Hello and welcome back to Let’s Get Legal! Today’s article is written by Daniel and delves into the issue of language and the law! We hope you enjoy!

Introduction

The inability to understand the language of the region that you are in may seem like a far-fetched idea in contemporary times. It has been more than 18 months since I last travelled to a country where I could not speak the national language. Still, isn’t it great that English is practically a global language, taught as a second language in most parts of the globe. This significantly enhances our ability to experience and understand the unique cultures of the world. Although, on the flip side, when foreigners visit Australia, and their English skills are poor, they struggle since they don’t have it as easy as native English speakers when they visit foreign nations. Vietnamese, Tamil, and Portuguese aren’t second languages for a vast majority of Australians, making it difficult for them to understand the systems, law, and language when visiting Australia if they do not speak English.

Globally there is a considerable challenge with the relationship between the law and language barriers. Understanding the law is a difficult feat, let alone the law in a foreign language. Globally the law is articulated in a way that is even challenging for a native speaker to understand or comprehend. Recently in English legal systems, there has been a shift away from complex legal writing (being a hybrid of English, Latin and French) and a focus on writing in plain English that anyone can understand. However, it is likely this transition to the law being purely articulated in plain English will take decades or even centuries.

Nevertheless, I always have a looming feeling when I visit a non-English speaking country. What would happen if I was framed for a crime I did not commit overseas? How would I possibly get myself out of that situation? Their government could be corrupt, the police could be corrupt, their legal system could have extensive loopholes, which hinder my ability to get off scot-free without incurring some sort of penalty. But this would be a similar feeling for foreigners who visit Australia, as they are not familiar with the legal practices and processes in place, maintaining the feeling that everything seems corrupt and not in their favour.

When someone like you and me gets into legal trouble or seeks a protection visa in a non-English speaking country, we need a translator for any hope. We have to trust that our translator is competent and will perform their duty to the best of their ability. But what if this doesn’t happen? The case of an incompetent translator is a scenario plaguing BNB17, a Sri Lankan national that could only speak Tamil, seeking a protection visa in Australia.

The Case: DVO16 v Minister for Immigration and Border Protection; BNB17 v Minister for Immigration and Border Protection [2021] HCA 12

Useful Details

– The Court has heard the cases of DVO16 and BNB17 in conjunction with each other as they concern the same subject matter. This post will only review the facts of BNB17’s story; however, the legal theory laid down by the Court applies to both DVO16 and BNB17.

– This case primarily concerned Pt 7AA of the Migration Act 1985 (Cth), ‘fast track review process in relation to certain protection visa decisions’. The Court was concerned with whether errors by the translator

Initial Facts

BNB17 was from Sri Lanka and feared persecution due to their connection with the Liberation Tigers of Tamil Eelam. In their interview, BNB17 claimed they were targeted by the Colombo Police in Sri Lanka five times over four years and had been sexually tortured by their Criminal Investigation Division. 

BNB17 attempted to receive a protection visa and was interviewed by the Immigration Assessment Authority (‘Authority’) with the assistance of an interpreter. 

After reviewing the interview, which was recorded, the Authority identified three “items” troubled that created some ambiguity. One of those items being the translator referring to sexual assault and sexual torture as “sexual harassment” as they were apprehensive about using the correct phrasing.

Consequently, the Authority declined BNB17’s application for a protection visa., without attempting to clarify the ambiguities of the translator. Hence, failing to give BNB17 a fair opportunity to be granted a protection visa.

The Law

The Authority was bound by Pt 7AA of the Migration Act 1985 (Cth) when dealing with the interview and the outcome of BNB17’s protection visa. As a result, the Court considered the question of, whether under Pt 7AA, deciding an outcome in the presence of translation errors caused the Authority to be in breach of the law.

The exact details of Pt 7AA are not relevant; the Court was primarily viewing if there was a jurisdictional error made by the Authority. This means an error in the execution of the law, in the field of administrative law. Administrative law is related to the rules, regulations and processes of governmental departments — the Authority is a branch of the Department of Immigration and Border Protection.

Present Case

The Court considered the necessity of reviewing an interview that has been plagued by translation errors. However, the majority opinion led by Edelman J held that reviews of protection visa decisions only strictly occur ‘where the information provided by an applicant at an interview is so poorly interpreted that the gist of the applicant’s case has not been conveyed’. Holding that the interpretation of BNB17’s translation errors was not ‘so extreme as to deprive the exercise of power by the Authority of its character’ to fairly review the decision.

The court detailed that the Authority would only be in breach of the law if it:

  1. There is a breach of reasonableness to not review the decision of the application. The Authority can only be in breach of Pt 7AA if they fail to review the material of the interview. The Court does not oblige the Authority to review decisions where translation errors affect specific information provided. 
  2. When failing to review the decision based on mistranslation would the determination of the requirements for the visa to be granted.

However, the Court identified that in the case of BNB17, either of these subjective criteria was not sufficiently met.

Ruling

Concerning BNB17, the Authority was aware of at least three errors by the translator; however, they ‘were not so grave or extensive as to render that the Authority’s conduct was unreasonable. Additionally, the Court ‘held that the translation errors did not result in the Authority failing to understand and therefore consider the applicant’s claims.

As a result, the appeal was dismissed.

Concluding Thoughts

I hate to be blunt, but you would think if you hired a translator or was delegated a translator by the government, that they would be competent. This case concerned the inability of a translator to accurately translate BNB17’s answers concerning their protection visa. Despite the fact the Authority was not legally required to review their decision is irrelevant. The law in this area is not in favour of the visa applicant, and it would too give me feelings that “this foreign government has a corrupt system” if I were in BNB17’s shoes.

Alterations in details can drastically affect how an applicant is perceived and the ability for the Authority to understand the hardship the individual has experienced abroad, which has brought them to file for a protection visa in Australia. The law in this field is only concerned with whether something significant is wholly misinterpreted; however, this is unfair on the visa applicant.

In this case, the philosophy of the Justices was concerned with preserving resources over producing equitable outcomes for protection visa applicants, as reviewing the same protection visa application over and over, acquiring new translators, and re-interviewing applicants is a costly and time-consuming process if it is unlikely the decision will change. However, this is not an equitable model as it merely overlooks the importance of an applicants rights when seeking protection from their country.

The appeal was unanimously dismissed, with only one joint judgment, although a dissent on the view of producing equitable outcomes would have potentially been beneficial in shifting the direction of immigration law. Perhaps that would have happened if Kirby J was still on the bench.

Nonetheless, let me know in the comments below what your feelings are towards the outcome of this case. If you were in BNB17’s shoes, do you believe the outcome would’ve been understandable?

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