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American Annals of the Deaf

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Interpreting in Legal Settings

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Notwithstanding this international legal basis and consistent efforts at establishing standard practices for refugee status determination proceedings by the United Nations High Commissioner for Refugees (UNHCR), it is up to the individual signatory states to create a legal framework and institutional structures and procedures for conducting this process under national law. Not surprisingly, national legislative arrangements exhibit considerable differences, and the role and status of interpreters in the proceedings may vary accordingly. What seems to be a common feature of the asylum process in most jurisdictions, though, is the two-tier structure typical of the legal process in general. In other words, there is a first instance or basic level at which proceedings take place in the form of asylum interviews and are concluded either by a positive or negative decision on the claim for refugee status or similar protection (non-refoulement). Applicants have the right to appeal against a negative decision, and such appeals are usually heard by a court-like institution, such as the Immigration Appeals Authority in the United Kingdom or the Permanent Commission of Appeal for Refugees in Belgium (cf., Maryns, 2006). Whereas in Germany, for instance, appeals against decisions of the first-instance asylum authority are dealt with in regular trials before a district administrative court (cf., Reischl, 2001), the Austrian system currently involves a special quasi-judicial authority, the Independent Federal Asylum Review Board (IFARB; Unabhängiger Bundesasylsenat—UBAS), created in 1997 to relieve the country’s Administrative Court of hearing appeals against first-instance decisions.

Whereas the Austrian first-instance authority, the Federal Asylum Office (Bundesasylamt), created in 1992, is staffed mainly by specially trained police officers and reports to the Ministry of the Interior, the forty-some IFARB members are appointed for life by the Austrian president and enjoy the same degree of independence as judges. While technically an administrative authority under the aegis of the Interior Ministry and thus subject to review by the Administrative Court on matters of procedure, the IFARB has many features of a judicial body that distinguish its members and its proceedings from those of the firstinstance asylum authority (cf., Krainz & Wintersberger, 2006).

Since the procedural language of all Austrian public authorities is German, and since applicants for asylum, as a rule, do not have a sufficient command of that language, interpreters are an indispensable part of the entire asylum process. Applicants’ right to an interpreter as laid down in the European Convention on Human Rights is mandated by the Austrian Code of Administrative Procedure in Section 39a, which applies only to oral proceedings between the authority and the parties (cf., Maurer-Kober, 2006, p. 19). However, non-German speaking parties’ right to interpreting services free of charge does not imply the right to an interpreter for their native language. Rather, interpreting may be, and frequently is, offered in another language of which the applicant has a sufficient understanding and active command. Typical examples are the use of Russian for asylum seekers from Chechnya and the use of English for claimants from anglophone African countries, as in the corpus under study. (On the critical issue of imposed language choice, see Maryns, 2006, chap. 2) Unlike in Germany, applicants for asylum may not supply an interpreter of their choosing at their own expense, but they do have the right to reject an interpreter hired by the authority if there is evidence of bias or lack of qualification.

The interpreter for a given appeal hearing is contracted by the IFARB member assigned to the case, who will conduct the hearing and issue the decision as the sole adjudicator. Interpreters are drawn from an internal list that includes court-certified interpreters as well as others who have offered their services to the authority. Court-certified status is not a prerequisite, and some of the more than 60 languages used in hearings before the IFARB are so exotic in the Austrian context that it is sometimes difficult to find anyone to serve as an interpreter.

RESEARCH ISSUES

The availability of qualified interpreters for asylum hearings is one of the most critical issues in this field and has been discussed from the legal as well as the linguistic point of view (e.g., Anker, 1991; Kälin, 1986; Monnier, 1995). Aside from this major organizational and training challenge, the overriding theme in research on interpreting in the asylum process appears to be the interpreter’s role, with particular emphasis on the extent to which s/he may or should go beyond the task of relaying the primary participants’ utterances and take more active responsibility for the achievement of cross-cultural understanding. The most radical proposal in this regard was introduced to the translation studies community by Robert Barsky (1996), who concluded from his interview-based study of Canadian Convention refugee hearings that the interpreter should act as an “intercultural agent,” improving the asylum seekers’ chances of receiving a fair hearing by better articulating their claims, filling in cultural gaps, and compensating for errors of judgment.

In a questionnaire-based survey among interpreters serving the Refugee Status Appeals Authority in New Zealand, Sabine Fenton (2004) sought to gauge the level of practitioners’ support for Barsky’s (1996) “extreme demands.” Though she found that most of her 35 respondents expressed sympathy for the disadvantaged position of the asylum seekers in the face of interviewers’ often cold and even hostile questioning style, they were unanimous in endorsing the “accurate interpreting” norm and preferring to be “as invisible and unobtrusive as possible” (Fenton, 2004, p. 268).


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