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Barnett, Michael --- "Mind Your Language - Interpreters in Australian Immigration Proceedings" [2006] UWSLawRw 5; (2006) 10(1) University of Western Sydney Law Review 109

MIND YOUR LANGUAGE — INTERPRETERS IN AUSTRALIAN IMMIGRATION PROCEEDINGS

Michael Barnett∗


Introduction

This paper deals with the role of interpreters in Australian immigration proceedings before the Refugee Review Tribunal (RRT) and the Migration Review Tribunal (MRT). The paper adopts a socio-legal analysis in that it considers both the current law on interpreting in such proceedings and also the policy and cultural issues that impact on the availability and quality of interpreting in those matters.

Proceedings in the RRT and MRT originate from the system of tribunal review of primary decisions made by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) about applications by persons for visas.

The RRT and MRT are merits review bodies established under the Migration Act 1958 (Cth) (the Migration Act) and their jurisdiction, powers and statutory procedures are set out in that Act and the Migration Regulations 1994.

The RRT reviews refusals or cancellations by DIMIA of refugee visa applications (known as protection visas) to non-citizens in Australia. The MRT hears refusals or cancellations in relation to non protection visas such as partner visas, family related visas, student visas, visitor visas, skilled employment visas and business related visas.

The Administrative Appeals Tribunal (AAT) has a diverse immigration jurisdiction including review of decisions concerning certain limited categories of protection and non protection visas but does not deal with the same range and volume of visa matters as the RRT and MRT.[1]

Following amendments to the Migration Act in October 2001, the Federal Court and the Federal Magistrates Court have concurrent jurisdiction under the Judiciary Act 1903 (Cth) to review decisions made by the MRT and the RRT which are not “privative clause” decisions (see further below) under the Migration Act. As a result of the High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia,[2] these courts are also able to review decisions where there is a claim of jurisdictional error. The Federal Court also hears appeals from decisions of the Federal Magistrates Court.

In Australia there is no absolute common law right to an interpreter in legal proceedings. Under the common law, it is a matter for the individual judge or decision-maker to determine whether a person is not sufficiently proficient in English to understand the proceedings or make themselves understood.[3] However, as discussed below, provisions of the Migration Act have been construed to mean that the availability of an interpreter where required and the adequacy of interpretation are fundamental aspects of procedural fairness. This derives from a central tenet of procedural fairness, namely that a decision maker must give an opportunity to be heard to a person whose interests will be adversely affected by the decision (audi alteram partem).[4]

A major impetus for considering the role of interpreters in the legal system came from growing interest in the concept of access to justice which emphasises that access to competent interpreting is an integral part of a fair and just legal system. The federal government’s policy of the National Agenda for a Multicultural Society issued in 1989 set the scene for a greater governmental focus on equality before the law for non-English speaking people.

Subsequent reports, particularly in the late 1980s and early 1990s, that were concerned with access to justice issues identified interpreting needs as a significant issue. These included the Australian Law Reform Commission’s reports on Multiculturalism and the Law (ALRC 57)[5] and Women and Equality Before the Law (ALRC 69)[6] and also the Commonwealth Attorney General’s Department 1991 report, Access to Interpreters in the Australian Legal System.[7] Each of these reports referred to the role of interpreters and made recommendations about improving the availability and quality of interpreting services, either generally or in particular circumstances. Recommendations included deploying greater resources, improving training and education for interpreters, developing training and education on the use of interpreters, and introducing or refining legal obligations for requiring interpreters. These reports and other initiatives resulted in changes at both federal and State levels in legislation and policy.

The complexities and challenges of interpreting in immigration proceedings

In assessing the role and performance of interpreters in immigration proceedings it is essential to understand the complexities and difficulties of the task.

Evidence and findings of fact and ultimate decisions may rest on evidence given by people whose testimony is being interpreted. Clearly incompetent or inadequate interpreting can change the outcome of legal cases. In some instances, the mistranslation of even a single, significant word may be sufficient to alter an outcome. However, even without the making of clear linguistic errors, empirical studies suggest that interpreters can effect the way in which witnesses and their evidence are perceived and their credibility. When evidence is channelled through an interpreter it is transformed by the interpreter’s voice, dress, mannerisms, linguistic competence, age, race and gender which may have consequences for the credibility of witnesses.[8]

Mansfield J in Long v Minister for Immigration & Multicultural Affairs emphasised that the significance of an accurate interpretation should not be ‘underestimated’.[9] His Honour continued by stating that in refugee visa applications, credit is often critical and the Tribunal’s task of identifying inconsistencies, or inadequacies, where the applicant’s evidence is being given through an interpreter is a ‘challenging one’.[10] In particular, a translation, which gives brief translated answers or a summary of the effect of an answer when a longer answer has been given, may result in the applicant not having been given an effective opportunity to appear before the Tribunal.[11]

Interpreters will often be faced with the difficulty of having to accurately convey a meaning of a word or phrase where there is no precise or even similar equivalent to an English word or phrase in the other language. Literal word for word translations will rarely render accurate translations and often it will produce nonsensical utterances.[12] Thus, linguistic complexity means that accuracy is not synonymous with literalism. Importantly, there are many shared cultural assumptions in every language. Thus, interpreters do not simply translate words; rather they translate concepts and ideas from one cultural context to the next.[13]

In the face of these demands, there are a number of skills that an effective and competent interpreter requires. Besides core competencies such as a detailed knowledge of the source and target languages and a capacity to communicate effectively in both languages, interpreters in immigration proceedings may require additional skills and experience including:

• a comprehensive knowledge of the legal system as it operates in the immigration setting;

• a thorough knowledge of the role of other participants such as tribunal members, lawyers, migration agents and witnesses;

• a sensitivity to legal culture including the way in which language is used for strategic ends, for example, to give credit or discredit evidence;

• a command of legal terminology and the structure of the target legal system;

• the ability to deal with the demands and stresses of interpreting consecutively and simultaneously in courtrooms and tribunals;

• a commitment to ethical principles in legal settings; and

• an understanding of the expectations of representatives and how to work with them.[14]

A number of commentators have suggested that many interpreters who work in Australian legal settings such as courts and tribunals would not have these types of competencies and that there is significant variation in the quality of legal interpreting.[15]

Further, there is a concern that the standard of interpreting is getting lower.[16]

High quality interpreting in an immigration setting is particularly demanding. In Wabz v MIMA, a review of an RRT decision, Hill J said that even highly skilled interpreters will often be unskilled in factual evidentiary matters involved in tribunal hearings and/or refugee law.[17]

Some general concerns about interpreters are that they take sides and act as advocates for witnesses or parties, only summarise and package evidence, and, much less frequently, they act unethically (for example, accepting informal payments for services).[18]

