STPB v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-06-25|Before: Finn J

REASONS FOR JUDGMENT 1 If the task of the interpreter is to remove any barriers which prevent understanding or communication: cf Gradige v Grace Bros Pty Ltd (1988) 93 FLR 414 at 425; it is clear that the interpreter engaged for the hearing of this protection visa application by the Refugee Review Tribunal enjoyed only a measure of success in performing that function. The sole issue of substance raised by this application for relief under s 39B of the Judiciary Act 1903 (Cth) is whether the transcript and tape recording of the Tribunal hearing disclose such inadequacy or incompetence in the interpretation that the applicant can be said to have been prevented effectively from giving his evidence: cf Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 23.

BACKGROUND 2 The applicant is a citizen of India. He claimed to have been an officer in the Indian Army for ten years and to have served in Kashmir. It was during that service he claims to have engaged in the activities which have given rise to his fear of persecution (apparently on the basis of his political opinion). Those activities included the alleged disclosure of information concerning military movements to a Kashmiri political group. The Tribunal characterised that conduct, if it occurred, as amounting to treason. 3 The Tribunal rejected the visa application for reasons of credibility. Its conclusions were expressed in the following terms: "Overall I find that the applicant is not and has never been an officer in the Indian Army. I find that he is not a credible witness. I do not accept any of his claims of harm in India on account of his claim of having been an Army officer and involved with a mujahadeen or any other group as being true. I note that if I did accept his evidence (which I do not) I would find that he does not fall within the Convention definition. If what he says is true and whilst being a serving officer of the Indian Army he gave army movement details to a terrorist or separatist group or a group with connections with such groups, then this is clearly treason. The motivation of the Indian Army if they wish to arrest and try him for treason is that they are seeking to punish such activity. This is a law of general application. There is no evidence before me such that it can be said that the Indian Army would differentially treat or harm the applicant for reasons of a Convention ground." 4 The reason the Tribunal disbelieved the applicant was because it did not accept that a person who claimed to be an officer for about 10 years could be as "ignorant" about military matters as he demonstrated in responses to the Tribunal's questioning. The Tribunal noted that the applicant: (i) "did not have any real idea of the lower ranks of the Indian Army"; (ii) gave the incorrect name of the head of the Indian Army at the time when the applicant left the army; (iii) incorrectly stated that the rank of sergeant is an Indian Army rank; (iv) incorrectly stated that the rank of second-lieutenant is an Indian Army rank; (v) incorrectly stated that the lowest rank in the army is a second-lieutenant; (vi) was unable to give a break up of how the army is made up, other than to say that there was a sea army, air force and land army.

THE ISSUE OF INTERPRETATION 5 In its reasons the Tribunal adverted explicitly to the interpretation service that had been rendered. Its comments were that: "The Tribunal notes that the applicant's adviser commented at times during the hearing that the interpreter was not interpreting correctly. His first objection on this was to the effect that the interpreter was interpreting in Hindi and not Punjabi. It was clarified by the Tribunal that this was the applicant's choice and the interpreter could interpret in either Hindi or Punjabi. The adviser later commented that the interpreter was not interpreting as [sic] word correctly. The adviser was able to supply that work [sic]. I am satisfied that the interpreting was of a high standard and that the applicant was able to give evidence and that I understood the evidence given. I note that the applicant acknowledged that eh [sic] can also speak a little English." 6 These observations notwithstanding, it is clear from a reading of the transcript that there were some number of instances of quite unresponsive answers to Tribunal questions, of mutual incomprehension, of occasional frustration on the Tribunal's part, of intervention by the applicant's adviser to highlight or to help solve difficulties of interpretation and of obvious linguistic problems experienced by the interpreter. For the first third of the hearing Hindi was the language employed by the interpreter and the applicant. After the applicant's adviser pointed out that they were not communicating in Punjabi, that language was adopted for the rest of the hearing save for a brief period when the Tribunal attempted unsuccessfully to use English directly to improve communication. 7 An affidavit was filed on behalf of the applicant by an experienced court interpreter, Horiander Perval, who is fluent in English, Hindi and Punjabi. 8 Mr Rewal listened to the tapes of the RRT hearing and examined the typed transcript of the hearing prepared by the applicant's legal advisor. He deposed that the impression he gained after doing so was that: (i) the applicant did not understand what was asked by the Tribunal Member about the ranks of the Indian Army when the Hindi language was used; and (ii) the applicant found difficulty in understanding the substance of the Tribunal Member's questions because some of the words and phrases used by the Tribunal Member were translated too literally by the interpreter, obscuring the contextual meaning. 9 Mr Rewal identified 9 instances of errors in translation once the Punjabi language was used: 1. When the applicant told the Tribunal that he had been to a "Sikh doctor" about his alleged ill-health, the interpreter translated that to be "sick doctor".

