If the Interpreting is Bad There is No Effective Hearing
In M175 /2002 v MIAC  FCA 1212 (10.8.07), the Full Federal Court considered what is the effect of inadequate interpreting on the quality of a hearing before a merit review tribunal (in this case the RRT). In doing so the Court revisited one of the seminal cases on interpreting where is Gray J observed:
34 Perera v MIMA  FCA 507 (1999) 92 FCR 6 was also a case in which a Sinhalese person from Sri Lanka sought a protection visa and gave his evidence to the [RRT] through an interpreter. After a detailed analysis of the transcript of the hearing before the [RRT] in that case, and a thorough analysis of the authorities about the role of interpreters in proceedings in the various kinds, Kenny J set aside the decision of the [RRT]. The case is authority for a number of propositions relevant to the present case. At , her Honour held that, if not proficient in English, an applicant is effectively unable to exercise his or her right to give evidence without the assistance of an interpreter. The [RRT] is therefore unable to provide an applicant with an opportunity to appear before it to give evidence, unless it provides an interpreter to assist. If an applicant is unable to give evidence in English, the effect of s 425(1) is to require that the Tribunal give a direction pursuant to s 427(7) that communication proceed through an interpreter. At , her Honour held that, without an interpreter, the [RRT] is unable to afford an effective opportunity to a non-English speaking applicant to give evidence. As a consequence, the [RRT] lacked jurisdiction to continue the hearing unless it provided an interpreter. If the [RRT] were to proceed, it would fail to observe procedures required by the Migration Act.
35 At , Kenny J.. express[ed] the standard of interpretation required for a Tribunal hearing:
Whilst the interpretation at a [RRT] hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.
36 After citing American authority, her Honour emphasised the requirements of accuracy and completeness of interpretation.
37 At , her Honour expressed the departure from the required standard in the following terms:
Whilst it is possible to divine the general thrust of the applicant’s case from the transcript as a whole, his evidence, as given through the interpreter and transcribed, was, as we have seen, repeatedly unresponsive to the questions asked by the [RRT]. It was at times incoherent and inexplicably inconsistent with other evidence given. There are a number of exchanges between the interpreter and the Tribunal which evidence confusion on the interpreter’s part as to the subject and direction of the [RRT]’s inquiry; and it would seem that from time to time difficulties in communication actually led the [RRT] to abandon avenues of relevant inquiry. Speaking more generally, it is difficult to believe that the interpretation given is adequately expressive of Mr Perera’s unchallenged account
38 At , her Honour found that the departure from the standard of interpretation in Mr Perera’s case related to matters significant for the [RRT]’s decision. At -, her Honour dealt with the question of findings adverse to the credit of an applicant, concluding that inadequate interpretation might lead to an adverse decision on credit.
39 Perera has been followed in several cases. See particularly WACO v MIMIA  FCAFC 171 (2003) 131 FCR 511 at , and the cases cited there. The Full Court accepted that, although s 425(1) of the Migration Act has been amended since Perera, what Kenny J said in Perera remains applicable to the section as amended.
Then Gray J continued:
48 It is apparent from this analysis of the flaws in the interpreting at the [RRT] hearing that the appellant was not able to give the evidence that he wanted to give in its entirety. His account of the number of trips that he made with his Tamil friend was not given. Nor was his attempt to emphasise that he had left Malate in 1994 because he felt that he was at risk. His explanations in relation to documents that he had tendered were also not put before the [RRT]. Further, things that the appellant had not said were presented to the [RRT] as if he had said them. It would have appeared to the [RRT] that the appellant was describing the LTTE as communists. The [RRT] would have been left with a misleading impression of the appellant’s account of the authorities coming to his place. The [RRT] member may well have wondered what the reference to Omantai was. The [RRT] would also have been left with the impression that the 1999 letter was the only one issued, whereas the appellant had said that letters were sent from 1992 onwards.
49 As I have said, some of these errors can be traced directly to findings in the [RRT]’s reasons for decision. The [RRT]’s finding about the appellant going to Colombo with the Tamil friend’s driver, but not the Tamil friend, was based on what the interpreter had volunteered. The [RRT]’s finding that there was a delay that it would not have expected between the appellant’s escape from custody and the taking of action by the authorities was based on the failure to translate the appellant’s evidence that letters were issued at the time of his escape.
50 It is also important to bear in mind that the appellant failed to satisfy the [RRT] that he had a well-founded fear of persecution for a Convention reason because the [RRT] did not believe his claims. It is true that the [RRT] set out in its reasons for decision a chain of reasoning on which it said it disbelieved the appellant, but it is impossible to say that the [RRT] excluded from consideration its impression of the appellant as a witness. Even if the [RRT] did not fall into the trap of attempting to judge the appellant’s credibility from his demeanour, without regard to possible cultural differences and to the inherent difficulty of determining whether someone is lying, there was plenty in the content of the appellant’s evidence, as it was presented to the [RRT] through the interpreter, that must have caused the [RRT] to doubt that the appellant was being truthful. The reference to communists may well have caused the [RRT] to think that the appellant was overstating his case, because he was otherwise being untruthful. The failure to translate all of the appellant’s answers in relation to the documents was almost certainly a factor in the [RRT]‘s findings that the documents were contrived and manufactured. The apparent unresponsiveness of the answers, as translated by the interpreter, gave rise to the risk that the [RRT] would perceive that the appellant was being evasive.
51 In all of these ways, the interpreter’s errors were of significance, or at least of potential significance, to the outcome of the case. The errors deprived the appellant of a fair opportunity to succeed. They therefore amounted to a denial of procedural fairness. To the extent to which the appellant was not able to put before the [RRT] the evidence that he wanted to, because elements of his answers were omitted from the interpreter’s translation of them, he was deprived of the opportunity to give evidence to the [RRT]. S. 425(1) of the Migration Act obliged the [RRT] to invite the appellant to appear before it to give evidence relating to the issues arising in relation to the decision of the Minister’s delegate. It is now well-established that this obligation is much more than a formality. Even though the invitation be issued, if an applicant is not afforded a real opportunity to give evidence, so that the promise of the invitation has not been fulfilled, then the [RRT] will have failed to comply with its obligation under s 425(1). See MIMIA v SCAR  FCAFC 126 (2003) 128 FCR 553 at -. See also SZBEL v MIMIA  HCA 63 (2006) 231 ALR 592 at .
52 It is beyond doubt that both a denial of procedural fairness and a failure to comply with the [RRT]’s essential statutory obligation in s 425(1).. constitute jurisdictional error. Jurisdictional error means that the [RRT]’s decision is not a “decision” for the purposes of the definition of “privative clause decision” under s 474 of the Migration Act, because the decision is not made under the Migration Act. The provisions of the Migration Act that would deprive the Federal Magistrates Court, and this Court, of jurisdiction to deal with the Tribunal’s decision, if it were a privative clause decision, are therefore inapplicable. See Plaintiff S157/2002 v Cwith  HCA 2 (2003) 211 CLR 476. Because the [RRT]’s hearing took place before the amendment to the Migration Act that inserted s 422B, it is unnecessary to discuss what, if any, impact that provision would now have.