SZAAJ v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-03-26|Before: Adam P, Hill J

Introduction 1 The appellant is a citizen of India. He applied for a protection (Class XA) visa but was unsuccessful. He then applied to the Federal Magistrates Court for review of the decision of the Tribunal. His application was made pursuant to s 39B of the Judiciary Act 1903 (Cth) made applicable by the Migration Act 1958 (Cth) ("the Act"). A Federal Magistrate dismissed the application. The appellant now appeals to this Court.

Chronology 2 In order to understand the submissions now made by the appellant, it is necessary to say something of the chronology of the proceedings. 3 On 1 February 2002 the Tribunal advised the applicant that there would be a hearing of his review. That date was subsequently altered at the instance of the Tribunal to 4 April 2002. In the correspondence the applicant was asked to phone the translating and interpreting service should he need an interpreter. It can be inferred that he did request an interpreter. 4 The Tribunal proceeded to hear the application on 5 April 2002. At the commencement of the hearing the Tribunal member asked the applicant whether he spoke English. The applicant replied that he did but that he needed an interpreter. An interpreter provided by the Tribunal was at the time present and proceeded to translate throughout the hearing. It might be noted that the Tribunal member remarked at the outset of the proceedings that the applicant's English was very good. The applicant also was told by the Tribunal member in English that if the applicant had any difficulty he should mention this straight away to the member. The applicant said he did not need that comment to be interpreted because he understood what the Tribunal member had said. 5 The applicant made no complaint concerning the translator at the hearing. 6 At the close of the hearing the applicant requested an the extension of time during which to file additional evidence. An extension of time to do this was granted until 5 June 2002. The Tribunal's reasons were delivered on 26 August 2002. 7 The Tribunal member notes in his reasons that the applicant gave his evidence in Tamil through an interpreter. There is nothing in the Tribunal's reasons which suggest that there was any difficulty with the translation. The Tribunal member commented when dealing with the question whether it would be possible for the applicant to relocate within India that the applicant spoke Tamil but continued, "I noted that he spoke English very well…(he had demonstrated this in the hearing)". 8 The application for judicial review in the Federal Magistrates Court was commenced on 20 September 2002. In an affidavit which either constituted the application or was filed in connection with it, the applicant alleged that there had been a failure on the part of the Tribunal to provide procedural fairness. He alleged that the Tribunal member did not inform the applicant prior to the hearing about the issues to be raised during the hearing; that the Tribunal was not fully aware about Naxalite problems in India (the applicant claimed to be a Naxalite), and further: "7. The interpreter was from Sri Lanka and he was not familiar with many Tamil words which are spoken in the Indian state of Tamil Nadu. 8. The applicant was disadvantaged during the hearing time when he could not understand the questions and the issues related with the case. Because of that the applicant could not give proper answer to the questions raised during the hearing time." 9 A directions hearing was held in the Federal Magistrates Court on 9 October 2002. At that directions hearing the applicant was directed to file and serve any evidence upon which he proposed to rely on or before 25 November 2002. 10 The application was set down for hearing on 27 February 2003. It was, it would seem, on the application of the applicant, adjourned for hearing until 12 June 2003. 11 On the day of the adjourned hearing counsel for the applicant sought leave to amend the application originally filed. He sought leave also to read two affidavits and consequent upon that sought an adjournment of the hearing. The amended application alleged that the Tribunal had failed to accord procedural fairness in that: "a) In reaching its decision the Refugee Review Tribunal used information, namely a country information file, which was provided to the Tribunal by or at the behest of the Respondent but which was not made available to the Applicant, b) The Refugee Review Tribunal improperly received communication from the Respondent prior to the hearing of the matter as to the content of the country information file to which the Applicant was not privy; c) The interpreter supplied for the hearing before the Refugee Review Tribunal was not competent and failed to properly translate the proceedings;" 12 It is with the third of these matters that we are presently concerned. 13 One of the two affidavits tendered to the learned Magistrate was sworn by the applicant. It said, relevantly, "Throughout the proceedings before the Tribunal, an interpreter was present to assist me to understand the proceedings. I required an interpreter because my own English is not sufficient to understand what is happening in a court room. The interpreter was not fluent and appeared to be confused. On a number of occasions the interpreter appeared to mistranslate. As a result I was fairly confused throughout the proceedings before the Refugee Review Tribunal as to what was happening. In particular I was confused in relation to a number of questions that I was asked and the responses which I gave. I am concerned that my confusion might have had a material effect on the outcome of my case." 14 The second affidavit tendered was sworn by a recognised Tamil interpreter. It said that on 11 June 2003, that is to say the day before the hearing, the interpreter had met the applicant's solicitor who had given him tapes of the Tribunal hearing. He swore that the solicitor had asked him to transcribe the tapes. He said he had listened to certain parts of one of the tapes and that he had told the solicitor that he would need two weeks to complete the translation.

The Federal Magistrate's Decision related to the Adjournment Application 15 The learned Magistrate gave leave to the applicant to amend his application and to file in Court and read the two affidavits referred to. However the learned Magistrate refused the adjournment application. In doing so his Honour said at [3] - [4]: "…Mr Levitt, for the applicant sought an adjournment of these proceedings for two reasons. The first was to permit him, through his instructing solicitor, to obtain a transcript of the proceedings before the RRT in Tamil and English in an attempt to put some flesh on the bones of the third ground of review set out in the amended application filed in court today. The other was so that notices could be issued pursuant to s 78B of the Judiciary Act 1903 (Cth) … In relation to the interpretation issue, I declined to grant an adjournment on the basis that this matter had been previously adjourned on 27 February 2003 until today so that the applicant could better formulate his case based on the issue of procedural fairness. It was only in court today that the amended application and supporting affidavits were filed. I took the view that sufficient time had been made available to the applicant to prepare his case and that no further delay was warranted." 16 The learned Magistrate then dealt with the Constitutional issue and expressed the view that no adjournment was necessary to permit notices to be given. That matter is not in issue in the appeal. 17 The learned Magistrate notes that he then proceeded to hear the matter on the basis of the evidence which was before him. As to the affidavits, the learned Magistrate said at [53] - [63]: "Although I accepted the applicant's affidavit into evidence, I stated that I would give that affidavit minimal weight because only general allegations of translation difficulties are made in the affidavit and no arrangement had been made by the applicant's solicitor to provide a Tamil interpreter so that the applicant could be cross examined on his affidavit. There was, in fact, no cross examination of the applicant on the affidavit, which necessarily significantly reduces the weight that I could attach to it. Given that the applicant, through his solicitor, was able to produce an affidavit from a Tamil interpreter relating to the work that he would need to undertake to provide a transcript, it should have been possible for the applicant, through his solicitor, to make available an interpreter for the purposes of anticipated cross examination of the applicant on his own affidavit." 18 The learned Magistrate for reasons not presently material then considered the other issues referred to in the amended application and dismissed the application to the court with costs.

The Submissions on the Appeal 19 It was submitted on behalf of the applicant that the learned Magistrate should have granted to the applicant the adjournment requested to permit a translation to be made of the proceedings before the Tribunal. It was submitted further that the interpretation at the Tribunal hearing was inadequate; the interpreter was from Sri Lanka and not familiar with the Tamil language as used in Tamil Nadu, and in consequence the applicant was disadvantaged during the hearing by not being able to understand the questions or issues in respect of which the Tribunal member was examining the applicant. It was submitted that the interpretation was such that the proceedings before the Tribunal involved jurisdictional error, that being in essence a denial of procedural fairness brought about by the inadequate interpretation which prevented the applicant from properly putting his case and prevented the Tribunal from thus engaging in a review of the Minister's decision. It was further submitted that the Tribunal's reasons for decision showed that it did not believe the applicant and that it was a consequence of the inadequate interpretation that the decision of the Tribunal member might well have been affected by the lack of communication caused by it. 20 In support of these submissions counsel for the applicant sought to tender before me a transcript of the proceedings before the Tribunal which showed the correct translation into the English language of the proceedings in the Tribunal so as to enable that to be compared with the actual English words used by the interpreter. In accordance with the usual practice, the proceedings in the Tribunal were recorded and a copy of that recording was given to the applicant and was available to the respondent Minister. Counsel for the respondent objected to the tender of the transcript on the basis that it was fresh evidence and should not be received on the appeal. It was submitted on behalf of the Minister that the transcript as properly translated was evidence that could have been obtained in the proceedings before the learned Magistrate and in any event that it was not cogent enough as to justify its admission. I marked the transcript for identification and with the consent of the parties indicated that I would read it and that I would give my decision in due course on the question whether the transcription should be accepted in evidence. It was accepted that if I was of the view that the applicant could show jurisdictional error from the translated transcript as tendered before me, fairness would require that counsel for the Minister would have the opportunity to have an interpreter translate the Tamil portions of the tape to satisfy himself that the transcript translation was correct and if necessary to tender a different transcript or cross-examine the applicant's interpreter on the translation. 21 An appeal which seeks to challenge the failure of a primary judge to grant an adjournment is an appeal on a question of practice and procedure. It follows that the appellant must show that the primary judge made an error of principle and that the appellant was prejudiced by it: House v R (1936) 55 CLR 499; Phillip Morris Inc v Adam P Brown Male Fashions Pty Limited (1991) 148 CLR 120 at 176-7. Where an application is made to vacate a hearing date in favour of a new and adjourned date, it will be necessary for a trial judge to consider all the circumstances. The over-riding principle however will be justice: The State of Queensland v J L Holdings Pty Ltd (1996-7) 189 CLR 146 at 155. Although that case was concerned with the refusal to permit the defendants to amend their defence some months before a lengthy trial was to begin, it provides a useful discussion of the various factors relevant to the exercise of discretion. These factors are, it seems to me, generally relevant to a consideration of an application to vacate a hearing date save that there is obviously a difference between an application made months before a hearing and one made on the very day that has been fixed for the hearing. 22 It is relevant in the present case that a considerable time had elapsed from the filing of the application until the date of hearing. Indeed the applicant had already sought and obtained an adjournment of the hearing to enable his case to be properly presented. No explanation appears to have been given to the learned Primary Judge for the fact that the solicitor for the applicant had only the day before the hearing shown the tape to an interpreter. 23 It can be inferred that nothing happened between the application to vacate the original hearing date and the day before the adjourned hearing date. It may have been relevant to the decision to adjourn whether the learned Magistrate was able to hear the matter within a short time after the adjourned date or whether a lengthy period of time would elapse before a new hearing date could be given. It was clearly relevant that unless the adjournment was granted, the appellant would have no real means of raising the issue which he sort to raise about the inadequacy of the translation. It is not an irrelevant matter that the grant or refusal of a protection visa might well be a matter of life and death for the applicant for such a visa. Clearly the evidence which the applicant wished to give could be of considerable importance to his case. It would be relevant also to consider whether a cost order might adequately compensate the Minister for the granting of a short adjournment. Given that the applicant most likely was impecunious, it may well be that a cost order would not have that effect. 