SAAK v Minister for Immigration & Multicultural Affairs

the first interview ground of appeal 8 At the hearing before the Tribunal, the appellant explained why he had not mentioned his alleged involvement with the Mojahedin at the initial interview. The Tribunal summarised this evidence in its decision as follows: "The applicant stated that he made no mention of the Mojahedin in his initial statement as he had been at sea for eight days and he had an Afghan interpreter. He agreed that he gave the information in his initial statement although he stated he never said he was a driver as he only worked as a salesman." 9 Following the hearing, the Tribunal wrote to the appellant on 28 November 2000 attaching the initial interview record and indicating that it provided a reason to affirm the decision under review, and inviting the appellant to comment on the information. 10 The Tribunal summarised the appellant's response in its reasons for decision as follows: "The applicant and his adviser provided further written information to the Tribunal in relation to failure to raise his claims in his initial interview. He stated that the information had political ramifications and he was not sure if he could trust the officers at interview. He claimed he did not know where they would take the information if he told them. He stated that he was only given a form about personal details and not one about political asylum. Had he been given such a form he would have written his case on it. He also stated that he was given an Afghani interpreter. He stated that they speak Farsi but with a different dialect. He stated that he believed that his comments were misinterpreted, whereas if he had an Irani interpreter he would have been understood. He also stated that he was physically and spiritually wrecked as a result of his journey. He stated that he also explained that he fled from Syria to Turkey with a fake passport but that this information was not in the record. He claimed that a Farsi interpreter listening to the tape may be able to clarify these points." 11 The Tribunal then set out country information concerning the Mojahedin. It emphasised that the Mojahedin had engaged in acts of violence and, as a result, suspected members of the organisation faced execution or long prison sentences in Iran if caught. 12 The Tribunal rejected the appellant's claimed involvement with the Mojahedin for two reasons. The first reason was the appellant's failure to mention in the first interview the claimed involvement with the Mojahedin. The second reason was that the appellant said that he supported the democratic goals of the Mojahedin, but did not support violence. The Tribunal did not accept that a person with the appellant's attitude and level of commitment would be a member of the Mojahedin. 13 As to the first reason for rejecting the appellant's claimed involvement with the Mojahedin, the Tribunal said: "The applicant's main claim revolves around his claimed association with the Mojahedin. However the Tribunal does not accept that the applicant has any such association for the following reasons. Firstly if the applicant was involved and had to leave Iran after a dramatic escape during which he lost his wallet and other papers together with some Mojahedin propaganda the Tribunal would have expected that the applicant would have raised this initially. However he made no mention in his initial statement of the Mojahedin or his dramatic escape. The Tribunal has considered his explanation that he was ill from his travel and had an Afghan interpreter. However the applicant confirmed that he said most of what is contained in the record of this statement. He gave details about what he considered a low level family to be. In the Tribunal's view the details given by the applicant do not indicate he was in such a state as to be unable to answer questions. His answers also do not indicate any significant interpreter problem. The Tribunal also does not accept the applicant's assertion that he would have given his case for asylum if he had been provided with a proper form. The applicant was asked why he left his country and why he did not want to return. The absence of any mention of asylum does not explain why the applicant gave different reasons for leaving to the ones he has now given. The Tribunal also does not accept that having travelled all this way after having allegedly fled Iran that he would not initially reveal his claims because of political ramifications or confidentiality concerns. The Tribunal considers his failure to mention the Mojahedin or his escape from the police when he lost his personal papers indicated that he had no such involvement and made no such escape." 14 The criticism of the way in which the Tribunal dealt with the first interview was reformulated on appeal. The appellant sought to amend his notice of appeal in this respect by adding a new ground, namely, that the trial judge should have held that: "in rejecting the applicant's claims on the basis of inconsistencies with information provided in an initial interview, or on the basis of the delay in raising such claims, the Tribunal failed to direct itself - as it was obliged to - as to the caution required to be exercised before rejecting an applicant's claims for such reasons." 