30 Perera does not, at [37] or at all, contrary to the reasons of the Federal Magistrate at [57] stand for the proposition that errors in interpreting can be rectified. Nonetheless, I would accept that in certain circumstances errors of that kind may be rectified. This could be done by written submissions to the Tribunal after the hearing: Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [25] per McHugh, Gummow, Callinan and Heydon JJ and per Kirby J at [75]. It could also be done by the provision of a corrected transcript accepted by the Tribunal as accurate. Indeed, that is what occurred in this case in respect to the question of when the appellant commenced the practice of Falun Gong in China. Such errors however cannot always be rectified in this way and a further oral hearing at which an applicant gives evidence may be necessary. It will at least depend on the nature and extent of the errors.
31 It is the first respondent's submission that the interpretation errors were rectified by the provision of a correct transcript to the Tribunal by the appellant after the hearing. It refers to the following reasons of the Tribunal on point:
As discussed, in considering this claim the Tribunal is greatly assisted by a fresh, NAATI-accredited translation of the Applicant's evidence given at the 11 October 2006 hearing, on which the Applicant and his adviser have relied in making the point about misunderstandings at this more recent hearing. The Applicant and his adviser have not asked for a third RRT hearing, and have said that the transcript helps to overcome deficiencies in the oral interpretation of the Applicant's 11 October 2006 evidence.
Guided by the concerns raised in the 27 October 2006 submission, the Tribunal is confident that it has sorted through instances where the Applicant misunderstood questions by the Tribunal that were misinterpreted or inadequately interpreted on 11 October 2006. The Tribunal has also relied, as the Applicant and adviser have indicated they would prefer it to rely, on the transcript's written translation of the information provided by the Applicant at the 11 October hearing, rather than the oral interpretation, the occasional shortcomings of which are shown in the transcript for comparison with what the Applicant is shown to have actually said. (Emphasis added)
32 Earlier the Tribunal in its reasons had said
The adviser's covering letter for the 27 October 2006 post-hearing submission refers to a number of perceived errors in translation at the 11 October 2006 hearing. The Tribunal has taken account of all of the errors to which the adviser refers. Some of the variations between what the transcript reports the Applicant as saying and what the interpreter related on the day appear to be insignificant variations; however, the Tribunal accept that there were errors and is grateful for the transcript on which the Applicant and his adviser evidently rely and which they have provided to the Tribunal. In view of their concerns, and paying close attention to their specific examples of errors, the Tribunal has relied on the translations by the NAATI-accredited expert who undertook the transcript, where those translations differ significantly from the versions of the evidence provided through the interpreter at the hearing.
33 I do not share the Tribunal's confidence. It is the case that certain, but not all, matters were to an extent clarified by the post-hearing written submissions contained in the letter to the Tribunal from the appellant's migration agent dated 27 October 2006, as well as by the transcript. For example the Tribunal in its reasons acknowledged that its view that the appellant's claim to have become a Falun Gong practitioner in China some nine years before he had previously claimed to be one, and which had raised credibility concerns in respect of the appellant, had arisen as a result of a misunderstanding. The misunderstanding was created by the woefully inadequate interpretation on this topic. The relevant passages are set out under para [27] above.
34 Nonetheless, I regard the balance of the errors, some in isolation, but certainly in totality, as significant, concerning as they do central issues raised in the application. For example, confusing and at times seemingly incoherent evidence was given by the appellant concerning his involvement with a Falun Gong study group at Burwood: see paras [25]-[26], [53]-[62] in these reasons. In its findings the Tribunal did not accept "on the evidence" that the appellant had been involved, relevantly, with the Burwood Park Group. This led it to conclude that the appellant's familiarity with Falun Gong teaching had been acquired by means other than attendance at the Burwood Park Group. It observed that the "appellant's evince (sic) about belonging to this group and about how long he had belonged to it and where and when it met, is riddled with inconsistency". This, in turn, may have had repercussions in relation to the Tribunal's findings in respect to s 91R of the Act. Such inconsistencies significantly were caused by inadequate interpretation. This is not to review the facts found by the Tribunal. However such a finding demonstrates that on this central issue the appellant did not, in my opinion, receive a fair hearing because he was, in effect, prevented from giving relevant evidence in respect of it.
35 Further, on the question of the appellant obtaining a Chinese passport the Tribunal did not accept "on the evidence" that the appellant, who had made "special arrangements" in order to obtain his (and his wife's) passports, had done so or needed to do so for the claimed Convention-related reasons. The Tribunal does not say what "the evidence" was. I cannot be confident that the poor interpretation on this matter did not play any part: see para [30] above. Again this is not to review the findings of fact but rather to illustrate that the appellant was prevented, because of poor interpretation, from giving relevant evidence.
36 In my opinion, neither the post-hearing written submissions nor the transcript were capable of curing fundamental problems created by the poor interpretation. First the incorrect interpretation of questions asked by the Tribunal Member could not be cured. The correct questions were never asked because they were poorly interpretedand it cannot be assumed what his answers would have been if this had not occurred.
37 Furthermore, 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: Perera at [49]. The negative impression in the mind of the Tribunal Member conveyed by the appellant's answers, incorrectly interpreted, is, in my opinion, difficult if not impossible to eradicate, after the hearing. Such a negative impression, in one area of evidence, such as the question of when the appellant began to practice Falun Gong in China, will often affect a decision-maker's conclusions in other areas. It is impossible to discern the affect such impressions made at the time may have had on the Tribunal's conclusions as a whole: cf Applicant NAAF of 2002 at [40]. The subsequent characterisation of this evidence as a "misunderstanding" by the Tribunal does not inevitably overcome the unfavourable impression obtained at the hearing by the Tribunal concerning the appellant's credit.
38 The Federal Magistrate, in his reasons at [46] and [53] correctly, in my view, said that the standard of interpreting "left a lot to be desired" and constituted "significant errors in interpreting". However, his Honour at [57]-[58] stated:
Quite clearly, the Tribunal has given favourable consideration to the applicants' submissions about the inadequacy of the interpreting and has taken appropriate steps to deal with the matters raised. The Tribunal appears to have done exactly what the applicants asked it to do. If errors in interpreting are made, then they can be rectified (see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [37] per Kenny J).
Whilst it appears that there were errors on the part of the interpreter at the hearing, I am satisfied that the Tribunal took appropriate action in dealing with those errors, as the applicants requested. As a result, the applicants were not deprived of their ability to give evidence due to interpreting errors and there is no breach of s 425 of the Act. There is no jurisdictional error.
39 These reasons, with the greatest of respect, do not grapple with the problems which have been identified. They do no more than accept at face value, from the Tribunal's reasons, that the problems caused by poor interpretation had been cured by provision of the transcript. The provision of the transcript was no more, as the covering letter, in effect, said, than an attempt to overcome the negative impression (of the appellant's claims) created by the deficiencies in the interpreting. The covering letter from the appellant's migration agent to which I have referred did not purport to be a cure-all. The letter concluded by inviting the Tribunal to contact the writer, Mr Simon Jeans, if it required any further information or assistance. It did not take up this invitation. There is no independent analysis by the Court below of the transcript and the reasons. In my opinion, this was necessary to the disposition of the application for judicial review.
40 The Federal Magistrate at [41] appears to have placed some weight on the fact that the appellant did not ask for a further hearing to deal with the interpretation problems and that the Tribunal "did exactly what the appellant had asked it to do", namely to consider the transcript. The first respondent, too, submits that in the absence of such a request it was appropriate for the Tribunal to proceed as it did. The covering letter, as I have already indicated, is not to that effect.
41 The first respondent made the following written submission:
The advisor said that the transcript was provided in order to 'overcome' the 'deficiencies' in interpretation. Importantly, the appellant's advisor did not ask the Tribunal to conduct a new hearing. Implicit in the submission was the acceptance by the appellants that subject to the Tribunal taking these matters into account, it was appropriate for the Tribunal to proceed to make a decision.
42 The letter of 27 October 2006 from the migration agent to the Tribunal did not say that the transcript was being provided "in order to overcome the deficiencies in interpretation". Rather it said:
The deficiencies of the interpreting created a negative impression, which we have sought to overcome by providing a transcript of the hearing. (Emphasis added)
The letter concluded, as I earlier observed, with an invitation to the Tribunal to contact Mr Jeans if it required further information or assistance.
43 There was no finding nor evidence to warrant a finding that the appellant consented to not having a further hearing such as to trigger the exempting provision in s 425(2)(b) of the Act. No such submission was put in the appeal. I do not regard the above submission concerning the appellant's "implicit … acceptance" that it was appropriate for the Tribunal to proceed to make a decision as being to that effect. Even if it was I would not accept the submission. Consent for the purposes of s 425(2)(b) of the Act would be required to be given, in my opinion, in unambiguous terms. It would be an unusual case for such consent to be implied. Accordingly it is not to the point that the appellant did not ask for a third Tribunal hearing. The statutory obligation under s 425 to "invite" the appellant to appear before it to give evidence and present arguments lay with the Tribunal. It is a continuing obligation: Applicant NAAF of 2002 at [26]-[27]. It extended no such invitation to the appellant to attend a further hearing so that he could give evidence, with adequate interpretation, on the topics where it had been demonstrated that his "evidence" at the hearing on 11 October 2006 was riddled with confusion and error because of poor interpretation. The failure by the appellant to ask for a further hearing did not affect that obligation. I am satisfied that the interpretation of matters of significance to the appellant's case and the Tribunal's reasons fell well short of the requisite standard.
44 It may be that if there had been no interpretation error the result would not have changed. However I am unable to conclude on the balance of probabilities that this would have been the case. The potential consequences for the appellant should he be forced to return to China are dire. Justice requires that he be afforded another opportunity to give evidence and present arguments.
45 The failure to provide adequate interpretation services meant, in this case, that the Tribunal did not comply with s 425 of the Act. The appellant was in significant respects prevented from giving evidence and for that reason did not receive a fair hearing. Jurisdictional error on the part of the Tribunal has been established. The decision of the Tribunal was accordingly invalid. This ground of appeal is made out.