Abt16 v Minister for Immigration

[2018] FCCA 1084

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABT16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1084

Catchwords:
PRACTICE AND PROCEDURE – Application for leave to amend application for judicial review to include a ground not raised until hearing of application for judicial review – whether adequate explanation given for not including ground in the application before the hearing of the application for judicial review – whether there is sufficient merit in proposed ground – application for leave to amend application refused.

MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal considered applicants’ claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2)(a)

Cases cited:

Minister for Immigration Citizenship v SZIAI [2009] HCA 39

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212

First Applicant: ABT16

Second Applicant: ABU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 41 of 2016

Judgment of: Judge Manousaridis

Hearing date: 7 April 2017

Date of Last Submission: 7 April 2017

Delivered at: Sydney

Delivered on: 11 May 2018

REPRESENTATION

Applicants in person assisted by an interpreter

Solicitors for the First Respondent: Ms L Buchanan of Australian Government Solicitor

ORDERS

1. The application for leave to amend the application to include as a ground that the second respondent made a jurisdictional error by providing an interpreter in the Mandarin language rather than in the Fuqing language is dismissed.

2. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 41 of 2016

ABT16

First Applicant

ABU16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first and second applicants are mother and son respectively, and citizens of the People’s Republic of China. They seek judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (protection visa).

Migration History

1. The applicants arrived in Australia on 17 December 2007 on Student visas. The first applicant (applicant) lodged a protection visa application on 8 August 2008. A delegate of the Minister refused that protection visa application and, on 28 February 2009, the Refugee Review Tribunal affirmed the delegate’s decision.

2. On 19 March 2014 the applicant lodged a second protection visa application, in which the second applicant was included as a member of the applicant’s family unit. That application was accepted as valid because of the Full Federal Court decision in SZGIZ v Minister for Immigration and Citizenship.[1] A delegate of the Minister refused to grant the visa on 17 July 2014, and the Tribunal affirmed the delegate’s decision on 18 December 2015.

   [1] [2013] FCAFC 71

Claims for Protection

1. In her application for a protection visa the applicant claimed the Chinese government refused to return land to her, denied her the right to claim compensation, and refused to “return the investment money after the project collapsed”.[2] The applicant claimed authorities expropriated her family’s farmland to build a public road “bypassing the land owned by the powerful people”, and failed to pay them fair compensation. The applicant complained to the local and “up-level” governments, but was warned not to “make any further trouble to them” or she would be detained and punished.

   [2] CB19

2. The applicant further claimed she borrowed money from friends and villagers which she invested into a project established by a property developer. The applicant paid higher interest rates than those payable on a bank loan, and was unable to repay the money borrowed because she received “nothing back from the investment” because “the project collapsed or did not exist”. The applicant claimed “perverted government officials colluded with the property developers having deceived our investment money”. The applicant claimed that if she returns to China creditors and debt collectors will be “after” her for their money and, as a result, the safety of her life will be endangered. The applicant further claimed she will assert her right to the land and pursue her claim for compensation from the authorities if she returns to China.[3] The applicant claimed the authorities in China are “unlikely” to protect her because the authorities are the “perpetrators” in her case.[4]

   [3] CB20

   [4] CB21

3. According to the Tribunal’s reasons,[5] before the delegate the applicant claimed she rarely contacts her husband and her other son in China, and her husband does not know she borrowed money from friends. The applicant claimed she borrowed money from her friends to invest in a real estate development in Fuqing. The applicant claimed that when her friends came to her house demanding the return of the money, she was assaulted by a woman and fell to the ground. The applicant went to the police to complain, but the police arrested her and she was detained for one week until a friend bailed her out. After this incident the government confiscated one acre of the applicant’s land. The applicant claimed the government did not compensate her because she failed to repay the loan, and the police claimed the land was confiscated, but they did not repay the applicant’s creditors any money.[6] The applicant claimed her land was being used to develop housing. [7]

   [5] CB105, [17]

   [6] CB105, [17(b)]

   [7] CB105, [17b]

4. Before the Tribunal the applicant made additional claims. She claimed that, after she left China, and because they could not arrest her, the authorities attempted to arrest her husband, but he was not home at the time. The applicant also claimed she was fined for the birth of her second child,[8] and that her “neighbour was building a new property with high land and she was unhappy about this”.[9]

   [8] CB108, [20(t)]

   [9] CB107, [20d]

5. The second applicant also gave evidence before the Tribunal. He claimed that he was “worried” that the people who had lent money to his mother will do something bad to him and possibly restrict his freedom.[10]

   [10] CB12, [39]

Tribunal Decision

1. The Tribunal found the applicant’s evidence “somewhat confused and contradictory”.[11]

   a)Before the Tribunal the applicant said the land was confiscated by the government because of her debt, but the applicant made no such claim in her application for a protection visa.[12]

   b)In her interview before the delegate the applicant said she was detained for one week, but before the Tribunal she clearly stated she had not been detained.[13]

   c)Before the delegate the applicant said her husband knew nothing of her involvement in the property development and her debt, but before the Tribunal the applicant spoke of her husband’s problems and having to move home “because of the matter”.[14]

   d)There was an inconsistency between what the applicant and the second applicant said about the applicant’s husband. The second applicant said his father had lived separately from him and the applicant for over ten years. The applicant, on the other hand, said her husband had been living with her and the second applicant at their home until just after she left China when he moved “because of her problems”.[15]

   [11] CB109, [24]

   [12] CB109-110, [26]

   [13] CB110, [27]

   [14] CB110, [28]

   [15] CB110, [28]

2. The Tribunal, nevertheless, accepted the applicant borrowed money from family and friends in China which she has not repaid; that she borrowed money to invest in a property development project, but has received no return from the investment and could not repay the loan; that a section of her land was taken to build or widen a road and she did not receive fair compensation for the acquisition; and that the applicant had to pay a large fine after the birth of her second child.[16] The Tribunal did not accept the applicant had been detained, or that all of her land was confiscated by the government because of her indebtedness.[17]

   [16] CB110, [30]

   [17] CB110, [31]

3. The Tribunal accepted that if she returns to China the applicant’s creditors may still expect repayment of the money she owes them; but the Tribunal was not satisfied the applicant would be subjected to significant harm in China because of her outstanding debts.[18] The Tribunal relied on the applicant’s evidence that she remained in China for several years owing money without any action having been taken against her, other than repeated requests for repayment.[19] The Tribunal also found that, although the applicant’s creditors may take legal action against her, there was no evidence before the Tribunal that this could result in her arrest or imprisonment and the Tribunal, therefore, was not satisfied that if the applicant returned to China there is a risk she will be arrested and imprisoned in China because she owes money to people.[20] Nor was the Tribunal satisfied that, for that reason, there was any risk the applicant would be arbitrarily killed, or be subjected to the death penalty, or be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment because she has outstanding debts in China, including those arising out of the property development project.[21]

   [18] CB110-111, [32]

   [19] CB111, [32]

   [20] CB111, [32]

   [21] CB111, [33]

4. Although the Tribunal accepted it was unfair the applicant did not receive any compensation for the section of her land that was acquired by the government for a road, it found there was no indication of any subsequent harm to the applicant because of that incident.[22] The Tribunal referred to the applicant’s having remained in China after this incident and making complaints without her suffering any harm. The Tribunal did not accept that, on her return, the applicant will continue to complain about the confiscation of part of her land, given the incident had occurred years ago and the applicant would know the futility of her complaining. The Tribunal, therefore, was not satisfied there is a real risk the applicant would be subjected to significant harm in China because of, or arising out of, the past confiscation of a section of her land.[23]

   [22] CB111, [34]

   [23] CB111, [34]

5. The Tribunal was also not satisfied the applicant faced a risk of harm if she returned to China because she had a second child, or because she may have to pay a fine for having had a second child. The applicant did not claim she will be subjected to significant harm in China because of the birth of her second child.[24]

   [24] CB111, [35]

6. Finally, although the Tribunal accepted the applicant’s neighbours raised the height of their home which made the applicant unhappy because it caused some water damage to her home, the applicant did not present this information as a basis for claiming she feared future harm if she were to return to China, and there was no evidence before the Tribunal that supported such claim.[25]

   [25] CB111, [36]

7. The Tribunal also considered the position of the second applicant. It found there was no evidence or indication that the people who had lent the applicant money will do anything bad to the second applicant or possibly restrict his freedom; and there was no accepted evidence before it that there is a real chance the second applicant would be harmed in China because the applicant owes money to people. While it accepted the second applicant may have to make some adjustments in his lifestyle and expectations on his return to China, the Tribunal did not consider any such adjustment would amount in any way to serious or significant harm. The Tribunal was not satisfied the second applicant had a well-founded fear of persecution; and it was not satisfied the second applicant would be subjected to serious or significant harm if he were to return to China.

8. For these reasons the Tribunal concluded the applicant did not satisfy the criteria under s.36(2)(aa) of the Migration Act 1958 (Cth) (Act), and that the second applicant did not satisfy the criteria under s.36(2)(a) or s.36(2)(aa) of the Act.

Grounds of application

1. In the “Attachment to Grounds of Application” under the heading “Orders sought by Applicant” the application states as follows (errors in original):

   1.We don’t agree with the decisions made by tribunal that there is no a real risk for both I and my son in China due to our previous background. We don’t think our danger and potential risk have been well considered and all of our statements and the explanation given have been taken into an account prudently.

   2.We don’t think tribunal has well understand and investigated in our case about out local government’s dictatorship, tyranny and brutal repression in dealing with our dispute in land property in fair treat solution. We have fell into the disadvantaged position and become the vulnerable in punishment. We don’t think we have safety and protection quarantine if we go back in our origin as our problem is unsolved and the people in charge are still in power there.

   3.We believe tribunal has ignored some of the facts in our local community that the problem we have encountered is uncommon and unjustified. We are weak in dealing with those governmental officials who are corrupted and beneficiary.

   4.Our claim and appeal have not been accepted by Chinese government and we were bias treated in community, all of our efforts in appeal were abused and we were alleged to disorder the social stability, according to local government. Thus has made us live in struggle and stress.

   5.We will be persecuted and isolated due to our background as in our local community the threat has never gone. The political situation at present in our hometown remained unchanged.

   6.Tribunal also gave little reference and consideration on our claim after we arrived in Australia, especially our difficulties, stress and economic condition, failed to give us a chance to explain or comment on the outstanding questions off hearing.

2. Under the heading “The Grounds of the Application are”, the application states as follows (errors in original):

   1.I have and my family had hard experience when we were in China due to our problem with government on land property dispute. We were ill treated and persecuted, and harmed psychologically.

   2.There is no real freedom or democracy in our hometown. All of our efforts in appeal against government end up a failure and lead us into a great challenge. We have no access to legal support and social assistance elsewhere. We were imposes high pressure and threat by government.

   3.We have fear to be persecuted due to my claim and conflict with government as the situating in my hometown never changed better.

   4.We firmly believed that we will be at risk or harm if we go back to China. We wish Australian government could provide us with a protection for sake of our life, human right and dignity.

   5.We wish to make a contribution to Australian society and developed our career in the country we have been residing for long. We long for a fairly treat and be given a justice in this country we love.

The judicial review hearing

1. At the hearing before me the applicant, who is not represented, but who was assisted by an interpreter, claimed that at the hearing before the Tribunal the interpreter spoke in Mandarin Chinese, but she does not understand Mandarin Chinese. The applicant said she had requested the Tribunal provide an interpreter who spoke Fuqing.

2. There is no doubt that in their response to hearing invitation the Tribunal had issued the applicants nominated an interpreter who spoke Fuqing,[26] yet the interpreter that was provided at the hearing was one accredited in the Mandarin language.[27] Given those circumstances, I asked the applicant and the second applicant a number of questions.

   [26] CB77

   [27] CB80

3. I asked the applicant whether she informed the Tribunal she had difficulty understanding the interpreter. The applicant said: “I didn’t dare to say that”.[28] After asking the applicant a number of other questions I asked her questions about the hearing before the Tribunal:[29]

   [28] T6.40

   [29] T13.45-T14.25

   HIS HONOUR:   Did you speak during the hearing?

   THE INTERPRETER:   What do you mean by that?

   HIS HONOUR:   Did you give evidence to the tribunal?

   THE INTERPRETER:   Yes.

   HIS HONOUR:   So you understood the tribunal was asking you questions?