Another complicating factor for achieving high quality interpreting services in immigration proceedings is the sheer volume and pace of the jurisdiction. The majority of hearings before the MRT and the RRT involve the use of interpreters and this may not be limited to applicants but also to witnesses. The RRT Annual Report (2004-05) states that 89% of the 2 372 cases heard in that year required an interpreter with 65 different languages and dialects. [19] In 2004-05, the MRT held 7061 hearings of which 55% required an interpreter and there was a range of 70 languages and dialects.[20] There is a need not only for fair and just outcomes but also for quick and efficient disposition of cases.[21] All participants including tribunal members, interpreters and representatives have a role to play to ensure efficient and expeditious hearings. The pace and rigour of such proceedings demand high level language proficiency on the part of interpreters.[22]

A third complexity derives from the intrinsic nature of interpreting. There is now a widespread recognition of the complexities of interpreting in legal settings. Historically, it is clear that the courts tended to hold the view that the interpreter was not a meaningful third party but instead merely a mechanical translator of literal translations. For example, in Gaio v the Queen Menzies J likened the role of the interpreter to being a ‘machine, merely a translator’. [23]
This conduit role has been widely rejected by linguists and interpreters and more recently by courts and tribunals.[24] It is now generally accepted that interpreters are not mere conduits because interpreting is not a mechanical process. For example, in Perera, the landmark case on the role of interpreters (see further below), Kenny J rejected the notion suggested in Gaio v the Queen that the interpreter was merely a ‘bilingual transmitter or a translating machine’.[25]

Instead, interpreting is a complex human interaction with an interpreter needing a thorough knowledge of the subject languages including grammatical and linguistic competence as well as knowledge of cultural factors and discourse practices.

There may also be a cultural input in the communication deriving not simply from the language spoken. Non verbal forms of expression may be significant in different languages and mean different things.[26] Different languages may also vary in the degree of politeness and courtesy expected and tones may also vary to express different concepts or emotions (politeness markers).[27]

As suggested above, all human communication is at a level of complexity but it becomes even more problematic in a court or tribunal setting. Courts and tribunals have their particular methods of communication, which are usually formal, and with their own terminology, discourse and tone that are different to other forums.[28]

The Tribunal settings are not intended to be adversarial. For example, subsection 351(2) of the Migration Act states that the MRT, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits of the case.

Sub-section 420(2) mirrors the contents of s 353(2) in relation to the RRT. DIMIA is almost never represented at RRT or MRT hearings. Thus there is no cross examination of applicants and their witnesses as such, but there is no doubt that Tribunal members must often test the evidence and credibility of persons, particularly applicants. Therefore the proceedings tend to have a relatively high level of formality and intensity with Tribunal members likely to be paying close attention to the language and content conveyed by interpreters.

There also may be frequent use of technical and abstract legal terms which require a high degree of precision and which are central to the outcome of cases. Immigration proceedings often require some consideration of a number of terms and provisions in Conventions, the Migration Act and its Regulations and also Departmental rulings and guidelines, which can be of varying complexity. There may be significant difficulties for interpreters to find equivalents of such terms and provisions.

Courts and tribunals are often concerned with the credibility of witnesses and thus interpreters are faced with the issue of identifying the tone, rhythm and style of speech used, together with possible non verbal cues and communication and then communicating or replicating those matters which may be vital or significant to the communication but will not be conveyed merely by a literal translation of the words used, even if such a translation were possible.

Cultural factors may assume great importance because, for example, immigration matters may well involve an understanding and application of different cultural values. Such cases may require persons to discuss intimate and private details of their lives. For example, there may be a reluctance for certain people to discuss sexual or personal details in front of a male or female interpreter. Issues may arise for interpreters as to what extent, if any, they should provide any information to the tribunal about cultural factors. Courts and tribunals on various occasions may also expect or ask interpreters to provide cultural information about evidence or participants, for the interpreter to act as a ‘cultural bridge’. Such a role can clearly extend far beyond that of the role of a conduit. Appeal courts have generally discouraged the practice of cultural bridging.[29]

Interpreters may also feel pressure from the applicant and their representative to act as an advocate to put their case or answers in the best possible light or feel pressure from the court or tribunal to interpret in a particular way.[30]


Interpreting in immigration proceedings

In relation to hearings before the RRT, subsection 427(7) provides that if a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may (emphasis added) direct that communication with that person during his or her appearance proceed through an interpreter.

Section 366C provides for a similar power in relation to the MRT but also includes further requirements. Subsection 366(1) states that a person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person. Subsection (2) states that a person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person. Moreover under subsection (2) the Tribunal must (emphasis added) comply with such a request unless it considers that the person is sufficiently proficient in English. Under subsection (3), if the Tribunal considers that a person who is to give evidence is not sufficiently proficient in English, the Tribunal must (emphasis added) appoint an interpreter even though the person has not made a request under the section.

Thus, under sections 427 and 366 there is no automatic right to an interpreter and it is a matter for the discretion of the Tribunal as to whether to appoint an interpreter on the basis of whether the person is not sufficiently proficient in English. It is suggested that consideration should be given to amending the Migration Act to provide for the same ‘interpreter’ provisions for the RRT and the MRT as there is no apparent reason in law or policy for their having different provisions. In the writer’s view, the preferable course would be for the RRT to have the same provision as the MRT currently has because section 366 makes it mandatory for the Tribunal to appoint an interpreter where the person is not sufficiently proficient in English and it also requires the Tribunal to consider the issue of whether an interpreter is required even if the applicant has not made such a request.

In any event, the courts have interpreted the Migration Act to require interpreters in RRT proceedings where the person is not sufficiently proficient in English. Subsection 425(1) of the Act provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. As discussed below, the courts have construed this to require the Tribunal to provide an interpreter where necessary and to ensure that the interpretation is competent.

The typical appeals case on interpreting in immigration proceedings

An examination of appeal cases before the Federal Court and the Federal Magistrates Court that deal with interpreting indicates that the overwhelming majority of such cases concern appeals from the RRT where an appeal point concerns the adequacy of the interpreting provided at the Tribunal hearing. In the vast majority of cases it is asserted that inadequate or incompetent interpreting led to the Tribunal making adverse findings against an applicant, particularly in respect of findings about the credibility of the applicant’s case. The preponderance of RRT decisions being the subject of appeal on interpreting points is perhaps not surprising given that there is a very large difference in the overall number of appeals between the RRT and MRT, For example, during 2004-05, 1 978 applications for judicial review of RRT decisions were made to the High Court, the Federal Court or the Federal Magistrates Court, relating to 1,932 RRT decisions. That is, there were appeals in 39.9% of cases finalised.[31] In contrast, for the MRT for the same period only 5.3% of MRT cases were appealed.[32] In addition, as noted above almost 90% of RRT hearings involve interpreters while only 55% of MRT cases involve them. However, it is difficult to draw any firm conclusions to explain the relative appeal rates on interpreting points without empirical study of why, and in what circumstances, applicants will appeal.

Law on interpreters in immigration proceedings

There have been two main issues that have arisen about interpreters at RRT and MRT hearings. The first is whether a person needs an interpreter in the first place and the second issue, which arises much more frequently, is whether any interpretation that was provided was adequate or competent.

In relation to the first issue, Kenny J said in Perera that the then s 425(1) (a) of the Migration Act which provided that the RRT ‘must give the applicant the opportunity to appear before it to give evidence’ meant that a person who is not proficient in English would be effectively unable to exercise his or her right to give evidence unless given the assistance of an interpreter.[33] Further, according to Kenny J, if an applicant was so denied an effective opportunity because of the absence of an interpreter then this would constitute a breach of procedural fairness under the then s 476 of the Act.[34]

The Tribunal must ensure that the applicant is sufficiently proficient in English to be able to understand the nature of the proceedings and the issues for determination and to understand and communicate effectively in the language used by the Tribunal, otherwise an interpreter must be engaged. However, it is not necessary for the purposes of procedural fairness that the interpreter has any particular qualifications or experience, for example being of a particular NAATI[35] level of interpreting.[36] In Ahmed v Minister for Immigration & Multicultural Affairs, the Federal Court held that in the case before the MRT an interpretation by the daughter of the applicant did not constitute a breach of procedural fairness in itself.[37] The test was whether the quality of the interpretation had led to any significant errors in the conduct of the proceedings.[38] It is clear in considering the interpreting needs of applicants in immigration proceedings that a tribunal should generally err on the side of caution and provide what is requested unless there is a clear and cogent reason to reject such requests.

The main issue about interpreters that has arisen on appeal from the tribunals (that is, essentially from the RRT to the Federal Magistrates Court and the Federal Court) as discussed in detail below, is about the adequacy of interpretation at hearings and whether an interpretation was so inadequate or incompetent that it constitutes a failure of procedural fairness.

The courts have not attempted to provide any comprehensive definition of procedural fairness and instead have focussed on what procedures were required in the particular circumstances of each case. Gleason CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam said

[F]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[39]

The landmark case on the adequacy of interpreting services in immigration proceedings is Perera v Minister for Immigration & Multicultural Affairs.[40] The main issue for Kenny J was whether the RRT erred in law in failing to provide ‘adequate or proper interpreting services’.[41] Because there was little Australian authority on general principles for determining the adequacy of interpretation, Kenny J turned to Canadian and United States authorities.[42] In a well researched and sensible manner, Kenny J considered the requirements and complexities of interpretation and the necessary requirements of the law.

Kenny J said that the function of an interpreter in the Tribunal (as in a court) is to place the non-English speaker as nearly as possible in the same position as an English speaker.[43] Her Honour stated that interpreting relies upon technical skill and expert judgment and that perfect interpretation may well be impossible.[44]

Adopting the approach of the Supreme Court of Canada in R v Tran,[45] Kenny J suggested that the criteria for an adequate standard of interpretation would include continuity, precision, impartiality, competency and contemporaneousness.[46] Kenny J then considered a number of Canadian and United States cases to propose that the major issue was whether there had been a departure from the relevant standard of interpretation and for the purposes of the case before her Honour, this meant whether the interpretation was so incompetent that the applicant was effectively prevented from giving his/her evidence.[47] The factors to make that assessment included: the responsiveness of the interpreted answers to the questions asked; the coherence of those answers; the consistency of one answer with another and the rest of the case; and more generally, any evident confusion in exchanges between the Tribunal and the interpreter.[48]

However, Kenny J stated that not every departure from the standard of interpretation will prevent an applicant for refugee status from giving evidence. The departure from the standard of interpretation must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision.[49] Thus the reasoning of Kenny J indicates a test for establishing incompetent interpretation as being constituted by two limbs, each of which must be satisfied: the applicant being effectively prevented from giving his/her evidence and this must be in relation to a matter of significance for the applicant’s claim or the Tribunal’s decision.

The tests and reasoning of Kenny J in Perera have survived legislative changes to s 425(1).[50] The precedential value of Perera has also survived the introduction of the ‘privative clause’.[51] The introduction in 2002 of the privative clause, s 474 of the Act, has been interpreted by the High Court to allow Courts jurisdiction to review a privative clause decision, where the Tribunal has made a decision outside its jurisdiction, that is to say, where the Tribunal has committed jurisdictional error as that expression is to be understood in accordance with accepted authority such as Craig v South Australia.[52] This is because a decision of the Tribunal made outside jurisdiction is not a decision at all and therefore does not fall within the meaning of privative clause decision in s 474.[53] Further, a decision made in breach of procedural fairness will involve jurisdictional error.[54]

Issues and problems with applying the Perera test

An examination of the application of the Perera principles by the courts indicates a degree of confusion and inconsistent language.

A number of Federal Court decisions have applied the test of whether the interpretation was so inadequate that the applicant can be said to have been prevented from effectively giving their evidence citing Perera but have failed to mention or apply the second limb of the Perera test (eg see STPB v MIMIA and SYSB v MIMIA).[55] Mansfield J in Tobasi v MIMA considered that Perera stood for the approach that in substance the applicant was prevented from giving his evidence and his Honour did not advert to the second limb of Kenny J’s test.[56]

In other cases the Federal Court has compressed or abbreviated the principles of Perera by referring only to the significance of the errors and not also to the issue of being effectively prevented from giving evidence. For example, in Mahmmodifar v MIMIA, Nicholson J considered whether there had been significant errors in interpretation, which would attract a finding of procedural unfairness without considering whether the appellant had effectively been prevented from giving evidence.[57] In Bejandi v MIMIA, Tamberlin J in effect compressed the test in Perera in considering in the case before him whether an error of interpretation was of such significance as to warrant a review of the Tribunal’s decision.[58]

In Appellant P119/2002 v MIMIA the Full Court of the Federal Court appeared to accept the proposition put by the respondent’s counsel (although it did not finally determine what the exact test ought to be) that for the applicant to succeed he /she would need to establish that the standard of interpretation was so inadequate that the appellant was effectively prevented from giving evidence or (emphasis added) errors made by the interpreter at the hearing were material to the conclusions of the Tribunal adverse to the appellant.[59] The Full Court suggested that the first proposition reflected the views of the Court in Singh[60] and in Perera, and the views in Soltanyzand[61] as to the second proposition. The Full Court did not question the fact that the respondent’s counsel had put the two limbs as alternatives. The writer is of the view that this is an erroneous interpretation of Perera and that Singh and Soltanyzand both referred to Perera but did not purport to distinguish or modify the reasoning of Perera.