24 It was also relevant that because no translation had yet been undertaken the applicant would not have been able to formulate with precision the case he wished to make out. Indeed it may be open to infer that the applicant did not know whether he indeed had a case unless the translation was in fact made. 25 The reasons stated by the learned Magistrate for refusing the adjournment are brief. Essentially, the learned Magistrate appears to have taken the view that since a considerable time has elapsed in which the evidence might have been obtained, further delay was not warranted. Clearly that was a very relevant matter. His Honour makes no reference to the fact that no explanation for the delay was given but it is clear this would have weighed heavily with him. These were both matters that his Honour necessarily had to weigh against the seriousness of the issue which the translation might reveal and the potential injustice which might arise to the applicant if, even at that late stage, he was refused the opportunity of putting before the Court evidence which might well be determinative of the case, particularly having regard to the affidavit which the applicant had tendered in which he stated that the translation by the interpreter was such that it had caused him confusion. 26 I have to say that were the decision mine, I would have granted the adjournment. But that is not the question I have to decide. Rather the question is whether the learned Magistrate erred in principle in refusing the adjournment. Counsel for the applicant did not point to any error in principle except to assert that an adjournment should have been granted. It can be said that the learned Magistrate did not refer to matters that would have been relevant to the grant of an adjournment for example, the importance of the issue which without a translation could not be made out. While the reasons given by the Magistrate were brief, I do not think that any error of principle is apparent from them. Given that the applicant had had adequate time to arrange a translation but had done nothing and that no real complaint had been made before the Tribunal about interpretation, I do not think that the Magistrate's discretion miscarried. It follows that the appeal should be dismissed. 27 In case I should be wrong on the question of adjournment, I propose to consider whether the translation of the transcript tendered, if correct, revealed any jurisdictional error. I might say here that the translation should be accepted in evidence. Clearly it is relevant to the issue to be determined and, if it matters, was not evidence available to the applicant at the time of the hearing before the Magistrate. 28 There are 15 responses of the interpreter which the translator indicates are inaccurate. They occur on something like 11 or 12 pages of the total transcript of 30 pages. Of these, many of the differences are so slight as to be clearly irrelevant. For example, the first translation error is said to have occurred on the 11th page of the transcription. The Tribunal member had asked the applicant for evidence of membership of the Naxalites. The applicant indicated that he had had evidence and left it with a friend in India. Subsequently the police, he said, had visited the friend's house and taken the evidence away. The Tribunal asked the applicant about the alleged friend. The interpretation of the answer given by the interpreter at the hearing was as follows: "He was a friend of mine. I befriended him because he was in the Naxalite movement. He was a Communist. But formally he was not a member of an organisation. So he pursued (unclear) activities in supporting the cause of these two groups which I mentioned." According to the translator the answer should have been: " A friend who was interested in the Naxalite movement, but did not join in this movement." He did not join because there were family problems. He would only support if we needed any help. Is to give or buy us anything in secret I would help." 29 Although there is quite a difference in the two interpretations it is difficult to see that the difference was of any significance. 30 In my view the only arguably significant translation difficulty is that appearing on pages 20, 21 and 22 of the transcript. These pages and the differing interpretations they revealed were before me the subject of discussion between counsel for the applicant and the Court. To understand the translation difficulties, it is necessary first to put the subject matter in context. The Tribunal was questioning the applicant about his claims that he had been charged with various offences. The first was a claim that he had been charged with inciting a person to commit murder in 1996. The Tribunal member asked the applicant what the Court's decision was. The translator apparently translated, "I was not affected. It was my friend who was affected." The correct translation was, it is said, "It was my friend who got affected not me. With that being the case there is no necessity to infer that he should cut the arm on my advice or he should kill. Every human being automatically gets that feeling." 