SZQVN v Minister for Immigration & Anor [2012] FMCA 325

This discrepancy was utilised by the Tribunal as part of its conclusion that it did not accept the credibility of the applicant.

1. When the applicant came to Court this morning, she asked me to listen to the tape where she said she could point out the error that was referred to in paragraph 3 of her grounds of application. In the past, I have taken the view that where claims relating to interpretation are made, they should be supported by evidence, indeed they should be supported by expert evidence of another translator, and that it is no part of the Court's duty to listen to the tape and try and divine for itself whether or not some errors have occurred. I had thought that that view of the law was orthodox, but it appears that I may be mistaken.
2. In SZJBD v The Minister [2007] FMCA 1829 I was asked by an applicant to listen to a tape in which she claimed that she had been bullied by the interpreter. I declined to listen to the tape after I had spoken to the court interpreter, and she had told me that it would be very difficult for me to understand the nuances of the Mandarin language to that extent and distinguish bullying from non-bullying. I said:
   • "Finally, before me the applicant claimed that she was badly treated by the interpreter who, she said, was rude to her and treated her as if she was a prisoner. She does not tell the court that she made any complaint about the interpreter until today to anyone. She has not produced any independent evidence of this allegation. To the extent that the bullying might be manifested in the tape recording I would gain nothing from listening to that because I do not understand the Mandarin language and it would definitely require some expert opinion being provided from a person who does understand Mandarin and the nuances of interpretation. I am, therefore, unable to take this complaint of the applicant's any further although I note that it is unlikely to constitute the type of conduct that would allow a court to find that the provisions of s.425 of the Migration Act 1958 (the "Act") had not been complied with."
3. My judgment went on appeal to the Federal Court, where it was heard by Siopis J: SJZBD v Minister for Immigration and Citizenship [2008] FCA 922. His Honour said at [25]:
   • _"_Further, it was no answer for the Federal Magistrate to say that he would derive no assistance from the tape because he did not understand Mandarin. It may have been possible for the Federal Magistrate at the very least to discern from the tone of the interchanges whether there was substance to the appellant's complaint. In any event, the Federal Magistrate could have used the services of an interpreter. In other words, the Federal Magistrate erred in determining, as he, in effect, determined, that the tape could not possibly be of any probative value in respect of the allegation of apprehended bias."

Of course, that is not what I determined. After making a direct enquiry of the court interpreter, I determined that it would be of no probative value in its then state, but that it could well be of considerable probative value if proper evidence about it had been brought.

1. The case was remitted to me, but I came to the conclusion, upon remittal, that there was conflicting authority in the Federal Court upon the matter, and I referred it back to the Federal Court in the hope that it would be heard by a Full Bench. It was; SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106. When the case went to the Full Bench, the complaint about the bullying appears to have been dropped. What became important to the Court was a series of questions that the Tribunal had asked, which it utilised to come to a conclusion about the applicant's understanding of Falun Gong.
2. Spender J in his judgment at [2] said:
   • "As his Honour indicates in [75] and following of his reasons for judgment, this Court listened to the tape recording of the proceedings before the Refugee Review Tribunal (the RRT). Subsequent to the playing of that tape recording, Ms Spruce, pro bono counsel for the applicant, indicated that any claim to appellable error based on the standard of interpretation was no longer pressed."
3. Notwithstanding that this disposed of the issue about which I was most concerned, Perram J made these remarks at [108]:
   • "[108] At the initial hearing before in the Federal Magistrates Court, the magistrate refused to listen to the tape: SZJBD v Minister for Immigration [2007] FCMA 1829 at [12]. That determination was subject to an appeal to this Court. A judge of this Court determined that the decision not to listen to the tape involved error: SZJBD v Minister for Immigration [2008] FCA 922 at [25]. That judge set aside the federal magistrate's determination and remitted it to the federal magistrate for rehearing. In my opinion, there could thereafter be no circumstances which could justify the federal magistrate in refusing to listen to the tape. It is not open to a court lower in the judicial hierarchy to disobey a determination of an appellate court in that manner.
   • [109] The federal magistrate took this course because he believed that two decisions of Allsop J, NAPS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1091 and [2004] FCA 159, required this result. I agree with Buchanan J that that conclusion was incorrect. However, even if it had been correct it would not possibly have justified the federal magistrate in disobeying the outcome of the very appeal from his own decision.
   • [110] With respect to the federal magistrate, he appears to have confused the result in the appeal from his own decision with a precedent. It was not a precedent - it was a determination of the very issue before him and he was bound to implement it without further consideration. In the event, the time of three judges of this Court has been unnecessarily spent listening to the tape which should have been listened to by the federal magistrate. Had it been listened to, it would have been quite plain that the claim made by the applicant was without substance...."
4. Any views that I may have as to the tone of Perram J's remarks will be kept to myself until my retirement in 2014. But I accept them as indicating that in cases of this nature the Court should, at the very least, listen to the tapes where requested so to do. I also take from the various judgments I have cited that I am to use the services of the interpreter brought into court to assist an applicant, because it still remains the case that I do not understand the Mandarin language and would not, myself, be able to say whether or not the interpretation was correct. This, to my mind, raises several questions such as: Is the interpreter a witness in the proceedings? If so, for whom? Who can cross-examine him? Should he be sworn? What if he declines to assist? Is his evidence indicative only or determinative? What are the parties' rights to call opposing evidence? These have not been answered by the cases I have cited and it may possibly be open to argument that there pragmatism has trumped procedure.
5. In this particular case, I decided that I should hear that part of the tape the applicant particularly referred to and I should ask Mr Chen, the interpreter, whether he could assist. I did not swear Mr Chen in as a witness. Mr Chen told me he was most reluctant to undertake this task; he believed that it was a job for a professional translator, as opposed to an interpreter and not in a setting like the court where the quality of the tape reproduction is not good. Given the views expressed by the Federal Court, I felt it was still appropriate to listen. I asked Mr Chen whether he could do so, and just indicate to me whether or not he believed there may have been an error in the translation. This was done. I agree with the remarks made by Mr Chen, the quality of the recording was not good. I would not have asked him whether he could give an accurate translation of the conversation. But he did indicate to me that he thought there had been an error in translation.
6. Ms Weston, who appears for the Minister, argued that I should not take these matters into account because even if there were errors in the interpretation, as suggested by the applicant, they did not amount to the type of errors considered by the Federal Court in Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507, where Kenny J said, at [41]:
   • "What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, 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:" [citations omitted]

"It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision."

1. In WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131, Ryan J, with the agreement of Tamberlin and Middleton JJ, said at [29]:
   • "To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38] - [41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry; see Soltanyzand v The Minister [2001] FCA 1168, at [18]. Those authorities were applied in Appellant P 119 of 2002 v The Minister (2003) FCAFC 230 and WACO v The Minister [2003] FCAFC 171; (2003) 131 FCR 511, at [68] - [68]."
2. In SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653, Middleton J said at [21]:
   • "With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that:
     • (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or
     • (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants."

See also M175 v Minister for Immigration [2007] FCA 1212, SZGYM v Minister for Immigration [2007] FCA 1923 and SZIWK v Minister for Immigration [2007] FCA 168.

1. I am satisfied that the error in translation the applicant has identified, if it exists, does refer to a matter that was material to the conclusions of the Tribunal adverse to the applicant. The use of the words by the Tribunal, "implausible in the extreme", gives strength to that view.
2. Because the applicant has satisfied me, through the assistance of Mr Chen, that there may have been some important interpretational errors at the hearing before the Tribunal, I believe the only appropriate course of action to take is to adjourn the matter so that the applicant can bring the type of evidence which I have always thought was necessary in matters of this nature and which cannot be given by Mr Chen. Namely, an affidavit by a fully qualified translator and interpreter setting out: the words used by the applicant, the interpretation of those words by the interpreter at the hearing and the proper interpretation of those words from the Mandarin language.
3. It is clear to me that the applicant is indigent. She was a student before she made her claim for a protection visa. She has a very young baby. Apparently, her mother is in the country but is in Melbourne. She will need assistance in providing this evidence. I propose to forward a copy of this judgment and a copy of the papers in the matter to the legal aid authorities to ask them, on behalf of the applicant, whether they would be prepared to assist her. I will ask the legal aid authorities to let me have their decision within a reasonably short space of time, so that if they decline to assist, I can seek pro bono assistance under Part 12 of the Federal Magistrates Court Rules 2001 (Cth).
4. In the meantime, the matter will be adjourned. I am grateful to Mr Chen for his assistance, and to Ms Weston for hers. Costs will be reserved.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM