FEDERAL COURT OF AUSTRALIA SZOBN v Minister for Immigration and Citizenship [2010] FCA 1280 Citation: SZOBN v Minister for Immigration and Citizenship [2010] FCA 1280 Appeal from: SZOBN & Anor v Minister for Immigration & Anor [2010] FMCA 285 Parties: SZOBN and SZOBO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 440 of 2010 Judge: NORTH J Date of judgment: 8 November 2010 Date of hearing: 8 November 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 34 Counsel for the Appellants: Appellant appeared in person Counsel for the Respondents: Mr G Kennett Solicitor for the Respondents: DLA Phillips Fox IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 440 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOBN First Appellant SZOBO Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NORTH J DATE OF ORDER: 8 NOVEMBER 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made by the Federal Magistrates Court on 7 April 2010 be set aside. 3. In lieu of those orders, the following orders be made: (a) a writ of certiorari issue, directed to the second respondent, removing into the Court its decision, made on 7 December 2009, affirming a decision of a delegate of the first respondent not to grant protection visas to the appellants, for the purpose of quashing that decision; (b) the decision of the second respondent, made on 7 December 2009, affirming the decision of a delegate of the first respondent not to grant the appellants' protection visas, be quashed; (c) a writ of mandamus issue, directed to the second respondent, requiring it to hear and determine the application of the appellants for review of the decision of a delegate of the first respondent refusing to grant to them protection visas. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 440 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOBN First Appellant SZOBO Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NORTH J DATE: 8 NOVEMBER 2010 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 7 April 2010. The Federal Magistrate dismissed an application for review of the decision of the Refugee Review Tribunal made on 7 December 2009. The Tribunal affirmed the decision of a delegate of the first respondent to refuse the appellants protection visas. 2 As the hearing of the appeal progressed, the central issue became whether the interpretation of the appellants' evidence given in the Tribunal hearing was adequate. The appellants, whose native language is Malayalam, have appeared without legal representation in the Tribunal, in the Federal Magistrates Court, and in this Court. 3 The appellants are husband and wife, and are citizens of India, from the State of Kerala. The primary ground of the visa application was a fear, on the part of the wife, of persecution on the ground of her Christian religion. The husband applied as a member of the family unit. The wife, who will be referred to as the appellant, claimed that her mother married a Christian man, and that she also married a Christian man. The appellant claimed that, as a result of her Christian beliefs and links, some members of her family, who are Hindu, caused her to be mistreated. For instance, they spread a rumour that she was a prostitute and, as a result, caused the police to arrest and detain her. She claimed that whilst detained she was raped by police. She also claimed that her husband had been detained and tortured as a result of pressure applied on the police by her family. The Tribunal found that the appellant was not a Christian and was not a credible witness. It rejected her application for these reasons. 4 The reasoning of the Tribunal commenced with an acceptance of the potential for persecution of Christians in India. The Tribunal said at [93]: The Tribunal agrees that country information available to it, including country information referred to by the delegate and produced by the applicants, supports the applicants' general claims that there is violence and clashes sometimes between those of different religious beliefs in India and that Christians are sometimes targeted because of their religion, that protection is not always available to those who fear harm in these circumstances, including Christians who fear harm because of their religion, and that there is corruption and bribery amongst the police, the bureaucracy and politicians in India, that rape by the police, including custodial rape is common in India. 5 The Tribunal summarised the appellant's claim in part at [96] as follows: The applicant claims that she is Christian. … she left her country and cannot return there because she was and will be harmed by family members who are Hindu, and other Hindu extremists, assisted by the police with whom her family members have connections, because she was/is Christian and practised Christianity and sought assistance from, and later married, a Christian man … She also claims that her father, who was a Christian, … [was] brutally murdered by Hindu fanatics and that her mother had to leave the country when the applicant was two years old because she married a Christian/Catholic; she claims that the feelings against her are increasing because she and her mother married Christians. …She claims that she cannot get protection from the harm she fears in her country because those who will harm her have influence with the police and one of her Hindu relatives is a high-ranking politician. 6 In its reasoning, the Tribunal first addressed the question whether the appellant is a Christian and said at [100]: The Tribunal does not accept however, that the applicant is Christian and has been Christian since she was baptized in January 1983 as she claims. In the Tribunal's view she knew very little about Christianity when the Tribunal asked her what she learned about that faith and what she did when she went to church; she said that her husband knows things and she knows a little bit, namely that Jesus Christ died for the poor and you can tell all to him and that when she goes to church she prays in front of God. In the Tribunal's view if the applicant were a genuine Christian and had been interested in that faith her whole life, through her mother and husband, as well as during the years when she attended church in India as she claims she did, she would know more about Christianity than she could tell the Tribunal when it gave her the opportunity to do so. [Emphasis added] 7 The Tribunal then considered the balance of the evidence on other issues, some of which were determined against the appellant on the basis of the finding, extracted in the previous paragraph of these reasons, that the appellant knew less about Christianity than the Tribunal would have expected. 8 A number of grounds of appeal were considered by the Federal Magistrate. The Federal Magistrate said at [20] – [21]: 20. The applicants attended a first court date before me on 27 January 2010, and were referred for free legal advice which they obtained. They were given an opportunity to file an amended application giving particulars of grounds of jurisdictional error and evidence in support. My directions specifically drew attention to the possible need to file a transcript of the Tribunal's hearings, if they were alleging that defects occurred in the course of the hearing. However, as I shall set out, the amended application filed by the applicants contains no particulars of such an allegation, and they have not presented a transcript of the hearing. Some particular criticisms of the hearing were only made for the first time in the course of his oral submissions by the applicant husband, who represented both the applicants at the hearing before me today. 21. I shall consider his criticisms below. However, I note at this stage that I gave careful consideration in the course of the hearing whether I should myself call for the recording of the hearings to be produced to the Court, and then listen to it, to discover for myself whether any of the applicant's criticisms have a factual foundation. Such a course was opposed by the Minister, as was any further adjournment of the matter to allow for better particularisation of the applicants' grounds of review and the presentation of relevant additional evidence by the applicants. 9 Then at [55], the Federal Magistrate said: 55. The final point made by the applicant husband in his oral submissions criticised the interpreter provided by the Tribunal, not only for not being a woman, but also because the interpreter lacked an awareness of the applicants' particular local culture. He suggested, without identifying the particular point in one of the hearings where it occurred, that the interpreter had conceded to the Tribunal a difficulty in translating a particular word. Whether this happened or not is not something shown on the evidence before me, but assuming that such an incident occurred, it would not, in my opinion, alone establish a failure by the Tribunal to provide adequate interpreting services (see Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [27], Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [25], [32], and SZJBD v Minister for Immigration & Citizenship [2009] FCAFC 106 at [73]). No other particular defect in interpretation was identified. I am not satisfied that the applicants were disadvantaged, either generally or in any particular respect, due to the provision of a male interpreter and not a female interpreter, particularly in the absence of a specific request for that made by the applicants or objection taken in the course of the hearing. 10 The Federal Magistrate dismissed all the application. 11 On 27 April 2010, the appellants filed a Notice of Appeal in this Court. The second ground of appeal was stated as "jurisdictional error". This ground was not particularised. The appeal first came on for hearing on 3 August 2010. Again, the appellants were not legally represented but had the assistance of a Malayalam interpreter. In the course of oral submissions, the appellant husband, who represented both appellants, and who will be referred to as the husband, said: There was a mistake done at the interpretation side of things, and I have informed there – the Federal Magistrate. One of my friends have gone through that and he had actually helped me out in order to find out those mistakes and he had bought them alongside with him today. I've got that paper with me, but I don't know whether you will accept it. [Transcript p 7] 12 Then, when asked by the Court whether he had made any attempt to obtain the transcript of the hearing in the Tribunal, the husband answered: I've gone to a few places but financially I couldn't afford it. [Transcript p 8] 13 A short time later the husband was asked by the Court to produce the document upon which he sought to rely in relation to the interpretation issue. He explained to the Court that he had obtained the assistance of a Malayalam speaking friend. The friend had listened to the CDs of the hearing before the Tribunal and formed the view that there had been mistakes in the interpretation, and inadequacies in communication between the Tribunal and the appellants. The appeal was adjourned briefly in order for the appellants to ascertain whether the friend could attend Court to give evidence concerning the document which he had complied. Shortly afterwards, the Court was told that the friend was available a few days later on 6 August 2010. Consequently, the case was adjourned until that day. 14 On 6 August 2010, Mr Phillip Jackson-Fernandez gave evidence. He explained that he had been asked by the appellants to listen to the CDs of the hearing before the Tribunal. He said that the appellants had noticed that some words in Malayalam had not been translated into English before the Tribunal, but rather the interpreter had used the Malayalam word in the translation. Mr Jackson-Fernandez explained that he first listened to the recordings following the decision of the Tribunal. He prepared the written document at the request of the appellants only after they had told him that they had not been able to persuade the Federal Magistrate about the inadequacies of interpretation. He said that the document only contained the main points of his criticism. He said he had listened to the CDs five times and that he had taken a very careful approach because he was going to Court. 15 Mr Jackson-Fernandez then took the Court through the document and explained the basis for each of the 12 separate items of complaint. Although he had identified items of specific mistranslation, he told the Court that there was a general problem in the entire translation in that the interpreter did not, in general, convey the meaning of the evidence of the appellants. 16 At this point it is useful to explain the course of the hearing before the Tribunal and set out part of the transcript from the Tribunal which contains some of the sources of the complaints made by Mr Jackson-Fernandez which I regard as the most cogent. 17 The hearing before the Tribunal occurred over two days. The first hearing was on 19 February 2009, and seems to have lasted about three and a quarter hours. In view of the reasoning of the Tribunal, rather surprisingly, no questions were asked by the Tribunal in the course of this hearing about the appellant's knowledge of Christianity. The second day of hearing was on 6 April 2009. It lasted about two and three quarter hours. About a third of the way into the second day of hearing, the Tribunal raised the issue of the appellant's knowledge of Christianity. The following exchange occurred between the Tribunal and the appellant: MS LONG: I can't remember now if I asked you this last time, but can you tell me what you've learnt about Christianity over the years since you've been going to the church? THE INTERPRETER: I know a bit of Christianity because I was going with my friend from year 10 to year 12. MS LONG: Well, you said you've been going since you were 16, so were you attending when you left after – were you attending after you finished year 12? THE INTERPRETER: Because I could not go to a church peacefully at all because after these problems, after I met [the husband]. MS LONG: So you've attended a Christian church between year 10 and year 12, and is that the only attendance when you were in your country? THE INTERPRETER: Only those days I went to Church. MS LONG: Between year 10 and year 12, for two years? THE INTERPRETER: Yes. MS LONG: And how many times have you been to a Christian church here? THE INTERPRETER: Every Sunday we go. MS LONG: Well, what have you learnt about Christianity from your two years back in India and since you've been attending here? THE INTERPRETER: I knew a little bit about Hinduism because my grandmother told me everything, but I knew something about it because two years I was going there as well, and here also. [The husband] knows much more things in Christianity, and here also I used to go every Sunday, so I know a little bit about Christianity. MS LONG: Well, can you tell me what you do know about Christianity? THE INTERPRETER: Jesus died for poor people. Jesus Christ died for poor people, for the sake of poor people, so we can tell everything to him, and he's living in us. MS LONG: What do you do when you go to the Christian church? Tell me what you do at church. THE INTERPRETER: [The husband] tells me about quarbana, so I go to that time. Qurbana means – I don't know. The priest. MS LONG: Just a minute, [the husband], I don't want to hear – I'll ask you in a minute. I just want to hear what [the wife] is trying to tell me. Your husband tells you about --- THE INTERPRETER: So if you believe in God and even you are a (foreign word spoken), it will purify everything. MS LONG: So when you go to church – you went to church between year 10 and year 12 in India, did you? THE INTERPRETER: Yes. MS LONG: To a Christian church? THE INTERPRETER: Yes. Because of my problem afterwards, I could not go. MS LONG: I'm sorry. When you went to church in India, when you go now each Sunday, what do you do at church? THE INTERPRETER: So I just pray in front of the God. In India I could not go. I put even shawl in my head. Then I go and pray and come back. MS LONG: Do you attend any ceremonies here at the Christian church, or any masses or anything? THE INTERPRETER: Yes. MS LONG: And what happens at a mass? THE INTERPRETER: Because it is English masses I could not understand completely, but I pray to God. MS LONG: Do you know anything else about Christianity? THE INTERPRETER: I could see them – we came from this world, this one, would youth, so I could see my papa. Even my mum goes to a church and pray for me. [Transcript p 11] 18 In the context of a quite long Tribunal hearing, this short passage in the evidence accounts for the finding that the appellant had very little knowledge of Christianity. The finding of the Tribunal is extracted at [6] of these reasons and lies at the core of the Tribunal's decision. 19 Four of the specific criticisms of the interpretation made by Mr Jackson-Fernandez are of primary importance, namely: (1) The answer to the question, "…what have you learnt about Christianity from your two years back in India and since you have been attending here?" was mistranslated and did not capture the meaning of the response: (2) Where the interpreter said, "Jesus died for poor people," the witness actually said, "Jesus died for our sins": (3) The interpreter refers to 'Quarbana', a Malayalam word which should have been translated as 'Eucharist', but was left in its Malayalam form: (4) Where the interpreter is recorded as saying that the appellant came to see "my papa", he was referring to the Malayalam word "Marpapa," which means "the Pope": 20 Mr Jackson-Fernandez was cross examined by Mr Kennett who appeared as counsel for the first respondent. The witness confirmed his earlier evidence and explained that the specific complaints were the main criticisms, but there were other instances where the meaning of the answers was not conveyed to the Tribunal. At the conclusion of this evidence, Mr Kennett did not resist the implicit application by the appellants to rely on further evidence on the appeal. In consequence, the first respondent was given leave to file and serve any affidavit and submissions in response. 21 On 18 October 2010, the first respondent filed an affidavit, sworn by Srikanth S Ayathil on 14 October 2010. Mr Ayathil is a translator located in Chennai, India, fluent in Malayalam and has been employed as a translator for 10 years. He read the transcript of the proceeding in the Tribunal, listened to the hearing CDs, read exhibit A, which was Mr Jackson-Fernandez's document listing the alleged defects in the translation, and the transcript of the evidence of Mr Jackson-Fernandez given on 6 August 2010. 22 Mr Ayathil prepared an expert report which dealt with each of the defects alleged by Mr Jackson-Fernandez. The following extracts from the experts report deal with the four issues referred to in [19] of these reasons. In relation to the first issue, the report states: Revised Transcript: Ms Long: Well, what have you learnt about Christianity from your two years back in India and since you has been attending here? Interpreter: I know a little bit about Hinduism, because my grandmother told me everything. But I knew something about it because two years I was going there as well and here also. [The husband] knows much more things in Christianity, and here I used to go every Sunday, so I knew little about Christianity. A word to word translation of Appellant statement in audio file from minutes 44.50 – 45.24 containing the disputed area is given below. Appellant: When I was at my home, my grandmother used to tell me Purana (Hindu stories about god) She used to take me to temple. I was not allowed to go out of my house alone. When I grow old I acquired bit knowledge (about Christianity). Then after reaching here, [the husband] is in good touch (used English word for touch) with god. I learned lot through [the husband]. Now with my problems I pray god. This version is a replica of the audio statement. 23 In relation to the second issue, the report states: Revised transcript: Interpreter: Jesus died for poor people. Jesus Christ died for people, for the sake of poor people, so we can tell everything to him and he is living in us. Jesus Christ gave sacrificed his life for us. I know that he died for our sins. He lives within us. He knows us, He saves us. The word 'poor people' is not present in audio statement. 24 In relation to the third issue, the reports states: Revised Transcript: 46.00 – 48.30 minutes in audio file Interpreter: [The husband] tells me about Kurbanba. So I go to that time. Qurbana means, I don't know. The priest. Appellant: I used to see pooja (Holy mass. Ritual). When I wait to take Eucharist, [the husband] will come and take me to accept Eucharist. [The husband] told me about the glory of God. Ms Long. Just a minute [the husband]. I don't want to hear – I will ask you in a minute. I just want to hear what [the appellant] is trying to tell me. Your husband tells you about … Interpreter: So if you believe in God and even you are a (foreign word spoken), it will purify everything. Appellant: He used to tell me that, 'If we depend on God, God will purify us, irrespective of how ever dirty our body is.' Ms Long: So when you go to church – you went to church between year 10 and 12 in India. Did you? Interpreter: Yes. Ms.Long: A Christian Church? Interpreter: Yes. But of my problem afterwards, I could not go. Appellant: I was not able to attend church before (immediately) my journey due to my problems. Ms.Long. I'm sorry. When you went to Church in India, when you go now each Sunday, what do you do at church? Interpreter: So I just pray in front of God. In India, I could not go. I put even shawl in my head. Then I go and pray and come back. Appellant: Just before I came here, I was not able to attend Holy Mass. Because I have to face everyone. Then I will put shawl on my head, without anyone noticing me I used to go to Altar to pray and come back. Appellant says that, she received Eucharist. 25 And finally, in relation to the fourth issue, the report states: Revised Transcript: Ms. Long: What happens at a mass? Interpreter: Because it is English masses I could not understand completely. But I pray to God. Appellant: Here, it is English Mass. When father (priest) prays here, I used to pray I my mind. (after interpretation continues) I can understand some of that. Ms. Long: Do you know anything about Christianity? Interpreter: I could see them we came for this world, this one, world of youth, so I could see my Papa, Even my mum goes there to a church and pray for me. Appellant: As I told before (this can be 'since I told that' too) I was able to see Bishop and Mar Papa (Pop) through this program. Apart from that my mothers used to go to Jerusalem Church and pray for me. She used to tell me when she calls me. 26 Section 425(1) of the Migration Act 1958 (Cth) (the Act) provides: 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. 