High Court Cases 

High Court Auckland M 757-SW00; (2000) 14 PRNZ 600; [2001] NZAR 348
13 July 2000; 25 August 2000
Nicholson J

Judicial review - jurisdiction to review - whether decision to arrange independent interpreter amenable to review - whether challenge to independence or competence of interpreter should be made before the hearing has finished and a decision given - standard of independence - standard of interpretation - Immigration (Refugee Processing) Regulations 1999, Reg 20(1)

Interpreter - whether challenge to refusal to change interpreter restricted until after hearing has finished - whether there may be exceptional circumstances where a decision made in the course of hearing concerning interpreter may be of such importance and so obviously wrong to justify review before hearing finished - whether interpreter independent - whether standard of interpretation need be one of perfection - whether clear and convincing evidence required that interpreter not competent

Following the decline of his refugee application on 28 September 1999, the applicant appealed to the Refugee Status Appeals Authority (RSAA).  A hearing date was fixed and the RSAA arranged an interpreter.  The interpreter was the same person who had attended the airport on 25 August 1999.  On the day before the appeal hearing, the solicitors for the applicant advised the RSAA that the applicant did not want that interpreter for his appeal as he believed that the interpreter was not competent to perform the task.

At the hearing on the following day, counsel for the applicant applied for a different interpreter and made submissions in support of the application.  A also made statements and answered questions from the RSAA on the interpreter issue.  The RSAA's questions and A's statements and answers were interpreted by the interpreter.  The Authority declined the application for a different interpreter and gave its reasons for that decision.  The Authority then proceeded, with the hearing starting in the Urdu language which was A's mother tongue and then at A's request, in Punjabi.  There was not enough time to finish the hearing that day and it was adjourned.  On 11 May 2000 review proceedings were filed in the High Court and an interim order sought to restrain the RSAA from continuing the hearing until the application for review had been decided.  The application was adjourned on the basis of an undertaking that the hearing by the RSAA would not resume until the interpreter issue had been resolved either by agreement or by decision of the Court.

It was submitted that in declining A's request that the interpreter be changed, the RSAA had exercised a reviewable statutory power of decision.  The effect of that decision was to not provide A with a fair hearing and was therefore in breach of natural justice.  It was further submitted that the hearing would not be fair because the interpreter was not an independent interpreter and would not provide a competent interpretation.

Regulation 20(1) of the Immigration (Refugee Processing) Regulations 1999 (SR 1999/285) provides that it is the responsibility of the RSAA to arrange for the attendance of an independent interpreter at an interview where the first language of the appellant is not English.

Held:

1.    When the first language of an appellant is not English, the participation of an independent interpreter is a necessary and integral part of the RSAA's exercise of its statutory power of decision.  It follows that a decision by the RSAA about the attendance and functioning of an independent interpreter is part of its exercise of that statutory power and as such is amenable to review by the Court (see para [20]).

Santokh Singh v Refugee Status Appeals Authority (High Court Auckland, M1224-93, 9 February 1994, Smellie J) and Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J) referred to.

2.    On the question whether a refusal to change the interpreter can be reviewed, there are logical and practical reasons for restricting challenge by review until after the hearing has finished.  What is said at the hearing is recorded on audio tape.  The written transcript records the contemporaneous English interpretation of what is said in the other language.  Consideration of whether that interpretation was adequate can be done best by comparing what was actually said as recorded on the audio tape with the English transcript.  Comparison by another interpreter could take considerable time to arrange and do and thereby cause substantial delay.  Also the comparison is likely to be more helpful if it considered all of what was said at the hearing and not just the early part of it.  Furthermore the result of the appeal might be in the appellant's favour and the cost, delay and inconvenience of pre-decision review proceedings would have been unnecessary (see para [22]).

3.    However, there may be exceptional circumstances where a decision made by the RSAA during the course of the hearing may be of such importance and so obviously wrong as to justify its review before the hearing is finished.  For instance if the RSAA provided an interpreter who could only understand the English and French languages and the appellant could only understand the German language (see para [24]).

