Case: Perera v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 507 (1999) 92 FCR 6
Outcome: followed
Perera v Minister for Immigration &amp; Multicultural Affairs [1999] 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 Tribunal through an interpreter. After a detailed analysis of the transcript of the hearing before the Tribunal 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 Tribunal. The case is authority for a number of propositions relevant to the present case. At [20], 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 Tribunal 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 [21], her Honour held that, without an interpreter, the Tribunal is unable to afford an effective opportunity to a non-English speaking applicant to give evidence. As a consequence, the Tribunal lacked jurisdiction to continue the hearing unless it provided an interpreter. If the Tribunal were to proceed, it would fail to observe procedures required by the Migration Act . 35 At [29], Kenny J endeavoured to express the standard of interpretation required for a Tribunal hearing: Whilst the interpretation at a Tribunal 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 [42], 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 Tribunal. 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 Tribunal's inquiry; and it would seem that from time to time difficulties in communication actually led the Tribunal 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 [46], her Honour found that the departure from the standard of interpretation in Mr Perera's case related to matters significant for the Tribunal's decision. At [47]-[49], 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 Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 171 (2003) 131 FCR 511 at [64] , 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.