Perera v Secretary of State for the Home Department [2004] EWCA Civ 1002

Case No C1/2003/2284[2004] EWCA Civ 1002
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Friday 23 rd July 2004
Strand,
London, WC2A 2LL
Before
LORD JUSTICE PILLLORD JUSTICE JUDGELORD JUSTICE NEUBERGER
Between
JUDE ROSHAN PERERAAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR D JONES (instructed by Messrs. Sam & Co, London N15 4DW) for AppellantMR S GRODZINSKI (instructed by The Treasury Solicitors) for Respondent
Judgment
[1]This is an appeal against a decision of the Immigration Appeal Tribunal (‘the IAT’) notified on 27 August 2003. The Tribunal dismissed an appeal from the decision of an Adjudicator, promulgated on 31 December 2002 dismissing an appeal, on asylum grounds and human rights grounds, by Mr Jude Roshan Perera (‘the Appellant’) against a decision of the Secretary of State for the Home Department (‘the Secretary of State’) who, on 9 July 2002, confirmed the Appellant’s status as an illegal entrant, refused his asylum application and gave directions for his removal to Sri Lanka. Permission to appeal to this court was refused by the IAT and, upon a written application for permission, by Mance LJ. Sitting with Mummery LJ, I granted permission on 12 December 2003. The court’s concern was primarily in relation to the quality of interpretation at the hearing before the Adjudicator.[2]The Appellant arrived in the United Kingdom from Sri Lanka on 26 December 2001 using a false passport. He claimed asylum on 7 May 2002. He claimed that in Sri Lanka he would be at risk of persecution from A, a Minister of the government party, the United National Party (“UNP”), which had come to power following elections in December 2001, having lost power in 1993. He claimed that his father had been active in the JVP, a political party opposed to the UNP. His father had been killed by police in 1993 as a result of his political activities and his suspected involvement in a bombing.[3]The Appellant claimed that in April 1993 he had been abducted, detained for three weeks and interrogated about his involvement with the JVP, and had been tortured. His brother had suffered similar treatment. He had kept a lower profile in the JVP between 1993 and 2001 but had canvassed against the UNP at the 2001 election including canvassing against A, who was then the local UNP candidate. In December 2001, after the election, there had been a raid on his family home in the course of which a shot had been fired at him and his brother had been injured. His brother has also claimed asylum and a different Adjudicator allowed an appeal against the Secretary of State’s refusal, on facts similar to those on which the Appellant relied.[4]The adjudicator rejected much of the Appellant’s evidence. She found that his assertion that the JVP were not violent was contradicted by the objective country evidence and that he had failed to produce any corroborative documentary evidence supporting his involvement with the JVP. The country material did not refer to any JVP members or activists being targeted by government ministers or groups within the ruling party. There had been a lengthy delaying in claiming the asylum, for which no satisfactory explanation had been given.[5]The Adjudicator found that it was implausible that A would want to settle a score with the Appellant or his brother for an alleged bombing by their father who had already been killed and implausible that A would wait from 1993 to 2001 to take revenge. That finding reflected the reasoning of the Secretary of State:
“The Secretary of State does not accept that supporters of the UNP would wait until December 2001 when they won an election to attack your home, considering they did so in secret it would not make a difference who was in power.”
[6]The Adjudicator also referred, in detail, to inconsistencies in accounts given about the raid on the house in December 2001 and in accounts of the aftermath of the incident. There was also inconsistency between the Appellant’s account and that of his brother.[7]The Adjudicator concluded:
“52. For the reasons I have stated I am not satisfied that the Appellant is credible in relation to the claims his has made in his asylum application and subsequently and neither do I find the appellant’s brother credible in relation to his accounts… 55 From the objective evidence before me, even if the appellant is involved with JVP it is clearly a very active party within Sri Lanka and there could be no cause on that account alone, namely JVP membership or association, that the Appellant would be targeted for adverse interest. ”
[8]Before making further reference to submissions upon the Adjudicator’s findings, I turn to the primary ground of appeal, the allegedly unsatisfactory interpretation at the hearing before the Adjudicator. The court has, which the court granting permission did not have, the Adjudicator’s note of the hearing, which covers sixteen handwritten pages. It does not appear to have been considered by the IAT. The Appellant gave evidence in Sinhalese, a language with which his solicitor, Mr Sam Samarasinghe (“the solicitor”), is very familiar.[9]The court has two statements from the solicitor. The second was signed only two days before the hearing before this court and objection to its admissibility was taken by Mr Grodzinski, on behalf of the Secretary of State.[10]Before the hearing, the solicitor made a written submission to the Adjudicator:
“Preliminary submission 1. The interpreter allocated to this case recently interpreted another asylum matter on the 23 Oct 2002 (as I can remember). 2. The interpretation was wrong – and did not convey correct meaning. 3. After some time, hearing was adjourned on the basis that representative was not satisfied with the (accuracy) corrections of interpretation. 4. It is unlikely that situation has improved within the course of this month. 5. It is difficult and unpleasant and adjudicator may not be happy for representative to intervene during the hearing to point out mistakes 6. Accordingly in the interest of justice we request to provide a different interpreter. Sam & Co – Solicitors”
Sam & Co – Solicitors”[11]The application did not refer to any judicial consideration of the adequacy of the interpretation on the earlier occasion. It was the representative who was not satisfied. The Adjudicator noted the application in her record and her statement that the “IAA [Immigration Appellate Authority] employs professional interpreters and on the basis of what you have told me I do not feel able to do what you ask”. She had dealt with another Sinhalese application “where the same interpreter was used and things went smoothly enough”.[12]In his first statement, the solicitor referred to that application. He also stated:
“8. The hearing commenced at 12:10hrs with the same interpreter. I noted that the interpreter was unable to translate many of the questions put to the Appellant and the witness correctly from English to Sinhalese and vice versa. As the interpretations were incorrect, some occasions I noted that Appellant did not know the correct question that was put to him and was replying to the wrong question that was put to him by interpreter. Some of the replies given by the Appellant were interpreted wrongly to the Adjudicator and Home Office representative. 9. In order to avoid this confusion, I intervened and pointed out that the interpretation was wrong. I did not try to give the correct interpretation. I only pointed out that the interpretation was wrong so that the interpreter can attempt again to give the correct interpretation. 10. The Appellant or Adjudicator would not know whether they were understanding each other accurately as none of them can find out what mistakes are creeping in to the record. Interpreter can talk both in Sinhalese and English, but the difficulty she had was to correctly translate from one language to another. She is capable of interpreting, but made serious mistakes at times. 11. Adjudicator seemed to be quite irritated at my interventions to point out when there were mistakes.”
The solicitor referred to an intervention by the Adjudicator before the midday break and, in detail, to an alleged misunderstanding in the course of cross-examination of the Appellant in the afternoon. He stated that he could not recollect an offer by the Adjudicator to obtain the presence of the Manager of the Interpreters’ Section at the hearing. As to the afternoon session, the solicitor stated:
“The reason for not intervening any further was not because there were no further mistakes. It was simply because it was not in the interest of the Appellant to annoy the Adjudicator as she had made it quite clear that she did not want me to intervene.”
[13]In his second statement, the solicitor describes his competence in the Sinhala language, which is not in doubt. In relation to the offer to produce the Manager, he says:
“There is no such record in my notes. I would have never forgotten such an offer in view of my grave concern about the prejudice caused to the Appellant. I cannot recall any such offer ever made during the hearing.”
The statement does not give any further particulars of allegedly inaccurate interpretation. The notes referred to have not been produced.[14]The Adjudicator’s contemporaneous note gives every indication of being conscientiously made and accurate. At page 3, the Adjudicator noted in brackets: (I am not sure he used a word Abianter – interpreter). At page 5 the Adjudicator noted:
“A’s rep – she’s not put Q fully”
. At page 7 it is noted:
“A’s rep – not interp correctly”
. Just before her reference to “lunch”, the Adjudicator made a note of what she herself said. I cite the transcription of the note drafted by Ms Clarke, solicitor, to which no objection has been taken:
“Always difficult in hearing room for interpreter when someone else with language knowledge one seems (sic). A and interpreter have been understanding each other as far as I can make out. If problem after lunch, A’s representative to identify problem with interpreter manager in hearing room so we can understand the problem.”
It will be necessary to consider the post-lunch note of the cross-examination of the Appellant upon one point which, it is claimed, led to the Adjudicator being under a misapprehension on that point.[15]The Adjudicator considered the interpretation issue in her determination:
“28. Before the appeal commenced on 21 November 2002 the appellant’s representative requested that the retained Sinhalese interpreter be changed as he claimed that this interpreter had been involved in another matter where the interpreter and the representative’s client had not understood each other. I noted the appellant’s representative had made adverse comments about another interpreter in the language of Sinhalese used at the appellant’s interview. 29 . In the event, when the appellant and his brother came before me to give evidence, I was satisfied that the interpreter and each of the witnesses understood each other. There was the occasional interruption by the appellant’s representative to identify the interpreter had not interpreted him correctly, particularly during cross-examination. During a break in proceedings I checked with the manager of the Interpreters’ Section who confirmed the interpreter was often retained by IAA to interpret in the language of Sinhalese and there were no adverse comments on her record. When proceedings recommenced I requested the appellant’s representative, if he had any further comments to make about the interpreter, then the manager for the Interpreters’ Section should be present so that the appellant’s representative could identify exactly what the problem was with this Sinhalese interpreter. In the event, no further comment was made and the matter was not referred to by the appellant’s representative in his final submissions. 30 . Both the appellant and his brother confirmed as true and correct the contents of their respective statements adduced in evidence. 31. Each of the witnesses was then examined orally before me. My Record of Proceedings, now forming part of the appeal file, sets out details of oral evidence, both as to questions asked and answers given. 32. At the end of oral examination, at the second part of the hearing, each of the representatives gave me their final submissions, each referring to all the salient points. Details of those submissions are, again, set out in my Record of Proceedings which now forms part of the appeal file.”
The determination was prepared on the day after the hearing.[16]The reference in the last sentence of paragraph 28 of the determination is to a letter from the solicitor dated 24 June 2002 about the interview of the Appellant on 13 June 2002. Alleged mistakes by the interpreter then acting were noted by question number and there was a general complaint that “the use of a Tamil interpreter to interpret in Sinhalese a JVP member is not appropriate and the applicant would not feel free to express himself”. That complaint does not apply to the interpreter at the hearing and is not in any event a sound one.[17]For the Appellant, Mr Jones submits that further inquiry should have been made, and made in the presence of the parties, as to the competence and qualifications of the interpreter. He refers to the IAA’s “Guide to Adjudicators”, of May 2002. It states that where an interpreter is challenged, “the ability and skill level of the interpreter present should be quickly verified [by the Adjudicator] by speaking to the Interpreter Team Leader”.[18]It is submitted that enquiries should have been made as to competence before proceedings commenced. The step taken by the Adjudicator during the adjournment, an enquiry of the manager of the Interpreter Section as to whether the interpreter had any adverse comments recorded against her, was insufficient. The Adjudicator’s reaction to queries raised by the solicitor in the course of the hearing was inadequate and the Adjudicator’s conduct had tended to discourage the raising of complaints. The standard of interpretation was not such as to enable the witnesses to present their evidence in a persuasive fashion and to enable the Adjudicator properly to assess it.[19]Mr Grodzinski, for the Secretary of State, relies on the fact that the Adjudicator was qualified for the task. Further, the issue having been raised, the Adjudicator was in a position to assess and form an opinion about the quality of the interpretation and she concluded that the witnesses and the interpreter were understanding each other. Had concern been justified, the solicitor would and should not have been deterred from pursuing his objection and he was, according to the Adjudicator’s note, expressly given an opportunity to “identify a problem with the interpreter manager in hearing room.” I accept the accuracy of that note, and the similar statement in the determination, without doubting the good faith of the solicitor’s lack of recall. Mr Grodzinski further submits that it is also necessary to analyse the evidence in order to consider whether there is a real risk that the quality of the interpretation impeded the Appellant or the Adjudicator or could have had any bearing upon her conclusions.[20]The claim that the Adjudicator misunderstood the evidence is based primarily on her finding at paragraphs 43 and 44:
“43. I find it entirely implausible that the Appellant and his brother, if they were each abducted during 1993, had absolutely no problem until after the 2001 elections, elections in which they claim they each played a prominent part in promoting JVP. 44. If there were scores to be settled, although it is not entirely clear to me how someone within UNP would want revenge against an individual whose father the UNP had been responsible for murdering, it seems very unlikely to me that there would have been such a long gap between the Appellant and his brother being abducted in 1993 and the more recent attacks after the December 2001 election.”
It is claimed that the Adjudicator cannot have been aware that UNP were not in power for almost all that “long gap”.[21]The lack of action between 1993 and 2001 was the subject of cross-examination at the hearing (page 8 of note). According to the note, the witness said that “if UNP killed anyone JA would have them arrested”. He also said:
“At that time if I was killed UNP government for sure would make enquiries and take action”
. The solicitor is recorded as intervening to state that that “was clearly not correct”. The Adjudicator noted her own remark: “I can see that A misunderstanding”.[22]There was a misunderstanding at that stage because the UNP was not in power during that period. Whether the misunderstanding was that of the Appellant or of the interpreter is debatable. However, in following questions, as recorded in the next page of the notes (page 9), the matter is clarified. The Appellant is recorded as saying:
“At that time it was Sri Lanka Freedom Party that was ruling. UNP had no power at all”
. He added that “after CK became president in 1994 we got freedom to operate as a party”. The point was underlined in re-examination. The Appellant is recorded (page 13) as saying: “At that time [after 1994] if A killed me for sure Sri Lankan government would take action”.[23]I cannot accept that there is a real risk, having regard to her note, that the Adjudicator did not understand who was in power between 1994 and 2001. The point at issue remains relevant, however, if the UNP were not in power. The Secretary of State had relied on the point in the passage in his decision letter cited at paragraph 5 of this judgment, stating that “it would not make a difference who was in power”. The weight to be given to the point was for the Adjudicator to decide but there was a point to be made. It is perhaps surprising that in her determination, the Adjudicator did not, when considering the point, refer to the context, namely that UNP were not in power in 1993 and 2001, but I cannot accept that she failed to appreciate that they were not in power during that period. The misunderstanding identified at page 8 of the Adjudicator’s note was cleared up.[24]Before expressing my conclusion upon the complaint about interpretation, I consider the context in which the Adjudicator’s findings of fact and conclusions were made. The Adjudicator’s findings adverse to the Appellant were based on a number of factors. I have summarised these in paragraphs 4 to 6 of this judgment. The Adjudicator relied on inconsistencies in accounts given in the statement of evidence form (SEF), at interview and in a written statement as to the alleged raid on the house in December 2001, which Mr Grodzinski not unfairly describes as the core event. The inconsistencies set out at paragraphs 45 to 47 of the determination do not depend on the oral evidence given at the hearing before the Adjudicator. The finding in relation to whether the JVP were violent does not depend on evidence given at that hearing but on an answer when interviewed on 13 June 2002. While a fairly detailed written complaint was made by the solicitor about the quality of interpretation, by a different interpreter, on that occasion, no complaint was made in relation to the statement that the JVP never used violence. It has not been suggested on behalf of the Appellant how these inconsistencies are to be explained, and the Adjudicator was entitled to have regard to them.[25]Mr Jones stresses that this was a case in which, because of the other major difficulties faced by the Appellant, it was necessary to give his oral evidence at the hearing the most careful consideration and there was a risk, it is submitted, that the quality of the interpretation may have made that impossible. If one point was misunderstood as a result of poor interpretation, it cannot be known what the Adjudicator’s conclusion would have been but for that error. I bear in mind the importance of looking at “all the evidence in the round”, as submitted by Mr Jones. The Adjudicator claimed to rely on the oral evidence. In relation to what the Adjudicator described as “a very blatant inconsistency between the two brothers’ accounts” of the raid in December 2001, the Adjudicator is claimed to have taken account of only part of the Adjudicator’s report in the brother’s case when other parts would have assisted the Appellant.[26]In my judgment, the Appellant has not been prejudiced in this case as a result of the need to interpret between English and Sinhalese and the way it was done. I attach importance to the Adjudicator’s own assessment, expressed in her contemporaneous note and in her determination, that the interpreter and witnesses understood each other. For the reasons given, adverse consequences do not flow from the Adjudicator recording, at one point in her note, that UNP were in power at a time when they were not in power. Even if there was a misunderstanding on one point, it does not affect the Adjudicator’s findings on other points or create a real possibility that, but for that point, conclusions might have been different. Cogent reasons were given which did not relate to the oral evidence at the hearing. In finding the inconsistency between the two brothers’ accounts, it is the written statements of the brothers, both of which were submitted to her, that the Adjudicator appears to have relied on.[27]I am not persuaded that the interpretation at the hearing was other than of an adequate standard. Moreover, the Adjudicator having made an enquiry with the appropriate manager, the solicitor was given an opportunity to pursue with the manager any concern he had.[28]While I acknowledge that a concerned solicitor may be in a difficult position, the complaint has, in the context of this case, a lack of substance, especially in the absence of further action by him. The one complaint about which particulars are given has been analysed with the help of the note now available. There are no particulars of other specific failures of the interpreter, either in statements or by way of contemporaneous note, to give substance to the general complaint made. I add that I am very doubtful whether further action by the solicitor would have revealed a state of affairs which required further action by the Adjudicator.[29]I also consider the complaint in the context of the evidence and findings in the case, which I have summarised. The Appellant had a fair hearing, in my judgment. I see no risk that the Adjudicator did not have the opportunity properly to assess the evidence of the witnesses or that her findings can be impugned by reason of any fault in interpretation or procedure.[30]A discrete point is taken on the alleged failure to take into account the determination by another Adjudicator in favour of the Appellant’s brother. No application had been made that the cases be heard together. The Adjudicator was told of the other determination at a late stage. I do not consider that any error of law arises. The evidence before the two Adjudicators was quite different. For example, the other Adjudicator did not have before him the interview record of the Appellant. The present Adjudicator was entitled to reach the conclusion she did on the evidence before her. Points raised on the Adjudicator’s consideration of the in-country evidence and the other documentary evidence do not in my view demonstrate any error of law or cast doubt upon the validity of the Adjudicator’s conclusions.[31]I would dismiss this appeal.[32]It is well-understood that if the litigant cannot speak or comprehend the language in use at the proceedings in which he is involved, he needs an interpreter. His physical presence at the hearing is not enough. It may however be worth adding that the court’s responsibility to do justice cannot be performed if an interpreter is not available when one is needed, or when the interpreter who is available is not of adequate competence. The court, no less than the litigant disadvantaged in the use of English, needs an interpreter.[33]Interpreters perform their duties to the best of their skill and understanding. There are bound to be occasions when the translation of words from one language into another may be less than exact, and ideas, and concepts, expressed in one language, cannot always pass from and into another language without some change, perhaps simply of emphasis.[34]When a responsible legal representative expresses some dissatisfaction about the quality of the interpretation and the skills of the interpreter, that plainly gives rise to a concern which the court, or in this instance the adjudicator, should immediately address. That is what this adjudicator did. The responsibility for deciding whether or not the proceedings should continue with the existing interpreter, or whether the interpreter should be discharged and the proceedings restarted, falls not on the legal representatives, but on the adjudicator. For the reasons given by Pill LJ, I agree that no sufficient basis for impugning the quality of the interpretation in the present proceedings has been shown, and there is nothing which suggests that the outcome of the proceedings from the appellant’s point of view was adversely affected by inadequate or unskilled interpretation.[35]I must briefly address the fact that the separate proceedings involving the appellant and his brother produced different results. The stark reality is that the evidence in the case of the brother was different. We must concentrate on the material before us in the present appeal, no more, and no less. There is nothing in that material which suggests that the outcome of these two separate hearings was in any way attributable to deficiencies of interpretation in the present appeal. Accordingly, for the reasons given by Pill LJ, I agree that this appeal should be dismissed.[36]For the reasons given by Pill and Judge LJJ, I also agree that this appeal should be dismissed.

Order

Appeal dismissed. No order as to costs save for public funding taxation order of appellant’s costs. (Order does not form part of the approved judgment)

Cited in 3 later judgments