The application for judicial review
22 At the hearing on 8 March 2000, counsel for the applicant was given leave to amend the application for judicial review with the result that two aspects of the Tribunal's decision and the procedures adopted at the hearing were said to disclose reviewable error.
23 The first aspect related to passages in the transcript of the hearing in which the Tribunal put to the applicant a proposition or spoke to the applicant in a way that was said by the applicant to evince actual bias: see s 476(1)(f) of the Migration Act 1958 (Cth). In the first passage complained of the Tribunal put a proposition to the applicant which included a statement that it was "utterly implausible for police to automatically impute such a householder with an LTTE profile". That the proposition was cast in these terms was said to evidence a closed mind. The short answer is that the Tribunal was simply quoting part of a report from the Australian High Commission and the language used says nothing, in my opinion, about the views of the Tribunal.
24 In the second passage complained of the Tribunal was engaging the applicant in an exchange about what might have motivated those making the threats of extortion that the applicant claimed he had experienced. It may be accepted that the Tribunal expressed in fairly unqualified terms a view about what may have motivated those making the threats. However that was said after the Tribunal pointed out what it perceived to be an inference to be drawn from earlier evidence given by the applicant. In my opinion, the statements were made by the Tribunal to elicit comment from the applicant about what the Tribunal then perceived to be the import of the evidence. The statements do not evidence bias.
25 The second aspect of the Tribunal's decision and the procedures adopted at the hearing raised by the applicant concerned the translation of the evidence the applicant gave. While the applicant indicated in his application for a protection visa that he could write and read English, he requested and was provided with an interpreter to interpret from the Sinhalese language. It was submitted by counsel for the applicant that the transcript of the hearing makes clear that the interpretation was deficient in several material respects. If so, it was submitted, first the Tribunal had not observed a required procedure: s 476(1)(a), namely the procedure contemplated in s 425 of the applicant giving evidence and secondly the Tribunal had failed to give effect to the requirements of s 420. It is unnecessary to elaborate on how these grounds arise if defective interpretation is, as a matter of fact, established as they were canvassed in some detail by Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 which is relied upon by counsel for the applicant as establishing the applicable principles in a case such as the present. I am bound to follow her Honour unless I consider the judgment is plainly wrong, which I do not.
26 I will shortly consider the criticisms made by counsel for the applicant of the translation which are based on a transcript of the hearing prepared by Auscript. Before doing so, however, I should refer to the approach adopted by the Tribunal which makes the adequacy of the interpreting a matter of some importance. As noted in par 13 above, the Tribunal did not view the applicant as entirely credible. Its general views on the applicant's credibility were expressed in the following passage:
"Although the Tribunal does not attach importance to minor inconsistencies of detail, it has carefully considered more serious inconsistencies and difficulties with the Applicant's evidence. There were a number of difficulties, some quite serious and others less so, which taken together raised serious questions about the Applicant's credit. Nor was the Applicant able to provide satisfactory explanations when these matters were put to him at hearing.
The Applicant's evidence at hearing was often confused and shifting, providing different and sometimes inconsistent answers or explanations when challenged […] The Tribunal was in no doubt that the Applicant's account contained significant embellishments and fabrications which made it unable to accept his evidence at face value."
27 It can be seen from this passage that the Tribunal attached some weight to the manner in which the evidence was given. The Tribunal did, however, go on to refer to various aspects of the evidence that illustrated inconsistencies and implausible explanations. Nonetheless the reliance on the manner in which the evidence was given may legitimately raise for consideration the quality of the interpreting.
28 In Perera v Minister for Immigration & Multicultural Affairs (supra) Kenny J discussed at par 41 the way in which the Court might, in proceedings such as these, assess the adequacy of the interpreting:
"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, that coherence of those answers, the consistency of the 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…"
29 In written submissions filed after the hearing and after the Auscripttranscript had been prepared, counsel for the applicant identified several features of the way the hearing was conducted to establish that the interpreting was deficient. It was first noted that there is no reference in the transcript to the interpreter's accreditation, his formal or informal qualifications, his experience as an interpreter or his experience as an interpreter in the Sinhalese language. A submission was then made that it was apparent from the transcript that on a number of occasions lengthy and complex questions were put by the Tribunal that resulted in very short answers. The first involved the Tribunal member putting to the applicant lengthy extracts from two reports from DFAT and then inviting comment. The brevity of the response is, in context, unexceptionable. The second occasion was similar. That is, the Tribunal put to the applicant a lengthy passage from a departmental report and invited comment. While the answer is somewhat cryptic, it is, in context, responsive. The third occasion was when the Tribunal was commencing to put a proposition to the applicant and doing so by reference to a report from the Australian High Commission in Colombo. The brief response of the applicant was simply an acknowledgment that the proposition was being put. None of these passages, in my view, support the contention that the interpreting was deficient.