4.    A challenge by review proceedings to the independence or competence of an interpreter arranged by the RSAA should not be made until the hearing has finished and decision given unless there are exceptional circumstances (see para [25]).

5.    On the facts, the interpreter was independent in the sense that he was not an employee of the  RSAA.  The fact that he had been used as an interpreter by the RSAA and by the Immigration Service on other occasions and that he earlier interpreted what A said at the airport did not amount to him not being an independent interpreter.  Cogent evidence of actual or potential conflict of interest or bias is necessary before the presumption of independence is lost.  There was no such evidence (see para [28]).

6.    As to the standard of interpretation, while it should be high, it need not be one of perfection.  In determining adequacy of interpretation, a qualitative evaluation over the entire hearing should be made and should not be confined to just selective passages (see para [32]).

R v Tran (1994) 117 DLR (4th) 7 (SC:Can) and B v Refugee Status Appeals Authority (High Court Auckland, M1600/96, 23 July 1997, Giles J) followed.

7.    Because of the risk of appellants unjustifiably delaying the appeal process by raising spurious objections to the interpreter arranged, it is appropriate for the RSAA, when dealing with an application for another interpreter, to require the appellant to provide clear and convincing evidence that the interpreter does not meet the appropriate standard.  There is the safety net that if an application is declined because of failure to provide such clear and convincing evidence, then after the hearing an unsuccessful appellant could obtain a copy of the audio tape recording of what was actually said and, if by comparison with the English translation as recorded on the transcript, it emerged that the interpretation was not of the appropriate high standard, then this could be dealt with on its merits by review proceedings in the High Court (see para [33]).

Refugee Appeal No. 70975/98 (3 December 1998) approved.

8.    On the facts no significant inadequacy of interpretation appeared from the transcript.  Indeed, the hearing seemed to have progressed smoothly after the application was declined with a conveying of considerable information to the RSAA without any apparent difficulty (see para [38]).

Observation

1.    The challenge was spurious and the High Court was concerned about the delay and cost to the legal aid fund, the RSAA and High Court resources which the challenge had incurred (see para [40]).

Application for Review dismissed

Other cases mentioned in Judgment

Assn. of Parents for Fairness in Education, Grand Falls Dist. 50 Branch v Société des Acadiens du Nouveau-Brunswick Inc [1986] 1 SCR 549 (SC:Can)
Basyony v Canada (Minister of Employment & Immigration) (1994) 27 Imm LR (2nd) 303 (FC:TD)
Chedyak v Minister of Immigration & Multicultural Affairs [1998] FCA 1731 (Whitlam J)
Perera v Minister of Immigration & Multicultural Affairs (1999) 56 ALD 231 (Kenny J)
Phan v Minister of Immigration & Multicultural Affairs (2000) 171 ALR 323 (Kiefel J)
Sook Rye Son v Minister of Immigration & Multicultural Affairs (1999) 161 ALR 612 (FC:FC)

Counsel

G Monk for the applicant
M A Woolford for the respondents

NICHOLSON J

Application

[1] A has applied for review and setting aside of the decision of the Refugee Status Appeals Authority ("the Authority") declining A's request that the interpreter at the hearing of A's appeal be changed.  A alleged that the interpreter was not independent and competent.

Facts

[2] A is a citizen of Pakistan.  A and two other Pakistan citizens, B and C, arrived at Auckland International Airport on 25 August 1999.  They claimed they were refugees and sought protection and non-refoulment to Pakistan.  An Immigration Officer, Ms Pauline Herbert, arranged for Mr Tahir Umar to interpret.  She explained to A that Mr Umar was not an Immigration Officer but merely an interpreter.  She filled in a spontaneous refugee application form by asking A questions.  These were interpreted into Punjabi by Mr Umar.  A's answers in Punjabi were then interpreted into English by Mr Umar.  Ms Herbert wrote the answers on the form in her own hand-writing.

[3] Having satisfied herself that A wished to claim refugee status, Ms Herbert then explained to him that she wanted him to complete an application form for refugee status.  She told him that to speed up the process she had requested Mr Umar to ask him the questions set out in the application form in Punjabi and to record his answers in English directly on the form.  She told A not to ask Mr Umar for any type of help and that if he had any questions she would answer them.  She then left A and Mr Umar to complete the application form while she attended to other business.

