Avi16 v Minister for Immigration - [2018] FCCA 2453

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVI16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2453

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate not to grant – applicants claimed decision of Administrative Appeals Tribunal affected by jurisdictional error due to poor interpretation at the hearing before Administrative Appeals Tribunal – no proper basis to claims of poor interpretation – applicants otherwise seek to engage in impermissible merits review – no jurisdictional error identified by applicants – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6

SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

First Applicant:	AVI16
Second Applicant:	AVJ16
Third Applicant:	AVK16
Fourth Applicant:	AVL16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 862 of 2016

Judgment of:

Judge Dowdy

Hearing date:

14 September 2017

Date of Last Submission:

12 October 2017

Delivered at:

Sydney

Delivered on:

7 September 2018

REPRESENTATION

The First and Second Applicants appeared in person on behalf of themselves and the Third and Fourth Applicants.

Counsel for the First Respondent:

Mr J. Kay-Hoyle of Counsel

Solicitors for the First Respondent:

Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

Grant leave to the Applicants to read and rely upon the affidavit of the First Applicant affirmed on 26 September 2017 on the basis that the annexure thereto is to be regarded as a submission.
The Application filed in this Court on 12 April 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 862 of 2016

AVI16

First Applicant

AVJ16

Second Applicant

AVK16

Third Applicant

AVL16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicants in this proceeding are as follows:
a)the First Applicant is a male citizen of India aged 49 years, having been born on 7 January 1969;
b)the Second Applicant is a female citizen of India aged 46 years, having been born on 15 May 1972, and is the wife of the First Applicant; and
c)the Third Applicant and the Fourth Applicant are female citizens of India aged respectively 14 and 11 years, having been born on 23 August 2004 and 26 July 2007, and are the daughters of the First and Second Applicants.
(collectively the Applicants)
The First Applicant lodged an application for a Protection (Class XA) visa (Protection visa) on 2 January 2014 in which the Second, Third and Fourth Applicants were included as members of the same family unit. Only the First Applicant made specific claims to protection, whereas the Second, Third and Fourth Applicants applied as family members dependent upon the claims of the First Applicant.
By Application filed in this Court on 12 April 2016 the Applicants seek to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 17 March 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 16 September 2014 refusing to grant to them Protection visas.
The First Applicant had arrived in Australia on 22 October 2009 on a Vocational Education and Training Sector (Class TU) (Subclass 572) visa as a dependent of the Second Applicant who was enrolled to study in Australia and has since completed in Australia an Advanced Diploma in Teaching and a Certificate III and Certificate IV in Aged Care.
In their Protection visa application forms the First Applicant stated that he could speak, read and write Malayalam and read English, and the Second Applicant indicated that she could speak, read and write both Malayalam and English. The First Applicant had worked in India as a landscape gardener. The Second Applicant had been a primary school teacher in India, having obtained a Bachelor’ Degree in Zoology in 1994. They had married on 31 August 2003.
During their residence in Australia since 2009:
a)the First Applicant returned to India from 19 March 2011 to 19 June 2011 and from 24 December 2012 to 23 June 2013, when he returned to Australia bringing with him the Third and Fourth Applicants;
b)the Second Applicant returned to India from 31 December 2011 to 5 February 2012 and from 22 January 2013 to 25 February 2013.
The First Applicant was granted ensuing visas up to the date of lodging his Protection visa application.

Claims for Protection

In his Protection visa application the First Applicant claimed as follows:
a)both he and his whole family were at risk if they returned to India as a consequence of the risks to the First Applicant in connection with his dealings with a criminal gang involved in illegal money lending known as the “Blade Mafia”;
b)he was born and lived in the State of Kerala in India. He was brought up in the Catholic faith and all of his family were practising Catholics;
c)although not a fisherman, he was a member of the Catholic Fishermen Society and was the Vice-President of an organisation known as the South Indian Fishermen Development Society (SIFDS). The SIFDS was involved in the development and support of fishermen and their families in the community;
d)he was active in assisting Catholic fishermen in Kerala in their dealings with the Blade Mafia;
e)he left his home country of India for fear of continued torture, persecution and threats of death from the Blade Mafia group in the State of Kerala because he was actively helping the Catholic Fisherman who were suffering at the hands of that group. The Blade Mafia torture the poor people by charging them heavy interest for small loans, as well as attacking them physically and mentally if they are not able to pay their heavy interest on time;
f)he reported members of the Blade Mafia to the police. As a consequence, the Blade Mafia attacked him and threatened members of his extended family. He fears that if he returns the Blade Mafia will continue to target him, attack him and make threats against his family members;
g)the Blade Mafia also targeted him because he was involved in Christian charity work. Because he is a Christian, he would be denied help or assistance from the police in India;
h)he bought a one way ticket and went from Australia to India on 24 December 2012 to stay in India and restart his landscaping business and to work as an agent of a used lubricant oil collection business. However, on Wednesday 27 February 2013 at 9:45pm he was attacked by Blade Mafia operatives and he was hospitalised; and
i)if he went back to anywhere in India he would suffer much anguish and anxiety, feared that he and his family would be tortured or killed and he would have to live whilst looking over his shoulder knowing that it was only a matter of time before he and his family would suffer and be killed at the hands of the Blade Mafia.
Under cover of a letter dated 13 August 2014 the First Applicant submitted to the Department of the Minister a letter signed by Mr Robert Panipilla, who was President of the SIFDS, which stated that the First Applicant had been Vice-President from October 1989 until June 2009 and that the First Applicant was “one of the main activists in [the SIFDS] drive against private money lenders within the coastal fishing communities” and “he was frequently attacked and his life was always in danger as he was directly and passionately campaigning against money lenders and brought a few of them to the legal proceedings”.

Relevant Criteria and Law Applicable to Protection Visa Applications

A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]–[7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

The First Applicant attended an interview with the Delegate on 26 August 2014.
The Delegate recorded in his Decision Record that at the interview the Applicant, inconsistently with his written claims, stated that his problems with the Blade Mafia only started after his last visit to India during the period 24 December 2012 to 23 June 2013 and that he had not had any problems in India prior to coming to Australia on 22 October 2009, and that this inconsistency cast doubts about his claims of being a person of interest to the Blade Mafia.
The Delegate also recorded that at the interview the Applicant maintained that he had suffered two attacks against him whilst in India, with the first attack occurring about two weeks before the second attack on 27 February 2013. The Delegate noted that the Applicant had stayed in India for a further four months after the alleged attack on 27 February 2013 before returning to Australia on 23 June 2013, and that this four month delay in returning supported a finding that his fears of persecution were insubstantial.
The Delegate further noted that the Applicant had delayed in the lodging of his Protection visa application from the time of his arrival in Australia on 22 October 2009 for some four years and two months, and that whilst he claimed that he had been attacked in India on 27 February 2013 he did not apply for protection when he returned to Australia on 23 June 2013 for nearly six months.
In the result the Delegate was not satisfied that the Applicant had a genuine fear of any threats or persecution in India and that his claims did not fall under one of the Refugee Convention grounds, but rather amounted to a civil dispute between the Applicant and the Blade Mafia money lenders.
Further, the Delegate was not satisfied that the First Applicant was a person to whom Australia had protection obligations under the complementary protection criterion because of his claims amounting to a civil dispute between him and the Blade Mafia, his delay in leaving India, his delay in lodging his Protection visa application, his returning to India from Australia on two occasions and the inconsistency between his earlier written claims and the claims made by him at the interview with the Delegate.
Accordingly, the Delegate refused to grant a Protection visa to the First Applicant. As the applications for Protection visas of the Second to Fourth Applicants were dependent upon the success of the First Applicant, they too were refused Protection visas.