31 Not surprisingly the member said that he did not understand. He repeated his request for information about the Court's judgment on the murder charge. The translator then translated, correctly, that the applicant had been charged with incitement to commit murder but that the police had been able to produce enough evidence and ultimately he had been found not guilty. The Tribunal member then turned to a claim that the applicant had been charged with damage to property, attacking people with sharp instruments and attempted murder. The Tribunal member asked the applicant what the Court found on that occasion. The interpreter apparently translated: "because the public gave evidence on our behalf we were not convicted of the offence of murder. But some fines were imposed on other charges as to damage to public property. According to the transcript the proper interpretation of what was said was as follows: "A case always has two sides. There is not just one side. Police acted so as to say that we did all that. After doing this we proved. We came to have meals. They also came to have meals. We proved, with that waiter, that they did it. So members of the general public also came and spoke in support of us. The court said there was no fault on our part. They released us after imposing fine on us for getting involved in the scuffle." 32 The interpreter then continued, "The police actually concocted evidence against us because the offence had been committed by someone else but we were charged. The person involved gave evidence favourably in court." The proper translation is said to have been, "Police filed the case only against us because he was politically powerful and leaving him aside. He is the one who beat. He was the one who committed. We stopped. Later scuffle broke out. We got involved in the fight. A poor labourer was the person who got affected. We fought on his behalf. So, that poor labourer came and gave evidence." 33 Both versions are rather difficult to follow. The Tribunal member then asked the applicant about the third time that he had been in court in 1999. The interpreter at the proceedings is said to have translated as follows: "There were three charges against me. One was causing grievous hurt to ration shop owner, Ravi. The second one was inciting people to rebellion. Third was damage to public property." 34 According to the evidence the proper translation of what was said was as follows: "One case against me was inciting people to rebel against the government. The second one was the ration shop belonged to the government - we took into our possession. That was another. Then causing riots, and we attacked the ration shop owner, Ravi, causing him severe injury - attempt to murder." 35 Shortly thereafter the Tribunal member said to the applicant, "So you are saying that as a result of that you were found guilty?" The interpreter then was said to have said,

"The case was still pending. So I cannot say whether the person involved, Ravi, had died."

According to the translator the real translation should have been;

"How can it be said that it did not find guilty? The case is still pending. If that case ends and there comes a judgment what would I do?"

36 The final matter dealt with in the evidence related to the fourth time the applicant was charged. He had apparently not appeared before the court on that occasion and was asked by the Tribunal member why that was the case. The interpreter translated the applicant's answer as follows: "In 97, when I was going to Singapore, itself I became so disgusted with life. In 99, I did not want to appear in court because I knew they were just counting me and they will do whatever to see that I was in great danger. That was in the fourth case." 37 According to the evidence the real translation was as follows: "I was already fed up in nineteen ninety seven after I returned from Singapore. In 1999, when I returned my life was ruined. I could not finish my studies. I had enough after continuous struggle. It was at that time that I was returning to India. There had already been a charge - attempt to murder. This time - murder. The situation was such that I couldn't escape hereafter. So I could not have stayed in that country. Police had each time fabricated false cases and was keen to put me into jail and are trying to finish me. Therefore I did not go. Had I gone they would have put me in. The court will remand. Had I gone on remand my life would have come to an end. 38 Perhaps the last passage has more significance. Ultimately however the issue is one of impression. First it has to be said that only a very small amount of the translation is in fact challenged. Most of the translation is shown on the evidence to have been correct. Secondly, it is clear that the applicant himself spoke English, sufficiently to understand the Tribunal member and to indicate there was a problem of translation if he believed there was one. I do not think that it is likely that the applicant himself was in any doubt as to what the Tribunal member himself had said as was originally alleged. Thirdly, the applicant made no complaint, either to the Tribunal member or to the interpreter about the translation. He had been encouraged to advise the Tribunal member in the event that there was any difficulty with the translation but did not do so at that time. Not only did the applicant not do so at that time but he appears not to have raised the issue of interpretation until proceedings were commenced in the Federal Magistrates' Court for judicial review of the Tribunal's decision. And even then he did nothing about engaging a translator until the day before the hearing. 39 Finally, I think when one looks at the evidence of translation overall, while it is true that there are some passages, which I have set out above, where the translation was either not adequate in that parts of what was said were omitted or the translation was inaccurate or perhaps confusing, it seems to me that none of the matters really bore upon the substance of the applicant's case so that it could be said that the defect in translation might have affected the outcome. 