[4] Ms Herbert conferred with the manager of the Refugee Status branch of the Immigration Service and they decided to refuse A a permit.  A was then placed in custody under the provisions of the Immigration Act 1987 ("the Act").

[5] On 7 September 1999 Ms Christina Brennan, a Refugee Status Officer of the Immigration Service interviewed A at length.  The interview was interpreted by an interpreter recorded as "Max".  A had Lalaitha Ramesh, a legal assistant employed by A's lawyers Penney Patel Law, present as his representative.  He repeated his claim that he was a member of the MQM (Mohajir Quami Movement), that he feared the Police and specific political groups in Pakistan and believed that he would be arrested immediately if he returned to Pakistan and would be killed.  He gave detailed information about his activities in Pakistan, his fear of the Police and other people and what would happen to him if he returned to Pakistan.

[6] On 13 September 1999 Ms Brennan sent a copy of her interview report and summary of A's claims to Ms Ramesh asking for comments on them.

[7] By letter of 16 September 1999 Ms Ramesh replied stating:

"We have gone through the interview report with our client and confirm the content is accurate apart from the changes herein."

[9] On 28 September 1999 the Immigration Service wrote to Penney Patel Law advising that it had declined to accord A refugee status in New Zealand and stated the reasons for this.

[10] A appealed to the Authority against that decision.  The appeal was set down for hearing on 14 October 1999.  On 6 October 1999 Mr Monk of Vallant Hooker & Partners, barristers and solicitors, wrote to the Authority advising that he had been instructed to act for A, B and C and requested that the appeals for each of the three be adjourned.  The appeals were adjourned accordingly until 1, 2 and 3 November 1999.  However, on 29 October 1999 Mr Hooker applied for further adjournment on the basis that the appellants were involved in a hunger strike with other refugee applicants in custody at Mt Eden prison and that he had not been able to take instructions because of review applications and other developments regarding the hunger strike.  The Authority adjourned the hearing of the appeals accordingly to 13, 14 and 15 December 1999.

[11] At the further request of Vallant Hooker & Partners, the Authority rescheduled the hearing of B's appeal for 7 March 2000, C's appeal for 8 March and A's appeal for 9 March 2000.

[12] On 7 March 2000 Mr Monk faxed a six page statement by A to the Authority.  On the afternoon of 8 March Mr Monk advised the Authority by fax that A did not want Mr Umar to be the interpreter for his appeal as he believed he was not competent to perform the task for the reasons which Mr Monk then stated.

[13] At the hearing on 9 March Mr Umar was the interpreter.  Mr Monk applied for a different interpreter and made submissions in support of this application.  A also made statements and answered questions from the Authority on the interpreter issue.  The Authority's questions and A's statements and answers were interpreted by Mr Umar.  The Authority declined the application for a different interpreter and gave its reasons for that decision.  The Authority then proceeded with the hearing starting in the Urdu language which was A's mother tongue and then at A's request in Punjabi.  There was not enough time to finish the hearing that day and accordingly it was adjourned.

[14] On 11 May the present review application was filed and an interim order sought to restrain the Authority from continuing the hearing until the application for review had been decided.  The application was adjourned on the basis of an undertaking that the hearing by the Authority would not resume until the interpreter issue was resolved either by agreement or by decision of the Court.

Authority's reasons

[15] In declining the application the Authority said:

". . the Authority will only discharge an interpreter, if there is allegation of incompetence or bias made out and we find that you have made out neither of these.  We reject your suggestion that Mr Umar put himself in the shoes of an immigration officer by filling out an application form at the airport.  The interpreter did not interview the appellant as such, he was simply filling out a form with pre-formulated questions...  As far as your objections to the content of the application form are concerned we make the following observations.  First of all we only have your client's claim that in fact he misunderstood questions and that answers that he gave were wrongly translated and recorded or that questions were wrongly translated.  However, we find that even if there were some errors in the application form, those errors are minor.  We frequently hear, and accept, that appellants are often under a lot of stress at the airport and often do not put forward the full basis of their claim or make mistakes when responding to questions.  It's a very difficult, stressful situation and it's unusual for adverse credibility findings to be made by the Authority on the basis of the content of an application form.  We certainly draw no adverse interference from the fact that some of this form is not completed and if there are any matters which require clarification, that will happen during the interview today.  We note the appellant's evidence today that he was unsure where the interpreter comes from and, in fact, he comes from Punjab in Pakistan.  He comes from the same Province as the appellant and any suggestion that he comes from Gujrat and speaks Gujrati is simply not the case.  We observed the appellant during the introduction today and found that he was answering our questions perfectly well.  There were a few instances in which he required our questions to be repeated or clarified and that took place and we don't believe that there have been any communication difficulties today.  What we propose to do today is to proceed with the hearing.  The interpreter we have today speaks both Punjabi and Urdu and if we were to proceed today in Punjabi we would be able to clarify any misunderstandings that occur.  However, given that the appellant's mother tongue is Urdu and he being a Mohajir from India, we propose to start the hearing in Urdu and hope that that will remedy any potential objection."

[16] Mr Monk submitted that in declining A's request that the interpreter be changed, the Authority had exercised a reviewable statutory power of decision.  The effect of that decision was to not provide A with a fair hearing and was therefore in breach of natural justice.  He submitted that the hearing would not be fair because Mr Umar was not an independent interpreter and would not provide a competent interpretation.  He submitted that Mr Umar was not independent because there was a live allegation that Mr Umar had failed to adequately interpret A's claims when filling in the application form at the airport and that A had no confidence that Mr Umar was competent to interpret vital questions and answers concerning his claim and this in turn reflected upon Mr Umar's competency as the hearing interpreter.

[17] Mr Woolford's primary submission was that either the decision to employ Mr Umar as the interpreter for the appeal hearing was not reviewable as the Authority was not exercising a statutory power in making that decision, or that as a matter of discretion the decision to employ Mr Umar should not be reviewed at this stage because the hearing is incomplete.  Mr Woolford submitted that in any event A's claim for review had no merit as concern about Mr Umar's competency had not been raised until the very eve of the appeal hearing and detailed examination of the application form and the translation at the full day Authority hearing disclosed competent and adequate interpretation by Mr Umar.

Was the refusal an exercise of a statutory power of decision?

[18] The Authority was given statutory recognition and authority by s 129N of the Immigration Amendment Act 1999 ("the Amendment Act").  This endorsed the Authority's function and power to hear and decide an appeal from a determination by a refugee status officer to not recognise a person as a refugee.  Section 129P of the Amendment Act limits the power of the Authority to dispense with or proceed without an interview of the appellant.  Accordingly in determining an appeal the Authority is exercising a statutory power of decision and, except in specified circumstances, must interview an appellant as part of the appeal process.

[19] Section 129Y of the Amendment Act gave power to make regulations relating to the exercise of the Authority's powers under the Refugee Determinations part of the Amendment Act and the Immigration (Refugee Processing) Regulations 1999 ("the Refugee Processing Regulations") were subsequently passed in exercise of this power.  Regulation 20 of the Refugee Processing Regulations provides:

"(1) It is the responsibility of ... the Authority ... to arrange for the attendance of an independent interpreter at an interview where the first language of the ... appellant ... is not English.

(2) An independent interpreter may be dispensed with at an interview only upon the request or application of the ... appellant ... and then only in such circumstances as are agreeable to the ... member or members of the Authority determining the ... appeal ..."

[21] I note that before the conferment of statutory recognition and authority on the Authority in 1999, the Courts had recognised it as a quasi judicial body which was required to observe natural justice in general and that only the highest standards of fairness would suffice since questions of life, personal safety and liberty were at stake - Singh v Refugee Status Appeals Authority Auckland Registry, M 1224/93, (9 February 1994) Sme!lie J; Khalon v Attorney-General [ 1996] 1 NZLR 458, 463.

When can a refusal to change the interpreter be reviewed?

