Perera v Minister for Immigration & Multicultural Affairs [1999]

MIGRATION LAW - Refugee Review Tribunal - use of an interpreter - whether the Tribunal erred in law in failing to provide an adequate interpreting service - whether there was an absence of jurisdiction - role of an interpreter - whether there was a relevant departure from the relevant standard of interpretation.

Migration Act 1958 , s 425, s 427, s 475(1)(b), s 476(1)

Migration Regulations 1994, clause 866.221

Dietrich v The Queen (1992) 177 CLR 292 referred

R v Saraya (1993) 70 A Crim R 515 referred

R v Johnson (1987) 25 A Crim R 433 referred

The King v Lee Kun [1916] 1 KB 337 referred

Kunnath v The State [1993] 1 WLR 1315 at 1319-1321 (PC) referred

R v Begum (1985) 93 Cr. App. R. 96 referred

R v Tran [1994] 2 SCR 951 referred

United States ex rel. Negron v New York 434 F.2d 386 (2d Cir 1970) referred

Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 referred

Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 referred

Ebatarinja v Deland (1998) 157 ALR 385 referred

Sook Rye Son v Minister for Immigration and Multicultural Affairs (unreported, Burchett, Moore and Katz JJ, 23 March 1999) referred

Tejeda-Mata v Immigration and Naturalization Service 626 F.2d 721 (9^th Cir 1980) referred

Augustin v Sava and Doyle 735 F.2d 32 (2d Cir 1984) referred

Hartooni v Immigration and Naturalization Service 21 F.3d 336 (9^th Cir 1994) referred

Gonzales v Zurbrick 45 F.2d 934 (6^th Cir 1930) referred

Gaio v The Queen (1960) 104 CLR 419 referred

R v Johnson (1987) 25 A Crim R 433 referred

Potter v Melbourne and Metropolitan Tramways Board (1957) 98 CLR 337 referred

R v Blakeley; ex parte Association of Architects etc of Australia (1950) 82 CLR 54 referred

R v Coldham; ex parte Australian Workers' Union (1983) 153 CLR 415 referred

Kfouri v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Olney J, 8 July 1994) referred

Acewicz v US Immigration and Naturalization Service 984 F.2d 1056 (9^th Cir 1993) referred

Mendiola v Texas 94 SW2d. 157 (Tex. App. 1995) referred

United States v Urena 27 F.3d 1487 (10^th Cir 1994) referred

Yi Gui Stone v Minister for Immigration and Ethnic Affairs (unreported, Hill J, 28 June 1996) referred

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred

Navaratne v Minister for Immigration and Multicultural Affairs (unreported, Tamberlin J, 1 August 1997) referred

Thangarajah Thillainadarajah v Minister for Immigration and Multicultural Affairs (unreported, Heerey J, 3 December 1997) referred

Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, O'Connor, Branson and Marshall JJ, 8 September 1998) referred

Barkat Ali v Minister for Immigration and Multicultural Affairs (unreported, Sackville J, 25 May 1998) referred

Kathiresan v Minister for Immigration and Multicultural Affairs (unreported, 4 March 1998) referred

Abalos v Australian Postal Commission (1990) 171 CLR 167 referred

Devries v Australian National Railways Commission (1993) 177 CLR 472 referred

Warren v Coombes (1979) 142 CLR 531 referred

Abebe v The Commonwealth of Australia [1999] HCA 14 referred

The Returned & Services League of Australia (Victoria Branch) Inc (Pascoe Vale Sub Branch) v Liquor Licensing Commission and Another [1999] VSCA 37 referred

Kenneth Polack and Anne Corsellis, "Non-English speakers and the criminal justice system - Part 2", 30 November 1990, New Law Journal, 1676

Ludmilla Robinson, Handbook for Legal Interpreters (Law Book Co Ltd, 1994)

Commonwealth Attorney-General's Department, Report on Access to Interpreters in the Australian Legal System (AGPS Canberra, April 1991)

The Law Society of New South Wales, Guide to Best Practice: Lawyers, Interpreters and Translators (Sydney, 1996)

Michael B Shulman, "Note: No Hablo Ingles: Court Interpretation as a Major Obstacle to Fairness for Non-English Speaking Defendants" (1993) 46 Vand. L. Rev. 175

APARERAKKAGE SUMITH ROHANA PERERA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 738 of 1997

KENNY J

MELBOURNE

28 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 738 OF 1997

BETWEEN:

APARERAKKAGE SUMITH ROHANA PERERA Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: KENNY J

DATE OF ORDER: 28 APRIL 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1.  The decision of the Refugee Review Tribunal made on 28 November 1997 that "the Tribunal is not satisfied that the applicant is a refugee and affirms the decision not to grant a protection visa" be set aside, with effect from 28 November 1997.

2.  The matter to which the decision relates be referred to the person who made the decision for further consideration.

3.  The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 738 OF 1997

BETWEEN:

APARERAKKAGE SUMITH ROHANA PERERA Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: KENNY J

DATE: 28 APRIL 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT

1. This is an application under s 475(1)(b) and s 476(1) of the Migration Act 1958 ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of the respondent, by his delegate, not to grant the applicant a protection visa. The applicant, Aparerakkage Sumith Rohana Perera, was born on 22 January 1966 and is a citizen of Sri Lanka. He arrived in Australia on 11 September 1996, holding a one-month business visa issued in Colombo on 9 September 1996.

2. On 3 October 1996, Mr Perera lodged an application for a protection visa. Section 36 of the Act provides:

(1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The Refugees Convention is defined in s 5(1) as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol, as the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Further provision is made for protection visas in Schedule 2 of the Migration Regulations 1994, clause 866.221 of which provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Those protection obligations arise in relation to a person who falls within the definition of "refugee" in the Convention as amended by the Protocol (collectively "the Convention"). A refugee is defined in Article 1A(2) of the Convention as any person who

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ... .

In this case, the decision to be reviewed is the Tribunal's decision that it is not satisfied that Mr Perera has a well-founded fear of being persecuted in Sri Lanka by reason of his political opinion.

BACKGROUND FACTS

3. Mr Perera's case is that he is a human rights lawyer and a known supporter of the Janatha Vimukthi Peramuna ("the JVP"), described by the Tribunal as "a Marxist group with predominantly Sinhalese support"; that, as such, he has aroused the animosity of the Government and Mr Balapatabendi, the Presidential Secretary; and that, in consequence, he fears that he will be killed if he returns to Sri Lanka. Mr Perera said that he became a JVP supporter in 1986 when he was an undergraduate at the University of Colombo; that he participated in student politics as a JVP representative, becoming Assistant Secretary of the Student Union for 1986/1987 and an active member of the Inter-University Student Organisation; and that he was a JVP "instructor" and actively carried out the policies of the JVP. He said that he assisted in fund-raising and recruitment for the JVP. According to Mr Perera, he kept his political activities secret, but, in January 1988, his family, who were not JVP supporters, received a letter (or letters), written anonymously over the name "Black Cats", which told them of his involvement with the JVP. His family responded by having him hide in an uncle's house until the perceived danger was over. Mr Perera went on to say that, in August 1992, his parents again received an anonymous letter (or letters), purporting to be from the "Black Cats", which referred to the fact that he had resumed his political activities on behalf of the JVP and, as translated, stated that "[u]nless this is stopped immediately Please take notice that you are nearing death" [sic]. In September 1992, his parents sent him to India for about two weeks.

4. Mr Perera states that he obtained a degree in law from the University of Colombo in 1993 and, in December 1994, after attending the Sri Lanka Law College, he commenced practice as an attorney-at-law. He remained in practice until he travelled to Australia in September 1996, ostensibly to attend a Labour Law Conference in Darwin.

5. Mr Perera stated that, after entering practice, he continued to be involved in politics and, at one stage, became one of a number of JVP members involved in organising strikes aimed at the Government. Mr Perera stated further that he appeared for some of the strikers and members of their families who were arrested on account of their participation in the strike. He also claimed responsibility for the initiation of four proceedings in the Supreme Court of Sri Lanka against heads of the Government's administration, including Mr Balapatabendi. The proceedings alleged failures to appoint to office or to promote to higher office in the public service attributable to the political affiliation of those passed over. Three of the proceedings did not, it seems, proceed to judgment. Mr Perera was unaware of the outcome of the fourth, although he stated that the case had been mentioned in Parliament. It was part of Mr Perera's case before the Tribunal that the litigation had brought the Government (and Mr Balapatabendi) into disrepute and that, for that reason, Mr Perera had become a marked man in Sri Lanka. In this context too, Mr Perera referred to a campaign against the appointment of a "Lady Judge for the Supreme Court" which was led by the Sri Lankan Bar Association. He stated that it was his belief that the Government suspected him of being "one of the Leaders in the protest movement".

6. Finally, Mr Perera referred to a number of instances which, so he said, fuelled his fear. In a statutory declaration dated 5 December 1996, he stated:

On one occasion in 1995 when my brother-in-law was driving my vehicle, some unknown gang stopped the vehicle and called my brother-in-law by my name assuming that my brother-in-law was me. The gang asked my brother-in-law to get out of the car. Their behaviour was unruly. My brother-in-law left my vehicle and ran away to protect his life. They damaged my vehicle and pushed it into a drain.

Whilst Mr Perera was travelling by train in February 1996, a brief case which he had with him was stolen. The brief case contained documents about professional matters and, in particular, the cases in which he was then involved. Further, in late August 1996, security agents and the police made inquiries about Mr Perera of prominent people in his neighbourhood. Subsequently, the police came to his family home and searched it. On leaving the house, the police left a message for Mr Perera to come to the police station. Mr Perera also relied on a letter dated 10 January 1997, which he had received from his sister, stating that, at about 1.00 am the previous night, his mother and sister had answered the door to about six people, claiming to be from the Criminal Investigation Department. They made inquiries about Mr Perera and his whereabouts.

7. Mr Perera's application before the Tribunal was supported, amongst other things, by copies of the "Black Cats" letters, his sister's letter and the Supreme Court petitions (or parts of them). There was also a statutory declaration dated 18 September 1997 from another Sri Lankan attorney-at-law who stated that he had known Mr Perera well for a long time, that Mr Perera was "well known as a Human Rights Lawyer", and that he was involved "in some high profile cases". The declarant said further that he had spoken with friends in the armed forces, one of whom had said "if Sumith Perera return[s] to Sri Lanka, he will be killed by the Authorities, and the President's Secretary Balapatabendi has a very personal grudge for exposing his corrupt and unjust behaviour in the Supreme Court".

8. At the hearing before the Tribunal on 28 October 1997, Mr Perera gave evidence in Sinhalese, by means of an interpreter. There were no other witnesses. His migration agent was also in attendance. At the conclusion of the Tribunal hearing, the Tribunal gave him the opportunity to make further submissions on his claims. His migration agent made further submissions on his behalf by letter dated 30 October 1997, which included the following statement:

I note that there is no NAATI accreditation for Sinhalese interpreters. I note that the interpreter became confused on a number of occasions in the performance of her duties at the hearing and I submit that this needs to be taken into account in assessing the evidence as a whole as well as the credibility of the applicant.

On 28 November 1997, the Tribunal decided to affirm the decision not to grant a protection visa to Mr Perera.

REASONS FOR DECISION OF THE TRIBUNAL

9. Save for two matters, the applicant by his counsel did not take issue with the Tribunal's description of the applicant's claims (outlined above). The Tribunal accepted that Mr Perera "may have been a member of the JVP from 1988 onwards" but it did not accept that he "was a high profile member of the party". It said:

The applicant's response to the Tribunal on a number of questions about his activities was vague and general, and there was nothing in his response which would suggest that the applicant was a person who had an active and important role in shaping the policies and directions of the party. The Tribunal therefore considers that the applicant is not a person who would be of interest to the Sri Lankan authorities because of his political opinion and association with the JVP.

The Tribunal reached that conclusion after a brief discussion of the political situation in Sri Lanka and the legal status of the JVP. Relying on information from the Australian Department of Foreign Affairs and Trade, including information from the High Commission in Colombo, the Tribunal observed that:

The JVP participated in the 16 August 1994 general elections and won one seat, and also participated in the 1994 Presidential elections. The Sri Lankan government now tolerates the JVP as a legal political party, and no longer takes any action against past or present JVP members as such.

...

A person would no longer be detained simply because of membership or past membership of the JVP...

[K]nown former JVP operatives and current JVP members hold significant positions in government, semi-government, academic institutions and private business...

The Tribunal declined to accept that the "Black Cats" letters were genuine, noting that they were "in pristine condition and appeared to be written on the same type of paper, and signed by the same hand, even though dated four years apart". The Tribunal went on to say that, even if the letters were genuine, "they were written five to nine years ago, and nothing happened to the applicant as a result".

10 The Tribunal also found that Mr Perera's claims about his involvement in the organisation of strikes and his representation of strikers and their families were "unconvincing". It said:

For a person who claimed such a high profile in political and union life, his memory of important dates about politics and strikes was poor. The Tribunal does not accept that a lawyer whose work revolved primarily around human rights and trade union activities would be unable to recall such detail ... .

The Tribunal doubted the authenticity of documents said to be copies of Supreme Court petitions. It observed, amongst other things, that the petitions were written in poor English; that they were disjointed; and that they contained "numerous typographical and grammatical errors". Even on the assumption they were genuine, the Tribunal declined to accept the applicant's claim that he had, by reason of them, attracted "adverse interest from ... the Government". The Tribunal found "the applicant's information in relation to these actions [in the Supreme Court] ... vague and general". The Tribunal went on to say that:

[it] accepts that a person with limited education or experience may have difficulty in articulating such issues, but it does not accept that a person of the claimed education, experience of and commitment to human rights issues as that of the applicant would be unable to talk in any depth about these matters. The Tribunal therefore considers that the applicant has embellished his participation in these activities in order to bolster his claims."

The Tribunal formed the same view about Mr Perera's submissions concerning the campaign against the appointment of a woman as a judge on the Sri Lankan Supreme Court.

11. The Tribunal also dismissed, as not "credible ... as an indication that the applicant was being harassed by the ... government", the accounts of the incidents involving the applicant's brother-in-law and the theft, on the train, of his brief case. The Tribunal went on to say that it has

noted the statutory declaration by the applicant, the letter from the applicant's sister about an alleged visit to the applicant's home in January 1997 by the Criminal Investigations Unit, the copy of the alleged police report on this matter, and the statutory declaration by a friend of the applicant currently visiting Australia that he had heard that the applicant was wanted by the authorities. The Tribunal gives no weight to these documents, however, as it considers the tone and information provided to be contrived and self-serving.

Finally, on the question of the interpreter, the Tribunal wrote:

The Tribunal notes that neither the adviser nor the applicant at any stage during the hearing made any comments about the interpreter, although they had ample opportunity to do so. The Tribunal notes that this claim has been submitted only after the hearing. The Tribunal does not accept that the interpreter did not competently translate the material presented by the applicant.

GROUNDS FOR REVIEW

12. The applicant relied on a number of grounds for review, including actual bias (upon leave to amend his application of December 1997 being granted at the hearing). In view of the conclusion I have reached, however, it is necessary to refer to only one ground, namely, that the Tribunal erred in law in failing to provide "adequate or proper interpreting services".

FAILURE TO PROVIDE AN ADEQUATE INTERPRETING SERVICE

13. Counsel for the applicant submitted that the transcript of the Tribunal hearing on 28 October 1997 showed that the interpreter was incompetent. Counsel for the respondent did not object to the use of the transcript for the purposes of assessing the quality of the interpretation, although he submitted that the applicant had not made out his case.

14. Counsel for the applicant relied on numerous transcript passages, including passages relating to the applicant's statement that Mr Balapatabendi had "personally taken against" him (transcript 10-12). Part of the passage reads as follows:

Interpreter: ... Then after I took my oaths as a lawyer, I have been involved with the JVP and helped with them in organising strikes. Also certain people who participated in these strikes were arrested, I have appeared for them. Also I have appeared for trade unionists in their cases against fundamental rights, when they were denied fundamental rights. Also I have appeared for some of our members when they were - in human rights cases, when they were denied their legitimate promotions, etcetera. Some of those cases were filed against the Secretary for the President. The President's Secretary is a very powerful person in Sri Lanka and he's the sort of person - he has taken it against me because of this.

Tribunal: How do you know that he has personally taken against you?

Interpreter: There was a lady judge appointed for the first time into the Supreme Court and they were under the impression - and there was sort of commotion because of this, as a result of this, and they are under the impression that I was also in that, like I was against that and they had come home and they had sent thugs home.

Tribunal: Who is the they?

Interpreter: I think it starts from the ... (indistinct) ... that they had come home and spoken to my mother, spoken to my mother about this case and they abused her and left, abused her verbally and they had formal mentioned about this case. Because of that, I feel it is from this

...

Tribunal: Okay, so you said that your sister said that some thugs had come on 9 January about this case? What is the particular case that they are inquiring about?

Interpreter: It is...

Tribunal: Well, you said that you thought that the secretary general had taken a set against you and there was a lady judge appointed to the Supreme Court and that this caused a lot of dissension. You then said that thugs from the PA Government came and spoke to your mother about the case, because they thought that you were opposed to the lady judge. Now, I am just trying to clarify what exactly it is.

Interpreter: Do you want the details of the case?

Tribunal: Well, yes. What particular case is it?

Interpreter: I have submitted all the full details of all those cases.

Tribunal: You submitted some details of some cases here that talk about some people who have petitioned because, as I understand it, they did not get promotion within the public service, right? And that petition was 22 December 1995, so what has that got to do with the Supreme Court judge?

Interpreter: There was no connection as such, but they had thought that I was also responsible for it and because ...

Tribunal: The judge, the Supreme Court judge?

Interpreter: No, bad name for the Government, because of the infame this brought the Government, they had come to threaten me, because this particular case was not in favour of the Government.

Tribunal: So you are saying that the two actions that you filed, or the three actions that you filed here by the various people within the Sri Lankan public service about not getting promotion, you are saying that caused a lot of problems with the Sri Lankan Government, are you?

Interpreter: The Secretary of the President had sort of a bad reputation and infame, because of that, because of those cases.

...

Tribunal: Okay. So these cases were filed in - one was filed in December '95. When else were cases filed?

Interpreter: Three were filed in December '95 and the other one in August '96, so far as I remember.

...

Tribunal: And was there a decision made by the court about these cases?