Decision of Tribunal

The Applicants applied to the Tribunal on 10 October 2014 for merits review of the Delegate’s decision.
The First and Second Applicants appeared before the Tribunal at two hearings which took place on 9 December 2015 (first Tribunal hearing) and 24 February 2016 (second Tribunal hearing), to give evidence and present arguments with the assistance of the same interpreter in the Malayalam and English languages. The First Applicant’s registered migration agent, the Rev Fr Allan Hornery, also appeared at each of the hearings.
At [22] – [29] of its Decision Record the Tribunal recorded the Applicant’s claims and the body of evidence given in support of those claims. At [29] it recorded that at each hearing it had taken evidence from the First and Second Applicants, and that at the first Tribunal hearing it had taken evidence from the First Applicant’s uncle, Mr Dennison Panipilla, and a Mr Harison Boniface.
Then at [30] – [55] the Tribunal set out its assessment and findings on the claims made by the First Applicant in relation to the Blade Mafia. At [33] the Tribunal foreshadowed its serious concerns about the First Applicant’s credibility and whether he was telling the truth about significant aspects of his claims and recorded its conclusion that the Tribunal did not find the evidence presented to it to be credible, plausible, persuasive or consistent.
At [34] of its Decision Record the Tribunal accepted the First Applicant’s claim at the Tribunal hearing that he had held the position of Vice-President of the SIFDS for several years prior to leaving India, which was inconsistent with the letter of Mr Robert Panipilla (see [9] above) which had stated that the First Applicant had been Vice-President for almost 20 years from October 1989 to June 2009, and the evidence of Mr Dennison Panipilla to the Tribunal that the First Applicant had just been an ordinary member of the SIFDS.
At [36] of its Decision Record the Tribunal accepted, on the basis of independent country information, that there are illegal money lending gangs in the State of Kerala referred to as the Blade Mafia and that they are a violent and ruthless group.
At [37] the Tribunal expressed its view that it was not satisfied that the First Applicant had at any time ever engaged in any mediation or negotiation with the Blade Mafia on behalf of the fishermen or had any contact with the Blade Mafia on behalf of fishermen members of the SIFDS, and that it had concerns with every aspect of the First Applicant’s claims regarding his contact with the Blade Mafia.
At [46] of its Decision Record the Tribunal recorded its finding that Mr Dennison Panipilla’s evidence was completely unreliable and did not support the First Applicant’s claims. At [47] it recorded that Mr Harison Boniface did not support the First Applicant’s claim that he was assaulted by the Blade Mafia on 27 February 2013, notwithstanding that it had been told before speaking to him by telephone that Mr Boniface would do so. The Tribunal found that the information provided by the First Applicant’s relatives was not accurate and independent but was open to manipulation by the First and Second Applicants and the Tribunal had given it no weight.
Finally, at [55] of its Decision Record the Tribunal recorded its finding that it did not accept the First Applicant’s claims that in 2013 he was threatened with harm and assaulted by the Blade Mafia. Rather, the Tribunal was not satisfied that he had any dealings with the Blade Mafia, or that he would have a profile in India as being opposed to the Blade Mafia and in those circumstances the Tribunal did not accept that the Blade Mafia would be looking for the First Applicant or would wish to harm him in the future, or that he would need to go into hiding in his home State of Kerala, or elsewhere in India.
At [56] – [61] the Tribunal considered the First Applicant’s claims that he would be at risk in India because he was a Christian and did charity work in India and would be targeted and persecuted by Hindu fundamentalists. At [59], having considered independent country information concerning the treatment of Christians in Kerala, the Tribunal stated that it was not satisfied that the First Applicant had been subjected to any harm in the past due to his Christian religion, his work for the SIFDS or that there was a real risk that he would be subjected to significant harm in the reasonably foreseeable future for the reasons of his Christian religion, work for the SIFDS or his being perceived as a Christian charity worker.
At [60] – [61] of its Decision Record the Tribunal summed up its findings in relation to the First Applicant as follows:
[60]The Tribunal has carefully considered the applicant husband's claims cumulatively and individually and the available country information. The Tribunal finds that the applicant husband is not a credible witness and that the applicant husband's claims are not credible for the reasons listed above. The Tribunal is satisfied that the applicant husband can safely return to India and he will not face any harm due to the Blade Mafia, his work for the SIFDS or because he is a Christian, or a Christian involved in social work for the SIFDS. Therefore, the Tribunal finds that the applicant husband does not have a well-founded fear of persecution were he to return to India now or in the reasonably foreseeable future.
[61]As a consequence for the reasons given above, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant husband being removed from Australia to India, there is a real risk that he will suffer significant harm on the basis of the applicant husband's claims. He therefore also does not meet the complementary protection criterion.
At [62] the Tribunal considered a separate claim of the Second, Third and Fourth Applicants based on their Christianity. However, the Tribunal recorded that the Applicants had not presented any evidence that there were any incidents of past harm to the Second, Third and Fourth Applicants in Kerala and accepted country information which did not support that Christians in Kerala were subjected to systematic and discriminatory persecution. It was not satisfied that the Second, Third and Fourth Applicants had a genuine fear and there was not a real chance that they would be subjected to serious or significant harm if they were to return to India.
In the result, the Tribunal affirmed the decision of the Delegate not to grant Protection visas to the Applicants.