In response to the Tribunal's question about the names of battalions, the applicant listed a number of battalions, including the "Sikh Regiment". The interpreter misinterpreted this to be "Sixth Regiment".

The interpreter translated a question from the Tribunal to the applicant to be "Where you a serving member of the Indian Army" instead of "Were you a serving member of the Indian Army".

The interpreter misinterpreted the applicant to say "to sell them" instead of the correct "to save them" in response to a question from the Tribunal about the information he gave about army movements.

The interpreter gave the wrong meaning to the word "treason" used by the Tribunal - the interpreter translated the word into Hindi (not Punjabi) as meaning "to oppress".

When the Tribunal Member asked "what does it believe in" in relation to the political manifesto of the Democratic Alliance Mujahadeen, the interpreter translated the question literally and used Hindi words, translating the question as "what does it trust in?"

The interpreter gave an unresponsive interpretation of the applicant's answer to the Tribunal's question about why he feared he would be arrested or killed because he did not translate the words "treason" or "traitor".

The Tribunal asked the applicant how he classed what he was doing when he said he was saving lives by disclosing army information. The interpreter then admitted to not knowing the English translation to a word the applicant had used and had discussions with the applicant's migration agent and the Tribunal. This produced protests from the migration agent that there were serious problems with the interpreting. Eventually, the applicant's response that he was "patriotic" was correctly translated.

The interpreter mistranslated the applicant's answer to the Tribunal's questioning about whether there was an arrest warrant issued for him. Whereas the applicant replied, "after I came here they issued the warrant of my arrest… it happened in Kargal", the interpreter translated that into English to be "after I came here they shoot the warden of my…". When the Tribunal questioned the applicant about what he was saying, he responded "during Kargal war the Indian Army officers knowingly send them to the front to be killed by the Pakistani Army to get rid of them". The interpreter mistranslated this into English, saying: "the head officers, the lead of army they have. Yeah actually the main officers army officers they just connected with Pakistani army and then just to kill to the soldiers in Kargal".

10 It probably is the case that the first two of Mr Rewal's "errors" were errors in transcription rather than in translation. It equally is the case that the errors so identified and some number of the exchanges recorded in the transcript (which could involve two or more of the Tribunal member, the applicant, the interpreter and the adviser) evidence in some degree the factors of which a reviewing court would take account in determining whether the applicant had been prevented effectively from giving his evidence. As Kenny J noted in Perera (at [41]): "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."

CONTENTIONS AND CONCLUSIONS 11 The applicant's case, put shortly, is that when one reads the transcript and hears the recording of the Tribunal hearing, the pattern of misunderstandings and misinterpretations was such as to satisfy the Perera factors and to require the conclusion that there was a denial of procedural fairness. 12 The respondent's contention is that while obvious misunderstandings and mistranslations occurred, those that could be said to be material to the Tribunal's conclusion adverse to the applicant were ultimately corrected or dispelled (sometimes after protracted exchanges or by later revisiting a matter). The Minister has properly conceded that there clearly was not satisfactory communication at certain points. Nonetheless an overall assessment of what transpired at the hearing, it is said, leads to the conclusion that there was effective communication between the Tribunal and the applicant. 13 Distinctly, the Minister recognised that, while not raised by the applicant, there might be an argument that the problems with the interpretation might have fed into the overall adverse credit finding made by the Tribunal. It was submitted, though, that the problems identified lay at the periphery of the issues upon which the adverse credibility finding was made. 14 As I will indicate below, this credibility issue which the Minister has fairly and properly so raised lies at the core of this matter. 15 It is clear from the transcript that the first and, in its view, principal issue the Tribunal addressed was the applicant's membership of, and understanding of ranks etc in, the Indian Army. This was a matter discussed first in Hindi and then later in Punjabi although the predominant part of the exchange that displayed the applicant's "ignorance" of military ranks in particular and which was relied on by the Tribunal in making its credibility finding, occurred while Hindi was the language being used between the interpreter and the applicant. 16 After the change from Hindi to Punjabi, the following exchange occurred between the Tribunal member and the applicant: "TM And then for eight years after that you tell me that you were an army officer. A Yeah. TM Now, someone whom has gone through that background cannot possibly sit here and tell me that they don't know what the ranks of the army are. A I can tell, I can tell all. TM Well you haven't so far. A You didn't ask Inaudible TM No. I actually did. A I can tell Inaudible TM Ok off you go." Then followed a reasonably accurate description by the applicant of officer ranks. The Tribunal then turned to the ranks of non-commissioned officers:

"TM Yea, what what what are the ranks between, from the sepoy and a Lieutenant. A 2nd Lieutenant come after the sepaee. 2nd Lieutenant, commanding. TM How is it that you know the senior officers grade but you don't know any of the junior ones. I He can Inaudible TM Yeah. How can you not know any of the positions below Lieutenant? A You mean the lowest position is the training person then that we entered in the army called the sepaee and there is a different we call the Inaudible." Then followed questioning on an unrelated subject. I emphasise this for reasons given below. 17 In his affidavit Mr Rewal made the following observations on the interpreting of the Tribunal's questioning about ranks: "5. After listening to the two Refugee Review Tribunal hearing tapes in this matter and after examining the typed transcript, the overall impression that I gained was that at the beginning of the Hearing the Applicant was not understanding what was asked by the Tribunal Member about the ranks in the Indian Army when the Hindi language was used. Later on in the transcript (page 14) when the Tribunal Member's English was being interpreted into Punjabi, and the Tribunal Member asked about the ranks in the Indian Army, the Applicant replied that the Tribunal Member had not previously asked about the ranks in the Indian Army. Because of this, I gained the impression that the Applicant did not understand fully what the Tribunal Member was asking when the interpretation was being done in the Hindi language concerning the ranks in the Indian Army. In addition to this, for example, on page six of the transcript, when the Tribunal Member asked, 'Okay, what's the word in the Indian Army for Lieutenant?' the interpreter only translated the first part of the Applicant's answer and did not translate the second part, which was, 'It's a rank. He is one rank down to Subedar.'" 18 I would emphasise given what the Tribunal took to be the applicant's ignorance of non-commissioned officers that, on the evidence, Subedar is a non-commissioned officer in the Indian Army ranking immediately below a lieutenant. 19 The question of interpretation of the exchanges concerning rank apart, I do not consider that the errors identified by Mr Rewal were material to the Tribunal's conclusion. However the exchanges on army ranking bore directly on the credibility finding made. From my own reading of the transcript, from listening to the tapes, and in light of Mr Rewal's evidence quoted above, I cannot be satisfied that there was effective communication between the applicant and the Tribunal while the Hindi language was being employed. As the reply which was not interpreted indicates, the applicant had some knowledge of non-commissioned officer ranks. 20 After the language change to Punjabi occurred, the Tribunal again raised but, as I noted, did not persevere with questioning on non-commissioned officer ranking. 21 The applicant requested a Punjabi interpreter be provided at the hearing. Though he indicated to the Tribunal that he could speak Hindi, he also indicated he spoke Punjabi best and when given the choice by the Tribunal, he elected that the translation not be in Hindi but in Punjabi. It is difficult to discern how the Tribunal could reach the view expressed in its reasons that interpreting in Hindi and not Punjabi "was the applicant's choice". 22 Non-responsive or erroneous answers may reflect attempted evasion or ignorance. But in a setting such as the present, they could be attributable to misunderstanding or to mistranslation. When non-responsive or erroneous answers are given to questions that are directed primarily to credibility, the need to consider the possibility that the answers given were the product of misunderstanding or mistranslation can arise if the Tribunal is put on notice that such could possibly be the case. 23 In this matter the Tribunal was so put on notice in relation to the use of the Hindi language both by the applicant's adviser and by the applicant's later response in Punjabi when he indicated he did not think he had been asked what were the ranks of the army. It did not respond adequately to that notice. 24 I am satisfied on the material before me that there was a real likelihood of misunderstanding and there was an important instance of non-translation while the rank exchanges in Hindi was occurring. That likelihood, the non-translation, and the Tribunal's erroneous understanding that Hindi was the applicant's language of choice cast real doubts on the reliability of the basis on which it made its finding about the applicant's credit. 25 I find that the inappropriate use of the Hindi language itself created a barrier to understanding and communication; that this occurred during a period of questioning which was related directly to the conclusion on credibility at which the Tribunal arrived; and that it rendered unreliable the basis of that finding as it compromised the reliability of what was communicated between the Tribunal and the applicant. There was in consequence a denial of procedural fairness which gave rise to a jurisdictional error: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 at [32]ff. 26 The applicant raised two other grounds of review to which I should briefly refer. The first is that he claimed that he was so ill at the Tribunal hearing that this contributed significantly to his not understanding the Tribunal's questions. There was evidence that the applicant was sick for a period prior to the hearing and on several occasions he commented at the hearing that he was sick. 27 No medical evidence has been filed to support the contention that, because of ill health, he did not have a real and meaningful opportunity to take part in the hearing: see SCAR, above at 299ff. The Tribunal was aware that the applicant claimed he was unwell but observed of this at the hearing: "I gave you the option today if you didn't want to come today you could have said that you didn't want to but I would have required that you attend the Commonwealth Medical Officer for a full examination." 