15 Mr Maxwell QC, who appeared, with Mr Horan of counsel, for the appellant, relied upon s 476(1)(b), (c) and (e) of the Migration Act 1958 (Cth) (the Act), which provide grounds of review as follows: "(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; … (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;" 16 The scope of these sections was explained in MIMA v Yusuf (2001) 180 ALR 1; [2001] HCA 30 by McHugh, Gummow and Hayne JJ at [83-4] as follows: "there is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it 'exceeds its authority or powers.' If that is so, the person who purported to make the decision 'did not have jurisdiction' to make the decision he or she made, and the decision 'was not authorised' by the Act. Moreover, in such a case, the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point. No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals. That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of that applicable law or has failed to apply the law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out." 17 In the present case, the appellant contended that the Tribunal failed to approach the assessment of credit with the necessary caution, and, thereby, misunderstood its function. In the language of Yusuf, it asked itself the wrong question, that is to say, it misdirected itself by failing to exercise restraint in holding that the appellant was not a credible witness. Or, as Mr Maxwell put it - "if the Tribunal fails to give itself the requisite direction as to the caution required in relation to evidence of this kind then it mistakes its task." 18 Mr Maxwell contended: "Where there is an identifiable class of evidence which is recurrent as it is in cases of this kind, that is to say, initial interview evidence, our submission is that there is a principle applicable to the evaluation of that evidence, that is to say, the tribunal must identify the particular attributes of the occasion on which the relevant statement is made, being attributes which members of this court have repeatedly identified, and we'll take your Honours to some examples, and if it doesn't do that then it's falling into error by treating it as if it were of the same type or class as the statement made for the purposes of the hearing." 19 And again: "[W]hat is required is a clear acknowledgment of the danger from an evidentiary point of view, from a legal point of view, of attaching weight or too much weight to omissions from the initial interview." 20 The argument raises two issues - first, did the Tribunal fail to exercise sufficient caution in assessing the credit of the appellant by, in particular, relying upon the inconsistency between the first interview and the later evidence of the appellant, and second, if so, did such a failure provide a ground of review under s 476(1)(b), (c) or (e) of the Act? 21 That there is a need for the Tribunal to exercise care in relying on an inconsistency between the first interview and later evidence as the foundation for an adverse credit finding is recognised by the authorities and by text writers. It also reflects modern research concerning the proper approach to the assessment of credit by courts. 22 An oft-quoted starting point is taken from Professor Hathaway's The Law of Refugee Status (1991) at 84, as follows: "First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state. The past practice of the [Immigration Appeal] Board of assessing credibility on the basis of the timeliness of the claim to refugee status, compliance with immigration laws, or the consistency of statements made on arrival with testimony given at the hearing is thus highly suspect, and should be constrained in [a] contextually sensitive manner." [citations omitted] 23 In Sujeendran Sivalingam v MIMA (Unreported, Federal Court of Australia, 17 September 1998, O'Connor, Branson & Marshall JJ), the Full Court cited the above passage from Professor Hathaway and immediately beforehand at 13, said: "We accept that refugee cases may involve special consideration arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia." 24 And, in Abebe v Minister for Immigration and Multicultural Affairs (1999)197 CLR 510 at 577-8, Gummow and Hayne JJ said: It is necessary always bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself." 25 In W168/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 538, the Full Court dealt with an appeal involving a decision of the Refugee Review Tribunal which found that the Sri Lankan appellant could not be believed because of inconsistencies in the accounts given by him to the delegate and to the Refugee Review Tribunal. Lee J said at [10]: "An application for a protection visa is not determined by a judicial proceeding in which all relevant evidence is collected, presented and tested by parties to the proceedings. Determination of an application for a protection visa is an administrative function on limited material and limited inquiry, and the process does not provide a foundation on which a finding on credibility may be made with assurance. (See: S Kneebone, The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role(1998) 5 A J Admin L 78.)" 26 His Honour then referred to the passage from Professor Hathaway's work referred to earlier in these reasons and said at [12]: "adverse decisions on credibility by the Tribunal should be restricted to the most obvious cases if the risk of injustice to applicants is to be avoided." 27 In recent times research has shown that some of the traditional methods used by courts to determine creditworthiness are unreliable. For instance, it is recognised that the confident liar is no longer necessarily to be preferred over the reticent teller of truth. The demeanour of a witness has assumed less importance in the assessment of credibility. 28 In relation to asylum determinations, it has been accepted that the special circumstances of such applications will often render the usual techniques of credibility evaluation inadequate: see generally, Juliet Cohen, 'Questions of Credibility: Omissions, Discrepancies and Errors of Recall in the Testimony of Asylum Seekers (2001) 13(3) International Journal of Refugee Law 293; Neal P Pfeiffer, 'Credibility Findings in INS Asylum Adjudications: A Realistic Assessment' (1983) 23 Texas International Law Journal 139 at 154; Savitri Taylor,'Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions' (1994) 13(1) University of Tasmania Law Review 43. 