In contrast, the Federal Court in other cases has identified Perera as having two cumulative limbs and applied both limbs to the case at hand. For example, Carr J in Waiz v MIMA identified the two limbs and stated that the correct approach was whether the applicant could be said to have been effectively prevented from giving his evidence in relation to a matter of significance for his claim or the Tribunal decision.[62] Mansfield J in Arif v MIMA[63] and Goldberg J in Mahzar v MIMA[64] also dealt with both limbs of the test formulated in Perera.

While it is not suggested that such changes in language and terminology are necessarily fatal or always show a defect in applying the correct test, it is suggested that a consistent and rigorous use of the language used in formulating the tests in Perera would be preferable or, if Perera is to be distinguished or modified, then the Courts should explicitly state that they are doing so and give reasons for departing from the established principles.

There has not been much elaboration thus far by the Courts as to what ‘effectively prevented from giving evidence’ might mean. In Tobasi, Mansfield J went further than most Judges on this point, suggesting that this might involve whether the Tribunal had gotten the ‘real sense’ of the applicant’s response,[65] and whether the message the applicant sought to convey ‘is clearly enough communicated’[66] or whether ‘in substance’ the applicant was prevented from giving his evidence.[67] In Long v MIMA Mansfield J once again tried to elaborate on the test. His Honour said that although in the particular RRT hearing there had been a persistent shortfall in the standard of interpretation it was not of significance in determining the applicant’s claim because it did not in any ‘significant respect’ cause the Tribunal to misapprehend what the applicant was saying on any important matter. Moreover, the Tribunal had ‘an appropriate appreciation of his evidence’ and ‘a full understanding of the applicant’s claims’.[68]
Inappropriate conduct by interpreters

The courts in immigration proceedings have not developed principles or guidelines for appropriate behaviour by interpreters. However, improper activities by an interpreter can include interjecting, making submissions on behalf of applicants, and expanding and purporting to clarify answers from applicants and witnesses on the interpreter’s own motion.[69]

Consecutive or simultaneous interpreting and translating other witnesses’ evidence for the applicant

Consecutive interpretation means that the interpreter translates after the speaker has finished the communication. This is the most commonly used form of interpretation to interpret a witnesses’ evidence. This form of interpreting requires the interpreter to listen carefully and remember what was said, perhaps even taking written notes to help with the task. Simultaneous interpretation is interpreting almost immediately after a statement is spoken. It is made while the speaker continues to speak. Generally simultaneous interpretation, where it is utilised in immigration proceedings, will be undertaken by the interpreter translating, usually in a whisper to the applicant, what the Tribunal member is saying to other witnesses and where appropriate what other witnesses say. There is no information available about the frequency of the use of simultaneous interpretation.

The advantage of simultaneous interpretation in immigration proceedings is that it gives the applicant almost instant access to what is being said by other witnesses and by the Tribunal member to those witnesses. The potential disadvantages are that the interpreter must be able to interpret accurately and with great speed and the instantaneous translation may become a distraction to the other participants including the Tribunal member, particularly where there is a whispered ongoing translation to the applicant of what is being said. It could also be said that the Tribunal member will put to the applicant any matters of significance that arise from the evidence of other witnesses so that it could not be said that any substantive breach of procedural fairness occurs if there is no simultaneous interpretation of other witnesses’ evidence. There appears to be no case law on the issue of the use of consecutive or simultaneous interpretation or on the issue of interpreting a witnesses’ evidence for the benefit of an applicant but it is an issue that could readily arise as a matter of procedural fairness.

Impartiality and the cultural bridge

The Federal Court has emphasised the need for interpreters in immigration proceedings to be impartial and to be seen to be impartial. In Sook Rye Son v MIMA, the Full Court of the Federal Court held that the RRT should not attempt to obtain evidence from interpreters, on the basis that this was a breach of procedural fairness.[70] In that case the Tribunal member had asked the interpreter to give a view as to whether the applicant was or was not North Korean on the basis of her accent.

Moore J in the Full Court said that in his opinion a ‘fundamental unfairness’ was visited on an applicant where an interpreter was asked to comment on the accent and language used by an applicant. [71] Moore J stated that

[T]he role of the interpreter should be clear. It is to translate and to do nothing more. If the interpreter is asked to offer opinions about what is being said in a foreign language it can quite unfairly put the applicant and witness in a position of not knowing whether the role of the interpreter is entirely neutral or is in some respects, a partisan one. It could readily lead, on the part of the application and witness, to a loss of confidence in the interpreter, a hesitation in answering questions or answering them fully, and confusion.[72]

Burchett J also stated that if the interpreter’s impartiality is compromised then the applicant can have no confidence that his or her version is even reaching the Tribunal, except perhaps in a distorted form.[73] Katz J agreed with the views of Burchett and Moore JJ on this point.[74]

This decision and reasoning highlights the complexity of the issues about an interpreter’s role. Clearly, on the basis of Sook Rye Son the Tribunal cannot specifically ask an interpreter for his or her opinion, when the interpreter’s role is to interpret and he or she has been sworn as an interpreter and not as a linguistic or cultural expert.

This issue of the extent to which interpreters should provide opinions on the impact of cultural factors on translations has not been fully resolved. Laster and Taylor suggest that an anthropologist could perform this role as indicated in Milirrpum v Nabalco [75] but it is not settled as to whether and in what circumstances an interpreter could provide similar views and opinions. Laster and Taylor suggest that interpreters are likely to perform some cultural bridging because there is a lack of independent cultural experts and the costs and expenses of having such experts present would militate against their being engaged. Furthermore, in high volume jurisdictions (such as immigration proceedings) the costs and logistics of having cultural experts would make the option impractical. In any event, some cultural information may not be overly significant or controversial and will not require the giving of formal, expert evidence.[76] Further difficulties are that many interpreters would not have the qualifications or the experience to perform such a task and many may not want that role.[77]

However, there will be occasions in legal settings where the interpreter will be of the opinion that there is some linguistic, cultural or sociological issue that is or may be affecting the accuracy of the translation. If the interpreter does not raise such an issue with the decision maker then an inaccurate translation or misunderstanding may occur and an injustice may result. It is submitted that interpreters should raise with the decision maker any issue, which they consider may be affecting the accuracy of the translation. Courts and tribunals as a general principle will need any act of discretion or judgment on the part of the interpreter to be articulated. On the whole, interpreters, where there is a non verbal or cultural issue will need to advise of those situations and allow the decision maker the opportunity to act upon that information. Interpreters should explain to the tribunal or court decision maker cross cultural differences and issues where they consider that such an issue may be affecting their accurate interpretation of evidence. This ought to be made explicit in interpreting codes and guidelines for interpreters and decision makers. No system is likely to be perfect. The interpreter also should honestly state their own capacity to understand such cultural issues.

Addressing particular linguistic needs

A tribunal should be mindful of any requirements for a specific dialect or for other particular linguistic needs. In STPB v MIMIA the applicant had requested that the RRT have a Punjabi interpreter because he understood that language best, but instead the Tribunal provided him with a Hindi interpreter.[78] Finn J, on review, said that the use of the Hindi interpreter meant that there was a real likelihood of misunderstanding and there was indeed evidence of some misunderstanding which was sufficient to make the Tribunal’s conclusion on credibility unreliable and thus a denial of procedural fairness, thereby giving rise to a jurisdictional error.[79]

However, even where a tribunal does not make an appropriate decision as to the particular linguistic needs it does not automatically follow that this in itself will mean that there is a denial of procedural fairness. For example, a failure to provide a female interpreter where requested by the applicant prior to the hearing will not of itself necessarily amount to a breach of procedural fairness. In Appellant Wabz v MIMA the Full Federal Court held that the RRT had done all it could to reasonably accede to the applicant’s request for a female interpreter and that there had been a mistake because the notation for the interpreter prior to hearing was ‘Val Akbar’ who had turned out to be a male when a female had been expected. Moreover, there was no evidence that the use of a male interpreter had given rise to any substantive prejudice.[80]

In Applicant A194/2003 v MIMIA the issue before Selway J was whether the applicant had been denied procedural fairness because the RRT proceeded to hearing without a female interpreter in circumstances where the female applicant had requested a female interpreter because of allegations of sexual assault.[81] The Tribunal was well aware that the applicant was not prepared to discuss the detail of the allegations in the presence of a male interpreter but subsequently the Tribunal member was in error in thinking that the applicant had not requested a female interpreter. The Tribunal rejected the applicant’s evidence. The Tribunal member gave the applicant an opportunity to make post-hearing submissions. Selway J concluded, apparently on the basis of the opportunity for further submissions, that the applicant was not refused a reasonable opportunity to present her case, notwithstanding that there was no female interpreter present as there should have been.

The cases demonstrate that the courts will consider all the circumstances of the particular case to determine whether in those circumstances there has been a breach of procedural fairness, including whether the Tribunal and the applicant had acted reasonably in the circumstances.

Inadequate interpretation due to loss of contemporaneity
It is not only inaccurate interpretation that may lead to findings of breaches of procedural fairness. In Waiz v MIMA Carr J held that a technical break in transmission in a telephone conference at a critical point in the giving of evidence (that is where the RRT member and interpreter were in one place and the applicant in another), meant that the applicant was effectively prevented from giving his evidence in relation to a matter of considerable significance to his claim and in turn for the Tribunal’s decision.[82]
Additional subsidiary factors in determining adequacy of interpretation

In Szaaj v MIMA, Hill J took into account the following additional factors in deciding that there had been no jurisdictional error by the RRT on the basis of inadequate interpretation: the fact that the applicant, while needing an interpreter, was still quite proficient in English; that the Tribunal had made him aware that he should bring to the Tribunal member’s attention any difficulty of translation; and that the applicant did not suggest at the time that there was any confusion in his mind about the translation -- this had emerged only after the Tribunal had given a decision adverse to him.[83]

Moreover, Hill J also found that the interpretational difficulties in the case before him were generally minor and not overall of such a kind as constituted jurisdictional error.[84]

It is suggested that these additional subsidiary factors should be treated by the courts with great caution. For example, the factor as to whether the applicant gave timely notice about the alleged inaccuracy may be of dubious value. Many applicants will not be able to identify mistranslations or errors because they obviously will not have much facility with English so they will not be able to identify mistakes in translation. Unrepresented applicants also may not have the knowledge, experience or assertiveness to make complaints about inadequate interpretation at the hearing or before a decision is made or after a decision is given, even in those cases where the Tribunal has encouraged an applicant to point out any difficulties in interpretation.

It also should not be assumed because an applicant is able to understand rudimentary questions in English that he /she has the facility to understand more complex concepts and to be able to articulate responses in English. In addition, hearings may be extremely stressful events for applicants and some may have anxieties and concerns that militate against identifying and commenting on translation difficulties. As French and Lee JJ said in Webs v MIMIA:

[A]lthough an unrepresented non English speaking applicant in judicial review proceedings is at a crippling disadvantage, the lack of representation at the earlier stage of merits review is probably of greater significance in terms of its effect on the eventual outcome.[85]

Hill J said in the same case that many applicants will not be highly educated and even those who are highly educated and skilled in English might have problems making submissions on relevant issues without legal assistance.[86]

In Khogali v MIMA, O’Connor J was reviewing a decision of the RRT and it was claimed by the applicant on appeal that he had needed an interpreter who spoke his Sudanese dialect and not merely Arabic.[87] The applicant claimed before the Federal Court that the absence of a Sudanese speaking interpreter meant that the quality of his evidence was lowered before the RRT. O’Connor J said that there would have been force in that submission if the applicant had been given no opportunity to deal with the issue of his linguistic disadvantage.[88] However, at the RRT hearing, the applicant had been given such an opportunity and made no further request for a Sudanese speaking interpreter during the hearing nor complained at the end of the hearing that he had been prejudiced by the absence of a Sudanese speaking interpreter. Moreover, O’Connor J said that the applicant was at all times represented by a lawyer and was himself a lawyer. O’Connor J also found that in any event the interpretation was competent and that on that hearing day complained about no matters ultimately central to the conclusions of the Tribunal were canvassed.[89]

It is suggested that even in those cases where the applicant is represented the representation may in some cases be inadequate or incompetent or not be fully in a position to make a submission about incompetency in interpretation. If a court is minded to draw adverse conclusions on the basis of a lack of timely complaint by a represented applicant then the issue of the competency and capacity of any legal representation in relation to the failure should be considered by the court.

Another unresolved issue is what weight should be attached to these subsidiary factors. The authorities including Perera do not deal with that question. The writer suggests that generally the objective test of whether and to what extent the interpretation was inadequate is an appropriate and sufficient test. It would seem to be an extraordinary decision for a court to hold that an applicant was effectively not allowed to present his or her case in relation to a matter because there were significant defects in the interpretation but that this should be outweighed by factors such as that he/she did not make a timely complaint about the defects.

