Khogali v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1998-09-08|Before: O'Connor J

REASONS FOR JUDGMENT 1 This is an application for the review of a decision of a member of the Refugee Review Tribunal ("the Tribunal") dated 25 November 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa. 2 The grounds of the initial application, as summarised, are:

That procedures that were required by the Migration Act 1958 (Cth) ("the Act") and the Migration Regulations to be observed in connection with the making of the decision were not observed. (s 476(1)(a)).
That the decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. (s 476(1)(e)).
That the Tribunal failed to accept that the applicant has a well founded fear of persecution for a convention reason without any proper explanation whereas the applicant claims that desertion of the military constitutes grounds for execution.
That the Tribunal refused to accept the applicant's claims of being the leader of a political group at Neilen University in 1992/93 and a known high level political activist without any evidence supporting its decision.
That the Tribunal disbelieved the secret tax of the applicant during his role in the anti-government activities without any concrete proof of evidence.
That the Tribunal refused to accept that the applicant was arrested for anti-government demonstrations in 1992 without evidence.
That in making her decision the Tribunal member explained that she did not accept that the applicant worked as a prison guard in the security section of Kober in 1994; that he passed information on to prisoners' families but said that the applicant served in the police force as a prison guard which may also have enabled the applicant to pass information on to prisoners' families as well.
That the Tribunal's finding that the applicant's information on planning to infiltrate the military to work against the government was false evidence to support his application was unfair.

DECISION UNDER REVIEW 13 On 3 February 1998 the applicant applied for review of a decision by a delegate of the Minister to refuse him a protection visa. The Tribunal affirmed this decision to refuse on 7 July 1998. The applicant then sought review of that Tribunal's decision by this Court. On 25 August 1998 the Court made consent orders setting aside that Tribunal's decision in the matter, it was remitted back to the RRT for determination according to law. Further hearings were held before a differently constituted Tribunal on 14 October 1998 and 16 November 1998 and on 25 November 1998 the Tribunal again affirmed the decision of the delegate of the Minister to refuse the applicant a protection visa. The applicant again applied for judicial review by this application.

HISTORY OF PROCEEDINGS 14 This matter was first listed for hearing on 1 February 1999. At that time the applicant was unrepresented and an interpreter was arranged by the Court to assist him. During the hearing he said that the interpreter who had assisted him at the Tribunal hearing on 16 November 1998 was inadequate and he had been misunderstood by the Tribunal. This ground of review had not previously been raised. The Court allowed the addition of this additional ground and at the conclusion of the hearing on that day the Court made the following orders: 1. That the respondent file and serve by 5 February 1999 further written submissions in relation to: (i) the applicant's complaint about the interpreter at the Tribunal hearing; and (ii) that as a result, an incorrect translation was given to the Tribunal. 2. That the applicant file and serve any response to the respondent's submissions by 12 February 1999. 15 After telephone discussions between the Court, a solicitor now acting on behalf of the applicant and the respondent's solicitor the matter was re-listed for directions on 2 March 1999. An order was then made that the applicant (or his representative) file and serve by 11 March 1999 a document indicating what errors of transcription occurred which reflected the inadequacy of the interpreting service. The respondent was to provide its response to this evidence by 17 March 1999. 16 The hearing of this matter resumed on 19 March 1999. The applicant was at this hearing represented by counsel and an interpreter was also provided. An affidavit by the applicant was tendered and the respondent indicated it wished to cross-examine the applicant. At that stage the applicant complained about the interpreter provided for the hearing. The Court then made the following further orders:

That the further hearing of this matter be adjourned to 30 June 1999. 2. That leave be granted for the parties to employ an expert to interpret the Tribunal's transcript in paper form and on tape cassette. 3. That the parties file and serve any additional evidence by 18 June 1999. 4. That the applicant file and serve written submissions by 25 June 1999 and that the respondent file and serve written submissions by 28 June 1999. 17 On 30 June 1999 the hearing resumed. The applicant was again represented by counsel and had the assistance of an interpreter. An expert witness on the subject of interpretation arranged by the respondent, and the applicant were cross-examined. TRIBUNAL'S DECISION 18 In its decision the Tribunal made the following findings. · The Tribunal did not find the applicant to be a generally credible witness and found that he had not been completely frank in his dealings with the Minister or the Tribunal. The applicant initially claimed that he never had a Sudanese passport, then claimed he had obtained one, but not through official channels. The Tribunal found the applicant to be an intelligent, educated man who had had the assistance of interpreters and qualified advisers from the time he first applied for a protection visa. · The Tribunal did not find the applicant's evidence regarding his time at Nielen University in Khartoum entirely convincing. According to an examination of the applicant's identity documents, the first student card which the applicant produced had been photo substituted, which suggested that it may not be genuine. Furthermore he told the Department that the university had changed its name from Cairo University to Neilen University in 1990, the year he first enrolled as a student. In rejecting his application the Minister noted that this was not correct. At the Tribunal hearing the applicant said the name change had occurred in 1993, which is correct, and claimed that he had never actually been asked when the name change occurred, which was also incorrect. The Tribunal found it difficult to accept that the applicant was not aware of an incident which closed the university at which he was studying. Furthermore the Tribunal had considerable difficulty accepting that the applicant was able to pass his exams and graduate without ever attending lectures or classes. · The Tribunal found much of the applicant's evidence regarding his political involvement in Sudan unconvincing. In submissions to the Department and the first Tribunal he claimed that he had been born into an Ansar family and that he was therefore automatically considered a member of the Umma Party, adding that all Ansari were members of the Umma Party and that his name was sufficient to identify him as an Ansar. However, when the second Tribunal member discussed with him this issue he agreed that not all Ansari were members of the Umma Party and claimed that what he really meant to say in his earlier submissions was that most Ansari were members of the Umma Party. The Tribunal believed that the applicant sought to suggest that all Ansari are members of the Umma Party which, as he later agreed, is not correct and that he did this to make his situation appear even more dire than it might otherwise have seemed. The applicant appeared to be somewhat confused about what it meant to be an Ansar. He was also unaware of a number of significant developments involving the Ansar movement and the Umma Party during time he claims to have been a member. · The Tribunal found that even if it accepted that the applicant comes from an Ansari family and supports the Umma Party, it was impossible to reconcile the applicant's claim that he was a leading political activist at Nielen University in 1992/93 with the claim that he was employed as a guard in the prisons' division of the police force in 1993 to 1995 and, in particular, the claim that he was given the duty of guarding political prisoners. The Tribunal considered it a strong indication that someone who was not trusted by the government, as the applicant would be because of his Umma Party membership, would not be accepted into the police force, nor given responsibility for guarding political prisoners. The Tribunal did not accept the applicant's explanation that he was able to obtain employment in the police force despite his political background because all his political work had been carried out in secret. The Tribunal found the applicant's own evidence to be contradictory as he claimed both that the authorities did not know about his activities because they were secret and yet he claimed he was arrested, following an anti-government demonstration in 1992, and placed under surveillance as a result. · The Tribunal accepted that the applicant may have served as a prison guard at some time prior to his departure from Sudan but did not accept that he assisted political prisoners in Kober prison by passing information between the prisoners and their families and also to the Umma Party. The Tribunal regarded this evidence as vague and the applicant's claims regarding his military obligations and service unconvincing. · The Tribunal did not accept that the applicant's decision to join the military in 1993 was part of a plan to infiltrate the military and considered the claim another example of his willingness to provide false evidence to support his application for refugee status. · Significantly the Tribunal did not accept the applicant's claims that students seen as troublemakers were sent to fight the south from 1994 onwards as a means of eliminating them and that he was amongst those targeted for such treatment. There was nothing in any of the sources consulted which suggested that the such a policy was in place. · In respect of the letter dated 1 June 1996 signed by the Commander of the Popular Defence Forces (PDF) to the Director of Prisons requesting the release of the applicant and five others for attachment to PDF battalions in operations areas, which the applicant claims was sent to his home address, the Tribunal did not accept that the Director of Prisons would have forwarded a letter signed by the Commander of the PDF naming a total of six men (including the applicant) to policeman/soldier who had deserted and disappeared some six months earlier. The Tribunal did not accept this letter as a genuine document. · The Tribunal found the applicant's claim regarding his departure from Sudan and the departure of his elder brother shortly afterwards implausible. The Tribunal did not accept that the applicant would have been permitted to travel across Sudan and leave the country on a passport which did not contain an exit permit and that his brother was able to obtain an exit permit in the applicant's name despite the fact that he was a serving police officer who had deserted.

DECISION 19 Although, as summarised above, a number of grounds of review were included in the initial application, at the hearing of the matter when the applicant was represented by counsel, the only ground addressed was that the interpreting service provided on 16 November 1998 was inadequate and resulted in reviewable procedural error (s 476(1)(a)). 20 The applicant, in an affidavit affirmed on 11 March 1999, gave an account of the difficulties he had in understanding the interpreter provided on that day. The applicant's representative (a solicitor) had raised at that time with the Tribunal the fact that the applicant had a problem with the interpreter. 21 The transcript of this interchange (Transcript p 2) is as follows: "Tribunal Member: Yes. There's a problem with the interpreter. Have you conversed with the applicant at all? Applicant: Yes, yes Tribunal Member: And do you have any problem with … Interpreter: I have no problem. Tribunal Member: Right, okay. Interpreter: It's not me, it's him who has the problem. Tribunal Member: Sure, yes. Look, I appreciate that you'd prefer to have the other interpreter. Can you interpret this for me? Interpreter: Yes Tribunal Member: I appreciate that you would prefer to have the other interpreter, and we did try to get her for you but unfortunately she wasn't available today. I don't want to have to get you back again because it just makes the whole thing longer and more complicated. Okay. So what I'm going to propose is that we - I don't have many questions to ask you. We'll see how we go. If there are big problems and you can't understand, obviously we'll have to sort things out, but we'll try with this interpreter - (telephone rings) - hello. Yes. Yes. Okay, thank you. Okay, so yes. Interpreter: Okay Tribunal Member: Okay. Interpreter: Yes. Tribunal Member: Okay, so can you swear in the interpreter, please. Hearing Officer: Do I announce the case for the record or … Tribunal Member: Yes. Ms Di Mezza: Just one moment. May I just ask my client something? I just want to make sure he's understanding. Are you understanding this man? Applicant: I do for 90 per cent. Ms Di Mezza: 90 per cent, okay. Okay, well, if we have any problems we'll … Tribunal Member: That's what I just said. Ms Di Mezza: Yes. Tribunal Member: If you have any problems you can let me know, but I think … Ms Di Mezza: I just want to point out to the tribunal, this isn't a case of he specifically wants Yvonne. It's more the case of he wants someone who specifically speaks his Sudanese dialect. So that's what my concern is; that he's not being provided with an interpreter who speaks his language.. Tribunal Member: Well, he does speak Arabic, and that is his language. I mean I'm quite aware that there may well be some differences, and obviously I'm not going to insist on proceeding if we're not getting an - if we're not understanding each other.

Ms Di Mezza: Okay Tribunal Member: But it's - as you can also appreciate, it's not always possible to supply the precise, you know, person on the occasion, so … Ms Di Mezza: Can I - may I propose that at the end of the hearing, if we could just check with my client that he's understood everything perfectly? Tribunal Member: You can check with your client. I mean, even if he doesn't understand everything perfectly, every single word … Ms Di Mezza: No, but … Tribunal Member: … my concern is that the substance … Ms Di Mezza: The substance, yes. Tribunal Member: … that we understand each other and nothing is lost or misunderstood, even if there might be the occasional word that takes a bit of (indistinct) Ms Di Mezza: Yes, like you said, there's probably - can you check at the end … Tribunal Member: Yes, of course. Okay. Ms Di Mezza: Thank you. " 22 At the end of the hearing, as foreshadowed, the following exchange took place (Transcript p 21): "Tribunal Member: Q86 Okay. Now, I just want to ask in fact both of you whether you understood each other or whether you have any concerns about the interpreting today. Interpreter: I've no problem. Tribunal Member: You have no problem. Interpreter: Now it's his turn. Tribunal Member: Yes. Tribunal Member Q87 90 per cent. So that what's important for me to know is, do you have any concern that maybe I didn't understand you because there's some small differences between the way you speak and the way the interpreter speaks. A ( Intprtr) I'd like to ask you if you - if there is anything that you don't understand from what I've said. Q88 No. To me it all seemed completely clear and logical and appropriate, and because the interpreter said that he understands you perfectly, it seems to me that I have understood everything you wanted to tell me. A (Intprtr) Okay, yes, that's good." 23 In cross-examination at the hearing before the Court when asked why he had responded this way and took no opportunity during the hearing to have evidence clarified he responded as follows (Transcript p 14): "The Interpreter: I was afraid, I was scared from the judge. Forgive me. I was afraid that if I say something like that, that may not be in my favour or interest. Her Honour: Do I understand you to say that you did not tell the truth at the Tribunal hearing because you were afraid of the person who was conducting the hearing? Translate that literally please. The Interpreter: Certainly. Yes. Her Honour: So when you said you understood 90 per cent of what the interpreter was saying, that was untrue? The Interpreter: The 90 per cent figure was not an accurate one, I just said I estimated it to be like that based on greetings. Greetings is only few words. When it gets heavier, it's different, maybe much less than 90 per cent. Her Honour: My question was, when that was said was it true or untrue? The Interpreter: Untrue." 24 Most recently in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507, Kenny J considered the legal consequences of failure to provide an adequate interpreting service. 25 Both parties relied on the principles enunciated in this case to support their submissions although the applicant did, ultimately, submit that his case is distinguishable from it. 26 At page 15 of her Honour's judgment she said relevantly: "Perfect interpretation may, moreover, be impossible. As Ludmilla Robinson observed in Handbook for Legal Interpreters (Law Book Co Ltd, 1994) at 98 "[v]ery rarely is there an exact lexical correspondence between the two languages being used." Schulman writes at 46 Vand L. Rev. 177: No matter how accurate the interpretation is, the words are not the defendant's nor is the style, the syntax, or the emotion. Furthermore, some words are culturally specific and, therefore, are incapable of being translated. Perfect interpretations do not exist, as no interpretation will convey precisely the same meaning as the original testimony. [citations omitted] Nonetheless, some interpretations will be better than others, and a particular interpretation may be well less than perfect yet acceptable for the Tribunal's purposes. How bad must an interpretation be to render reliance on it reviewable error? By what criteria is the quality of an interpretation to be assessed?" 27 On the issue of the standard of interpretation required, at page 16, she said relevantly: "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." 28 She concluded, however, by saying that where there is a challenge to the quality of the interpretation (as in this case) it may fail where there is evidence that the interpreter was appropriately qualified, it being, in such a case, a question of balance. 29 The Court is not dependent, in the present case, in assessing the adequacy of the interpreting service on the transcript alone as was the case in Perera. The respondent tendered an affidavit from a qualified Sudanese Arabic interpreter (Mrs Bruce) who listened to the transcript on tape and expressed the following opinion: "Technical, Theoretical and Social Aspects: The interpreting process involved the utilisation of educated spoken Arabic and colloquialisms. Despite very minor errors and omissions (eg in Q.24, the applicant said "more than once in a year…" which was rendered as "twice a year"), the interpreter was able to interpret, accurately, both the questions being asked and the answers. He used several appropriate linguistic features (eg lexical and syntactical items) common to both the applicant and the interpreter, in order to maintain full comprehension. The register (in addressing the applicant) was both culturally and situationally appropriate. It was a normal speed of comprehension in the interpreting process, and it was evident that there was very little hesitation or requests for clarification by the interpreter or the applicant. Finally, I felt that the interpreter and the applicant, both clearly educated in the Arabic language, successfully accommodated each other's regional Arabic." 30 This witness was cross-examined extensively and agreed substantially with the matters put to her by the applicant's counsel in relation to the text of translation in so far as it indicated some errors. She concluded, however, that the errors detected did not affect the competence of the translation. 31 In light of this counsel for the applicant made the further submission that the Court must consider the effect of not having a Sudanese interpreter on the applicant as a whole. That disadvantage, she submitted, resulted in lowering the quality of the evidence he gave or even his ability to give evidence at all as he was entitled to do under s 425(1) of the Act. There would be, in my view, force in that submission if the applicant had been given no opportunity to deal with the issue of his disadvantage. The transcript shows that he was told that, if there were difficulties, these would be addressed. He was asked about it and made no further request. He was, at all times, represented by a lawyer and he is himself a lawyer. He did not, until this hearing, raise this question of "inhibition" and fear of the process. The expert witness, while acknowledging there were some errors in translation, considered that the interpreter and the applicant spoke to each other in "educated Arabic" and understood each other well. She heard the tape as well as reading the transcribed proceedings. 32 The applicant's evidence at this hearing and his assertion that he was inhibited from telling the truth about his difficulties with interpretation when before the Tribunal, even when specifically invited to do so, are not accepted. They are, in my view, raised at this point to serve his purpose in seeking further merits review. 33 The respondent properly concedes that, in an appropriate case, there is an obligation to provide an interpreter (arising from the combined provisions of s 425 and s 427). However, he submits that perfect or 100% accurate interpretation is not required, it is always a matter of skill and judgment. That was the conclusion reached by Kenny J in Perera and I agree with what her Honour said about that issue. It could not be otherwise. 34 In my view, accepting the evidence of Mrs Bruce, this interpreter was competent. Nor do I accept the submission that the absence of a Sudanese interpreter prevented the applicant from complaining about the issue at the end of the hearing or that it affected his responses during the hearing in the way that he now claims. He had an opportunity to be heard. The record shows that he did, from time to time, ask for clarification as to issues and he concedes that he understood what he was being asked because he speaks some English as well as his first language, Arabic. 35 The respondent also points out that this hearing (16 November) was an additional hearing day and was not, in the end, central to the issues and findings made by the Tribunal in its conclusions as to the merits. On the first hearing day, there were no problems with interpretation at all. For interpretation to be a problem it had firstly to be incompetent and also relate to a matter of significance. In this case neither factor is present. The matters of fact relied on by the applicant which, he said, were mistranslated were not ultimately central to the conclusions reached by the Tribunal.