   THE INTERPRETER:   Yes.  I was ‑ ‑ ‑ 

   HIS HONOUR:   And ‑ ‑ ‑ 

   THE INTERPRETER:   ‑ ‑ ‑ asked questions but I didn’t understand clearly.

   HIS HONOUR:   But you answered them?

   THE INTERPRETER:   I answered, but I didn’t know the meaning.

   HIS HONOUR:   Did you tell the tribunal that you didn’t understand – didn’t know the meaning?

   THE INTERPRETER:   I didn’t dare to say that clearly.

   HIS HONOUR:   All right.  So you knew that the tribunal was asking you questions and you answered them.  You didn’t understand the questions, but you didn’t tell the tribunal that you didn’t understand them; is that what you’re saying?

   THE INTERPRETER:   That's right.

1. I asked the applicant why she did not say anything to the Tribunal about the interpreter. The applicant said she was “afraid . . . they wouldn’t like it, that the interpreter wouldn’t like it”.[30] I also asked the applicant why she did not include in her application that was filed in this Court anything about the interpreter that was provided before the Tribunal. The applicant said the application was prepared by “[s]ome one I knew”. She does not know the full name of the person, but the applicant called him “Yidi”;[31] and the applicant “ask him to put that in my application, but he didn’t do that”.[32]

   [30] T8.30

   [31] T12.40

   [32] T12.45

2. I directed the applicant’s attention to the “MRD Hearing record” contained in the Court Book which recorded that in addition to the applicant being present at the Tribunal hearing there was also present the second applicant and a “Mr Chang Liu” whose role is described as “[r]epresentative”.[33] Mr Chang Liu’s name is mentioned in the applicants’ application for a protection visa as the person who assisted the applicants to complete that application; and he is described as a solicitor.[34] The applicant stated to me that the representative “didn’t go”.[35]

   [33] CB80

   [34] CB26

   [35] T8.10

3. I asked the second applicant a number of questions which he answered with the assistance of an interpreter. The second applicant said he spoke Mandarin.[36] He said that he thought the application filed in this Court was completed by a person whom the applicant met at Flemington markets.[37] The second applicant also stated that he signed the application. In response to my question whether he understood what was in the application when he signed it, the second applicant said he did not know “much about the law issues, but I think I had a general understanding”.[38] I asked the second applicant whether he had an explanation why the application that was filed in this Court did not include in it anything about the interpreter that was provided at the Tribunal hearing:[39]

   [36] T16.25

   [37] T16.45

   [38] T17.10

   [39] 17.15-T17.35

   HIS HONOUR:   All right.  Do you have an explanation why the application does not contain a complaint about the nature of the interpreter that was provided for the purposes of the tribunal hearing?

   THE INTERPRETER:   I think my mother was scared and also she thought if she didn’t use that interpreter then the interpreter wouldn’t get paid that day. 

   HIS HONOUR:   Say that again, sorry.

   THE INTERPRETER:   The interpreter wouldn’t get paid for that job on that day.

   HIS HONOUR:   She felt sorry for the interpreter?

   THE INTERPRETER:   That’s what I think. 

   HIS HONOUR:   Right.  But in the application that was filed with this court, do you have an explanation why there was not included in that application a complaint about – sorry, I withdraw that.  Are you saying that the reason no complaint was made in the application that you filed with this court about the interpreter is that your mother was afraid the interpreter wouldn’t get paid?

THE INTERPRETER:   At that time I was not very aware of that.  But today I see a Fuqing interpreter here, I realise that I should use a Fuqing interpreter before. 

1. I also asked the second applicant questions about what occurred at the Tribunal:[40]

   [40] T17.45-T18

   HIS HONOUR:   And you were at the hearing, you – you were at the hearing before the tribunal, even though you can’t remember being there;  is that right?

   MR ..........:   Yes, but my mum can’t understand.  Maybe I’m okay, but she can’t understand.

   THE INTERPRETER:   For my mother it’s very difficult.  She doesn’t even understand the questions.

   HIS HONOUR:   Right.  Did she tell you at the hearing that she couldn’t understand?

   THE INTERPRETER:   We were questioned separately, so only at the end she told me about her difficulties in understanding.

   HIS HONOUR:   Right.  And did you tell the tribunal that your mother had difficulty?

   THE INTERPRETER:   Because when she answered the question, I was not there, so I was not sure.

   HIS HONOUR:   Right.  Was your mother questioned before you were questioned or after you were questioned?

   THE INTERPRETER:   We – at the beginning we went into the room together.  Then I – later my mother answered the question first.

   HIS HONOUR:   All right.  So when you were in the room together, you knew that the interpreter spoke Mandarin; is that right?

   MR ..........:   Yes.

   HIS HONOUR:   Yes.  Did you tell the tribunal that your mother would have difficulty understanding a Mandarin interpreter?

   MR ..........:   No.

   HIS HONOUR:   Why not?

   MR ..........:   Because like sometimes she can understand, but sometimes she can’t understand.  I don’t know ‑ ‑ ‑ 

   HIS HONOUR:   Why didn’t you tell the tribunal?

MR ..........:   I don’t know.

1. In the course of the hearing I informed Ms Buchanan, who appeared for the Minister, that I proposed to treat the applicants’ complaint in relation to the interpreter that was provided at the hearing before the Tribunal as an application by them for leave to amend the application, and I invited submissions from Ms Buchanan. I then informed the applicants that I proposed to deal with the claims about the interpreter as an application for leave to amend the application. I did so in the following terms:[41]

   [41] T20-T21

   HIS HONOUR:   Now, let me just explain to you the discussion I had with Ms Buchanan.  You have filed an application which contains grounds.  And I’m going to invite you again to say whatever else you wish to say about the grounds that are currently included.  But the only ground that you have raised in submissions is a complaint made about the interpreter that was provided.  Now, as I said before, that’s not in your application.  You will need my permission for it to be included in your application, before I can even consider it.  In other words, so what I propose to do is to treat the submission you’ve made about the interpreter today as an application for permission to include that ground in your application.  I have got power to give you that permission, but that power is exercised according to particular principles. 

   And basically there are two matters that I need to consider:  the first is whether an adequate explanation has been given for the ground not having been raised earlier than at the day of the hearing.  This proceeding was filed over a year ago, and the question is whether you have given any reasonable explanation for why you haven’t raised it before today.  So that’s one consideration I need to take into account.  You have made statements seeking to explain why you haven’t done it to date.  Ms Buchanan says that the explanation you’ve given is inadequate.  Now, the second and usually more important consideration is whether there would be any merit in the ground, if I were to permit it to be raised.  And Ms Buchanan says that there is no merit in the ground. 

   First, it appears that no complaint was made to the tribunal at the time of the hearing about either of your abilities to understand and communicate with the tribunal through the interpreter that was provided.  The submission Ms Buchanan makes is it is reasonable for me to infer from that fact that there was, in fact, no real difficulties encountered with the interpreter that was provided, and that if I were to permit you to raise the interpreter issue as a ground, it would be futile, because the likelihood is that you would lose that ground.  And Ms Buchanan also submits that you have identified no particular aspect of the hearing, and in particular no particular evidence that was given or not given which was affected by having what you say was an inappropriate interpreter. 

   So they’re the matters that I will need to consider.  If, having considered those matters, I think it appropriate that I should permit you to add the ground about the interpreter, I will make an order to that effect and give the Minister and opportunity to provide evidence to deal with it.  If on the other hand I’m not persuaded that it is appropriate to give you permission, I will dismiss your application for permission to add it as a ground.  And, of course, I will deal with the other grounds raised in your application. Do you understand what it is that I propose to do and how I propose to approach this issue of the alleged inappropriate interpreter?  Speak.  You need to speak. 

   THE INTERPRETER:   So, your Honour, you’re considering that for me.  Thank you. 

   HIS HONOUR:   Well, I’m just telling you what I propose to do.  My having informed you of the issues I need to look at, is there anything further you wish to say about my considering your application to raise that as a ground?  That is to say, the inappropriate interpreter?  Is there anything more you wish to say about what I said about what I propose to do concerning considering your application for permission for me to consider the ground, based on an inappropriate interpreter?  I’m not suggesting you have to tell me.  I’m giving you an opportunity to tell me anything else you wish to say.  Will I take that to be you do not wish to say anything further about that?

   THE INTERPRETER:   Nothing for that.