Grounds of Attack on Tribunal Decision in this Court

The Grounds relied upon by the Applicants are as follows:
1. Interpretation wrong.
2. Inconsistency do not exist.
3. Unfair decision.

Consideration

Ground 1

This Ground involves a complaint concerning the quality of interpretation at the Tribunal hearings. I find the relevant facts to be as follows:
a)the First Applicant can read English and the Second Applicant can speak, read and write English;
b)the same interpreter appeared at both Tribunal hearings;
c)after the first Tribunal hearing the First and Second Applicants asked the Tribunal to provide an audio CD of the hearing, which was supplied to the Applicants’ registered migration agent under cover of a letter dated 15 December 2015, which noted that the audio recording device in the hearing room had failed to record some parts of the hearing on 9 December 2015 due to technical faults with the device;
d)after the first Tribunal hearing the Second Applicant sent a letter dated 16 February 2016 to the Tribunal member in which she made further submissions, and also stated as follows:
When you were questioning my husband and he was finding it difficult to find the answer as a wife who knows him I started to help him. You asked me not to interrupt and allow my husband to give his own answers.
So I did what you requested of me, but I did note that the interpreter when giving some of my husband’s answers interpreted incorrectly by giving shorter answers than my husband had given in Malayalam. I felt I had to obey your request and say nothing at the time.
If I had a transcript of the record of the Tribunal meeting I would be able to tell you the areas where this happened. The CD of the Tribunal hearing was faulty and did not contain the information I was looking for. I now am finding it difficult to recall the areas that at the time concerned me.
e)at [54] of its Decision Record the Tribunal stated as follows:
[54]… Further, following the hearing on 9 December 2015, the applicant wife raised concerns with the interpreter in her letter to the Tribunal dated 16 February 2016, however she was unable to identify particular incidents. It is noted that the same interpreter was used for the further hearing on 24 February 2016. The applicant husband and applicant wife did not object to the interpreter, although they were specifically given the opportunity and the Tribunal checked with the parties as to whether there was any objections throughout the hearing….
f)on 11 July 2016 Mr Nicholas Poynder of Counsel, who was then direct access Counsel for the Applicants, caused to be filed in this Court an affidavit of Ms Jodie Ellen Coomber affirmed on 11 July 2016, which exhibited transcripts of the Tribunal hearings. The transcript of the first Tribunal hearing substantially commenced at TP2.29 – TP3.10 with the following exchange in relation to the interpreter:
MEMBER: Okay. Now, the purpose of the hearing is for you to give evidence in support of your application and your wife is also here to give evidence as well. It's an opportunity for me to obtain information I need to make the decision. So, I'll ask some questions and discuss with you concerns that I have about the case. You will be given an opportunity to raise any matters that you think are relevant and I'll give your agent an opportunity to make some submissions on your behalf.
We're using an interpreter today and the role of the interpreter is to allow us to speak to each other. So, the interpreter can only interpret what we have said. He cannot give you advice or comment on what you say. The interpreter has nothing to do with the decision. Do you have any difficulties understanding the interpreter?
FIRST APPLICANT: No difficulty.
MEMBER: Do you have any concerns about using this interpreter?
FIRST APPLICANT: No.
MEMBER: Okay. So, if at any time you don't understand the    interpreter or you don't understand what I've said, please let me know and ask for the question to be repeated and I will do the same. If you're also unhappy with the interpreting, can you let me know? Please try to speak in short segments of speech to allow the interpreter to interpret accurately what was said. So, it may be that we need to indicate for you to pause just so we can allow for the translation.
The first Tribunal hearing did not conclude and was adjourned at 5:04pm part-heard to a date to be fixed. The transcript ends with the Tribunal member noting that the First and Second Applicants, the interpreter and the registered migration agent had left the hearing room. The transcript does not record any complaint concerning the quality of the interpretation services at this hearing.
g)the transcript of the second Tribunal hearing substantially commenced at TP1.26 – TP2.36 with the following exchange in relation to the interpreter:
MEMBER:…… Now, the purpose of the hearing today is because we had to cut the hearing short on the last occasion. As you are aware it went over five o'clock, we ran out of time. Now, we're using an interpreter today and the role of the interpreter is to allow us to speak to each other. The interpreter cannot give you advice, or comment on what you say. The interpreter has nothing to do with the decision.
Now, do you have any difficulties understanding the interpreter?
FIRST APPLICANT: No.
MEMBER: Do you have any concerns about using this interpreter?
FIRST APPLICANT: It's okay to use.
MEMBER: It's okay to use. [Second Applicant], do you have any concerns about using this interpreter?
SECOND APPLICANT: It's okay.
MEMBER: Okay. What do you mean.
AGENT: You're actually not sure what she's - what you put in your letter.
SECOND APPLICANT: He has to, like [0:04:09]. Yeah. Sometimes it's not clear, yeah.
MEMBER: Okay. Just before we proceed any further, if you have any objections to using this particular interpreter I'd like you to bring it to my attention.
SECOND APPLICANT: We don't have any objection - - -
MEMBER: Okay.
SECOND APPLICANT: - - - of using him.
MEMBER: If at any time during the hearing you do not understand the interpreter, or you have concerns about the interpreting, can you please let me know?
SECOND APPLICANT: Yes.
AGENT: If there are concerns, and sometimes he's not able to pick those concerns up, but his wife can, is she able to interject and say she has a concern?
MEMBER: Yeah. What I'll - I'll ask you to keep a note. You were    keeping notes on the last occasion as well. I will give you the opportunity to speak to - I'll take a break - an opportunity to speak and you can raise it. Okay?
AGENT: Do you understand?
SECOND APPLICANT: Yes.
h)at TP11.25–42 of the second Tribunal hearing the following exchange occurred:
MEMBER: Okay. Now, I've got some information from your Uncle Denison, and he has now changed that information. I understand that he had some concerns about his cousin's brother's son, and he has claimed this may have affected his evidence. He told me, as you're aware, that the problem with the blade mafia arose because you      borrowed money. He told - your Uncle Denison told me that your problem with the blade mafia arose because you borrowed money. [The First Applicant] borrowed the money.
FIRST APPLICANT: And, I told you about that before.
MEMBER: So, now - - -
FIRST APPLICANT: Again I can tell you that.
MEMBER: Let him speak. Is there a problem with the interpreting?
SECOND APPLICANT: No, it's fine. Sorry.
i)at TP17.1–17 of the transcript of the second Tribunal hearing the following exchange took place about interpretation:
MEMBER: What did that - now, what I'm saying to you is you've said here you've had no contact with the blade mafia prior to going back to India on 24 December 2012, yet in your statement you have said, "When I went back then I thought it was okay to do this. The blade mafia would have forgotten about me."
FIRST APPLICANT: So, I had [1:07:58] in 2013.
MEMBER: Okay.
SECOND APPLICANT: Excuse me.
MEMBER: Do you have a problem with the interpreting?
SECOND APPLICANT: I'm sorry.
Which question is [1:08:12] to? Sorry.
j)at TP30.34 – TP31.38 the final exchange concerning interpretation occurred, as follows:
MEMBER: Okay. Have you understood the interpreter today?
FIRST APPLICANT: Yes.
MEMBER: Yes? Do you have any concerns about the interpreting?
FIRST APPLICANT: Some little points [2:10:11] did not complete.
MEMBER: And, what were they?
FIRST APPLICANT: So, I was staying with Denison at the uncle's place.
There are some things [2:10:31].
MEMBER: And, what - so, what do you wish to clarify? This is your opportunity.
FIRST APPLICANT: So, it was very [2:11:01] on that day and uncle's [2:11:03].
MEMBER: Yes.
FIRST APPLICANT: Was in hospital the previous day. So, I go the next day [2:11:19] from here.
MEMBER: Yeah, I understand that from the information you submitted. What I've asked you, have you any concerns about the interpreting today? I understand the problems your uncle may have had. Do you have any concerns about the interpreting today?
FIRST APPLICANT: There were some misstatements about the money what I borrowed from the mafia. I told my uncle that I borrow for myself. So, we are very close with the Denison uncle. That is only uncle from the area. We are so very close. Because we were very close, that's why I told him that the money was for me.
MEMBER: Okay.
FIRST APPLICANT: So, now my kids are staying there with me, and also otherwise [2:12:50] we are discussing together, and he is doing lot of things. [2:13:02] my father's things and issues and everything he was looking after - - -
MEMBER: Okay.
FIRST APPLICANT: - - - because I was not there. That is why I told him that I got more [2:13:16]. So, if I tell him that I borrowed it for fishermen he will think that my life would be [2:13:30].
MEMBER: I understand that information. Did you want me to contact Robert? Did you want to contact Robert? No?
k)the second Tribunal hearing ended without any further reference by the First and Second Applicants or their registered migration agent concerning the issue of interpretation.