29 In particular, there are some factors which may result in the asylum seeker failing to disclose an important part of a claim at an early stage. 30 Mistrust of authority arising from dangers under an authoritarian regime from which the asylum seeker has fled may make that person reluctant to disclose information to the authorities in the country of flight, especially on first contact with authority on arrival. If the level of mistrust is high, it may mean that the applicant will not relate a critical element of a claim at the first interview. In those circumstances, the failure to disclose the relevant event comes from fear, not from the fact that the event did not occur. 31 Then, the circumstances which gave rise to the need for flight may have been so traumatic as to cause psychological harm in the form of Post-Traumatic Stress Disorder (PTSD). Pfeiffer (above) at 148-9 describes some symptoms of this condition which may explain the failure to disclose information about traumatic events: "If an applicant is suffering from PTSD, his memory of the persecution may be impaired. Among the varied reactions that are associated with PTSD, two symptoms are particularly relevant to the asylum applicant's circumstances. Many PTSD sufferers experience a loss of memory and confusion, a psychological defence mechanism which lessens their stress responses. By not remembering specific details, the applicant delays acceptance of the trauma and the negative emotions associated with the memory of the event." 32 Against this background, it is necessary to consider whether the Tribunal approached the task of assessing the credibility of the appellant's claim to involvement with the Mojahedin, by reference to the first interview, with the necessary caution. 33 The critical factor upon which the appellant relied was the failure of the Tribunal to state that it had taken a cautious approach to this assessment, and the failure to state that it had regard to the circumstances in which the interview occurred. From this omission, Mr Maxwell submitted, the Court should infer that the Tribunal failed to treat the assessment with the necessary caution. 34 Very often the Refugee Review Tribunal expressly refers to the approach it intends to take to the assessment of evidence. There are many examples of Tribunal decisions which acknowledge the constraints referred to by Professor Hathaway and the authorities concerning the assessment of credit. The practice of recording the general approach which the Tribunal intends to take to the assessment of credit is a valuable one. Thereby, the Tribunal reminds itself of the proper approach to its task, and also provides a reassurance to the reader that the proper approach has been taken. In the end, however, the reasons of the Tribunal should disclose whether the proper approach has in fact been taken. This is the safeguard against the problem which arises where the Tribunal records the self direction, but does so in a hollow, formulaic way as a means to attempt to immunise the decision against criticism for failure to take the proper approach to the assessment of credit. 35 In the present case, the Tribunal did not state the approach it intended to take to the significance of the first interview in relation to the claim that the appellant was involved with the Mojahedin. 36 However, the process of evaluation actually undertaken by the Tribunal, although not expressly stated, demonstrated that it approached the assessment of credit in a cautious way by taking into account the circumstances in which the first interview was held and the explanation which the appellant relied upon. 37 The Tribunal recorded the appellant's evidence at the hearing concerning the reason for his failure to mention at the first interview his alleged involvement with the Mojahedin (see par 8 of these reasons). 38 After the hearing the Tribunal sought further information about the first interview, and referred to the further information provided by way of explanation (see par 10 of these reasons). 39 Then, in its "Findings and Reasons", the Tribunal again referred to the explanations given by the appellant for his failure to raise his alleged involvement with the Mojahedin at the first interview. In the passage extracted at par 13 of these reasons, the Tribunal considered the appellant's explanation and gave reasons for rejecting them. 40 The way in which the Tribunal set out and dealt with the first interview evidence demonstrates that it gave serious and careful consideration to the explanations provided by the appellant. The decision itself evidences the exercise of the requisite caution. There is no basis for an inference that the Tribunal failed to approach the task on the wrong basis. 41 It was not necessary in this case for the Tribunal to explain that the circumstances of the first interview may make it an unreliable basis for a conclusion as to the creditworthiness of the appellant, because the appellant himself raised the matters which generally make the first interview an unreliable foundation for an adverse credit finding. Further, Tribunal explained the reasons for rejecting those limitations in this case. Whilst it was not necessary for the Tribunal to make an explicit reference to the caution which should be exercised in these circumstances such references would not have been wasted. 42 In the light of the conclusion that the Tribunal did exercise the necessary caution in assessing the appellant's claimed involvement with the Mojahedin by reference to the first interview, it is unnecessary for us to consider the second question, namely, whether the failure to exercise the necessary caution provides a ground of review under s 476(1)(b), (c) and (e).