[22] There are logical and practical reasons for restricting challenge by review until after the hearing has finished.  What is said at the hearing is recorded on audio tape.  The written transcript records the contemporaneous English interpretation of what is said in the other language.  Consideration of whether that interpretation was adequate can be done best by comparing what was actually said as recorded on the audio tape with the English transcript.  Comparison by another interpreter could take considerable time to arrange and do and thereby cause substantial delay.  Also the comparison is likely to be more helpful if it considered all of what was said at the hearing and not just the early part of it.  Furthermore the result of the appeal might be in the appellant's favour and the cost, delay and inconvenience of pre-decision review proceedings would have been unnecessary.

[23] All the Court cases about the adequacy of interpretation to which I was referred were brought after the completion of the hearing - B v Refugee Status Appeals Authority & Anor, Auckland Registry, M 1600/96 & HC 146/96 (23 July 1997), Giles J; Société des Acadiens v Association of Parents & Ors [1986] 1 SCR 549; Basyony v Canada Minister of Employment and Immigration (1994) 27 Imm LR, (2nd) 303; Chedyak v Minister of Immigration and Multicultural Affairs [1998] FCA 1731; Sook Rye Son v Minister of Immigration and Multicultural Affairs (1999) 161 ALR 612; Perera v Minister of Immigration and Multicultural Affairs (1999) 56 ALD 231 and Phan v Minister of Immigration and Multicultural Affairs (2000) 171 ALR 323.

[24] However, there may be exceptional circumstances where a decision made by the Authority during the course of the hearing may be of such importance and so obviously wrong as to justify its review before the hearing is finished.  For instance if the Authority provided an interpreter who could only understand the English and French languages and the appellant could only understand the German language.

[25] I decide that challenge by review proceedings to the independence or competence of an interpreter arranged by the Authority should not be made until the hearing has finished and decision given unless there are exceptional circumstances.  However, as I have received information and heard detailed submissions on the issues of Mr Umar's independence and competence, I will continue with the review of the Authority's decision in this case.

Was Mr Umar an independent interpreter?

[26] The Refugee Processing Regulations do not define the word "independent".  I accept Mr Monk's submission that the word should be given the ordinary and natural meaning which coincides with the meaning in the Shorter Oxford English Dictionary (Third Edition) 1964:

"... not contingent or conditioned by anything else ... not influenced or biased by the opinions of others; thinking or acting for oneself ... not depending on another for its value."

[28] Mr Umar is independent in the sense that he is not an employee of the Authority.  The fact that he has been used as an interpreter by the Authority and by the Immigration Service on other occasions and that he earlier interpreted what A said at the airport does not in my view amount to him not being an independent interpreter.  Cogent evidence of actual or potential conflict of interest or bias is necessary before the presumption of independence is lost.  There is no such evidence in this case.

Standard of interpretation

[29] In R v Tran (1994) 117 DLR (4th) 7, the Supreme Court of Canada considered the ambit of an accused person's right to an interpreter as guaranteed by s 14 of the Canadian Charter of Rights and Freedom.  The judgment of the Court was delivered by Lamer C J C.  In dealing with the standard of interpretation he said:

"While the standard of interpretation under s 14 will be high, it should not be one of perfection.  In my view, it can be defined by reference to a number of criteria aimed at helping to ensure that persons with language difficulties have the same opportunity to understand and be understood as if they were conversant in the language being employed in the proceedings.  These criteria include, and are not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness." - p 36

"However it is important to keep in mind that interpretation is an inherently human endeavour which often takes place in less than ideal circumstances.  Therefore, it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection.  As Steele explains, at p 242:


'Even the best interpretation is not "perfect", in that the interpreter can never convey the evidence with a sense and nuance identical to the original speech.  For that reason, the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies.  The benefit of a doubt should be given to the witness.'