40 I am unaware of any decision which has considered the question of translation in the context of whether a wrong translation of material before the Tribunal could constitute jurisdictional error. It can be accepted that it is a fundamental rule of a fair hearing that an applicant before the Tribunal be afforded the opportunity of putting his or her case. I do not need to consider whether there would be any obligation on the part of the Tribunal to provide to an applicant, unable to speak English, an interpreter. If an interpreter provided by the Tribunal translated in a totally inadequate way the apparent opportunity to put a case is illusionary. In the present case an interpreter was in any event provided (see Migration Act s366C). The complaint is that the interpretation was so inadequate as to amount to a denial of procedural fairness. 41 It is now well established that notwithstanding the provisions of s 474 of the Act, this Court has jurisdiction to review a privative clause decision, so called, where the Tribunal has made a decision outside its jurisdiction, that is to say, where the Tribunal has committed jurisdictional error as that expression is to be understood in accordance with cases such as: Craig v South Australia (1995) 184 CLR 163. This is because a decision of the Tribunal made outside jurisdiction is not a decision at all and therefore does not fall within the meaning of privative clause decision in s 474: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 42 While the boundaries of jurisdictional error may not always be clear, it is not now in dispute that a decision made in breach of procedural fairness will involve jurisdictional error: Re Minister for Immigration & Multicultural Affairs, Ex parte Miah (2001) 205 CLR 57 at 87, Refugee tribunal, Ex parte Aala (2000) 204 CLR 82 at 101. 43 It is not disputed by the respondent in this case that a review which took place with an interpreter where the translation was so bad that there could be no communication between an applicant and the Tribunal would involve a breach of procedural fairness or otherwise constitute a review made outside the Tribunal's jurisdiction and so involve jurisdictional error. Rather it is submitted that the present is not such a case. 44 It is not necessary in this case to determine what criteria should be adopted to determine when the level of competence of the interpreter is so bad that jurisdictional error will result. There is however an analogy to be found from the decision of Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6. That case arose under the provisions of the Act prior to its amendment in 2002. The issue was whether there was a ground of judicial review under the then s 476 of the Act where the interpretation was inadequate. Her Honour held that the Tribunal lacked jurisdiction to conduct a review without adequate interpretation. In her Honour's view an applicant had no effective opportunity to appear before the Tribunal unless the applicant, being unable to speak English, was provided with a competent interpreter. In an extensive review of overseas authorities, her Honour quoted from a decision of the Supreme Court of Canada in R V Tran [1994] 2 SCR 951 at 988 where Lamer CJ said: "Interpretation must be of a high enough quality to ensure that justice is done and seen to be done." 45 Another way of putting the matter, as her Honour recognised is to enquire whether the interpretation was such that an applicant before the Tribunal could be said to have been effectively prevented from giving his or her evidence. This involves, as her Honour noted at [23], considering matters such as: "the responsiveness of the interpreted answers to 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 evidence confusion and exchanges between the Tribunal and the interpreter" 46 In that case her Honour found ultimately that there was a departure from the appropriate standard for interpretation. In reaching that conclusion it was relevant, her Honour said, that the applicant had made a timely complaint about the quality of the interpretation. That is not the case here. 47 Although I think that there were difficulties in the present case with the translation, difficulties which I have indicated, the present was not, in my view, a case where the interpretation looked at as a whole was such that the applicant was effectively prevented from giving his evidence. The applicant, while needing an interpreter, was still quite proficient in English. He had been made aware that he should bring to the Tribunal member's attention the difficulty of translation. He did not suggest at the time that there was any confusion in his mind about the translation. This emerged only after the Tribunal had given a decision adverse to him. The interpretational difficulties here were generally minor and not overall of such a kind as constituted jurisdictional error. 48 It follows, in my view, that the present is a case where even if an adjournment had been granted by the learned Magistrate, that adjournment would not have availed the applicant. The Tribunal's decision, in other words, was not affected in any matter of significance by the alleged incompetence of the translation. 49 The application should accordingly be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (7)

Cited By (1)