28 The material before me is incapable of supporting the conclusion that the applicant was deprived of a fair hearing because of ill health. 29 The final ground of review advanced is that is that the Tribunal found that the applicant had fabricated his evidence about his involvement in the army and had advanced a false claim but these were not matters put to him nor was he given an opportunity to comment on them. Hence it is said there was a denial of procedural fairness. 30 Central to the applicant's case was his claim to have been an army officer. On several occasions during the hearing the Tribunal indicated that whether or not this claim was true was in issue. The following, which occurred during the period of Hindi translation and after the exchanges concerning ranks in the army, is illustrative of this: "TM Ok, from what you're telling me so far […] I don't believe that you've ever been in the army and I don't believe that you and I Inaudible on the fact that you are so ignorant about it that I cannot possibly accept that you have ever been a member or associated with them. Now because your. A Mumbling. TM Hold on, because your claims rest on the fact that you claim to be, in effect an army traitor, and to be wanted in effect for treason by the army. If I can't be satisfied you were actually in the army, then I have no further questions for you." 31 However, the usually unresponsive character of the applicant's replies where his military service was in question raise further doubts as to the efficacy of the interpretation in the circumstances, as illustrated by the following: "TM Ok, we're going to have a break in a minute because I'm finding this very frustrating and very difficult and I'm sure everyone else is as well. Now, before we have the break I want you to be quite clear what the concerns I have so far. Now, I'm concerned that you have a fundamental lack of knowledge of the make up and structure of the Indian army. To the point that you're so ignorant that I really have difficulty believing that you ever really had anything to do with it. Now, hold on I'm just talking at the moment I don't want you to comment. So you seem to have no problem understanding now when I'm saying things. I Sorry? TM You seem to have no problem in understanding. So when I ask you something fairly simple like were you an army officer when you were in Kashmir when you had the problem you come back with me with something that isn't the answer that one would expect from a simple question like that. A You mean I am replying? TM You're replying but you're not giving the answer that would make sense to the question. Now before we go out for the break as well I just want to say something more about your claimed history, and what you put in. And you can speak to your advisor about this in the break, because this I haven't actually got on yet to one of the major concerns I have apart from credibility about your application. Now, what you claim is that you you're Hindu and you're from the Punjab and you're a serving army officer. Now, what you want me to believe is that while you were a serving army officer to the Indian state you joined a fundamentalist Islamic group in Kashmir. I Sorry? TM Yea, I'll. I'm maybe I'm going on too long. What you want me to believe is that while you were a serving army officer who held a commission from the Indian state. Do you understand? I Inaudible TM The government? I Army, army. TM Yea, I don't want you to get into a discussion with the applicant, what aren't you understanding? A But there is not any force Inaudible to army is totally different from …" 32 The procedural fairness submission reduces itself in the end to simply an aspect of the principal issue in this proceeding - the efficacy of the interpretation. The Tribunal clearly attempted to alert the applicant to what in its view was a critical issue: see Applicant M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 131 at [7], [17]. The question is whether this was effectively communicated to the applicant. 33 I have already found that the Tribunal's decision was founded on a jurisdictional error for reasons relating to the interpretation as it related to the Tribunal's conclusion on credibility. It is unnecessary for me to make any further finding as to whether deficiencies in communication had other vitiating effects. I refrain from doing so. 34 The final matter I should mention is that no submission has been made that to remit the matter would be futile because of the Tribunal's alternate finding that, even if the applicant's evidence was accepted, he would not fall within the Convention definition of a refugee. His claim, in substance, was that he would be subject to a law of general application, i.e. treason. The Tribunal was of the view that there was no evidence before it that the army would differentially treat or harm the applicant for a Convention reason. 35 No such submission having been made, I will make the orders sought by the applicant. However I would observe that there may be a greater complexity to the subject of laws of general application than the Tribunal apprehended: see Applicant A101/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 556. 36 I order that: (i) a writ of certiorari be issued, directed to the second respondent, removing his decision in this matter into this Court for the purpose of quashing it; (ii) the decision be quashed; (iii) a writ of mandamus be issued, directed to the Refugee Review Tribunal, requiring it to hear and determine the matter the subject of the decision, according to law; (iv) a writ of prohibition be issued, directed to the first respondent, prohibiting her from acting upon or giving effect to the decision of the second respondent; and (v) the first respondent pay the applicant's costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Solicitor for the Respondent: Australian Government Solicitor

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