In this respect, it may be helpful to note the conceptual distinction that exists between 'interpretation', which is primarily concerned with the spoken word, and 'translation', which is primarily concerned with the written word.  In light of the fact that interpretation involves a process of mediation between two people which must occur on the spot with little opportunity for reflection, it flows that the standard for interpretation will tend to be lower than it might be for translation, where the source is a written text, where reaction time is usually greater and where conceptual differences which sometimes exist between languages can be more fully accommodated and accounted for."- p 37

"But a degree of realism has to be accepted.  Interpreting from one language to another is not a precise science.  Inevitably, there will be room for differences.  Different interpreters will no doubt have different views as to the correct translation, nuance and emphasis.  That point is well made in Basyony v Canada (Minister of Employment and Immigration) (1994) 27 Imm LR, (2nd) 303, 306 where Reed J notes:


'The applicant before me stated that his purpose in referring to the errors of translation, in his leave application and in his request for reconsideration, was to demonstrate that the quality of the hearing before the CRDD was defective.  He viewed the interpreter, the hearing officer and the board as being opposed to his claim from the beginning and as working together to defeat that claim.  While the applicant may feel that this was the case, this Court cannot so conclude without clear and convincing evidence.  Some errors in translation, which do not affect the overall outcome of the hearing, are not sufficient for that conclusion.  One is mindful of the fact that translation is not an exact science.  There is always room for differences in nuance between what is said in one language and its translation into another.  This can occur without any malicious intent on the part of the translator.  Such inexactitude has to be expected.  I could not draw, from the evidence which was put before me the conclusion which the applicant draws.' - p 30

[33] In Refugee Appeal No. 70975/98 (3 December 1998), in dealing with an application that another interpreter be used at the hearing, the Authority stated that the appellant would have to provide clear and convincing evidence that the interpreter was not competent before it would do this.  Because of the risk of appellants unjustifiably delaying the appeal process by raising spurious objections to the interpreter arranged, I agree that it is appropriate for the Authority, when dealing with an application for another interpreter, to require the appellant to provide clear and convincing evidence that the interpreter does not meet the appropriate standard.  There is the safety net that if an application is declined because of failure to provide such clear and convincing evidence, then after the hearing an unsuccessful appellant could obtain a copy of the audio tape recording of what was actually said and, if by comparison with the English translation as recorded on the transcript, it emerged that the interpretation was not of the appropriate high standard then this could be dealt with on its merits by review proceedings in this Court.

Standard in this case

[34] A and his counsel Mr Monk criticised the precision of Mr Umar's interpretation at the airport and at the Authority hearing.  They filed an affidavit sworn on 11 July 2000 by A A Khwaja, a highly qualified and experienced interpreter in Urdu and Punjabi.  Mr Khwaja was born in Pakistan in 1956 and left there in 1992.  He lived in New Zealand from 1995 to June this year.  He presently resides in Sydney.  Mr Khwaja deposed:

"In my opinion, as a professional interpreter, I have concerns about Mr Umar being retained as an interpreter by the Refugee Status Appeal Authority.  The client in this case [A] has already occasioned one instance when he says he had difficulty understanding Mr Umar and he is able to contrast that with another instance with a different interpreter where there was no difficulty being understood or understanding the interpreter.  The difficulties in communication referred to by [A] between himself and Mr Umar are logical and reflect different dialects and his village of origin.

As a professional interpreter it is essential in the interpretation that the client fully understand you and that you fully understand the client.  From my knowledge of this case, that prerequisite does not appear to exist.  In my experience also, the Tribunal will not know whether the interpretation being offered by Mr Umar is accurate or inaccurate.  The Tribunal must rely entirely on the interpretation given to it of what [A] might say.  Any misunderstanding or errors can in my experience be easily masked before the Tribunal by the interpreter.  The interpreter bears the responsibility of ensuring that there is no masking of the misunderstandings between yourself and the client ...

I also understand that the Refugee Status Appeal Authority determined to conduct the interview with [A] in the language of Urdu.  Although I have said before in this affidavit that this language is widely used in Pakistan, I understand that it is not the principal language of the applicant.  As an interpreter it is important, I believe, to use the primary and native language of the client, in this case Punjabi.  In my experience, although a person may be able to converse in a second language, it is not their native language and they may not be able to freely express themselves on difficult issues in their second language."