The burden of proof on the applicant and the type of evidence necessary to discharge the burden

The burden of proof is upon the applicant to demonstrate on the balance of probabilities that the level of interpretation was of such an incompetent standard so as to constitute a breach of procedural fairness.[90]

It is clear that for an applicant to succeed on an appeal point concerning the adequacy of interpreting that he/she must present probative, persuasive evidence that demonstrates that the interpretation provided was incompetent in significant respects. The best evidence is likely to be a certified review by a competent interpreter of an audio recording of the Tribunal's proceedings that indicates and highlights the alleged errors.[91] This might have considerable strategic and costs implications for some applicants.


Need for a comprehensive and authoritative decision on the role of interpreters

The difficulties, inconsistencies and unanswered questions about the role of interpreters as discussed above, indicate that it would be highly desirable for a superior court, preferably the High Court, to consider the principles to determine when an interpreter is necessary and what tests should determine the adequacy of interpretation. While Perera has been regarded as a landmark decision and has been very frequently referred to in subsequent Federal Court decisions and has not been the subject of any modification or change, the Federal Court has not always rigorously and consistently followed its principles. Moreover there are concerns about some of the subsidiary factors that the Federal Court has identified as relevant in determining whether procedural unfairness has occurred, particularly in the making of a timely complaint by the applicant and assessing the level of proficiency of English of an applicant or witness. A High Court decision that dealt with these matters, or at least some of them, would help to remove ambiguities and inconsistencies.


Further policy reforms and changes

Empirical data necessary

There is a pressing need for empirical work that examines the quality and effectiveness of interpreting services in immigration proceedings. To date there has been little such research,[92] with the result that there is an over reliance upon general experience and anecdote. For example, it would be very valuable to conduct similar research in Australia to that carried out in England by the Economic & Social Research Council.[93]

It included observations of hearings and interpreter training sessions and interviews with participants in the system. The report found that interpreters play a critical role in establishing or impugning the credibility of an applicant's claim to refugee status.

Increasing the professionalism of the interpreting industry

It has been suggested that there must be an increasing professionalism of interpreting so that interpreters and other participants and users of interpreting services recognise and act in conformity with the concept that interpreting is a profession with attendant legal, social and ethical responsibilities.[94] There are a number of aspects to increasing the level of professionalism.

Developing a regulatory model

The National Accreditation Authority for Translators and Interpreters (NAATI), a national standards body owned by the Commonwealth, State and Territory Governments of Australia, was established in 1977 to develop professional standards and to provide a national system of accreditation and certification of interpreters and translators.[95]

NAATI now offers four levels of accreditation with the minimum requirement for professional interpreters including court and tribunal interpreters being what amounts to Level 2.

NAATI accreditation is the only qualification officially accepted for the profession of translation and interpreting in Australia. All government Translation and Interpreting (T & I) services require translators and interpreters to be NAATI accredited whenever possible. NAATI accreditation may be obtained by passing a NAATI test or completing successfully a course of studies at an Australian institution approved by NAATI.

However, NAATI’s role, while very useful, is also limited in that it controls all accreditation but does not have any other professional or industry role. NAATI has no monitoring or disciplinary role, cannot make binding rules of ethics or conduct, cannot even remove accreditation, has no ongoing training and education role, and does not set standards of conduct.

The Australian Institute for Interpreters and Translators (AUSIT), which is open to voluntary membership for all professional interpreters, including legal interpreters, has a code of conduct that requires interpreters, among other things to remain impartial, maintain confidentiality, avoid conflicts of interest, and uphold a high standard of competence.[96]

However, it cannot properly be said to be the industry’s peak body as membership is voluntary and it has not developed into a self-regulatory professional body. It has no formal complaints and disciplinary process.

Thus there is a lack of a comprehensive regulatory body for the industry with neither NAATI nor AUSIT separately or in tandem able to fulfil such a role. Another concern is that there has been a failure to develop proper methods for service delivery and there is no comprehensive, overarching legal recognition of interpreting and translating as a profession either at a federal or State level.[97]

Improving pay, conditions and professional development

A number of commentators have argued that interpreters have low status, low levels of pay, poor working conditions and a lack of professional development opportunities. Improvements in these matters are likely to assist in the overall capacity and skills of interpreters.[98]

Education and training for interpreters

There needs to be a uniform program of education and training for interpreters. For example, more tertiary interpreting courses are needed as is more ongoing professional education and training.[99]

Specialisation for legal interpreters

Interpreters may need specialist training in the law and the legal system and even more specifically in particular legal settings such as the immigration setting.

One issue is whether legal interpreting and other types of interpreting should be adapted to a specialist approach. Thus in the United States, court interpreting is to some extent a distinct profession, separate, for example, to business and medical interpreting and there is a separate Federal Court Interpreter Certification Examination controlled by the courts. In contrast, in Australia, legal interpreting is not a specialisation.

Laster and Taylor suggest that what is necessary in Australia is not a totally separate court interpreting profession but a national legal interpreting module which would cover courts and tribunals and which would build on existing structures and programs.[100] Any statutory registration scheme for legal interpreters could accommodate a legal interpreting module.

This paper cannot do justice to this complex issue as to the nature of any specialist training and education and regulatory system but the issue needs to be debated and a decision and commitment made.

Improving the relationship between interpreters and representatives

A consistently identified problem has been that some lawyers and bureaucrats have not understood the complexities of an interpreter’s role and the inherent difficulties in their task. Laster and Taylor suggest that the role of interpreters has been made subordinate in the legal setting, particularly the courtroom setting and that there is still a problem of lawyers treating interpreters casually as mere ciphers but that these attitudes are changing slowly as evidenced by survey work. [101] Hale has suggested that the reasons for why many lawyers do not regard interpreters as professionals include the following: the lack of consistent training for interpreters; incompetent interpreters; lawyers’ misunderstanding of the interpreter’s role; and a lack of training for lawyers in how to work with interpreters. [102]

Common problems that lawyers make in working with interpreters are speaking to the interpreter rather than the witness, using indirect speech instead of direct speech, and using idiomatic or idiosyncratic language that is difficult to be interpreted.[103]

It also follows that interpreters may misunderstand the role of lawyers in different situations and that misunderstanding and miscommunication may work both ways. There is evidence of some professional rivalry and tension between lawyers and interpreters that needs to be addressed and reduced.[104]

Nevertheless, there are indications that the situation has improved. Lawyers need training in working with interpreters and one view is that all lawyers should undertake at least one course on working with interpreters.[105] Professional legal groups have made various attempts to improve the professional relationship between lawyers and interpreters. For example the Law Foundation of New South Wales produced A Guide to Best Practice Lawyers, Interpreters, Translators Sydney 1996 which was adopted by the Law Society of New South Wales including guidelines that a lawyer should not interfere with the role of the interpreter unless it is absolutely necessary, for example, where a lawyer considers that justice is not being served by an interpreter through reasons of inadequate translation or undue involvement by the interpreter in proceedings.[106]

Clearly there is a need for continuing education for all participants about the role of interpreting in legal proceedings. This would include educational and training components at tertiary levels, and in professional legal training courses and continuing legal training.

Specifically in relation to immigration proceedings, tribunal members and tribunal staff need particular training in identifying and responding to issues concerning interpreters and knowledge of the relevant law, for example as discussed in this paper. Migration agents would also benefit from educational and training opportunities, as would lawyers who regularly deal in immigration matters. Training modules and components would benefit from joint input and collaboration and ongoing participation between the various participants in immigration proceedings.

Guidelines and information about how to establish when an interpreter may be necessary and what types of interpreter are needed would also be helpful as well as direction and information about the relevant law on interpreting. Some empirical monitoring and assessment of interpreting that is undertaken would also be useful. Tribunal Members may be assisted by material and discussion on what types of questions to ask to ensure that applicants and witnesses understand the interpreter and vice versa and whether there are any particular difficulties in translation.

The RRT and MRT have already made significant efforts in providing information about the role of interpreters. Sessions about interpreters are part of the Members’ induction process and may form part of continuing education and training for members. There is an Interpreters Handbook which provides useful information for interpreters about the role of the RRT and MRT, including a glossary of some commonly used terms in proceedings, a code of ethics, and information about the nature and conduct of the proceedings.[107]

Regular forms of ‘two way’ feedback other than formal complaints systems may be useful between the immigration tribunals and interpreters used in hearings. Interpreters undertaking immigration proceedings would benefit from training specifically on the nature of the proceedings and terminology in immigration proceedings.

Conclusion

Both interpreters and court and tribunal decision makers need to mind their language in immigration proceedings to ensure competent interpretation and to address defects in interpretation. The task of achieving consistently high quality interpreting in such proceedings is both immensely important and challenging. This paper has highlighted current problems and issues and discussed changes and reforms which would improve the quality of those services and which would also improve the content and consistency of the current common law approach.

The responsibilities for achieving the goal of higher quality services cannot rest merely on the shoulders of individual interpreters or individual tribunal members or judges. There is a collective responsibility on the part of all participants including lawyers and other representatives.

The role of government is also crucial. There are problems in a lack of resources directed to improving the quality and consistency of interpreting services. One key demand is for better-trained and skilled legal interpreters and also for better trained and skilled participants who work with legal interpreters such as tribunal members, judges, legal practitioners and migration agents. It is submitted that given government’s role both at federal, state and territory level, as the predominant user of interpreting services and governmental commitment to access and equity policies, the Australian governments should collaborate and then implement a comprehensive strategy for improving interpreter services throughout Australia. Moreover, the relatively slow development of the regulation and ‘professionalisation’ of interpreting, in light of the fact that the Attorney General’s Department had highlighted many of these issues in its 1991 report, also indicates that government needs to take the lead in improving and accelerating the response. The Standing Committee of Attorneys-General (SCAG) would be one appropriate avenue to initiate and conduct such a strategy.

The plan should include empirical and investigative study and research and wide consultation to identify problems and solutions. The SCAG terms of reference, the plan and its implementation should involve a multi-agency and multi-disciplinary approach. Key stakeholders, such as government departments and agencies (including courts and tribunals), NAATI, AUSIT, and peak legal bodies such as the Law Council of Australia and State and Territory law societies, should have active roles right throughout the reform process. The approach needs to include the perspectives of government, interpreters, linguistic experts, lawyers, migration agents and other users of interpreting services for legal purposes. It must consider legal, linguistic and administrative issues. It should also contain an audit of current interpreting services with an assessment of the scope, extent and quality of those services. The SCAG initiative also would benefit from an examination of best practice models both domestic and international.

A comprehensive and effective response is likely to require some legislative initiative with particular consultation with the interpreting industry to develop for interpreters a legislative code of professional standards, complaints and disciplinary procedures, accreditation and continuing education and professional development. It might also include some seed funding and encouragement for the development of more sophisticated and comprehensive training modules for both interpreters and other participants in the legal system.

Implementing such changes will help make policies of access and equity in relation to interpreting much more of a reality and much less mere rhetoric and good intentions.


∗ BA LLB, LLM (Hons), Lecturer in Law, University of Western Sydney.

1 The AAT has power to review the following decisions: refusals of protection visas or cancellation of protection visas which rely on Articles 1F, 32 or 33 of the Refugee Convention; decisions to cancel a business or a business visa; decisions to order the deportation of a non citizen convicted of certain crimes (see Migration Act s 65, 109, 116, 134(1), 134(3A), 134(4), 200); and decisions by DIMIA to refuse to grant or to cancel a visa under s 501 of the Migration Act on the basis that the non citizen does not satisfy the delegate of the Minister that the person passes the character test. The RRT or MRT may also refer to the AAT decisions that involve an important principle or an issue of general application (see for the RRT s 443(1) and for the MRT s 381(1)).

[2] (2003) 211 CLR 476.

[3] In relation to criminal trials see Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 331 (Deane J); R v Saraya (1993) 70 A Crim R 515, 516 (Badgery-Parker J) (with whom Kirby ACJ and Loveday AJ agreed); in relation to civil proceedings see Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414, 423-4 (Kirby P) 425 (Samuels JA) and 427 (Clarke JA) and Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75, 81 (Mahoney JA).

[4] Eg see Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 629 (Mason J).

[5] Australian Law Reform Commission (1992) Multiculturalism and the Law Report No 57, AGPS, Canberra, Ch 3, para 3.1-3.62.

[6] Australian Law Reform Commission (1994) Equality Before the Law: Women’s Equality Report No 69, Part 1, AGPS, Canberra, Ch 7.

[7] Commonwealth Attorney General’s Department (1991) Access to Interpreters in the Australian Legal System, AGPS Canberra.

[8] K Laster & V Taylor Interpreters & the Legal System (1994) 120; S Berk-Seligson The Bilingual Courtroom: Court Interpreters in the Judicial Process (1990) University of Chicago Press, Chicago,163; N Segalowitz ‘Communicative Incompetence and Non Fluent Bilingualism (1976) 8 Canadian Journal of Behavioral Science 122; R Shuy ‘Language and the Law’ (1986) 7 Annual Review of Applied Linguistics 50.

[9] [2000] FCA 1172 para [42].

[10] Ibid para [43].

[11] Ibid.

[12] L Robinson Handbook for Legal Interpreters (1994) Law Book Company Limited North Ryde 2; Laster & Taylor above n 8, 115.

[13] Laster & Taylor above n 8, 116.

[14] Ibid 26-27.

