Best to let migration clients speak in their own language – “You don’t have the cards”

But it was a staccato performance by Zelensky, English was not his first language, he was struggling. There was a lot he could have said like that small groups in Afghanistan and Iraq, troubled the US et etc.

I used to be of the view that clients who had an even low level of English should speak in English at interviews, before the tribunal and in court. I used to think that speaking in English to the decision maker enhanced sympathy and set up a relationship of warmth. Now I am convinced that clients should only give oral evidence in what is their first language (save for those you have genuinely acquired professional skills in an English-speaking country).

The difficulty is that Australian society as whole does not deal with the practicalities of multilingualism well. Even some judges think that if a person can speak what I call kitchen English they are pretending not to be able to give evidence in English for their own advantage.

People however in any legal environment need to have the advantage of speaking in their mother tongue and use an interpreter at all times. It can be that a person can give hybrid evidence sometimes but overall, any evidence in depth should be given through an interpreter, otherwise one can be disadvantaged by appearing to be below par.

I often explain all of this in detail to judges that in fact the court may be disadvantaged by not having evidence given in the person’s mother language because they will miss nuances, and the person will be groping for words rather than concentrating of the evidence he or she is meant to give.

There are of course problems with interpreting, the best description of the problem was said by Edleman J in the High Court in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 he warned of the dangers of making credibility assessment when the evidence is presented visa an interpreter. His Honour stated:

54. The errors that can arise from interpretation are not limited to the consequences of incorrect interpretation. They extend also to the pernicious effect of adverse credibility assessments based upon matters of demeanour and impression. A former member of the Refugee Review Tribunal has correctly described how “[t]he utilisation of demeanour, without more, to substantiate adverse credibility findings is ‘fraught with dangers'”. Empirical studies have also suggested that the medium of an interpreter can affect assessment of demeanour, and therefore credibility, “by the interpreter ‘s voice, dress, mannerisms, linguistic competence, age, race and gender”. As Professor Groves has observed, decision-makers “may struggle to distinguish between the words and demeanour of an  interpreter  and those of the person being interpreted”. Further, the unspoken relationship between the interviewee and the interpreter, especially if there is not complete trust between them, can sometimes present a distorted impression of, or distorted context for, the interpreted words. These problems for credibility assessments based, in part, upon impression and demeanour are compounded by cultural issues that may not be known to the decision-maker such as the impoliteness in some cultures of direct responses to questions or the extreme discomfort involved in discussion of some topics in particular cultures. All of these considerations compound the usual problems of assessment of demeanour, particularly in the context of evidence in an atmosphere that is very commonly one of high pressure and which also can commonly concern highly distressing matters. Indeed, in the BNB17 case itself, the Authority observed, of circumstances of sexual assault against those of BNB17’s ethnicity, that there was “ample credible country information that sexual assault has been engaged in by the authorities” in a systematic way.

Courts have consistently warned against making broad conclusions of inconsistencies in evidence where the evidence was required to be given numerous times through the prism of interpreters. In BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272, Murphy J said this:

“60. In remarks which are equally true today, more than 20 years ago, in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89; at [15] Lee, Carr and Finkelstein JJ explained as follows:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different and may even be very different once the impact of the interpreter is taken into account.

It was said in W375/01A at [11] (albeit in the context of interpretation of oral testimony rather than translation of documents):

It should not be assumed that the translation is precise… Often the interpreter will not be aware of the significance that will be attached to the precise words that are used.

And also at [11]:

“It must be remembered that people who come to Australia seeking refugee status often speak no English. So, the question is usually answered with the assistance of an interpreter. It should not be assumed that the translation is precise. It may be anticipated that the information recorded will be a brief summary of the applicant’s true case and will often be given in words which the applicant would not have chosen were he able to speak English.”

In passing a useful case which concerned questions of language interpreting is EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 where the court found that the decision maker was on a “quest to disbelieve” and as a result the decision was set aside.

Here is the link to the White House transcript between Presidents Zelensky and Trump:

https://en.wikisource.org/wiki/Transcript_of_the_2025_Trump%E2%80%93Zelenskyy_meeting