Interpreter: The case finally ... (indistinct) ... I handed it over to another lawyer before I came, so I do not know what has happened about them, but with the other three, there was a problem with the time factor, there is time, time to find cases and there was a problem with that, so because of that the court was unable to proceed.

Tribunal: So ...

Interpreter: In this regard, there was questions raised in Parliament by, in JVP, minister, MP, by the name of ... (indistinct) ... the JVP's member - there were questions raised by him in Parliament with this regard.

Tribunal: Yes, okay. Now, just let me clarify. The first three were filed and they were filed out of time, so nothing happened about them, is that correct?

Interpreter: The case was heard, but no decision was arrived at. No judgment was reached then because of the problem of the time factor.

A significant number of Mr Perera's answers failed to respond specifically to the questions asked of him by the Tribunal. Some answers lacked coherence. Though the general thrust of his evidence might be discerned, there would appear to have been some significant confusion in the mind of the interpreter or Mr Perera (or both) as to what was being asked. 15 There were other passages in which questions and answers did not correspond well. Two further examples follow. Both relate to key issues. In relation to the legal status of the JVP, the following exchange took place (at transcript 26-28):

Tribunal: Now, you have said that the JVP only became legal in the last few months. In fact the country information which was also presented in the original decision-maker's decision ... indicates that the JVP has been legal for quite some time and has been operating over and within the parameters of the law. So I am finding it hard to find it credible that you would be wanted by the authorities on the basis of your association with JVP?

Interpreter: There have been ... (indistinct) ... in open politics not as the JVP but as the Patriotic People's Movement.

Tribunal: There is a JVP member of parliament, however, and the JVP is a legal party.

Interpreter: He is a member in parliament but he is not from the JVP. He came to parliament on the - earlier I said it was the People's - Patriotic People's Movement.

Tribunal: Yes.

Interpreter: Whereas it may not be. It may not be that now. It is the Patriotic People's Front. Progressing, sorry, People's Front.

Tribunal: So you are saying this person is a member of the Progressive People's Front, however, the JVP is a legal organisation in Sri Lanka and it has been for some time.

Interpreter: Then it ... (indistinct) ... and it became the ... (indistinct) ... months back and certain people in the JVP have been taken into custody. Now, ... (indistinct) ... police and the reason the President has made a proclamation that a new file should be opened for members of the JVP and this was an account in the ... (indistinct) ... paper, published in the ... (indistinct) ... paper.

Tribunal: The fact is that the JVP has been operating openly since before the '94 elections and that information was contained in the original decision-maker's decision?

Interpreter: Yes, but that person came into parliament not through the JVP but just the Progressive People's Front, he came from that part[y] and there was a case in this connection also.

Tribunal: I am not discussing one particular member of parliament, I am giving the more general information that you already have that the JVP has been able to operate legally since before the '94 elections?

Interpreter: Yes, but still they [do] not come into power under the name JVP but under the Progressive People's Party and the situation in the country was such that at that time ... (indistinct) ... they wanted to change the garment [government?], and because of this certain principles of the ... (indistinct) ... garment [government?] appealed to the JVP and they ... (indistinct) ... .

Tribunal: Okay. You read the information, did you, contained in the original decision-maker's report, the country information?

Interpreter: Yes.

Tribunal: And you understood that?

Interpreter: Yes.

16. The exchange concerning Mr Perera's participation in strike action is no better (transcript 14-15). The relevant passage reads:

Tribunal: So apart from filing these applications, what other things have you done that they would be seeking you for?

Interpreter: I have means of ... (indistinct) ... strikes from JVP and in this commission I was aware ... (indistinct) ... that they are seeking me.

Tribunal: Okay. Is there anything in particular about any particular strike you want to tell me about?

Interpreter: Yes, there is this radio ... (indistinct) ... "Voice of America" in a place called ... (indistinct) ... and the Government said that that would be removed.

Tribunal: Okay. So what was your part in this?

Interpreter: We come together as a group and did this agitation, carried on this agitation.

Tribunal: Yes, so you were part of the group; and what happened when you had this agitation?

Interpreter: There is the police come to contact and as the agitation was going on the police came and one person was killed.

Tribunal: And what happened to you?

Interpreter: I was not being gaoled in that, but because we were responsible for it, I was also responsible for it, I feel they are seeking.

Tribunal: When did this strike happen?

Interpreter: I cannot quite remember the date, but it was about two or three months after the ... (indistinct) ... Government came into power. It would be February.

Tribunal: February of what year?

Witness: '96.

Interpreter: '96.

Tribunal: In February '96.

Witness: '95, sorry, '95.

Tribunal: February '95. So were you arrested at this demonstration?

Interpreter: No.

Tribunal: Were you detained?

Interpreter: No.

In both the passages set out above, Mr Perera's answers are frequently unresponsive to the specific questions asked and, at times, virtually incoherent. Either the interpreter or Mr Perera (or both of them) failed adequately to understand what it was that the Tribunal was asking. Mr Perera's references to the status of the "JVP" parliamentarian contain inconsistencies which seem to arise from inadequate communication and which are never explained. In the first passage, indeed, the failure to achieve any meaningful communication apparently led the Tribunal to give up its inquiry and to rely, instead, on Mr Perera's answers to the last two blanket questions. In view of the confusion attending the previous series of specific questions and answers, however, the significance of the two answers must be doubtful. (The three passages to which I have referred are not the only examples of communication difficulties: others appear at transcript 18, 19, 20, 24, 26-27 and 29.)

(a) A ground for review?

17. Counsel for Mr Perera submitted that the interpretation made by the interpreter at the Tribunal hearing was inadequate and that, in relying on it in reaching its decision, the Tribunal had fallen into error. I accept that a failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground for review within s 476 of the Act. This follows, in my view, from the provisions of the Act and, in particular, s 425 and s 427.

(b) Absence of an interpreter may mean the Tribunal has no jurisdiction

18. In criminal trials, there is a rule that an accused must be physically present in court. The rule, it is said, is intended to ensure that the accused is able to hear the case against him and to have an opportunity to answer it. The same rationale is said to inform the approach taken in the criminal courts with respect to the use of interpreters. In the case of an accused who is not sufficiently proficient in English to understand the proceedings or to make himself understood, the trial judge must, as part of his duty to ensure a fair trial, see to it that the accused receives the assistance of a competent interpreter: Dietrich v The Queen (1992) 177 CLR 292 at 331 per Deane J; R v Saraya (1993) 70 A Crim R 515 at 516 per Badgery-Parker J (with whom Kirby ACJ and Loveday AJ agreed); R v Johnson (1987) 25 A Crim R 433 at 435 per Shepherdson J and 442-3 per Derrington J; The King v Lee Kun [1916] 1 KB 337 at 341-343 per Lord Reading CJ; Kunnath v The State [1993] 1 WLR 1315 at 1319-1321 (PC); R v Begum (1985) 93 Cr. App. R. 96 at 100-101; R v Tran [1994] 2 SCR 951 at 963; and United States ex rel. Negron v New York 434 F.2d 386 (2d Cir 1970).

19. For similar reasons, there may be a need for the services of an interpreter in a civil proceeding: cf Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 423-4 per Kirby P, 425 per Samuels JA and 427 per Clarke JA and Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 81 per Mahoney JA.

20. In relation to the Refugee Review Tribunal, Parliament has recognised that an applicant for refugee status is to be given an opportunity to give evidence before a decision against him or her is made and that, in so doing, the applicant may need the assistance of an interpreter. If the Tribunal cannot make the decision most favourable to the applicant "on the papers", s 425(1)(a) provides that the Tribunal "must give the applicant an opportunity to appear before it to give evidence". The Tribunal must notify the applicant that "he or she is entitled to appear before the Tribunal to give evidence": see s 426(1)(a). The Tribunal may take the evidence on oath or affirmation to the effect that the evidence to be given will be true: see s 427(1)(a) and s 427(5). Sub-section 427(7) specifically provides:

If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.

If not proficient in English, the applicant is effectively unable to exercise his right to give evidence unless an interpreter assists him. The Tribunal is unable to give the applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter to assist. Thus, in my view, if an applicant for refugee status is unable to give evidence in English, the effect of s 425(1)(a) is to necessitate the making of a direction, pursuant to s 427(7), that communication proceed through an interpreter. The terms of any such direction extend to the whole of the hearing and are not limited to the applicant's evidence.

21. Given that, absent an interpreter, the Tribunal is unable to afford an effective opportunity to a non-English speaking applicant to give evidence, then, in my view, the Tribunal lacks the jurisdiction to continue the hearing before it unless it provides an interpreter: cf Ebatarinja v Deland (1998) 157 ALR 385 and Sook Rye Son v Minister for Immigration and Multicultural Affairs (unreported, Burchett, Moore and Katz JJ, 23 March 1999) para 1 per Burchett J. If it were to proceed, the Tribunal's decision would be reviewable upon the ground set out in s 476(1)(b) of the Act (or s 476(1)(c) or s 476(1)(e)). Alternatively, it might be said that the Tribunal's failure to provide an interpreter in such a circumstance constituted a failure to observe the procedures required by the Act to be observed in connection with the decision: see s 476(1)(a) and compare s 420(2)(b)); Sook Rye Son paras 1 and 3 per Burchett J, para 16 per Moore J and para 50 per Katz J; and Abebe v The Commonwealth of Australia [1999] HCA 14. (The Court held, in Sook Rye Son, that the Tribunal committed a reviewable error by inviting an interpreter to give an opinion as to the probable origin of the Korean dialect of the applicant for refugee status whose evidence was being interpreted.)

22. A similar view with regard to refugee and immigration hearings is taken in other jurisdictions. In the United States, for example, a non-English speaking person facing deportation has been said to have a fundamental right to participate effectively in deportation proceedings by having the proceedings competently translated into a language which he or she understands: Tejeda-Mata v Immigration and Naturalization Service 626 F.2d 721 at 726 (9^th Cir 1980); cert. denied 456 U.S. 994 (1982); Augustin v Sava and Doyle 735 F.2d 32 at 37-38 (2d Cir 1984); Hartooni v Immigration and Naturalization Service 21 F.3d 336 at 340 (9^th Cir 1994). The right is said to derive from statute and regulations, as well as from the due process clause of the Fifth Amendment to the US Constitution.

23. In the present case, the Tribunal appointed an interpreter at Mr Perera's request. Counsel for Mr Perera submits, however, that the quality of the interpretation was so poor that the Tribunal did not give him an effective opportunity to give evidence. That submission depends, in my view, upon the role of the interpreter in a Tribunal hearing and the standard of interpretation appropriate to that role. Accordingly, I deal with those matters first.

(c) The role of the interpreter

24. "The right to a hearing is a vain thing if the [applicant for refugee status] is not understood.": Gonzales v Zurbrick 45 F.2d 934 at 937 (6^th Cir 1930). In this country, the function of an interpreter in courts and tribunals is to convey in English what has been said in another language (and vice versa). 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. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication: see Gradidge v Grace Bros Pty Ltd (1988) 93 FLR at 425 per Samuels JA. An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end.

25. Notwithstanding that Kitto J described an interpreter as "a bilingual transmitter" or "a translating machine" (in Gaio v The Queen (1960) 104 CLR 419 at 430-431), interpretation is no mere mechanical exercise: see, for example, Michael B Shulman, "Note: No Hablo Ingles: Court Interpretation as a Major Obstacle to Fairness for Non-English Speaking Defendants" (1993) 46 Vand. L. Rev. 175 at 177. Interpreting reliably involves both technical skill and expert judgment. See, for example, Kenneth Polack and Anne Corsellis, "Non-English speakers and the criminal justice system - Part 2" New Law Journal, 30 November 1990, at 1676; and Commonwealth Attorney-General's Department, Report on Access to Interpreters in the Australian Legal System, (AGPS Canberra, April 1991) para 5.2.1.

26. Perfect interpretation may, moreover, be impossible. As Ludmilla Robinson observed in Handbook for Legal Interpreters (Law Book Co Ltd, 1994) at 98 "[v]ery rarely is there an exact lexical correspondence between the two languages being used." Schulman writes at 46 Vand L. Rev. 177:

No matter how accurate the interpretation is, the words are not the defendant's nor is the style, the syntax, or the emotion. Furthermore, some words are culturally specific and, therefore, are incapable of being translated. Perfect interpretations do not exist, as no interpretation will convey precisely the same meaning as the original testimony. [citations omitted]

Nonetheless, some interpretations will be better than others, and a particular interpretation may well be less than perfect yet acceptable for the Tribunal's purposes. How bad must an interpretation be to render reliance on it reviewable error? By what criteria is the quality of an interpretation to be assessed?

(d) Standard of interpretation

27. So far as the researches undertaken for this case show, there has been no detailed consideration of the latter two questions in Australian courts. Counsel did, however, refer me to the decision in R v Tran [1994] 2 SCR 951, a decision of the Supreme Court of Canada, in which Lamer CJ delivered the judgment of the Court (constituted by himself, La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ). The right to an interpreter, which was under consideration in that case, derived from s 14 of the Canadian Charter of Rights and Freedoms (which has no equivalent in Australia). Nonetheless, the Court's analysis of the content of the right is helpful in answering the questions raised by the present case.

28. In Tran, the Court sought to define a standard of interpretation 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": [1994] 2 SCR at 985. According to the Court, "[t]hese criteria include, and are not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness": [1994] 2 SCR at 985. The criterion of continuity means that breaks in interpretation and mere summaries of a proceeding are not acceptable: [1994] 2 SCR at 986. That conclusion accords with the decision in Kunnath v The State [1993] 1 WLR 1315. An interpreter must also be, and be perceived to be, impartial. A Full Court of this Court so held in Sook Rye Son, to which I have already referred. No question arises in this case as to the contemporaneousness of the interpretation, and so the question whether, for Tribunal purposes, an interpretation must be contemporaneous is for another day. Subject to what follows, the criteria in question on this application are those of precision and competence.

29. The need for precision or, as I think it is better put, accuracy is clear enough. As Menzies J said in Gaio (1960) 104 CLR 419 at 433:

What is important is what the parties to the [interpreted] conversation say to one another and the only importance of the interpreter is to serve as an accurate means of communication between them. [Emphasis added.]

As noted earlier, there is rarely an exact lexical correspondence but, even so, some interpretations are better than others. Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language. On a petition for a writ of habeas corpus seeking judicial review of an order for exclusion and deportation against a Haitian refugee, the US Court of Appeals for the Second Circuit said, in Augustin v Sava and Doyle 735 F.2d 32 at 37-38:

Without attempting precisely to map the contours of due process in the immigration area, we think that the protected right to avoid deportation or return to a country where the alien will be persecuted warrants a hearing where the likelihood of persecution can be fairly evaluated. Since Congress intended this right to be equally available to all worthy claimants without regard to language skills, we think that an applicant for relief ... must be furnished with an accurate and complete translation of official proceedings. As a sequel to this right, translation services must be sufficient to enable the applicant to place his claim before the judge. A hearing is of no value when the alien and the judge are not understood. ... The very essence of due process is a "meaningful opportunity to be heard". ... To erect barriers by requiring comprehension of English would frustrate the inclusive aim of the UN Protocol and the intent of Congress.

Although the above passage invokes some concepts that have no part to play in the Australian context, the central proposition concerning the requisite accuracy and completeness of the interpretation provided is plainly correct. 30 With regard to the criterion of competence, Lamer CJ said in Tran at 988:

[I]nterpretation must be of a high enough quality to ensure that justice is done and seen to be done. This means, at a minimum, that an [applicant] has a right to competent interpretation. While there are, as of yet, no universally acceptable standards for assessing competency, ... an interpreter must at least be sworn by taking the interpreter's oath before beginning to interpret the proceedings ... . Where there is legitimate reason to doubt the competency of a particular interpreter, a court will be well advised to conduct an inquiry into the interpreter's qualifications. [Emphasis added.]

See also R v Begum (1985) 93 Cr. App. R. 96 at 100-101.

31. Although Lamer CJ did not say so expressly, competency may, in the present context, relate to both the interpretation and the interpreter. An interpretation is competent if it is adequate or satisfactory when judged against the relevant standard. An interpreter is competent if he or she can provide a competent interpretation. To speak of the competence of an interpretation invites reference back to some of the criteria that have already been mentioned, such as accuracy, as well as to other criteria, some of which are mentioned below. To speak of the competence of the interpreter invites reference to the competence of the interpretation that that interpreter may be reasonably expected to provide. In assessing whether an interpreter is likely to be competent, courts and tribunals ordinarily have regard to various factors, including the interpreter's qualifications, accreditation or experience. It remains possible, however, that an interpreter, who satisfies a court or tribunal that, by reason of qualifications and experience, he or she would be likely to provide a competent interpretation, may nonetheless provide an incompetent one. Conversely, though lacking in qualifications and experience indicative of a capacity to interpret competently, an interpreter may turn out to provide a competent interpretation. The fact remains, however, that a challenge to the quality of an interpretation may fail when evidence that the interpreter was appropriately qualified is to be weighed in the balance.

(e) Did the applicant need an interpreter?

32. It might be thought that there is a question in this case as to whether the applicant actually needed an interpreter at all. If he did not, then the question of the standard of the actual interpretation at the hearing might be said not to arise. In his 30 September 1996 application for a protection visa, Mr Perera indicated that whilst Sinhalese was his preferred language, he could speak, read and write English. That statement was supported by the fact that the Court documents, for which he claimed responsibility, were written in English. Further, the transcript records about three episodes when Mr Perera gave short, non-complex answers to the Tribunal directly, not through an interpreter.

33. Against this, the fact remains that Mr Perera stated, in his protection visa application and in preparing for the Tribunal hearing, that he needed a Sinhalese interpreter. That need was, I think, confirmed at the very outset of the hearing in the following exchange:

Tribunal: Before we start, I see you have a couple of documents there. Is there anything that you particularly plan to present?

Mr Perera: Yes.

Interpreter: This is - this paper answers - the contents represent the situation in the country, in Sri Lanka.

Thereafter, Mr Perera gave virtually all of his evidence in Sinhalese through the interpreter.

34. In Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 77-8 Kirby P said:

The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations at the person's own pace does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a court of law. ... Those who, in formal public environments, of which courts are but one example, have struggled with their own imperfect command of foreign languages, will understand more readily the problem then presented. The words which come adequately in the relaxed environment of the supermarket disappear from recollection. The technical expressions cannot be recalled, if ever they were known. The difficulties cause panic. A relationship in which the speaker is in command ... is quite different from a potentially hostile environment of a courtroom. There, questions are asked by others, sometimes at a speed and in accents not fully understood.

35. Those observations are relevant to the situation of an applicant for refugee status who, like Mr Perera, is able to use English for some purposes, even professional purposes, but is insufficiently proficient to give evidence before the Tribunal in support of an application vital to his or her future prospects.

36. The respondent has never claimed that the applicant was so proficient in English that he had no real need for an interpreter. Whilst the applicant had sufficient knowledge of English for some purposes, it appears that he was not so proficient that he could cope adequately with the giving of evidence in the Tribunal. That was, it seems to me, the basis upon which the Tribunal proceeded, and so do I. I am confirmed in this view by the brevity and the nature of the direct answers (of only one or two words) given to the Tribunal by the applicant without the aid of an interpreter.

37. Naturally enough, the Tribunal must decide, in the first instance, whether an interpreter is called for and whether a reliable interpretation is being made: cf R v Johnson (1987) 25 A Crim R 433 at 440 per Williams J. In the present case, as already noted, the Tribunal specifically declined to accept that an incompetent interpretation had been made. The Tribunal's opinion on the matter cannot be conclusive, however, because, as we have seen, whether or not the applicant was afforded an opportunity to give evidence as s 425 of the Act required is a fact on which the jurisdiction of the Tribunal depended: cf Potter v Melbourne and Metropolitan Tramways Board (1957) 98 CLR 337; R v Blakeley; ex parte Association of Architects etc of Australia (1950) 82 CLR 54 at 97-98 per Kitto J; R v Coldham; ex parte Australian Workers' Union (1983) 153 CLR 415 at 429 per Deane and Dawson JJ and The Returned & Services League of Australia (Victoria Branch) Inc (Pascoe Vale Sub Branch) v Liquor Licensing Commission and Another [1999] VSCA 37 at para 19 per Phillips JA. In any event, unless the Tribunal member was fluent in the relevant language, here Sinhalese, it is difficult to see how the Tribunal could be confident that its evaluation of the interpretation was sound. The Tribunal, like a reviewing court, must ordinarily rely on extrinsic considerations to form that view, as for example, the interpreter's oath, the interpreter's qualifications, any statement by the interpreter as to his or her capacity or experience, any indication from the interpreter or the witness that interpretation is beyond the particular competence of the interpreter, and the course of the evidence, including its coherence and the responsiveness of answers to questions asked. I do not, of course, overlook the possibility that some indication as to whether an interpretation is proceeding well or badly may be of a non-verbal nature, apparent to the Tribunal and not to the reviewing court. Nothing of that non-verbal kind was, however, mentioned by the Tribunal in its reasons or by the respondent in argument.

(f) Was there a departure from the relevant standard of interpretation?

38. The crucial question in this case is whether the material relied upon by Mr Perera in this appeal is sufficient to make out his case that the interpretation before the Tribunal was so incompetent that he was prevented from giving his evidence. This case is not like Kfouri v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Olney J, 8 July 1994) in which the Minister conceded that the interpretation relied on in reaching the relevant decision was incorrect. Nor is it like R v Saraya (1993) 70 A Crim R 515 in which there was expert evidence of deficiencies in the interpretation. On the basis of that evidence (admitted on appeal), the appellate court held that it was satisfied that those deficiencies had prevented Saraya from giving "an effective account of the facts vital to his defence": (1993) 70 A Crim R 515 at 516 per Badgery-Parker J. Mr Perera's case is not that something was specifically and erroneously attributed by the interpretation to him. There was, therefore, no call for expert evidence of specific error that, in another case, would be required to establish inadequate or incompetent interpretation. Mr Perera's case is that certain features of the transcript indicate that the interpretation was of poor quality or, in terms of the above discussion, incompetent.

39. In the United States, courts of review have reasoned that, in order to establish that a person was prevented from giving relevant evidence or that an erroneous interpretation influenced the outcome of the proceeding, the hearing record must itself disclose the poor quality of the interpretation or specific error must be shown on appropriate evidence: see Hartooni v Immigration and Naturalization Service 21 F.3d 336 at 340; Acewicz v US Immigration and Naturalization Service 984 F.2d 1056 at 1062 (9^th Cir 1993); and in a criminal trial context, Mendiola v Texas 94 SW2d 157 at 162 (Tex. App. 1995). For present purposes, it is necessary to say only that I accept that it is open to the applicant to show by reference to the transcript of the Tribunal hearing that the interpretation was so incompetent that he was effectively prevented from giving his evidence. In evaluating the applicant's case, however, one needs to bear in mind that some infelicitous expression in the transcript may be attributable to errors in transcription, not errors in interpretation.

40. At the Tribunal hearing, the interpreter, who was apparently sworn to interpret, was not required make any statement as to her qualifications, accreditation or experience. In many cases, any question as to an interpreter's competence would be resolved by reference to his or her accreditation and certification by the National Accreditation Authority for Translators and Interpreters ("NAATI"). NAATI, which was established in 1977, provides a national system of accreditation and certification for interpreters and translators. There are now four levels of NAATI accreditation, ranging downward from Conference Interpreter (Senior) and Advanced Translator (Senior), Conference Interpreter and Advanced Translator, Interpreter and Translator to Paraprofessional Interpreter and Paraprofessional Translator. "Interpreter" is described by NAATI as "the minimum level of competence for professional interpreting". At the time of the Tribunal hearing, however, there was apparently no NAATI accreditation for Sinhalese interpreters: see the letter of 30 October 1997 written by Mr Perera's migration agent to the Tribunal. (There may have been NAATI recognition for some Sinhalese interpreters: The Law Society of New South Wales, Guide to Best Practice: Lawyers, Interpreters and Translators (Sydney, 1996) pp 13 and 26. Recognition does not involve specification of any level of proficiency and is regarded as less preferable than the lowest accreditation level, paraprofessional interpreter.) Accordingly, apart from Mr Perera's affirmation that he could understand the interpreter, there was, in this case, no independent basis for forming a view as to the competence of the interpreter.

41. What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, 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 sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter: cf Gonzales v Zurbrick 45 F.2d 934 at 936-37; United States v Urena 27 F.3d 1487 at 1492 (10^th Cir 1994); Acewicz v US Immigration and Naturalization Service 984 F.2d 1056 at 1062.

42. Whilst it is possible to divine the general thrust of the applicant's case from the transcript as a whole, his evidence, as given through the interpreter and transcribed, was, as we have seen, repeatedly unresponsive to the questions asked by the Tribunal. It was at times incoherent and inexplicably inconsistent with other evidence given. There are a number of exchanges between the interpreter and the Tribunal which evidence confusion on the interpreter's part as to the subject and direction of the Tribunal's inquiry; and it would seem that from time to time difficulties in communication actually led the Tribunal to abandon avenues of relevant inquiry. Speaking more generally, it is difficult to believe that the interpretation given is adequately expressive of Mr Perera's unchallenged account of himself as an attorney-at-law in Colombo. His evidence, as interpreted and transcribed, lacks the responsiveness and coherence of the well-educated person that he apparently is. It may be that Mr Perera's unresponsiveness and lack of coherence are indicative of a lack of candour on his part. It is, however, difficult to fathom what the applicant, an educated person, could hope to gain from an unresponsive approach, particularly having regard to the nature of his application for refugee status.

43. It is relevant that the applicant made timely complaint about the quality of the interpretation. I do not think it reasonable to expect, as the Tribunal apparently did, that a person, who is not sufficiently proficient in English to give evidence on his own behalf, would make immediate complaint at the hearing about the quality of his interpretative assistance. In my view, a complaint is timely when made, as in this case, within two days of the hearing and well before the Tribunal's decision.

44. I am, therefore, of the view that there was, in this case, a departure from the standard appropriate for interpretation in the Tribunal.

(g) Was there a relevant departure from the standard of interpretation?

45. It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision: cf Yi Gui Stone v Minister for Immigration and Ethnic Affairs (unreported, Hill J, 28 June 1996). Similarly, in Tran, the Court held, at 991, that in order to succeed, the accused had to show that:

the lapse in interpretation which occurred was in respect of the proceedings themselves, thereby involving the vital interests of the accused, and was not merely in respect of some collateral or extrinsic matter, such as an administrative issue relating to scheduling.

(It was, so the Court held, unnecessary to establish any further prejudice caused by a relevant departure from the standard: [1994] 2 SCR at 994.)

46. I am satisfied that, in this case, the departure from the standard of interpretation related to matters which were significant for Mr Perera's case and the Tribunal's decision. The passages set out earlier show, I think, that there were relevant departures from the standard in the interpretation of Mr Perera's evidence on matters crucial to his application. Those crucial issues included the basis for his belief that the Government or a Government official had "taken against" him, the significance of any such animosity, the legal status of the JVP, and his status as a human rights lawyer. I am, therefore, of the view that there was a relevant departure from the relevant standard of interpretation. For that reason, Mr Perera was prevented from giving evidence on matters relevant to his application for refugee status. That conclusion is enough to dispose of this application for review.

47. I doubt that it is necessary for the applicant to point to further prejudice occasioned by the incompetent interpretation made in his case, although it may well be that further prejudice can be shown in relation to the matter of credit. A finding as to an applicant's lack of credibility can be fatal to his application, as, indeed, it was in Mr Perera's case. Mr Perera failed before the Tribunal because it rejected his claims (1) that the Government and the Presidential Secretary had "taken against him" on account of his active support for and involvement in the JVP; and (2) that his professional activities, whether on behalf of strikers and their families or disaffected public servants, were of a sufficiently political character to mark him out in Sri Lanka and to give rise to a well-founded fear of being persecuted. It was in this context that the Tribunal determined to place little or no weight on the documents that were placed before it, including the statutory declaration of a fellow Sri Lankan attorney-at-law.

48. I am, of course, mindful of the cautionary remarks in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 and of the deference due to the Tribunal's findings on credit, as to which see, for example, Navaratne v Minister for Immigration and Multicultural Affairs (unreported, Tamberlin J, 1 August 1997); Thangarajah Thillainadarajah v Minister for Immigration and Multicultural Affairs (unreported, Heerey J, 3 December 1997); Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, O'Connor, Branson and Marshall JJ, 8 September 1998); and Barkat Ali v Minister for Immigration and Multicultural Affairs (unreported, Sackville J, 28 May 1998). At the same time I agree with the observations of Gray J in Kathiresan v Minister for Immigration and Multicultural Affairs (unreported, 4 March 1998) at 6 that:

In an area in which cross-cultural communications occur, there is danger in giving too much rein to the "subtle influence of demeanour". The work of tribunals operating under the Act is such an area. The dangers of attempting to assess the truthfulness of witnesses by reference to their body language, where different cultural backgrounds are involved, are well-known. ... The problem is exacerbated even more when evidence is given by way of an interpreter. Judging the demeanour of the witness from the tone of the interpreter's answers is obviously impossible. Judging the demeanour of the witness from the witness's own answers in a foreign language would require a high degree of familiarity with that language and the cultural background of its speakers. It is all too easy for the "subtle influence of demeanour" to become a cloak, which conceals an unintended, but nonetheless decisive bias ....

49. A witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation. In the present case, the incompetence of the interpretation cannot have assisted the Tribunal in making a reliable finding about Mr Perera's credit. It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness: cf Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-9; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and Warren v Coombes (1979) 142 CLR 531 at 537 and 552-3.

50. For the foregoing reasons, I would set aside the decision of the Tribunal made on 28 November 1997 that "the Tribunal is not satisfied that the applicant is a refugee and affirms the decision not to grant a protection visa" and, pursuant to s 481(1)(b) of the Act, refer the matter to which the decision relates to the person who made the decision for further consideration. It would be desirable, in the circumstances, for that person to disqualify herself from reaching a decision with respect to the applicant's refugee status in order that another member of the Tribunal might make that decision. The respondent should pay the applicant's costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated: 28 April 1999

Counsel for the Applicant: Mr M Gros

Solicitor for the Applicant: Pushpa Hettiarachi & Associates

Counsel for the Respondent: Mr W Mosley

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 10 November 1998

Date of Judgment: 28 April 1999