Mind Your Language - Interpreters in Australian Immigration Proceedings

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Introduction

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

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

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

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

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

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

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

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

Subsequent reports, particularly in the late 1980s and early 1990s, that were concerned with access to justice issues identified interpreting needs as a significant issue. These included the Australian Law Reform Commission's reports on Multiculturalism and the Law (ALRC 57) (5) and Women and Equality Before the Law (ALRC 69) (6) and also the Commonwealth Attorney General's Department 1991 report, Access to Interpreters in the Australian Legal System. (7) Each of these reports referred to the role of interpreters and made recommendations about improving the availability and quality of interpreting services, either generally or in particular circumstances. …