At the hearing Mr Kay-Hoyle of Counsel, who appeared for the Minister, read the affidavit of Ms Coomber and tendered the transcripts of the two Tribunal hearings. The First Applicant made short oral submissions which were of a merits review nature. The Second Applicant made oral submissions of a merits review nature, but also asserted that there had been mistakes in interpretation at the second Tribunal hearing. She sought to tender a document (which was marked MFI-2) which contained assertions of mistakes in the transcript of the second Tribunal hearing which were not linked by any meaningful reference to any particular page or parts of the transcript of the second Tribunal hearing. Mr Kay-Hoyle of Counsel had not previously seen this document and objected to its admission into evidence on the basis that there was no sworn evidence as to its provenance and it made no meaningful reference to the transcript of the second Tribunal hearing and did not constitute admissible expert evidence of any failure in translation or interpretation. I would have assumed that the document had been prepared by the Second Applicant but on the basis that the document had no probative weight and amounted to mere assertion I declined to admit it into evidence. Examples of the assertions made in MFI-2 are:
·Instead of saying landscaping the interpreter said horticulture.
·Interpreter: Why do you fear to go back?
(This is not what the Member asked the applicant).
·Interpreter: Why did your family fear because of being a Christian?
(This is not what the Member asked the applicant).
·Interpreter’s interpretation is not clear.
·Interpreter not interpreting about what applicant did say.
At the conclusion of the hearing I gave the Applicants leave to file and serve Written Submissions within a 14 day period. In the result the Second Applicant did file Written Submissions as well as an affidavit of the First Applicant affirmed on 26 September 2017 which annexed a further copy of the document marked MFI-2 and the Minister filed Written Submissions in reply.
It is of course the case that a hearing before the Tribunal must be fair and 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. Accordingly, any necessary interpretation or translation must be adequate to convey the substance of what is said at the relevant hearing to such a degree that the hearing can be described both as real and fair. The person concerned or affected at the hearing must be able to understand what is being said to her or him and to participate in the hearing in a way from which it can be concluded that the hearing was fair and that administrative justice was done: see Allsop CJ in SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212 (SZRMQ) at 215 [9] and 219 [24]. Further, as Robertson J pointed out in SZRMQ at 229 [70], in considering the adequacy of translation or interpretation it will be important to distinguish between a case where the mistranslation or non-translation is frequent or continuous on the one hand, and a case where the errors are intermittent.
It is clear that whether or not there has been mistranslation or non-translation, such as to constitute a denial of procedural fairness amounting to jurisdictional error, is a fact-sensitive enquiry.
In my view the Applicants have failed to establish that the interpreter mistranslated or failed to translate at either of the two Tribunal hearings, let alone in a way that meant that the Tribunal hearings were not fair. The Applicants have not discharged the onus of proving that there were any errors or deficiencies in the translation at the hearings.
First, no inadequacies or deficiencies are apparent from the transcripts of either of the hearings before the Tribunal. I have pointed out above that there is a missing portion of the transcript of the first Tribunal hearing but no jurisdictional error is established by that. Otherwise, the transcripts indicate a coherent, responsive and consistent interchange of question and answer at each Tribunal hearing. There is nothing in these transcripts that excites any degree of suspicion that mistranslation or non-translation occurred. In her letter to the Tribunal of 16 February 2016 in connection with the first Tribunal hearing (see [32(d)] above) the Second Applicant suggested that the interpreter had interpreted shorter answers than the First Applicant had actually given, but did not suggest that this resulted in any significant difficulty or problem. At the second Tribunal hearing the Tribunal member went out of her way to enquire whether the First or Second Applicant had a problem about using the same interpreter who had interpreted at the first Tribunal hearing, but was told that the First and Second Applicants did not have any objection.
Second, although not conclusive, it is relevant to have regard and give some weight to the Tribunal’s view expressed at [54] of its Decision Record (see [32(e)] above) that it was not satisfied that there were any specific issues with the quality of the interpreting at the Tribunal hearings: see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 21 [37].
Third, the Applicants have not adduced any expert interpreting evidence to establish that there is any significant or material inadequacy in the standards of interpretation at the Tribunal hearings. Neither the First nor Second Applicant have any relevant expertise in this respect. The assertions in the Applicants’ Written Submissions filed in this Court on 26 September 2017 and the document annexed to the First Applicant’s affidavit of 26 September 2017 are namely that, assertions from non-experts as to things claimed to have been said and not said at the Tribunal hearings, which have no probative evidential weight and which I would not accept in preference to the transcripts of the Tribunal hearings filed in this Court on their behalf by Mr Poynder of Counsel.
Fourth, I regard it as significant that at neither hearing before the Tribunal did the Applicant’s registered migration agent cavil with or complain about the standard of interpretation. Whilst presumably Rev Fr Allan Hornery may have no knowledge of the Malayalam language, if the Applicants really meant to complain about the standards of interpretation he would have presumably complained at the second Tribunal hearing on their behalf about the continued use of the same interpreter who had interpreted at the first Tribunal hearing.
Finally, even if I were to accept that the errors in translation or non-translation asserted by the Applicants did occur at the second Tribunal hearing, they have not established that they were material, significant, critical or could have made a difference to the result or otherwise caused the hearing process before the Tribunal to miscarry.
Accordingly, in my view Ground 1 fails to establish that the decision of the Tribunal was affected by jurisdictional error.