OTHER GROUNDS 36 As said previously, only the issue as to the adequacy of the interpreter was argued by counsel before me. The other grounds of review were not, however, formally abandoned and I propose to deal with them briefly. 37 While alleging procedural error generally, apart from the interpreter issue, the applicant identified no other error of procedure. He did object to findings being made by the Tribunal where the Tribunal had no direct evidence to challenge his claims. He also says the review was not comprehensive and some findings are illogical. None of these grounds have been established. Even if they were they do not, either as a matter of fact amount to merits review or exhibit any error of law. 38 It is uncontested that the applicant when he sought merits review of the delegate's decision was required to satisfy the Tribunal that all the statutory elements were made out [Minister for Immigration and Multicultural Affairs v Guo (1997) 144 ALR 567 at 596] and so the Full Court said in Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, Full Federal Court, 8 September 1998): " … it is not to be overlooked that the criterion reflects a decision to make the satisfaction of an administrative decision maker, and not the satisfaction of a judge or a court, the determinant of eligibility for the grant of a protection visa. That is, it is part of the test of eligibility that such satisfaction be entertained by a decision maker who may not be legally trained, does not enjoy security of tenure, will not ordinarily conduct a public hearing and may involve himself or herself in the process of obtaining and elucidating evidence." 39 In coming to a state of satisfaction the Tribunal is not obliged to accept all claims made by applicants uncritically or possess rebutting evidence. In Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J and Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J this proposition was stated and I agree with their Honours' conclusions. 40 None of the grounds of review are made out. The application is dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor.

Solicitor for the Applicant: McDonnells, Solicitors

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 1 February, 19 March, 30 June 1999

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