27 It is established that an appellant who alleges that there was inadequate interpretation amounting to a breach of the obligation contained in s 425(1) of the Act must show that: (a) The standard of interpretation at the Tribunal hearing was so inadequate that he or she was, effectively, prevented from giving evidence at the Tribunal; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant. Questions of fact and degree are involved, and a qualitative assessment must be made of the conduct of the Tribunal hearing as a whole: Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230, at [17] and [22]; Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723; and M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212. The judgment in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 is often cited as one of the foundation authorities on the question of the adequacy of interpretation. That judgment should now be read in view of the recent academic criticism in A Hayes and S Hale, "Appeals on Incompetent Interpreting" (2010) 20 Journal of Judicial Administration 119, at 127. 28 The first respondent accepted, in relation to the first, third, and fourth alleged defects in interpretation that there was an inaccurate and incomplete translation. The first respondent accepted that the detail of the answer in those cases was lost, but submitted that the general sense was conveyed. The first respondent accepted that the translations could have been better, but they did not amount to an effective prevention of the appellant from giving evidence at the Tribunal. 29 In very helpful, clear, and fair minded submissions, the first respondent submitted, in relation to the second alleged defect, as follows. 9. The Tribunal's assessment that the Appellant wife "knew very little about Christianity" was based on the very limited extent of what she had to say rather than its accuracy. Although the answer that was (mis)translated as "Jesus died for the poor people" was specifically referred to, the Tribunal did not make any comment about its correctness as a matter of Christian doctrine and should therefore not be taken to have been influenced by that aspect of it. The better view is that the answer was referred to as an example of the very simple and basic statements about Christian teachings that the Appellant wife was able to make. 10. Rather than taking issue with the correctness of the Appellant wife's answer, the Tribunal was clearly influenced by her own statements that she "knows a little bit" and by the lack of information in her answers about what she had learned and what was involved in the religious worship she undertook. (It is acknowledged that some of her answers to questions on this issue were affected by loss of detail. However, the detail that was lost in translation would not have added in any significant way to the religious understanding shown by these answers.) It is not established that the mistranslation of the answer concerning Jesus' death contributed materially to the adverse finding that the Tribunal made. conSIDERATION 30 It was central to the Tribunal's rejection of the appellant as a Christian that she knew very little about Christianity. However, she knew about the meaning of Christ's life to Christian people, at least, in a more sophisticated way than the interpretation allowed the Tribunal to understand. She knew about the Eucharist and she knew about the Pope. By reason of the defects in the translation, the Tribunal did not know that the appellant knew these things. They were central to the Tribunal's adverse findings. 31 Not only might the Tribunal have formed a different view about the appellant's knowledge of Christianity had these defects not occurred, but the Tribunal would almost certainly have pursued more details about the appellant's knowledge by some further questioning. This is very likely because the Tribunal's approach to the case was otherwise notably conscientious and detailed. 32 In relation to the first alleged defect, the failure of the interpretation to convey the detail of the answer and the general assessment by Mr Jackson-Fernandez that there were other examples of a failure to convey the meaning of the evidence to the Tribunal, confirm this view. 33 Mr Jackson-Fernandez was an impressive, careful and credible witness. On the issue of the general standard of the interpretation, his evidence is uncontradicted, although that evidence was not as specific as his detailed criticisms of the interpretation. I accept his evidence that overall the interpretation failed to convey to the Tribunal the real impact of the evidence of the appellant. Further, this general deficiency in the standard of interpretation may well have denied the Tribunal the opportunity to pursue further questioning about the appellant's understanding of Christianity. In an inquisitorial system, one way in which an applicant may be denied an opportunity to give evidence is if the translation leads the Tribunal away from the course of questioning which, if followed, would have yielded answers favourable to the applicant. 34 It follows from these reasons that the appeal will be allowed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 22 November 2010