Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 | Case summary

(a) A ground for review? 17 Counsel for Mr Perera submitted that the interpretation made by the interpreter at the Tribunal hearing was inadequate and that, in relying on it in reaching its decision, the Tribunal had fallen into error. I accept that a failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground for review within s 476 of the Act. This follows, in my view, from the provisions of the Act and, in particular, s 425 and s 427. (b) Absence of an interpreter may mean the Tribunal has no jurisdiction 18 In criminal trials, there is a rule that an accused must be physically present in court. The rule, it is said, is intended to ensure that the accused is able to hear the case against him and to have an opportunity to answer it. The same rationale is said to inform the approach taken in the criminal courts with respect to the use of interpreters. In the case of an accused who is not sufficiently proficient in English to understand the proceedings or to make himself understood, the trial judge must, as part of his duty to ensure a fair trial, see to it that the accused receives the assistance of a competent interpreter: Dietrich v The Queen (1992) 177 CLR 292 at 331 per Deane J; R v Saraya (1993) 70 A Crim R 515 at 516 per Badgery-Parker J (with whom Kirby ACJ and Loveday AJ agreed); R v Johnson (1987) 25 A Crim R 433 at 435 per Shepherdson J and 442-3 per Derrington J; The King v Lee Kun [1916] 1 KB 337 at 341-343 per Lord Reading CJ; Kunnath v The State [1993] 1 WLR 1315 at 1319-1321 (PC); R v Begum (1985) 93 Cr. App. R. 96 at 100-101; R v Tran [1994] 2 SCR 951 at 963; and United States ex rel. Negron v New York 434 F.2d 386 (2d Cir 1970). 19 For similar reasons, there may be a need for the services of an interpreter in a civil proceeding: cf Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 423-4 per Kirby P, 425 per Samuels JA and 427 per Clarke JA and Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 81 per Mahoney JA. 20 In relation to the Refugee Review Tribunal, Parliament has recognised that an applicant for refugee status is to be given an opportunity to give evidence before a decision against him or her is made and that, in so doing, the applicant may need the assistance of an interpreter. If the Tribunal cannot make the decision most favourable to the applicant "on the papers", s 425(1)(a) provides that the Tribunal "must give the applicant an opportunity to appear before it to give evidence". The Tribunal must notify the applicant that "he or she is entitled to appear before the Tribunal to give evidence": see s 426(1)(a). The Tribunal may take the evidence on oath or affirmation to the effect that the evidence to be given will be true: see s 427(1)(a) and s 427(5). Sub-section 427(7) specifically provides: If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter. If not proficient in English, the applicant is effectively unable to exercise his right to give evidence unless an interpreter assists him. The Tribunal is unable to give the applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter to assist. Thus, in my view, if an applicant for refugee status is unable to give evidence in English, the effect of s 425(1)(a) is to necessitate the making of a direction, pursuant to s 427(7), that communication proceed through an interpreter. The terms of any such direction extend to the whole of the hearing and are not limited to the applicant's evidence. 21 Given that, absent an interpreter, the Tribunal is unable to afford an effective opportunity to a non-English speaking applicant to give evidence, then, in my view, the Tribunal lacks the jurisdiction to continue the hearing before it unless it provides an interpreter: cf Ebatarinja v Deland (1998) 157 ALR 385 and Sook Rye Son v Minister for Immigration and Multicultural Affairs (unreported, Burchett, Moore and Katz JJ, 23 March 1999) para 1 per Burchett J. If it were to proceed, the Tribunal's decision would be reviewable upon the ground set out in s 476(1)(b) of the Act (or s 476(1)(c) or s 476(1)(e)). Alternatively, it might be said that the Tribunal's failure to provide an interpreter in such a circumstance constituted a failure to observe the procedures required by the Act to be observed in connection with the decision: see s 476(1)(a) and compare s 420(2)(b)); Sook Rye Son paras 1 and 3 per Burchett J, para 16 per Moore J and para 50 per Katz J; and Abebe v The Commonwealth of Australia [1999] HCA 14. (The Court held, in Sook Rye Son, that the Tribunal committed a reviewable error by inviting an interpreter to give an opinion as to the probable origin of the Korean dialect of the applicant for refugee status whose evidence was being interpreted.) 22 A similar view with regard to refugee and immigration hearings is taken in other jurisdictions. In the United States, for example, a non-English speaking person facing deportation has been said to have a fundamental right to participate effectively in deportation proceedings by having the proceedings competently translated into a language which he or she understands: Tejeda-Mata v Immigration and Naturalization Service 626 F.2d 721 at 726 (9th Cir 1980); cert. denied 456 U.S. 994 (1982); Augustin v Sava and Doyle 735 F.2d 32 at 37-38 (2d Cir 1984); Hartooni v Immigration and Naturalization Service 21 F.3d 336 at 340 (9th Cir 1994). The right is said to derive from statute and regulations, as well as from the due process clause of the Fifth Amendment to the US Constitution. 23 In the present case, the Tribunal appointed an interpreter at Mr Perera's request. Counsel for Mr Perera submits, however, that the quality of the interpretation was so poor that the Tribunal did not give him an effective opportunity to give evidence. That submission depends, in my view, upon the role of the interpreter in a Tribunal hearing and the standard of interpretation appropriate to that role. Accordingly, I deal with those matters first. (c) The role of the interpreter 24 "The right to a hearing is a vain thing if the [applicant for refugee status] is not understood.": Gonzales v Zurbrick 45 F.2d 934 at 937 (6th Cir 1930). In this country, the function of an interpreter in courts and tribunals is to convey in English what has been said in another language (and vice versa). The function of an interpreter in the Tribunal (as in a court) is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication: see Gradidge v Grace Bros Pty Ltd (1988) 93 FLR at 425 per Samuels JA. An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end. 25 Notwithstanding that Kitto J described an interpreter as "a bilingual transmitter" or "a translating machine" (in Gaio v The Queen (1960) 104 CLR 419 at 430-431), interpretation is no mere mechanical exercise: see, for example, Michael B Shulman, "Note: No Hablo Ingles: Court Interpretation as a Major Obstacle to Fairness for Non-English Speaking Defendants" (1993) 46 Vand. L. Rev. 175 at 177. Interpreting reliably involves both technical skill and expert judgment. See, for example, Kenneth Polack and Anne Corsellis,"Non-English speakers and the criminal justice system - Part 2" New Law Journal, 30 November 1990, at 1676; and Commonwealth Attorney-General's Department, Report on Access to Interpreters in the Australian Legal System, (AGPS Canberra, April 1991) para 5.2.1. 26 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 well be 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? (d) Standard of interpretation 27 So far as the researches undertaken for this case show, there has been no detailed consideration of the latter two questions in Australian courts. Counsel did, however, refer me to the decision in R v Tran [1994] 2 SCR 951, a decision of the Supreme Court of Canada, in which Lamer CJ delivered the judgment of the Court (constituted by himself, La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ). The right to an interpreter, which was under consideration in that case, derived from s 14 of the Canadian Charter of Rights and Freedoms (which has no equivalent in Australia). Nonetheless, the Court'sanalysis of the content of the right is helpful in answering the questions raised by the present case. 28 In Tran, the Court sought to define a standard of interpretation by reference to a number of criteria "aimed at helping to ensure that persons with language difficulties have the same opportunity to understand and be understood as if they were conversant in the language being employed in the proceedings": [1994] 2 SCR at 985. According to the Court, "[t]hese criteria include, and are not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness": [1994] 2 SCR at 985. The criterion of continuity means that breaks in interpretation and mere summaries of a proceeding are not acceptable: [1994] 2 SCR at 986. That conclusion accords with the decision in Kunnath v The State [1993] 1 WLR 1315. An interpreter must also be, and be perceived to be, impartial. A Full Court of this Court so held in Sook Rye Son, to which I have already referred. No question arises in this case as to the contemporaneousness of the interpretation, and so the question whether, for Tribunal purposes, an interpretation must be contemporaneous is for another day. Subject to what follows, the criteria in question on this application are those of precision and competence. 29 The need for precision or, as I think it is better put, accuracy is clear enough. As Menzies J said in Gaio (1960) 104 CLR 419 at 433: What is important is what the parties to the [interpreted] conversation say to one another and the only importance of the interpreter is to serve as an accurate means of communication between them. [Emphasis added.] As noted earlier, there is rarely an exact lexical correspondence but, even so, some interpretations are better than others. 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. On a petition for a writ of habeas corpus seeking judicial review of an order for exclusion and deportation against a Haitian refugee, the US Court of Appeals for the Second Circuit said, in Augustin v Sava and Doyle 735 F.2d 32 at 37-38: Without attempting precisely to map the contours of due process in the immigration area, we think that the protected right to avoid deportation or return to a country where the alien will be persecuted warrants a hearing where the likelihood of persecution can be fairly evaluated. Since Congress intended this right to be equally available to all worthy claimants without regard to language skills, we think that an applicant for relief … must be furnished with an accurate and complete translation of official proceedings. As a sequel to this right, translation services must be sufficient to enable the applicant to place his claim before the judge. A hearing is of no value when the alien and the judge are not understood. … The very essence of due process is a "meaningful opportunity to be heard". … To erect barriers by requiring comprehension of English would frustrate the inclusive aim of the UN Protocol and the intent of Congress. Although the above passage invokes some concepts that have no part to play in the Australian context, the central proposition concerning the requisite accuracy and completeness of the interpretation provided is plainly correct. 30 With regard to the criterion of competence, Lamer CJ said in Tran at 988: [I]nterpretation must be of a high enough quality to ensure that justice is done and seen to be done. This means, at a minimum, that an [applicant] has a right to competent interpretation. While there are, as of yet, no universally acceptable standards for assessing competency, … an interpreter must at least be sworn by taking the interpreter's oath before beginning to interpret the proceedings … . Where there is legitimate reason to doubt the competency of a particular interpreter, a court will be well advised to conduct an inquiry into the interpreter's qualifications. [Emphasis added.] See also R v Begum (1985) 93 Cr. App. R. 96 at 100-101. 31 Although Lamer CJ did not say so expressly, competency may, in the present context, relate to both the interpretation and the interpreter. An interpretation is competent if it is adequate or satisfactory when judged against the relevant standard. An interpreter is competent if he or she can provide a competent interpretation. To speak of the competence of an interpretation invites reference back to some of the criteria that have already been mentioned, such as accuracy, as well as to other criteria, some of which are mentioned below. To speak of the competence of the interpreter invites reference to the competence of the interpretation that that interpreter may be reasonably expected to provide. In assessing whether an interpreter is likely to be competent, courts and tribunals ordinarily have regard to various factors, including the interpreter's qualifications, accreditation or experience. It remains possible, however, that an interpreter, who satisfies a court or tribunal that, by reason of qualifications and experience, he or she would be likely to provide a competent interpretation, may nonetheless provide an incompetent one. Conversely, though lacking in qualifications and experience indicative of a capacity to interpret competently, an interpreter may turn out to provide a competent interpretation. The fact remains, however, that a challenge to the quality of an interpretation may fail when evidence that the interpreter was appropriately qualified is to be weighed in the balance. (e) Did the applicant need an interpreter? 32 It might be thought that there is a question in this case as to whether the applicant actually needed an interpreter at all. If he did not, then the question of the standard of the actual interpretation at the hearing might be said not to arise. In his 30 September 1996 application for a protection visa, Mr Perera indicated that whilst Sinhalese was his preferred language, he could speak, read and write English. That statement was supported by the fact that the Court documents, for which he claimed responsibility, were written in English. Further, the transcript records about three episodes when Mr Perera gave short, non-complex answers to the Tribunal directly, not through an interpreter. 33 Against this, the fact remains that Mr Perera stated, in his protection visa application and in preparing for the Tribunal hearing, that he needed a Sinhalese interpreter. That need was, I think, confirmed at the very outset of the hearing in the following exchange: Tribunal: Before we start, I see you have a couple of documents there. Is there anything that you particularly plan to present? Mr Perera: Yes. Interpreter: This is - this paper answers - the contents represent the situation in the country, in Sri Lanka. Thereafter, Mr Perera gave virtually all of his evidence in Sinhalese through the interpreter. 34 In Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 77-8 Kirby P said: The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations at the person's own pace does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a court of law. … Those who, in formal public environments, of which courts are but one example, have struggled with their own imperfect command of foreign languages, will understand more readily the problem then presented. The words which come adequately in the relaxed environment of the supermarket disappear from recollection. The technical expressions cannot be recalled, if ever they were known. The difficulties cause panic. A relationship in which the speaker is in command … is quite different from a potentially hostile environment of a courtroom. There, questions are asked by others, sometimes at a speed and in accents not fully understood. 35 Those observations are relevant to the situation of an applicant for refugee status who, like Mr Perera, is able to use English for some purposes, even professional purposes, but is insufficiently proficient to give evidence before the Tribunal in support of an application vital to his or her future prospects. 36 The respondent has never claimed that the applicant was so proficient in English that he had no real need for an interpreter. Whilst the applicant had sufficient knowledge of English for some purposes, it appears that he was not so proficient that he could cope adequately with the giving of evidence in the Tribunal. That was, it seems to me, the basis upon which the Tribunal proceeded, and so do I. I am confirmed in this view by the brevity and the nature of the direct answers (of only one or two words) given to the Tribunal by the applicant without the aid of an interpreter. 37 Naturally enough, the Tribunal must decide, in the first instance, whether an interpreter is called for and whether a reliable interpretation is being made: cf R v Johnson (1987) 25 A Crim R 433 at 440 per Williams J. In the present case, as already noted, the Tribunal specifically declined to accept that an incompetent interpretation had been made. The Tribunal's opinion on the matter cannot be conclusive, however, because, as we have seen, whether or not the applicant was afforded an opportunity to give evidence as s 425 of the Act required is a fact on which the jurisdiction of the Tribunal depended: cf Potter v Melbourne and Metropolitan Tramways Board (1957) 98 CLR 337; R v Blakeley; ex parte Association of Architects etc of Australia (1950) 82 CLR 54 at 97-98 per Kitto J; R v Coldham; ex parte Australian Workers' Union (1983) 153 CLR 415 at 429 per Deane and Dawson JJ and The Returned & Services League of Australia (Victoria Branch) Inc (Pascoe Vale Sub Branch) v Liquor Licensing Commission and Another [1999] VSCA 37 at para 19 per Phillips JA. In any event, unless the Tribunal member was fluent in the relevant language, here Sinhalese, it is difficult to see how the Tribunal could be confident that its evaluation of the interpretation was sound. The Tribunal, like a reviewing court, must ordinarily rely on extrinsic considerations to form that view, as for example, the interpreter's oath, the interpreter's qualifications, any statement by the interpreter as to his or her capacity or experience, any indication from the interpreter or the witness that interpretation is beyond the particular competence of the interpreter, and the course of the evidence, including its coherence and the responsiveness of answers to questions asked. I do not, of course, overlook the possibility that some indication as to whether an interpretation is proceeding well or badly may be of a non-verbal nature, apparent to the Tribunal and not to the reviewing court. Nothing of that non-verbal kind was, however, mentioned by the Tribunal in its reasons or by the respondent in argument. (f) Was there a departure from the relevant standard of interpretation? 38 The crucial question in this case is whether the material relied upon by Mr Perera in this appeal is sufficient to make out his case that the interpretation before the Tribunal was so incompetent that he was prevented from giving his evidence. This case is not like Kfouri v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Olney J, 8 July 1994) in which the Minister conceded that the interpretation relied on in reaching the relevant decision was incorrect. Nor is it like R v Saraya (1993) 70 A Crim R 515 in which there was expert evidence of deficiencies in the interpretation. On the basis of that evidence (admitted on appeal), the appellate court held that it was satisfied that those deficiencies had prevented Saraya from giving "an effective account of the facts vital to his defence": (1993) 70 A Crim R 515 at 516 per Badgery-Parker J. Mr Perera's case is not that something was specifically and erroneously attributed by the interpretation to him. There was, therefore, no call for expert evidence of specific error that, in another case, would be required to establish inadequate or incompetent interpretation. Mr Perera's case is that certain features of the transcript indicate that the interpretation was of poor quality or, in terms of the above discussion, incompetent. 