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 UKIAT 00100 Y (Afghanistan)
IMMIGRATION APPEAL TRIBUNAL
Date heard: 9 October 2003
Date notified..24th October 2003.
DR H H STOREY (Chairman)
MR P ROGERS
SECRETARY OF STATE FOR THE HOME DEPARTMENT
DETERMINATION AND REASONS
- The appellant, a national of Afghanistan, has appealed with leave of the Tribunal against a determination of Adjudicator,Mr K O Adio, dismissing the appeal against the decision by the respondent giving directions for removal following refusal to grant asylum. Mr D Bazini of Counsel instructed by S Osman Solicitors represented the appellant. Mr T Greig appeared for the respondent.
- The Tribunal has decided to remit this appeal.
- In reaching adverse credibility findings the adjudicator relied on at least three discrepancies between what the appellant had said at interview and what he said at the hearing. These concerned whether he identified the "amanal" as a collection of weapons to his brothers; when his brothers were arrested; and from whom he heard the news of their arrest.
- As amplified by Mr Bazini who also appeared before the adjudicator the grounds of appeal contended that the adjudicator's adverse credibility findings were unsafe because the interpreter at the hearing failed to break down questions being put to the appellant in a proper manner, as a result of which the appellant became confused. They stated that an interpreter employed by the appellant's solicitors had attended in court and during a break had made known to Counsel his concerns about the interpretation. Although Counsel had then mentioned these concerns to the adjudicator before the end of examination-in-chief, the latter had failed to act properly on this information. His response, which was to leave the difficulties to be dealt with in cross-examination, was, said Mr Bazini, inadequate.
- The Tribunal will not lightly accept allegations of lack of competence on the part of an interpreter. There is an IAA system in place to ensure that those who act as interpreters are of proven competence. The grounds do not contain an affidavit from the appellant's interpreter or anything to assist the Tribunal in deciding whether his own competence is recognised. Nor from Mr Bazini`s own account did he in his capacity as Counsel specify to the adjudicator any particular aspects of the evidence which were causing the appellant confusion.
- That being said, we do not consider that the adjudicator`s response was adequate. He did not seek to address the complaint there and then, with a view to establishing whether and in what respects, if any, the interpretation being made was leading to errors in interpretation. Furthermore, despite saying (as is recorded at paragraphs 18 and 20) that he would give Mr Bazini an opportunity to clarify issues to do with the Presenting Officer's questioning on customs and with the interpretation in re-examination, all that he then records as to what happened in re-examination is that "...the appellant clarified the issues objected to by Mr Bazini…" He did not clarify whether he meant here the issues to do with the Presenting Officer questioning on customs or Mr Bazini`s objections. The interpretation issue is simply glossed over.
- Furthermore, the adjudicator was wrong in our view to consider that re-examination was the proper vehicle for dealing with the interpretation issue. If the interpreter was interpreting poorly, it was likely that he would go on doing so. Certainly the adjudicator did not give him any direction there and then as to how to ask the questions (e.g. "Please break the questions down into short form, but not at the expense of confusing their meaning and context"). He should have.
- It does not appear Mr Bazini raised the matter further in submissions. Even if he had considered that the adjudicator had by then shut his mind to any point about interpreter problems, it was incumbent on him to make sure that his continuing concerns were placed on record. Had there not been failings on the part of the adjudicator also, we would have seen this failure as seriously undermining the grounds of appeal.
- However, at the end of the day we have to ask ourselves whether, given the inadequate response by the adjudicator to the interpreter issue, the appellant was afforded a fair hearing. Having already noted that in at least three respects the adjudicator relied on discrepancies between what the appellant said at interview and what he said at the hearing, we have decided that the adjudicator's adverse credibility findings are unsafe.
- For the above reasons the appeal is allowed to the extent that it is remitted in accordance with Rule 22 of the Immigration and Asylum Appeals (Procedure) Rules 2003 to be heard by an adjudicator other than Mr K O Adio.
DR H H STOREY
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