2. The applicants made no submissions in relation to the grounds stated in the application. I will, therefore, first consider the matters about which the applicants did make submissions, namely, the complaint about the interpreter that was provided for the purposes of the Tribunal hearing.

Leave to amend to include interpreter issue

1. As I informed the applicants, I need to consider two questions when considering whether to grant leave to amend the application. The first is whether the applicants have given an adequate explanation for their not having raised this issue before.

2. The applicants did not give sworn evidence, but made statements from the bar table. I propose to treat those statements as having been made on oath, and propose to assess their weight on the basis they were not challenged by cross-examination. That does not necessarily mean I must accept the statements as true or correct if I am of the opinion the statements are not credible.

3. I find inadequate the explanations the applicants have given for not having raised in their application the complaint about the interpreter that was provided in the hearing before the Tribunal. The second applicant said to me that although he did not know “much about the law issues” he thought he had “a general understanding” of what was contained in the application.[42] That means that the second applicant himself knew that the application contained nothing about the interpreter. Given the relationship between the applicants, it is improbable that the second applicant would not have shared with the applicant his general understanding of what was contained in the application which would have made it clear to the applicant that the application made no claim about the interpreter at the Tribunal hearing. Thus even if it is true that the applicant asked a person by the name of “Yidi” to include in the application a complaint about the Tribunal’s not having provided a Fuqing interpreter and that “Yidi” did not do that, given the second applicant’s understanding of the grounds stated in the application the likelihood is that by the time the application was filed the applicant would have known that the application said nothing about the Tribunal’s not providing an interpreter in the Fuqing language.

   [42] T17.10

4. That I am not satisfied the applicants have given an adequate explanation for not including in the application they filed in this Court anything about the interpreter that was provided at the hearing before the Tribunal would not be a determinative factor if I were otherwise satisfied that what the applicants stated to me gives rise to an arguable case of jurisdictional error. The potentially relevant jurisdictional error would be that which may arise from errors in interpretation. Errors in interpretation would have that consequence if, because of the errors, the hearing before the Tribunal was not fair. The relevant principles were stated by Allsop CJ in SZRMQ v Minister for Immigration and Border Protection:[43]

   [43] [2013] FCAFC 142; (2013) 219 FCR 212 at [5], [9], [10]

   [5] Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.

   . . . .

   [9] The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

   [10] How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair.

5. In my opinion the matters raised by the applicants raise no arguable case that the hearing before the Tribunal was not fair, or that the applicants were denied meaningful opportunity to participate in the hearing before the Tribunal and that, for that reason, the Tribunal made a jurisdictional error.

   a)First, the applicants accept they were aware the interpreter that was provided at the Tribunal hearing was an accredited Mandarin interpreter, not a Fuqing interpreter. If the applicant in truth considered she would be unable to understand Mandarin, she and the second applicant had an opportunity to say something about that to the Tribunal. The applicants, however, said nothing.

   b)Second, according to the answers the applicant gave to me, she answered the questions asked of her by the Tribunal without at any stage stating to the Tribunal that she had difficulty understanding the interpreter.

   c)Third, the explanation the applicant gave to me for not raising the difficulties she claimed to have experienced – that she was afraid to do so - is implausible, at least in the absence of any credible reason why she would have been afraid to inform the Tribunal that she had difficulty in understanding the interpreter. The implausibility is heightened by the fact that, according to the Tribunal’s “MRD Hearing Record” (but contrary to what the applicant stated to me), the applicants’ representative was present at the hearing.

   d)Fourth, in its reasons for decision the Tribunal summarised in some detail the information the applicants gave at the hearing before the Tribunal.[44] The Tribunal does not there or in any other part of its reasons for decision refer to the applicant having experienced any difficulty in understanding or responding to the Tribunal’s questions.

   e)Fifth, the applicant did not identify what, if any, part of the information she provided to the Tribunal at the hearing was affected by the Tribunal’s having provided an interpreter in the Mandarin language rather than one in the Fuqing language.

   [44] CB106-108, [20] (applicant); and CB108, [21] (second applicant)

6. One the basis of these matters there is no arguable case that, when giving evidence before the Tribunal, the applicant did not understand the questions asked of her by the Tribunal as interpreted by the interpreter, or that the applicant, when giving her answers to those questions, did not convey through the interpreter the meaning she intended to convey when answering the questions. Further, to the extent the applicant did experience some difficulties in understanding the questions asked of her by the Tribunal, there is no arguable case that any misunderstanding the applicant may have experienced resulted in the applicant’s failing to give information she otherwise would have given, or in giving information which she would not otherwise have given, had she correctly understood the question. Nor is there any arguable case that the process by which the Tribunal’s questions and the applicant’s answers to those questions were translated resulted in the applicant’s being denied a fair hearing before the Tribunal.

7. Given the applicants provided no adequate explanation for not having included in their application any complaint about the interpreter that was provided at the Tribunal hearing and, more significantly, given my conclusion that the applicants’ complaint made to me about the interpreter gives rise to no arguable case of jurisdictional error, I am not satisfied it is appropriate to grant the applicants leave to amend their application to include as a ground that the Tribunal made a jurisdictional error by providing an interpreter in the Mandarin language rather than in the Fuqing language. I propose, therefore, to order that the application for leave to amend the application be dismissed.

8. I will now consider each of the grounds stated in the application.

Grounds contained in the application

1. Part of paragraph 1 under the heading “Orders sought by Applicant” goes no further than expressing disagreement with the Tribunal’s conclusions. To that extent the paragraph discloses no jurisdictional error. The paragraph also contends that not all of the applicants’ explanations were “well considered” by the Tribunal. I do not accept that contention. As is evident from my summary of its reasons for decision, the Tribunal correctly identified the applicants’ claims and the evidence the applicants gave, it considered the claims, and it made findings in relation to those claims that were reasonably open to it.

2. Paragraph 2 under the heading “Orders sought by Applicant” contends the Tribunal did not well understand or “investigate” that part of the applicants’ claims concerning their dispute with the government over the applicant’s land. I read this paragraph as claiming the Tribunal failed to consider this part of the applicants’ claims. If that is what this paragraph intends to claim, it discloses no jurisdictional error. As I have already noted, the Tribunal correctly identified and considered the applicants’ claims.

3. Perhaps paragraph 2 is intended to claim the Tribunal was obliged to investigate for itself that part of the applicant’s claims paragraph 2 identifies. If that is what paragraph 2 intends to claim, that too would disclose no jurisdictional error. To the extent the Tribunal may have come under a duty to make inquiries, those inquiries would have been limited to inquiries about a critical fact the existence of which could be easily ascertained.[45] Paragraph 2, however, does not identify any critical fact whose existence could easily have been ascertained.

   [45] Minister for Immigration Citizenship v SZIAI [2009] HCA 39

4. Paragraph 3 under the heading “Orders sought by Applicant” contends the Tribunal ignored some facts. The ground does not identify, however, the facts it is said the Tribunal ignored and, for that reason, reveals no jurisdictional error. The remainder of the paragraph makes claims that are relevant only to the claims for protection that were considered but rejected by the Tribunal and, for that reason, disclose no jurisdictional error.

5. Paragraphs 4 and 5 under the heading “Orders sought by Applicant” simply reassert their claims for protection and, for that reason, seek no more than impermissible merits review. They disclose no jurisdictional error by the Tribunal.

6. Paragraph 6 under the heading “Orders sought by Applicant” claims the Tribunal failed to consider the economic situation of the applicants and other matters the applicants say they experienced in Australia. That is true. There is nothing in the material before me, however, that suggests that any part of the applicants’ claims for protection that were before the Tribunal relied on anything the applicants did or did not do in Australia. The Tribunal, therefore, made no jurisdictional error by not considering the applicants’ experiences in Australia.

7. Paragraphs 1 to 4 under the heading “The Grounds of the Application” raise contentions that can only be relevant to the applicants’ claims for protection and, for that reason, disclose no jurisdictional error by the Tribunal. Paragraph 5 under that heading goes no further than expressing the applicants’ desire to contribute to Australia, and to be treated fairly and be given justice. That too discloses no jurisdictional error by the Tribunal.

Disposition

1. As I have already indicated, I propose to dismiss the application I have treated the applicants as having made to amend the application to include as a ground that the Tribunal made a jurisdictional error by providing an interpreter in the Mandarin language rather than in the Fuqing language. I otherwise propose to dismiss the application.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  11 May 2018