Ground 2

This Ground seeks in the most general and unparticularized of terms to invoke a merits review of the Tribunal’s decision insofar as it found and relied upon inconsistencies in the body of evidence led in support of the Applicants’ claims to a Protection visa. In my view the reasoning of the Tribunal as disclosed in its Decision Record in relation to inconsistencies and implausibilities in that body of evidence cannot be regarded as “arbitrary”, “irrational” or “lacking an evident or intelligible justification”. Further, the Tribunal’s credibility findings could not be regarded in my view as “blanket, reflex or exaggerated adverse credit findings”: AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 per Allsop CJ, Kenny and Bromwich JJ at 145 [11].
This Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 3

This Ground is also couched in wholly general and unparticularized terms and seeks to cavil with the result of the decision of the Tribunal and fails to establish jurisdictional error.

A Final Matter

At the hearing I raised with Mr Kay-Hoyle whether the Tribunal had made significant error at [51] of its Decision Record in recording that after the claimed attack and hospitalisation of the First Applicant in India on 27 February 2013 he remained in India until 23 June 2014, rather than remaining in India until 23 June 2013.
In the result I am satisfied that the reference to “23 June 2014” is a typographical error for “23 June 2013”.
The Tribunal at [24] of its Decision Record had correctly recorded that the First Applicant had travelled to India on 24 December 2012 and returned to Australia on 23 June 2013 with the Third and Fourth Applicants. At TP15.2 of the second Tribunal hearing the Tribunal member had referred to the First Applicant as arriving back in Australia in “June 2013” and at [53] of its Decision Record the Tribunal correctly referred to the Applicants as having waited until January 2014 to make their claims for Protection visas after the First Applicant had returned to Australia in “June 2013”.
Accordingly, in my view the reference to “23 June 2014” in [51] of the Decision Record is a mere typographical error, which does not establish that the decision of the Tribunal is affected by jurisdictional error.

Conclusion

In my view, the Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and their Application filed in this Court is to be dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 7 September 2018