Case: X v Minister for Immigration and Multicultural Affairs [2002] FCA 56 , 116 FCR 319
Outcome: considered
there may be no requirement imposed upon the Tribunal to secure the translation of even a particular document. But, if a document that has not been translated is to be relied upon, there may be a necessity to inform a claimant that the Tribunal will not take that document into account because a translation has not been furnished: X v Minister for Immigration and Multicultural Affairs [2002] FCA 56 , 116 FCR 319. There in issue was a diary obtained from Burma. The Tribunal affirmed the decision under review and concluded that it could not take the diary into account as it had not been translated. Moore J there observed: [53] The point addressed by the Full Court in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 was whether the Tribunal was under a general obligation to obtain for itself a translation of documents furnished by an applicant. The issue in this appeal is slightly different. I do not suggest that the Tribunal was obliged to obtain a translation of the diary itself nor that it was obliged to defer deciding the appellant's application until the appellant had provided a translation. What it did not do was inform the appellant that it would not take into account the contents of the diary because a translation had not been furnished. Generally, an applicant would be likely to know what a document relied on said and its significance. Both matters could be explained by the applicant if comment was invited before the document was effectively rejected. The Tribunal is not bound by any "best evidence" rule and can rely on secondary evidence, as it is described in curial proceedings, of the contents of documents: see s 420(2). Moreover, it is open to the Tribunal to request (as it routinely does) that an applicant provide translations of documents on which he or she relies particularly if the applicant says the document is significant or the Tribunal believes it may be. If a translated document provided by an applicant bears upon the claim of the applicant and the Tribunal is to have regard to it, the Tribunal can either accept the translation or independently seek to verify its accuracy. It is improbable that the statutory scheme would require the Tribunal ordinarily to obtain a translation if none was provided, after invitation, by the applicant: see Cabal v Minister for Immigration and Multicultural Affairs . However, equally, it is unlikely that the statutory scheme authorised the Tribunal to disregard the contents of a document relied on by an applicant simply because it was not in English, when the applicant was not put on notice that the contents would be disregarded without a translation being provided, before the decision was made to reject the application for a protection visa. Both Gray and Moore JJ concluded that the Tribunal could not decline to consider the document simply because it was not in English. Gray J further found that the present case was one where a translation should have been obtained. His Honour relevantly concluded: [30] ... The appellant's diary was the only document tendered. It related only to 1988. Its relevance to the issue of the appellant's involvement in political activities in 1988 was explained (in the sense that the appellant had submitted, and the Tribunal understood, that this was what the diary was relevant to). This was an occasion on which the Tribunal was "under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained" to it. To fail to do so was to act without power, because the Migration Act should be construed as not permitting the Tribunal to distinguish against the appellant on the ground of his race, language, or national or social origin, by refusing to take into account a document of his making because it is not in the English language. It is one thing for the Tribunal to request that documents be translated into English. It is quite another to refuse to take into account a document that is asserted to be relevant to a specific issue on the ground that it has not been so translated. O'Loughlin J dissented. In doing so, however, His Honour observed that " [t]here is room for a variety of views &#8212; so much so that I do not think it appropriate for this Court to lay down inflexible guidelines ": [2002] FCA 56 at [44] , 116 FCR at 331.