39 In the United States, courts of review have reasoned that, in order to establish that a person was prevented from giving relevant evidence or that an erroneous interpretation influenced the outcome of the proceeding, the hearing record must itself disclose the poor quality of the interpretation or specific error must be shown on appropriate evidence: see Hartooni v Immigration and Naturalization Service 21 F.3d 336 at 340; Acewicz v US Immigration and Naturalization Service 984 F.2d 1056 at 1062 (9th Cir 1993); and in a criminal trial context, Mendiola v Texas 94 SW2d 157 at 162 (Tex. App. 1995). For present purposes, it is necessary to say only that I accept that it is open to the applicant to show by reference to the transcript of the Tribunal hearing that the interpretation was so incompetent that he was effectively prevented from giving his evidence. In evaluating the applicant's case, however, one needs to bear in mind that some infelicitous expression in the transcript may be attributable to errors in transcription, not errors in interpretation. 40 At the Tribunal hearing, the interpreter, who was apparently sworn to interpret, was not required make any statement as to her qualifications, accreditation or experience. In many cases, any question as to an interpreter's competence would be resolved by reference to his or her accreditation and certification by the National Accreditation Authority for Translators and Interpreters ("NAATI"). NAATI, which was established in 1977, provides a national system of accreditation and certification for interpreters and translators. There are now four levels of NAATI accreditation, ranging downward from Conference Interpreter (Senior) and Advanced Translator (Senior), Conference Interpreter and Advanced Translator, Interpreter and Translator to Paraprofessional Interpreter and Paraprofessional Translator. "Interpreter" is described by NAATI as "the minimum level of competence for professional interpreting". At the time of the Tribunal hearing, however, there was apparently no NAATI accreditation for Sinhalese interpreters: see the letter of 30 October 1997 written by Mr Perera's migration agent to the Tribunal. (There may have been NAATI recognition for some Sinhalese interpreters: The Law Society of New South Wales, Guide to Best Practice: Lawyers, Interpreters and Translators (Sydney, 1996) pp 13 and 26. Recognition does not involve specification of any level of proficiency and is regarded as less preferable than the lowest accreditation level, paraprofessional interpreter.) Accordingly, apart from Mr Perera's affirmation that he could understand the interpreter, there was, in this case, no independent basis for forming a view as to the competence of the interpreter. 41 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, the coherence of those answers, the consistency of 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: cf Gonzales v Zurbrick 45 F.2d 934 at 936-37; United States v Urena 27 F.3d 1487 at 1492 (10th Cir 1994); Acewicz v US Immigration and Naturalization Service 984 F.2d 1056 at 1062. 42 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 of himself as an attorney-at-law in Colombo. His evidence, as interpreted and transcribed, lacks the responsiveness and coherence of the well-educated person that he apparently is. It may be that Mr Perera's unresponsiveness and lack of coherence are indicative of a lack of candour on his part. It is, however, difficult to fathom what the applicant, an educated person, could hope to gain from an unresponsive approach, particularly having regard to the nature of his application for refugee status. 43 It is relevant that the applicant made timely complaint about the quality of the interpretation. I do not think it reasonable to expect, as the Tribunal apparently did, that a person, who is not sufficiently proficient in English to give evidence on his own behalf, would make immediate complaint at the hearing about the quality of his interpretative assistance. In my view, a complaint is timely when made, as in this case, within two days of the hearing and well before the Tribunal's decision. 44 I am, therefore, of the view that there was, in this case, a departure from the standard appropriate for interpretation in the Tribunal. (g) Was there a relevant departure from the standard of interpretation? 45 It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision: cf Yi Gui Stone v Minister for Immigration and Ethnic Affairs (unreported, Hill J, 28 June 1996). Similarly, in Tran, the Court held, at 991, that in order to succeed, the accused had to show that: the lapse in interpretation which occurred was in respect of the proceedings themselves, thereby involving the vital interests of the accused, and was not merely in respect of some collateral or extrinsic matter, such as an administrative issue relating to scheduling. (It was, so the Court held, unnecessary to establish any further prejudice caused by a relevant departure from the standard: [1994] 2 SCR at 994.) 46 I am satisfied that, in this case, the departure from the standard of interpretation related to matters which were significant for Mr Perera's case and the Tribunal's decision. The passages set out earlier show, I think, that there were relevant departures from the standard in the interpretation of Mr Perera's evidence on matters crucial to his application. Those crucial issues included the basis for his belief that the Government or a Government official had "taken against" him, the significance of any such animosity, the legal status of the JVP, and his status as a human rights lawyer. I am, therefore, of the view that there was a relevant departure from the relevant standard of interpretation. For that reason, Mr Perera was prevented from giving evidence on matters relevant to his application for refugee status. That conclusion is enough to dispose of this application for review. 47 I doubt that it is necessary for the applicant to point to further prejudice occasioned by the incompetent interpretation made in his case, although it may well be that further prejudice can be shown in relation to the matter of credit. A finding as to an applicant's lack of credibility can be fatal to his application, as, indeed, it was in Mr Perera's case. Mr Perera failed before the Tribunal because it rejected his claims (1) that the Government and the Presidential Secretary had "taken against him" on account of his active support for and involvement in the JVP; and (2) that his professional activities, whether on behalf of strikers and their families or disaffected public servants, were of a sufficiently political character to mark him out in Sri Lanka and to give rise to a well-founded fear of being persecuted. It was in this context that the Tribunal determined to place little or no weight on the documents that were placed before it, including the statutory declaration of a fellow Sri Lankan attorney-at-law. 48 I am, of course, mindful of the cautionary remarks in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 and of the deference due to the Tribunal's findings on credit, as to which see, for example, Navaratne v Minister for Immigration and Multicultural Affairs (unreported, Tamberlin J, 1 August 1997); Thangarajah Thillainadarajah v Minister for Immigration and Multicultural Affairs (unreported, Heerey J, 3 December 1997); Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, O'Connor, Branson and Marshall JJ, 8 September 1998); and Barkat Ali v Minister for Immigration and Multicultural Affairs (unreported, Sackville J, 28 May 1998). At the same time I agree with the observations of Gray J in Kathiresan v Minister for Immigration and Multicultural Affairs (unreported, 4 March 1998) at 6that: In an area in which cross-cultural communications occur, there is danger in giving too much rein to the "subtle influence of demeanour". The work of tribunals operating under the Act is such an area. The dangers of attempting to assess the truthfulness of witnesses by reference to their body language, where different cultural backgrounds are involved, are well-known. … The problem is exacerbated even more when evidence is given by way of an interpreter. Judging the demeanour of the witness from the tone of the interpreter's answers is obviously impossible. Judging the demeanour of the witness from the witness's own answers in a foreign language would require a high degree of familiarity with that language and the cultural background of its speakers. It is all too easy for the "subtle influence of demeanour" to become a cloak, which conceals an unintended, but nonetheless decisive bias …. 49 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. In the present case, the incompetence of the interpretation cannot have assisted the Tribunal in making a reliable finding about Mr Perera's credit. It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness: cf Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-9; Devries v Australian National Railways Commission (1993) 177 CLR 472 at479and Warren v Coombes (1979) 142 CLR 531 at 537 and 552-3. 50 For the foregoing reasons, I would set aside the decision of the Tribunal made on 28 November 1997 that "the Tribunal is not satisfied that the applicant is a refugee and affirms the decision not to grant a protection visa" and, pursuant to s 481(1)(b) of the Act, refer the matter to which the decision relates to the person who made the decision for further consideration. It would be desirable, in the circumstances, for that person to disqualify herself from reaching a decision with respect to the applicant's refugee status in order that another member of the Tribunal might make that decision. The respondent should pay the applicant's costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Perera v Minister for Immigration & Multicultural Affairs

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