Australian Immigration Daily News

Can translation problems at the Administrative Appeals Tribunal be a source of jurisdictional error?

And if so, under what circumstances?

This is a question that must surely occur very frequently.

And indeed, it was the subject of a decision that was handed down by the Federal Court just last week, SZTFQ v Minister for immigration and Border Protection (2017) FCA 562 (23 May 2017).

This decision provides a good summary of the applicable principles of law, and therefore provides guidance as to when translation problems may support a meritorious application for judicial review of an adverse decision by the Tribunal.

SZTFQ  involved an application for a Protection visa by a citizen of Afghanistan who claimed a fear of persecution on the basis of his Hazara ethnicity, his religion (Shia Muslim) , imputed political opinions (anti-Taliban) and his membership in a social group (being a failed asylum seeker and being a person likely to be perceived by other Afghans as an alcoholic).

At the hearing before the Tribunal, the applicant was questioned by the Tribunal member concerning the health services that were available in the community where he had lived, “Jaghori”.

In his native language, Hazargi, the applicant had answered this question by saying:

“Jaghori, for example, if there is a minor illness, or for example, if a women (sic) is pregnant, or for example, it gets close to the delivery time, or she experiences too much pain you need to load her into a vehicle and drive her to Ghazni, or drive her to Kabul, if there is a good hospital there (in Jaghori)  and for example if there is a proper hospital where an operation can be performed or treatment can be done, there is no need to take her to Kabul.”

The interpreter who was present at the hearing translated this answer as follows:

“If there was a hospital in Jaghori, an operation could be carried out in Jaghori, so there’s no need to travel to Kabul for treatment, or for medical attention.”

The applicant claimed that he had not told the Tribunal that there was no hospital in the community of Jaghori, but rather that his statement had conveyed that there was not a “good” or “proper” hospital.

However, the Tribunal member evidently understood the translated statement to the effect that if there was a hospital in Jaghori, there would be no need to transport a person to Kabul for treatment as amounting to a denial that there was any hospital in Jaghori at all.

Consequently, the Tribunal member stated in the decision record that the member considered that the applicant had deliberately lied about whether there was a hospital in Jaghori because he believed this would be to his advantage. 

The Tribunal member referred to the applicant’s evidence as to whether there was a hospital in Jaghori as one of the bases for making a finding that the applicant was “not a witness of truth”.

So was the mistranslation of the applicant’s evidence a reason for finding jurisdictional error?

The governing legal principle was stated in the case of Perera v Minister for Immigration and Multicultural Affairs (1999) FCA 507; (1999) 92 FCR 6: the mis-translation must relate to a matter of significance, either for the applicant’s claims or for the Tribunal’s decision. 

And, as was stated by Chief Justice Alsop of the Full Court in the case of SZRMQ v Minister for Immigration and Border Protection (2013) FCAFC 142, if an error in interpretation can be seen to lead to a material and adverse finding against a person, then that error deprives the hearing of the quality of fairness, and amounts to jurisdictional error.

In the case of SZQFT, Justice Lee of the Federal Court concluded that the error in translation had affected the Tribunal’s assessment of the applicant’s credibility, and had therefore resulted in jurisdictional error by the Tribunal.

There is one more point to be borne in mind: the case law reviewed in SZQFT holds that it is not necessary to prove a precise causal link between the mis-translation and the ultimate decision.

Rather, the question to be addressed in dealing with translation issues is whether they affected the basic fairness of the decision-making process.

So yes, translation issues can absolutely provide the foundation for a successful application for judicial review!