30 Counsel for the applicant then embarked upon a detailed consideration of the whole transcript and identified 58 occasions on which, it was submitted, it was evident that the interpreting was deficient. Many of them are passages where the grammar and/or language used is imperfect. While passages such as these may raise some doubt about the fluency of the interpreter they do not, of themselves, suggests that the interpreting was so deficient as to justify a conclusion that the applicant had not been afforded the opportunity contemplated by s 425.
31 However there are several passages relied on by counsel for the applicant where the transcribed questions and answers require greater attention. The first concerned a series of questions from the Tribunal about the nature of the applicant's employment in the hotel and why, if he was perceived to be a security threat or risk, he was able to work in a position where he had a role in maintaining security (and stopping breaches of it). However a point was reached in the questioning by the Tribunal where the applicant was able to provide an explanation, in what appears to be clear terms, dealing with the proposition being put by the Tribunal. That is, the applicant's explanation that he was "not a very important person in the hotel" followed by a coherent explanation about the limits of his responsibilities. Thus, even if the translating had been deficient to that point on this issue, the applicant was afforded an opportunity to explain the position. That the Tribunal did not accept that this explanation could be readily reconciled with the applicant's claims more generally does not result from any deficiencies in the translation. Rather it flows from the Tribunal's view (which is not, and probably could not be, challenged in these proceedings) that the explanation and the claims do not sit comfortably together.
32 The second passage is similar to the first. It involved a series of questions asked by the Tribunal about what was said to the applicant when he was released from detention shortly before leaving Sri Lanka. Some of the answers are not entirely coherent or grammatically correct and, at one point, the answer to a question was provided by the interpreter and a further answer then provided by the applicant in English. The question the Tribunal was raising with the applicant and was seeking to have answered was why, after a written confession of sorts had been extracted from him concerning his complicity with the LTTE, he was released and urged to leave the country. It was a reasonable question to ask and one the applicant may well have had difficulty in answering. I am not satisfied that what might appear to be deficiencies in the interpreting are, in fact, deficiencies rather than convoluted or cryptic answers from a person who was unable to provide a ready and coherent answer to a difficult question.
33 The next passage was one in which the Tribunal was asking the applicant about why he did not seek asylum when he first entered Australia in 1993. The interpreter twice prefaced the interpreted answer by an observation to the effect "now the applicant says … ". While plainly this is an inappropriate comment for an interpreter to make, the question the Tribunal was wishing to have answered, was answered in a comparatively coherent and intelligible way shortly after these comments were made by the interpreter. That is, the applicant explained that he came to Australia and received advice not make an application.
34 In a later passage a similar comment is made by the interpreter in a discussion between the Tribunal and the applicant about the treatment of supporters of the JVP. It was submitted that the comment that "the applicant now says …" implied that the applicant was changing his mind in saying what he did after the comment. In my opinion, it is unlikely that this is how the Tribunal would have understood the comment in the context of the entire exchange. What the applicant said after the comment simply reflected what the Tribunal had put to him which, in turn, was consistent with an immediately preceding answer of the applicant.
35 The last passage I should refer to was one in which the interpreter apparently pointed to a document (which contained a definition) during the course of translating something the Tribunal said. Neither the document nor the definition had been referred to by the Tribunal. The Tribunal rebuked the interpreter and directed him to carefully interpret the comments which the Tribunal then repeated and elaborated upon. This transgression by the interpreter appears to have had no material effect on the course of the hearing.
36 While the above illustrates that the standard of interpretation was not high, I am not satisfied that it was of a standard that justifies a conclusion that the applicant was not afforded an opportunity to appear before the Tribunal and give evidence as provided in s 425. Counsel for the applicant also relied on s 420 but I presently do not understand its relevance given the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577.
37 I dismiss the application and order the applicant to pay the respondents costs.
I certify that the preceding thirty-seven(37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore .