VWFY v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellant claims to be a Convention refugee. He is a citizen of Burma and fears persecution on account of his religion (he is a Baptist Christian) and political beliefs if he were required to return to that country. The appellant was refused a protection visa by the Minister's delegate. His application to the Refugee Review Tribunal to review the delegate's decision was unsuccessful. He then applied to the Federal Magistrates Court to review the tribunal's decision. That application was also unsuccessful. 2 In the proceeding before the Federal Magistrate, the appellant argued that the tribunal's decision was vitiated by jurisdictional error. There were several alleged bases for this. One was that the appellant had been denied procedural fairness because of the inadequate interpretation of the proceedings by the interpreter who was retained by the tribunal to assist the applicant in the presentation of his case. The Magistrate rejected this argument. In his reasons the Magistrate said that the appellant had "offered no evidence that he had any difficulty in understanding the interpreter or that his answers, as they appear to have been interpreted in the transcript, were wrong". The Magistrate also ruled against the other grounds of review. 3 In the appeal from the Magistrate's decision the only ground that is pressed is procedural fairness. To understand the appellant's complaint, it is necessary first to say something about the basis of the appellant's claim for refugee status. What follows is a very brief summary of the case the appellant put to the tribunal. 4 The appellant is a gem trader. In 1989 he began work as a labourer for Oo Yow Set (usually called Joseph), an experienced miner. After some time the appellant learned enough about mining to become Joseph's assistant. It turned out that Joseph was also a Baptist. Together they decided to spread their faith. In 1996 they encouraged an isolated group of villagers to convert to Christianity. Joseph helped construct a church in the village. Two weeks before the church was dedicated, Joseph, the appellant and five other employees from the mine were arrested by soldiers because of their activities in the village. The appellant was kept imprisoned for about two weeks. During that time he was severely beaten. The appellant was released following the payment of a bribe to a soldier and upon him signing an undertaking that he would stay away from the village and not engage in activities against the Government. 5 After he recovered from the injuries he had sustained from the beatings, the appellant took over the running of the mine as Joseph was still in detention. The appellant also continued to provide assistance to the villagers. After some time he received word that a group of soldiers was looking for him. He made his escape and remained in hiding for some time. A warrant was later issued for his arrest. While he was in hiding the appellant assisted insurgents from the Shan Independence Army with money and medicine obtained off the black market. Things became difficult when the rebels demanded more and more assistance and his collaboration with them was met with disapproval from local leaders. The appellant discovered that Joseph had provided information about his activities to government soldiers. In May 2001, the appellant planned his escape. He changed his appearance and obtained a passport through an agent after paying a bribe. He lodged a visa application at the Australian Embassy, also through an agent. After obtaining a visa he arrived in Australia in June 2002. 6 Now, the tribunal "found difficulty" with the appellant's evidence and to a large extent rejected his account of events. On that basis it affirmed the delegate's decision. The tribunal's findings followed upon hearing held pursuant to s 425 of the Migration Act 1958 (Cth). The hearing lasted about two hours. As the appellant speaks English very poorly the tribunal arranged for an interpreter to be present. The interpreter was not accredited by the National Accreditation Authority for Translators and Interpreters (NAATI), which the tribunal's Practice Directions specify as the accreditation that an appointed interpreter should have (where possible); although it seems the interpreter had some experience with tribunal hearings. There is no evidence of any other accreditation the interpreter may have had. At the hearing the appellant was represented by an adviser. The adviser made submissions on the appellant's behalf. The appellant gave extensive evidence at the hearing with the assistance of the interpreter. 7 The Migration Actlays down certain rules in accordance with which the tribunal is to carry out its primary objective (set out in s 420(1)) of providing "a mechanism of review [of the Minister's decision] that is fair, just, economical, informal and quick." Included among those rules is the right of an applicant for review to appear and give evidence before the tribunal. Thus, s 425(1) provides that "the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review" (emphasis added). There are limited exceptions to this rule. So, where the applicant expressly waives the right to appear (s 425(2)(b)), fails to provide the tribunal with requested information (ss 425(2)(c) and 424C), or where the tribunal intends to rule in the applicant's favour on the papers (s 425(2)(a)) "the applicant is not entitled to appear before the Tribunal": s 425(3). 8 When the tribunal has before it a putative refugee who does not speak English it is required to ensure that an interpreter is present. Without an interpreter an applicant would effectively be stripped of his or her right to appear and give evidence. The provision of an interpreter is dealt with by s 427(7) which states that: "If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter." The use of the term "may" might suggest that the tribunal has a discretion to appoint an interpreter. That construction is not, however, the correct construction. The word "may" should be understood as the grant of authority to appoint an interpreter. In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, Kenny J said (at 17): "If not proficient in English, the applicant is effectively unable to exercise his right to give evidence unless an interpreter assists him. The Tribunal is unable to give the applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter to assist. Thus, in my view, if an applicant for refugee status is unable to give evidence in English, the effect of s 425(1)(a) is to necessitate the making of a direction, pursuant to s 427(7), that communication proceed through an interpreter." 9 The requirement that there be an interpreter imposes an obligation on the tribunal to appoint an interpreter with sufficient skills to fulfil the function. In Perera, Kenny J explained (at 18): "In this country, the function of an interpreter in courts and tribunals is to convey in English what has been said in another language (and vice versa). The function of an interpreter in the Tribunal (as in a court) is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication … interpretation is no mere mechanical exercise … [it] reliably involves both technical skill and expert judgment." In dealing with the technical skills required of an interpreter after referring to a series of cases, in particular R v Tran [1994] 2 SCR 951, a decision of the Supreme Court of Canada, Kenny J adopted: "a number of criteria 'aimed at helping to ensure that persons with language difficulties have the same opportunity to understand and be understood as if they were conversant in the language being employed in the proceedings'… '[t]hese criteria include, and are not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness' [[1994] 2 SCR 951, at 985]". 10 The requirement of precision or accuracy is self-evident but sometimes it is difficult to tell whether the requirement has been satisfied. To determine how accurate an interpretation is, there must be something against which a comparison can be made. If there is a "correct" translation available, that will provide the yardstick. In the absence of a "correct" translation it will in most cases be very difficult to determine whether the interpretation was accurate. 11 In relation to competency, there are two common ways in which the competency of an interpreter can be established. The first is by reference to the interpreter's qualifications, which includes any accreditation and experience. That, however, is not dispositive of the issue. As Kenny J pointed out in Perera (at 20): "In assessing whether an interpreter is likely to be competent, courts and tribunals ordinarily have regard to various factors, including the interpreter's qualifications, accreditation or experience. It remains possible, however, that an interpreter, who satisfies a court or tribunal that, by reason of qualifications and experience, he or she would be likely to provide a competent interpretation, may nonetheless provide an incompetent one. Conversely, though lacking in qualifications and experience indicative of a capacity to interpret competently, an interpreter may turn out to provide a competent interpretation." The factors which Kenny J said (at 41) should be taken into account in assessing competency include: "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 …" 12 With this background in mind it is now possible to consider whether the interpreter made available by the tribunal satisfied the criteria set out in Perera. To this end, I was not provided with a "correct" translation of the proceeding before the tribunal with which to assess the accuracy of the interpretation. All I was given was the transcript of the proceeding, together with a taped recording of that proceeding. To follow what had transpired it was necessary for me to read the transcript while playing the tape. With the agreement of the parties, this was done in chambers, rather than in open court. This was thought to be an efficient way to proceed although it suffered from the difficulty that counsel could not make comments along the way. 13 An analysis of what transpired reveals a number of serious problems with the use of the interpreter. First, there are several examples where the response given by the appellant was not responsive to the question asked. On one occasion, for example, the tribunal questioned why the appellant was unable to contact his wife and children at the home of his in-laws in Burma. The recorded reply was (transcript at p 7): "Through my friends. He tried to contact through my friends." Later on, the following exchange took place in relation to the issue of the appellant's payment for his passport (transcript at pp 25-26): "TRIBUNAL: How much did you pay in the end? INTERPRETER: A hundred thousand. TRIBUNAL: A hundred thousand kyats. For the going rate, that's very, very cheap. INTERPRETER: Even this hundred thousand kyats is too much for passport. If you apply officially, it will cost only a few thousands. TRIBUNAL: I know, and I agree with you, but normally when people get a passport to leave Burma, they pay a lot more than a hundred thousand kyats. INTERPRETER: At that time to spend hundred thousand kyats is too much for me. TRIBUNAL: Yes, I understand that, but what I'm saying is that the going rate is normally much higher. INTERPRETER: It's impossible." 14 The exchange illustrates the difficulty in communication between the tribunal and the appellant on a relatively simple matter. Moreover, the final statement made by the interpreter does not seem to be correct at all. I do not think that the appellant would stubbornly tell the tribunal that he is absolutely incorrect on a point that the tribunal seems to think is common knowledge. 15 At another point, when questioned about how many times the appellant had met an agent to obtain an illegal passport, the interpretation of answers yet again was not responsive. The exchange went as follows (transcript at p 24): "TRIBUNAL: How many times did you meet him? INTERPRETER: When I first met him I gave him some advance, like 30,000 kyats. Then step by step I gave them the money. Only when I obtained my passport I gave them the rest. TRIBUNAL: How many times did you meet him? INTERPRETER: I can meet them any time I want, but I didn't meet them regularly. I just give them the advance on the first step, then when I received the passport I gave the final stage. TRIBUNAL: Can I just say that I've asked you lots of questions, and I don't really get direct answers. My question was how many times did you meet the agent? INTERPRETER: I met them quite often, so I couldn't remember how many times I met." Even when the tribunal became impatient and rebuked the appellant for not directly answering these questions, there is an apparent lack of understanding between the two. It seems that the appellant was answering the question "Did you meet him often?" or "How often did you meet him?" Clearly enough the tribunal was looking to qualify the number of meetings, but that seems not to have been made clear to the appellant. The tribunal was frustrated by what it saw as evasive answers. Indeed, this particular passage was cited by the tribunal as an example of the appellant being non-responsive to the questions put to him. 16 There were a number of occasions when the appellant was required to correct an interpretation that the interpreter had given. At one point the interpreter said that the appellant examined rubies as part of his job and then changed the interpretation to say that the appellant examined jade as part of his job. The appellant knew the relevant words in English and was able to correct the error. At another point, when the tribunal was attempting to determine the chronology of events in the appellant's life, the interpreter said that the appellant rested for six months after a particularoperation. The appellant interrupted to say it was six weeks. Later, when the tribunal expressed doubt about certain aspects of the appellant's story and asked him to try to clarify the chronology, the interpreter gave the incorrect year for an event which the appellant corrected. 17 These errors are particularly important because in its decision the tribunal criticised the lack of clarity in the appellant's chronology. While the appellant was able to correct some of the interpreter's errors, there is a very real risk that other details of the appellant's story were incorrectly translated. 18 Next, there are numerous instances where the interpretation was either incomplete or was interrupted and cut-off by the tribunal. What the transcript shows is that the appellant spoke at great length but the shortness of the translation is such that it could not possibly have conveyed all that the appellant said. Examples of this are apparent in reviewing the tape recording and the corresponding parts of the hearing transcript at p 11, line 36 (responding to a question about Joseph trying to evangelize a village); p 12, line 40 (responding to a question about the running of the mine); p 14, line 15 (responding to a question about the period of time the appellant ran the mine); p 17, line 41 (responding to a question about converting villagers to Baptism); p 18, line 10 (where a conversation goes on at some length between the interpreter and appellant); and p 22, line 36 (where there is extensive conversation between the interpreter and appellant and the appellant speaks at length, but what he says is translated into eight words). 19 There were also two key points at which the tribunal interrupted the interpreter and a full interpretation of the exchange was never provided. One of these instances (transcript at p 11), seems to have involved the relatively simple matter of where the appellant worked. The second example concerned the operation of the mine following the arrest of Joseph. This was the period that the tribunal was particularly confused about during the course of the hearing. The tribunal asked what, specifically, the appellant did following Joseph's arrest. The appellant spoke continuously for almost an entire minute but the interpreter managed to state only that the appellant had had an operation for a hernia, at which point the tribunal interrupted. The hearing then proceeded without the interpreter completing the appellant's extensive response (transcript at pp 12-13). 20 I turn now to consider the criterion of continuity. In Perera, Kenny J was quite clear that "the terms of any [direction that communication proceed through an interpreter] extend to the whole of the hearing and are not limited to the applicant's evidence": (1999) 92 FCR 6, 17. Kenny J noted that "[t]he criterion of continuity means that breaks in interpretation and mere summaries of a proceeding are not acceptable": (1999) 92 FCR 6, 19, citing R v Tran [1994] 2 SCR 951, 986. See also Kunnath v The State [1993] 1 WLR 1315. 21 Here, several concerns arise with regard to continuity. The first, and most notable, is the failure by the interpreter to interpret the proceedings for the appellant during exchanges between the tribunal and the appellant's adviser. At one point, the adviser attempted to clarify a point on which the tribunal and the appellant (through the interpreter) were having difficulty understanding each other. The tribunal wanted to know the source of several documents that had been submitted with the appellant's visa application. Following the tribunal's repeated and unsuccessful attempts to understand the appellant, the adviser suggested that the documents may have been provided by the appellant's sister. If the appellant had heard the possibility suggested by his adviser, it may have triggered his memory regarding the documents in question or it may have simply clarified the question in his mind. Unfortunately the exchange between the adviser and the tribunal regarding these documents was never translated for the appellant. The failure may have done a great disservice to the appellant, as the documents of unknown origin played a significant part to the tribunal's assessment of the credibility of the appellant and his sister. 22 A second, and more significant, failure to translate occurred toward the end of the hearing. Again, the adviser said that he wished to comment to the tribunal on several points of evidence. He proceeded to clarify and make points about a number of specific concerns that the tribunal had raised with regard to the appellant's testimony and submissions (see transcript at pp 42-44). At no point did the interpreter translate these comments for the appellant. Indeed, at one point (transcript at p 43) the tribunal member and the adviser speak about the appellant as if he were not in the room: "TRIBUNAL: . . . but it is your sense of it, then, that [the appellant] was in control of the business up until that point, or was not? ADVISER: Well, my understanding is that he was in control of the business for a few weeks after Joseph was arrested, and then he was himself arrested and had to go into hospital, and very shortly after that he fled, so there was only a very short time when he was in control of Joseph's business." The tribunal member then went on to note that he thought the point was an important one (transcript at p 43). The appellant, however, was unaware of the topic of discussion and could not provide any additional clarification. 23 If during these submissions the adviser was in error in stating the appellant's position, there was no opportunity for the appellant to correct that error. Perhaps appreciating the problem, the tribunal member asked the interpreter whether he (the appellant) got "the general gist of that" (transcript at p 44). The interpreter, with incredulity apparent in his voice, responded: "You want me to explain that?" (transcript at p 44). The tribunal member said he thought "it would be worthwhile, if you wouldn't mind just summarising what [the adviser] said" (transcript at p 44). By then this would have been a difficult task, possibly resulting in an inaccurate and incomplete translation. 24 It is difficult to know what to make of all of this. With regard to precision and competency, there is evidence that the interpreter did not fully translate and convey all of what the appellant said; that considerable confusion arose in the interpretation process which led to seemingly "non-responsive" answers and frustration on the part of the tribunal; and that the interpreter incorrectly interpreted key facts and information which the appellant was sometimes able to notice and correct. Viewed from this perspective, it is open to conclude that the interpretation was of sufficiently low quality so as to effectively nullify the appellant's right to appear, give evidence and present arguments. The fact that the interpreter apparently was not accredited may explain the lack of competency at interpretation. 25 That said, it must also be acknowledged there is a real danger of error when a judge is required to reach a conclusion on a matter such as this based only on the transcript and a tape recording of the hearing, but without the benefit of a correct translation. In such circumstances it is difficult to be certain whether the interpreter was incompetent or inaccurate in conveying the tribunal's questions or the appellant's answers to such a degree that the appellant's answers wrongly appeared evasive and non-responsive or whether the appellant did, in fact, give evasive and non-responsive answers which were accurately translated by the interpreter. It must be remembered in this regard that interpretation is "an inherently human endeavour which often takes place in less than ideal circumstances": R v Tran [1994] 2 SCR 951, 987. 26 With regard to continuity, a similar problem arises. On the one hand, there are parts of the hearing where the appellant was not able to comprehend and respond to questions, thereby putting him at a disadvantage. On the other hand, the parts of the hearing that were not interpreted in the main consisted of statements by the adviser which addressed gaps or concerns that the tribunal had found in the testimony already given. In a manner of speaking, the appellant had already had "one bite at the apple". 27 My general impression is that no one error or deficiency is so severe as to show that the interpreter or the interpretation was of such poor quality that the appellant was effectively deprived of his right to appear. But, when one steps back and looks at the hearing as a whole and asks whether the appellant received a fair hearing, I think the answer is that he did not. The combination of insufficient and incomplete translations, as well as the clear factual errors on the part of the interpreter, which the appellant was fortunately able to correct in some instances, suggests that the appellant had no real opportunity to express himself and fully answer questions put to him by the tribunal. This fails to achieve the tribunal's objective of providing a fair and just hearing. 28 Accordingly, the matter will have to go back for a further hearing. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.