error affecting the conclusion of the primary judge to the effect that the appellant had, during an adjournment in the Tribunal hearing, raised a concern with his lawyer about the conduct of the proceedings but was told that his English was good and that he should persist. 27 The appellant's affidavit contains a number of assertions as to what was said and done at the Tribunal's hearing that are inconsistent with the transcript of the hearing. To the extent that the primary judge preferred the transcript as an accurate record of what had occurred, there is no appealable error demonstrated in that approach. 28 The appellant's affidavit otherwise proceeds to explain why he considered he had not been provided with a meaningful opportunity to present evidence in support of his application for review. The evidence may be considered in five categories. 29 The first category concerns the objective circumstance that the interpreter was, according to the appellant, a Hindi speaker. 30 The second category concerns the reasons why the appellant initially chose to proceed with the hearing predominantly in English, and why the hearing then continued in that way. 31 The third category concerns the difficulties the appellant experienced in understanding the interpreter and the simplistic modifications he made to his own language to ensure that he was understood by her and by the Tribunal. 32 The fourth category concerns the difficulty the appellant experienced in expressing answers in English to the Tribunal's questions, which were understood by him. 33 The fifth category is similar to the fourth. It concerns the difficulty the appellant experienced in understanding the Tribunal's questions, which were expressed in English and not interpreted.

No misinterpretation between Urdu and English 34 The appellant deposes that the interpreter did not a have proper grasp of the Urdu language and that he could not, during an "informal chat" prior to commencement of the hearing understand about 50 to 60% of what she had said to him. However, these alleged deficiencies in the interpreter's abilities (assuming them to exist) are not shown to have resulted in any material misinterpretation resulting in a denial of procedural fairness. 35 The transcript before the Court is expressed entirely in English. Of itself, it cannot demonstrate any material misinterpretation on the part of the interpreter. Counsel for the appellant submitted that the transcript demonstrated that when the appellant had spoken in Urdu his spoken words had been grossly misinterpreted. However, that submission was based on the premise that the appellant had spoken in Urdu in the particular passages upon which Counsel relied. The premise was wrong. 36 In and of itself, the transcript of the hearing does not demonstrate that the interpreter did not adequately convey the substance of the Tribunal's questions to the appellant, or the substance of the appellant's responses to the Tribunal, at those times when the interpreter was used. To make good that proposition it would be necessary for the appellant to call admissible evidence from an Urdu speaker to the effect that the appellant's Urdu was not correctly interpreted into English, or that the Tribunal's English was not correctly interpreted into Urdu. There was no admissible evidence of that kind before the learned judge. 37 Counsel for the appellant otherwise broadly contended that the transcript, on its face, disclosed more than 50 errors in interpretation. Counsel did not provide the Court with a schedule of the asserted errors, but submitted instead that it was the responsibility of the Minister's legal representatives to prepare one. That is an unusual submission. I do not accept it. 38 As to the contention that the interpreter was not properly accredited, there was on this appeal, as before the primary judge, no evidence to support it. In the course of oral submissions, Counsel for the appellant asserted that the Minister's legal representatives were responsible for the gap in the evidence and that, as a model litigant, the Minister ought to have produced evidence of the interpreter's accreditation (if it existed) before the primary judge. I reject that submission. The onus was on the appellant to establish that the Tribunal's decision was affected by jurisdictional error. To discharge that onus, it was open to the appellant to seek orders for the production of evidence that he considered might be in the possession of the Minister and that might assist his case, but that was not done.

Lack of proficiency in English 39 The focus of the second to fifth categories of evidence is that had the appellant been able to express himself in Urdu through an experienced and competent Urdu interpreter, he would have given responses that were considerably more expansive and articulate than those he gave in English. 40 It is not immediately apparent how this complaint bore on the ground of review before the primary judge, which was expressed as a complaint about inadequate interpretation. As I have said, a relatively small part of the hearing involved the use of the interpreter and so the occasions for any potential "inadequate interpretation" by the interpreter are few. It appears, however, that written submissions before the FCCA asserted a causal connection between the provision of an allegedly poor interpreter and the Tribunal proceeding to hear the appellant's evidence in English. I will deal with this aspect of the appellant's complaint on the merits, notwithstanding that it is not a direct allegation of misinterpretation of the kind to which the principles in BZAID might apply. 41 As the primary judge said, the appellant claimed in his affidavit that, for cultural reasons, he felt unable to complain to the Tribunal or to his lawyer about his difficulties in understanding the interpreter. However, as the primary judge held, the appellant did indeed complain to his lawyer. His lawyer told him that his English was good and that he should persist. The appellant followed his lawyer's advice. 42 I would add that the appellant did indeed inform the Tribunal, from the very outset, that the interpreter spoke Hindi and that he didn't understand some of her words, although he acknowledged that the Urdu and Hindi languages were similar. 43 It is also apparent that, prior to the commencement of the hearing, the Tribunal was told that the appellant preferred to have the proceedings conducted in English. The proposal that the proceedings be conducted in that fashion was suggested by the appellant, not by the Tribunal. 44 The passage from the transcript extracted at [15] of the reasons of the primary judge makes it clear that the Tribunal attempted to ensure that the proposal to proceed in English was not being advanced because the appellant felt uncomfortable proceeding with the interpreter that had been provided by the Tribunal. The Tribunal was interrupted by the appellant, who said words to the effect that he spoke in English but used the interpreter whenever he needed. When the Tribunal asked the appellant whether he felt comfortable conducting the hearing in English, the appellant said "yeah". On at least two further occasions during the course of the hearing, the Tribunal again asked the appellant if he was content to continue with the proceeding in English. The appellant confirmed that he was. 45 To the extent that it is necessary for the disposition of the appeal, I find that the appellant made an informed election to conduct the proceedings in English and that, during the course of an adjournment, he elected to continue in that fashion notwithstanding that he had doubts about his proficiency in the English language. The appellant did not "acquiesce" to the proceedings being conducted in English, as submitted by Counsel, nor was he deprived of a meaningful choice, as asserted in the appellant's affidavit. 46 A further difficulty facing the appellant in respect of the fourth and fifth categories of evidence is that his affidavit in respect of these topics is expressed, in part, in written Urdu. The affidavit contains asserted translations of those passages from Urdu to English. The affidavit concludes with this statement: 78. This affidavit has been prepared with the assistance of my lawyer, Ms Siran Jennifer Nyabally, and Urdu translators. The translations of my Urdu comments were supplied by Ms Faiza Syed (NAATI Number 53459) and Mr Iqbal Khan (NAATI Number 70073). All care has been taken to ensure that my comments have been translated accurately. 47 During the course of the appellant's submissions on the appeal it became apparent that the appellant's affidavit had been the subject of certain objections before the primary judge which had been upheld. The appellant's Counsel was unable to assist the Court to identify the particular material determined by the primary judge to be inadmissible and the basis for any such ruling. It followed that Counsel was in no position to identify appealable error affecting any such ruling. Counsel instead relied on a catch-all submission to the effect that the primary judge erred at [17] of her Honour's reasons by failing to recognise the existence of admissible evidence bearing on the appellant's complaints. 48 In the proceedings before the primary judge, the appellant did not adduce any evidence from those persons who had prepared the Urdu-English translations set it out in his affidavit. On the appellant's own evidence, he is not sufficiently skilled in English to convey the concepts referred to in the affidavit, and so could not, of his own knowledge, depose to the proper translation from the written Urdu into the written English. The evidence of the English translation was not admissible, both because it is not within the appellant's own knowledge and because the meaning of the evidence expressed in Urdu is a question in respect of which the Court requires, but does not have, expert assistance.

Tribunal's knowledge of appellant's difficulties 49 It was otherwise submitted that the transcript of the Tribunal hearing fairly indicated that the Tribunal knew or ought to have known that the appellant was having difficulty understanding and responding to the Tribunal in English, notwithstanding his repeated assertion that he was content to proceed in that way. 50 There is more force in this submission. On at least two occasions, the Tribunal asked the appellant to use the interpreter. That indicates that the Tribunal was indeed having some difficulty understanding the concepts the appellant was attempting to convey. It was on those occasions that the appellant told the Tribunal that he preferred to speak in English. These portions of the transcript lend support to the appellant's assertion that he preferred to speak in English rather than rely on what he perceived to be an imperfect interpretation from Urdu. However, I do not consider the appeal should succeed on this basis. 51 The Tribunal made it clear from the outset that if the appellant was uncomfortable proceeding in English or if there were difficulties with the interpretation, then he should let the Tribunal know. The Tribunal used the words "If there is, at any time, any problems, use the interpreter, and if there's any problems with you understanding her, let me know and we'll try and see if we can sort it out, okay?" As I have said, the Tribunal subsequently raised with the appellant whether he was comfortable proceeding in English and accepted his repeated assurances that he was. There is nothing unfair or unjust in the Tribunal's approach. 52 The appellant was legally represented and there was no reason for the Tribunal to doubt that the appellant's choice to proceed in English was other than a voluntary and well-informed one. As Counsel for the appellant acknowledged in reply, "there's no doubt that he voluntarily wanted to express himself in English". If it be the fact that the appellant could and would have given more elaborate and articulate responses had a different interpreter been provided from the outset, in all of the circumstances, proof of that fact would not demonstrate jurisdictional error on the Tribunal's part. 53 It follows that the appeal must be dismissed. 54 An issue arises as to whether the appellant should pay the Minister's costs thrown away as a result of the late filing of written submissions on the appellant's behalf. I will hear the parties as to costs more generally. If the costs of the appeal are to follow the event, then the Minister's costs of recasting his written submissions may well be subsumed in that order. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.