Case: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6
Outcome: distinguished
The appellant relied on the decision of Kenny J in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 to support the proposition that an inadequate or inaccurate translation of evidence before the Tribunal renders the Tribunal unable to afford a non-English speaking applicant any effective opportunity to give evidence to it. Such a failure can constitute a contravention of s 425(1) of the Act and a jurisdictional error. In Perera it was not alleged that a particular passage of evidence, given by the applicant, was erroneously translated. Rather, his complaint was "that certain features of the transcript indicated that the interpretation was of poor quality or ... incompetent." (at 22). Her Honour examined the transcript as a whole. She found that certain of the applicant's answers were unresponsive and, in some instances, "virtually incoherent". There appeared to be a misunderstanding of the Tribunal's questions and there was confusion in the communication such that the Tribunal was forced to give up a line of inquiry on a significant aspect of the applicant's claim. Her Honour accepted (at 23) that: "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." 17 The appellant, in the present case, claimed to have suffered persecution, inter alia, by reason of his former membership of the JVP. He had not, prior to the hearing before the Tribunal, sought to support this claim by reference to the alleged incident in which some unnamed individuals sought to abduct him from school and were frustrated by the actions of the school principal. When this incident was raised at the hearing, the Tribunal sought to obtain further details about what had occurred and to test the claims by reference to country information. When the Tribunal expressed some scepticism that public officials such as a principal or school teachers would risk offering assistance to a member of a banned organisation which was engaged in an armed struggle with the government, the appellant volunteered a number of reasons why such persons might have been prepared to protect him notwithstanding the risks to themselves. In the case of the principal the appellant relied on the familial relationship between them to explain why he might offer protection. The appellant added that the principal had been looking after him "from my fourth year". Even if the Tribunal had understood this to mean "fourth year of school" rather than "four years of age" the difference only affected the length of time that the appellant had been cared for by his uncle. The Tribunal was prepared to accept that the familial relationship existed. It was, however, doubtful that even "blood relatives" would risk "severe repercussions" by protecting a member of a banned revolutionary organisation. It is also to be observed that this scepticism was but one of many reasons why the Tribunal refused to accept the appellant's claim to have been a member of the JVP. 18 I regard the mistranslation on which the appellant relies to be of marginal significance: a variation or a shade of meaning is involved rather than any gross error. More importantly, the error was not material in the sense that it played no direct part in the reasoning process of the Tribunal. At best for the appellant, it may have resulted in the Tribunal marginally underestimating the intensity of the principal's commitment to the welfare of the appellant. The error did not deprive the appellant of the opportunity to give evidence and present arguments to the Tribunal. There was, therefore, no contravention of s 425 of the Act by reason of inadequate translation of the appellant's evidence. 19 The other two alleged contraventions of s 425 are founded on the contention that the Tribunal failed adequately to identify issues arising on the review such that the appellant was denied the opportunity to deal with those issues. The issues which the appellant claims not to have had the opportunity to give evidence and present argument about were the cause of certain injuries sustained by him and the question of where he lived between 2000 and 2005.