[15] Ibid; also see I Dobinson & T Chiu ‘Access and Equity: The New South Wales Court Interpreter Service’ (2005) 17 (1) Current Issues in Criminal Justice 30, 41; S Hale (2003) ‘What does ‘to fully and faithfully interpret the evidence mean?’ Conference Paper presented at the Interpreters and Legal Professionals Working Together in Courts and Tribunals Conference, 21 March UNSW; L Roberts-Smith Address AUSIT Conference Perth 25-27 October 2002, 6, <www.waiti.iinet.net.au/files/justiceLRS.pdf

>.

[16] Dobinson & Chiu above n 15, 41.

[17] [2004] FCAFC 30 para [106].

[18] Commonwealth Attorney General’s Report, above n 7, para 5.6.10.

[19] Refugee Review Tribunal Annual Report 2004-05, 15.

[20] Migration Review Tribunal Annual Report 2004-05, 15.

[21] eg s 353(1) of the Migration Act provides that the MRT in carrying out its functions shall pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick; s 420(1) provides similarly in relation to the RRT.

[22] Laster & Taylor, above n 8, 119.

[23] [1960] HCA 70; (1960) 104 CLR 419, Menzies J (432-433) and Kitto J (430).

[24] Laster & Taylor, above n 8, 115-120, 224.

[25] Perera v MIMA (1999) 92 FCA 507.

[26] Laster & Taylor, above n 8,116-117.

[27] Ibid.

[28] K Laster ‘The compromised “conduit”: conflicting perceptions of legal interpreters (1995) 6(4) Criminology Australia 9, 11.

[29] Eg see Singh v Singh [1971] EWCA Civ 10; [1971] 2 All ER 828, 833-4 (Megaw LJ).

[30] Laster & Taylor, above n 8, 121.

[31] RRT Annual Report 2004-05, 22.

[32] MRT Annual Report 2004-05, 24. During 2004-05 of the 8, 308 cases finalised by the MRT an application for judicial review was filed in 440 of those cases (5.3%).

[33] Perera v MIMA [1999] FCA 507 para [20].

[34] Ibid para [21].

[35] National Accreditation Authority for Translators and Interpreters.

[36] Wabz v MIMIA [2004] FCAFC 30 para [69]; also see Long v MIMA [2000] FCA 1172 para [51]; Mahzar v MIMA [2000] FCA 1759 para [25].

[37] (2000) FCA 1101 para [18] –[19].

[38] Ibid.

[39] (2003) 195 ALR 502, 511.

[40] [1999] FCA 507.

[41] Ibid para [12].

[42] Ibid para [22], [24], [27], [28], [30], [39].

[43] Ibid para [24].

[44] Ibid para [26].

[45] [1994] 2 SCR 951.

[46] [1999] FCA 507 para [28].

[47] Ibid para [39].

[48] Ibid para [41].

[49] Ibid para [45].

[50] See Tobasi v MIMA [2001] FCA 1510 para [35] – [41] and also see Liu v MIMA [2001] FCA 1362 para [44]- [45]; W284 v MIMA [2001] FCA 1788 para [30-31] and Mahzar v MIMA [2000] FCA 1759 para [30] – [31. Sub-section 425(1) was amended by the Migration Legislation Amendment Act (No 1) 1998 (Cth).

[51] Eg see Szaaj v MIMA [2004] FCA 312 para [41] – [42] (Hill J).

[52] [1995] HCA 58; (1995) 184 CLR 163.

[53] Plaintiff S157/20002 v Commonwealth of Australia (20003) 211 CLR 476.

[54] Re Minister for Immigration & Multicultural Affairs, Ex parte Miah (2001) 205 CLR 57, 87; Refugee Tribunal, Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 101; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323.

[55] STPB v MIMIA [2004] FCA 818 para [1] (Finn J); SYSB v MIMIA [2005] FCA 1259.

[56] [2002] FCA 1050 para [61].

[57] [2001] FCA 1510 para [12].

[58] [2002] FCA 1519 para [8].

[59] [2003] FCAFC 230 para [17].

[60] Singh v MIMA (2001) 115 FCR1 para [27].

[61] Soltanyzand v MIMA [2001] FCA 1168 para [18].

[62] [2002] FCA 1375 para [33].

[63] [2002] FCA 1053 para [18] – [19].

[64] [2000] FCA 1759 para [26].

[65] Tobasi v MIMA [2001] FCA 1510 para [50].

[66] Ibid para [52].

[67] Ibid para [61].

[68] [2000] FCA 1172 para [57].

[69] Kfouri v Minister of State for Immigration, Local Government & Ethnic Affairs WAG 155 of 1993 para [7].

[70] [1999] FCA 7, para [1] (Burchett J), para [45] (Moore J) and para [55] (Katz J).

[71] Ibid para [45].

[72] Ibid.

[73] Ibid para [2].

[74] Ibid para [55].

[75] (1971) 17 FLR 141.

[76] Laster & Taylor, above n 8, 123.

[77] Ibid 180-181.

[78] [2004] FCA 818.

[79] Ibid para [24] – [25].

[80] [2004] FCAFC 30 [para 74] (French and Lee JJ).

[81] [2004] FCA 652.

[82] [2002] FCA 1375 para [73].

[83] [2004] FCA 312 para [47].

[84] Ibid.

[85] [2004] FCAFC 30 para [69].

[86] Ibid para [106].

[87] [1999] FCA 1076 para [31].

[88] Ibid.

[89] Ibid para [35].

[90] W284 v MIMA [2001] FCA 1788 [para 35].

[91] Soltanyzand v MIMA [20001] FCA 1168 para [18] – [19], Long v MIMA [2000] FCA 1172, para [20].

[92] Dobinson & Chiu, above n 15, 43.

[93] M Inghilleri Translation, Interpretation and Asylum Adjudication ESRC 2004; <http://www.esrcsocietytoday.ac.uk/ESRCInfoCentre> .

[94] L Robinson, above n 12, 2.

[95] <http://www.naati.com.au> .

[96] see <http://www.ausit.org/ethic.pdf> .

[97] L Roberts-Smith Address AUSIT Conference Perth 25-27 October 2002, 6 at www.waiti.iinet.net.au/files/justiceLRS.pdf

.

[98] S Hale ‘Advocacy: The complexities of the bilingual courtroom’ (2001) 39 (6) LSJ 68-72, 71.

[99] Ibid 72.

[100] Laster & Taylor, above n 8, 30-41.

[101] Ibid 17.

[102] S Hale, above n 98, 71.

[103] Roberts Smith, above n 15, 7.

[104] Ibid 8.

[105] S Hale, above n 98, 72.

[106] Guideline 11.4, 16.

[107] RRT Interpreters Handbook, Commonwealth of Australia 2003; for an electronic version see <http:www.rrt.gov.au/publications/InterpreterHandbook.pdf<.


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