the form of the application ground of appeal 43 A further ground of appeal concerned the form of the application for review filed in the Court. Order 54B rule 2 of the Federal Court Rules requires that an application for review in a case such as the present be in accordance with Form 56. The appellant filed a document which was in the form of the Form 56, but was completed in the Farsi language not in English. 44 The primary judge upheld the respondent's objection to competency on the ground that the document could not be regarded as an application for judicial review because it failed to comply with the rules of Court. His Honour also said that the document should not have been received because it was not in English. 45 In the event, the primary judge took a practical approach and requested the respondent to provide a translation of the document. His Honour then considered the grounds contained in the translated document. As those grounds did not disclose any reviewable error by the Tribunal, he dismissed the application. 46 On the main argument advanced on the appeal concerning the adverse credibility finding reliant on the first interview evidence, we have also found that there was no reviewable error by the Tribunal. Thus, whether the primary judge was correct in holding that the document filed in the Farsi language was not a valid application, is not necessary to decide an academic question. Even if the appellant succeeded in that challenge to his Honour's decision, the appeal would be dismissed because the appellant has failed on a critical issue in the appeal. 47 Although it is not necessary for the disposition of the appeal, it is desirable that we record our view concerning the conclusion of the primary judge that an application completed in a language other than English is, by reason of that fact, not a valid application and should not be received by the Court. 48 The Court has power to dispense with compliance with the requirements of the rules: Order 1 rule 8. If there is an implicit requirement that Form 56 be completed in English, the Court may, under Order 1 rule 8, in appropriate circumstances, relieve from non-compliance with that requirement. In Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 Kiefel J applied this rule to hold that a Form 56 which did not contain any grounds for the application for review was nonetheless effective to invoke the Court's jurisdiction to review the decision in question. 49 Where an applicant does not speak English and has no, or limited, access to translator services, it will generally be appropriate for the Court to dispense with any requirement that Form 56 be completed in English. The essential concern of the Court must be to adopt a process for communication which allows for an exchange between the Court and the litigants, and between the litigants themselves. In fact, this is the course which the primary judge adopted when he had the documents translated. 50 The position is similar to that which arises when a non-English speaker desires to give oral evidence in a proceeding. The judge has a discretion to allow the evidence to be given in that person's language and to allow for the evidence to be translated so that it can be understood by the Court and the other parties: Filios v Morland (1963) 80 WN (NSW) 501; Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458, 464. 51 In Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414, the applicant in proceedings in the Compensation Court was deaf mute. A sign language interpreter was provided for her use. In the course of the hearing a question of admissibility of evidence arose. The interpreter began to interpret counsel's submissions and the exchanges with the judge. The judge directed that there be no further interpretation of the argument or exchanges. The Court of Appeal (Kirby P, Samuels and Clarke JJA) held that the discretion to refuse a party the right to interpretation had miscarried. Samuels JA described the principle governing the participation of an interpreter, at 425, as follows: "[A]ny party who is unable (for want of some physical capacity or for lack of knowledge of the language of the court) to understand what is happening must, by the use of an interpreter, be placed in the position in which he or she would be if those defects did not exist. The task of the interpreter in short is to remove any barriers which prevent understanding or communication. This must, of course, be subject to the overriding right of the judge, first to determine whether those barriers exist and, secondly, to decide in what way the corrective mechanisms may be applied without disrupting or adversely affecting the forensic procedures which he is charged to undertake." 52 It seems that Samuels and Clarke JJA regarded this approach as consistent with Filios and Acquilina. Kirby P (as he then was), on the other hand, saw in the more recent Queensland case of R v Johnson (1987) 25 A Crim R 433 an example of a changing attitude in the Australian judiciary. The change had led to a more liberal view of the exercise of the discretion, that is to say, an enlargement of the right to an interpreter. His Honour favoured that change. He said that it reflected a growing appreciation of the importance of allowing persons to communicate to the court in their own language. It was therefore consistent with the changing nature of Australia's ethnic composition. 53 That more liberal approach can be seen in s 366C of the Act, which provides for a right to an interpreter before the Migration Review Tribunal, as follows: "(1) A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person. (2) The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English. (3) If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection (1)." The equivalent provision which applies to the Refuge Review Tribunal (s 427(7)) is in less prescriptive terms. 54 The same procedural rights apply in favour of asylum seekers in the United States of America: see D Anker & R Rubin, 'The Right to Adequate Translation in Asylum Proceedings' (1986) 9 Immigration Law Journal 10. In Augustin v Sava (1984) 735 F 2d 32 the US Court of Appeals 2nd Circuit explanation that the procedural protections followed from the statutory right to a hearing, and said, at 37-8: "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 under s 1253(h) 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. Gonzales v Zurbrick, 45 F.2d 934, 937 (6 Cir. 190). The very essence of due process is a 'meaningful opportunity to be heard". Hewitt, supra, 459 U.S. at 490 (Stevens, J., dissenting). To erect barriers by requiring comprehension of English would frustrate the inclusive aim of the UN Protocol and the intent of Congress." 55 Applying the approach taken in these cases to the discretion to allow a witness to give evidence in a person's native language, especially in asylum cases, leads to the conclusion that ordinarily a person unable to speak English and without access to translation services (for instance, by reasons of being in detention) would be permitted to file a Form 56 filled out in a language other than English. Whether the person seeking to file the document is ultimately given leave to do so is a question to be determined by the Court. The application is not invalid by being in another language. It must be accepted for filing by the Court.

conclusion 56 For the foregoing reasons, the appeal must be dismissed with costs.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Applicant: Mr C M Maxwell QC, with Mr C Horan

Solicitor for the Applicant: Jeremy Moore & Associates