SZOYU v Minister for Immigration and Citizenship

Federal Court of Australia|2012-08-31|Before: Jacobson J

Introduction 1 This is an appeal from an order made by a Federal Magistrate (Barnes FM) on 19 April 2012. Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 30 December 2010 to refuse to grant the appellant a protection visa. 2 The appellant is a Lebanese national. He claimed to have a well-founded fear of persecution in Lebanon on the ground of his Christian religion, but his claim may also be understood as based on other Convention grounds. 3 The Tribunal found the appellant to be a "highly unreliable witness" and rejected his claims on credibility grounds. His claims were based largely upon events which occurred in Lebanon in the period from 2000 to 2001, and in particular, a claim that he received a summons in 2010 for his arrest on a criminal charge of assault on a Muslim man about 10 years before the summons was served. The effect of the appellant's claim was that the charge was false and that he would be prosecuted in a Muslim city where, as a Christian, he would not be able to defend himself. 4 The Tribunal found that the summons was not a genuine document and that most of the appellant's account of the critical events were a fabrication. 5 The substantial issue raised by the appellant in his application for review in the Federal Magistrates Court was his claim that the standard of interpretation from Arabic to English was so incompetent that he was denied the right to a hearing under s 425 of the Migration Act 1958 (Cth) (the Act). 6 The appellant's Notice of Appeal raises, as the only ground of appeal the contention that the Federal Magistrate erred in failing to find that the standard of interpretation was inadequate. However, in his submissions at the hearing, the appellant sought to raise several other arguments as possible grounds of appeal.

The decision of the Refugee Review Tribunal 7 The Tribunal accepted that the appellant is a Lebanese national. It did not pursue an issue which was raised at the hearing that the appellant appeared to have a residence permit for Italy which may have entitled him to permanent residence in that country. The Tribunal did not consider it necessary to determine that question because it was not satisfied that the appellant has a well-founded fear of persecution in Lebanon. 8 The Tribunal's reasons are relatively short. As I said earlier, the Tribunal found the appellant to be a highly unreliable witness. It gave reasons for the finding at [37] - [39] of its decision. 9 The Tribunal said at [37] that the appellant was unable to give "other than a very confused account" of his experiences in Lebanon in 2000 to 2001. It also said that the appellant's account did not bear any relation to a police report of an incident in 2000 which the Tribunal considered to be an accurate account of an assault in which the appellant was involved and for which he spent some time in prison. 10 The Tribunal stated that the appellant was unable to provide any credible explanation for how and when he obtained the purported summons for his arrest. The Tribunal found it highly implausible that the appellant spent much of the period from 2000 to 2010 (when the summons was said to have been issued) in his home town without any incident, yet a summons was said to have been issued for his arrest as soon as he departed for Australia. It found that the purported summons was not genuine. 11 The Tribunal accepted that the appellant was involved in a criminal assault in his home town in about 2000 and that he was arrested for this. Given the sectarian nature of Lebanese society, the Tribunal accepted that a part of the conflict which took place was between rival Christian and Muslim gangs. The Tribunal went on to find that the appellant was arrested on a criminal charge, not for the Convention reason of religion or any other Convention reason. 12 In addition, the Tribunal considered the appellant's more general claims that Lebanese Muslims wish to seek revenge against the Christian community. The Tribunal referred to United States State Department Reports in rejecting those claims.

The Federal Magistrate's judgment 13 The Federal Magistrate rejected the appellant's unparticularised grounds of review that the Tribunal "misunderstood" his claims and that it "did not apply the law correctly." 14 Her Honour also rejected the appellant's claims that the Tribunal was in error in failing to grant him an extension of time to respond to a letter dated 7 December 2010 pursuant to s 424A of the Act. The letter invited the appellant to comment upon information about the status of his Italian residence visa. The Federal Magistrate also rejected the appellant's contention that the Tribunal was obliged to make its own enquiries as to the status of his Italian visa. 15 In addition, her Honour rejected a claim of bias made against the Tribunal and several other claims relating to the genuineness of the summons and the weight to be given to country information. 16 The substantial part of the learned Federal Magistrate's judgment addresses the issue of interpreter error. In support of this ground of review, the appellant relied upon an affidavit sworn by his sister who is referred to in the judgment as "Dr S". 17 Dr S's affidavit comprised a translation which she undertook of the recording of the hearing. Her "transcript" contained a transcription of the English portion of the recording and a translation of the Arabic portion. 18 Dr S's transcript also contained her comments about whether the interpreter who attended the Tribunal hearing had made errors at various points in translation from Arabic to English. 19 The Minister relied on two affidavits dealing with the interpretation issue. The first was that of Ms Monica Rogers, a Translation Project Coordinator. She listened to the tape recording of the Tribunal hearing and transcribed the English dialogue. 20 The second affidavit relied upon by the Minister was that of Ms Rania Soufi, an accredited Arabic to English translator. Ms Soufi also listened to the recording of the hearing and translated the Arabic dialogue. 21 The Federal Magistrate observed at [60] that, when taken together, the transcripts provided by Ms Rogers and Ms Soufi, provided an account of all the English dialogue and the interpreter's translation of the Arabic dialogue. The annexures to their affidavits contained a complete transcript of the hearing but in Ms Soufi's transcript the translated portions were highlighted. 22 Her Honour then addressed at [62] to [68] the principles which apply to the question of whether the standard of interpretation is so deficient as to establish jurisdictional error. She referred to, and succinctly stated, the principles which emerge from the leading authorities, commencing with the decision of Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, and the decisions of Full Courts in Appellant P 119/2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 230 and WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511. 23 The Federal Magistrate noted at [72] that the Minister's solicitors had prepared detailed tables addressing each alleged error identified in Dr S's transcripts, as well as Dr S's comments. Her Honour said at [73] that she had considered each of the matters raised, individually and as a whole, bearing in mind the appellant's complaint that he attributed the Tribunal's conclusion about the confused state of his evidence of the relevant events to interpreter error. 24 Her Honour then set out an extensive analysis of each error asserted by the Appellant. She made a finding, adverse to the Appellant, in respect of each of the asserted errors. Her Honour's findings are set out at [75] to [176] of her judgment. 25 One of the errors asserted by the appellant concerned the translation of his evidence about the absence of essential information in the purported summons. This was a matter to which the Tribunal referred at [38] in finding that the document was not genuine. 26 Her Honour's consideration of that issue, and her discussion of the evidence relating to the Appellant's failure to give a credible explanation of how he obtained the purported summons in 2010 appears at [155] to [157] of the Federal Magistrate's reasons. Those paragraphs of her Honour's reasons are as follows: 155. The interpreter's translation is somewhat stumbling, but it does nonetheless convey the substance of what the applicant said. At that point the Tribunal apparently interrupted (at p.10.31), "Yes, well, even so it doesn't say anything about where you could go, or ...". As is apparent from the Tribunal reasons for decision, the absence of any location for the court on this document was material to the Tribunal's reasons. The Respondent's Transcript discloses that the interpreter correctly translated the applicant's claim that the summons had been sent by email and not by fax and that it could not have been forged because it was stamped by the Lebanese Government. 156. The interpreter's repetition of "like" and "you know" at this and at other times of the hearing does suggest a greater degree of hesitation than is apparent in the applicant's answer in Arabic. However it must be said that the applicant's answers were not entirely coherent or responsive, whether one has regard to the translations of Arabic in the Applicant's Transcript or the Respondent's Transcript. In any event, the concern of the Tribunal in relation to the applicant's evidence was not the manner in which he gave evidence (or whether he was hesitant or ungrammatical), but rather the fact that he gave a very confused and implausible account of the events which he claimed had taken place. 157. The Tribunal's finding that the applicant was unable to provide any credible explanation about how or when he obtained the document which purported to be a summons for his arrest in 2010 in relation to a criminal matter has not been shown to have been affected by any error or inadequacy on the part of the interpreter. Despite the fact that the interpreter translated "Lebanese Authorities" as "Lebanese Government" the interpreter correctly translated the applicant's evidence (Respondent's Transcript p.10.43) that if the Tribunal had any concerns about the genuineness of the summons it could contact the Lebanese Government/Authorities. In any event such a suggestion is not material to the applicant's claims or the Tribunal's findings.

The Federal Magistrate's conclusions 27 Her Honour found that although the interpreter who was present at the Tribunal hearing made some errors in the translation, they were minor errors which did not relate to matters of substance in the appellant's claims. In particular, her Honour found that the interpreter errors did not affect the Tribunal's credibility findings and that any mistranslations did not deprive the appellant of his entitlement to a hearing under s 425 of the Act. 28 These findings are set out at [177] to [179] of her Honour's judgment which I will reproduce in full as follows: 177. Both the Applicant's Transcript and Respondent's Transcript disclose that the interpreter correctly translated the substance of the applicant's evidence on all material issues. The evidence before the court does not support the contention that if there was confusion on the part of the Tribunal as to the specific detail of aspects of the applicant's claims relevant to the Tribunal's findings, it was caused by the interpreter, as distinct from the applicant's own confusing evidence. It is the case that the interpreter's translation was not, in all respects, precise or as perfect as one might wish it to be (but see Perera at 57). There were hesitations and pauses and the expression "you know" was used. There were some inaccuracies. However it has not been established on the evidence before the court that the infelicities of expression, mistranslations and omissions that have been established were more than minor or that they related to material matters such as the substance of the applicant's claims or the Tribunal's findings. In particular it has not been established that interpreter errors led to the Tribunal findings about the confused account given by the applicant of past events or to its credibility findings (which I note were based on a number of factors). 178. Having regard to the conduct of the hearing as a whole (see SZHEW v Minister for Immigration & Anor [2009] FCA 783 at [52]) the inadequacies are not such as to establish that the standard of interpretation meant that the applicant was deprived of the requisite opportunity of a meaningful hearing under s.425 of the Migration Act. As in Appellant P119/2002 the very substantial part of the hearing appears to have been fully and accurately interpreted and apart from isolated, immaterial mistakes, the difficulties in translation were ones that any interpreter could have faced. 179. In particular, the applicant has not established that the standard of interpretation was so incompetent that he was prevented from giving evidence, or that there were errors of interpretation that were material to the conclusions reached by the Tribunal (P119/2002 at [22]). Indeed, even on the Applicant's Transcript, the evidence does not go so far as to demonstrate the level of lack of competence required by Perera or Applicant P119 to demonstrate jurisdictional error.

The relevant principles 29 The seminal authority on the standard of interpretation is the decision of Kenny J in Perera. Although that case was decided before s 425 of the Act was amended, it has been accepted that what her Honour said in Perera is equally applicable to s 425 in its current form: WACO at [64]. 30 The relevant principles may be stated briefly. The standard of interpretation is not one of perfection. It need not be at the very highest standard of a first-flight interpreter but it must express in one language, as accurately as the language and circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [26] to [29]; WACO at [66]. 31 Importantly, not every departure from the standard of interpretation denies an applicant the opportunity to obtain a hearing under s 425 so as to give rise to jurisdictional error. The onus is on an applicant to demonstrate that the departure related to a matter of significance to his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal's decision: Perera at [38], [45]; Applicant P 119/2002 at [16] to [18]; WACO at [69]; see also SZJBD v Minister for Immigration and Citizenship (2009) 179 109 a [72] to [73] (Buchanan J). 32 Whether any inadequacy in translation has been such as to deprive an applicant of the opportunity to have a hearing in accordance with s 425 involves a qualitative assessment of the conduct of the hearing before the tribunal as a whole: SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] (Jagot J).

Discussion 33 The learned Federal Magistrate accurately stated the principles at [62], [64] and [66] - [68] of her reasons for judgment. Her Honour then went on to consider in extensive detail each of the errors asserted by the appellant in order to determine whether they were sufficient to make out his claim that the interpretation before the Tribunal was so incompetent as to give rise to jurisdictional error within the established principles. 34 The actual recording of the hearing before the Tribunal was not in evidence but her Honour was provided with evidence which was in effect, the Appellant's version of the transcript and the Minister's version, each of which included what were said to be translations of the Arabic dialogue. The transcripts provided by the parties were drawn from the tape recording of the hearing. 35 It was therefore open to her Honour, on the basis of that evidence, to make findings as to whether the interpreter who was present at the Tribunal hearing made errors in translation and, if so, whether the errors were minor or otherwise, and, whether they had a material impact on the appellant's evidence or the Tribunal's conclusion. 36 Her Honour correctly stated at [75] that Dr S's comments, which she noted on her version of the transcript, as to what the Appellant intended to say were concerned only with the merits of the claim and did not disclose jurisdictional error. 37 I have considered the detailed findings made by her Honour at [76] to [176]. They show that her Honour assessed the errors asserted by the Appellant and weighed the evidence before reaching a conclusion in respect of each of those asserted errors. 38 In some instances the learned Federal Magistrate found that there were minor mistranslations but that they were not material to the substance of the Appellant's claims or the Tribunal's findings: see for example at [104]. In one instance, her Honour found that at a particular point the Appellant's evidence was not translated. However, she went on to point out that it was apparent from other evidence that was translated, and from the Tribunal's reasons, that it clearly understood and addressed the Appellant's claim. 39 In other instances, her Honour found that the Appellant had not discharged his onus of proving error). This conclusion was based upon a weighing of the competing translations. It was open to her to do so, particularly where she had evidence from a National Accreditation Authority for Translators and Interpreters (NAATI) interpreter, Ms Soufi. Her Honour merely preferred Ms Soufi's evidence to that of Dr S. No appellable error is demonstrated in her Honour's findings. 40 Her Honour's conclusions at [176] to [179] were amply borne out by the detailed findings she made in the paragraphs to which I have referred.

The Appellant's written submissions 41 The appellant handed up written submissions which identified what he said amounted to 11 errors in the Federal Magistrate's reasons. Some of the points made by him addressed the issue of interpreter error which I have considered above. I will deal briefly with the 11 points made in the submissions. 42 The first point takes issue with the question of the Appellant's residency status in Italy This issue does not arise because the Tribunal found that he did not have a well-founded fear of persecution in Lebanon. 43 The second point challenges the Tribunal's finding that the Appellant was an unreliable witness. Insofar as he relied upon the claim of interpreter error to attack that finding, I have dealt with this issue adversely to him. Otherwise the submission relies upon impermissible merits review. 44 Points 3, 4 and 5 attack the failure of the Federal Magistrate to accept his submissions about the genuineness of the summons. The submissions therefore go to merits review and do not suggest jurisdictional error. 45 Point 6 challenges the Tribunal's finding that his evidence was confused. Insofar as it raises the issue of interpreter error, I have dealt with the submission. Otherwise, the submission merely challenges the Tribunal's credibility finding and no error is demonstrated. 46 Point 7 challenges the Tribunal's finding that the appellant was arrested on a criminal charge by reason of his breach of the criminal law rather than for a Convention reason. No error is disclosed. 47 Point 8 goes to the merits of his claim that the Tribunal was biased against him. There is no error in her Honour's rejection of that claim. 48 Points 9 and 10 deal with the merits of the Tribunal's rejection of his evidence. Again, for reasons already given, no error is disclosed. 49 Point 11 challenges the Tribunal's acceptance of State Department Reports. It was a matter for the Tribunal to decide whether to accept that evidence and the weight to be given to it.

Other submissions 50 The appellant addressed me in English in reply to the Minister's oral submissions. The effect of what he said was that, although he speaks English, his English was not good enough to rectify interpretation errors made at the hearing. Otherwise, he re-iterated his claims about interpreter error and made a number of submissions which did not disclose any appellable error on the part of the Federal Magistrate or the Tribunal.

Conclusion 51 The appeal must be dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

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