AWN17 v Minister for Immigration and Border Protection

Case [2019] FCA 440

FEDERAL COURT OF AUSTRALIA

AWN17 v Minister for Immigration and Border Protection [2019] FCA 440

Appeal from: AWN17 v Minister for Immigration & Anor [2018] FCCA 372
File number(s): NSD 288 of 2018
Judge(s): DERRINGTON J
Date of judgment: 3 April 2019
Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a protection visa – whether applicant had a real and meaningful hearing – whether there was a breach of s 425 of the Migration Act 1958 (Cth) – whether the Tribunal breached the requirements of procedural fairness by reason of flawed translation during the hearing – whether mistranslations amount to a material breach of s 425 – jurisdictional error established
Legislation:

Federal Court of Australia Act 1976 (Cth)

Migration Act 1958 (Cth)
Cases cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167

Devries v Australian National Railways Commission (1993) 177 CLR 472

Fox v Percy (2003) 214 CLR 118

Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252

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

Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588

SZNCY v Minister for Immigration and Border Protection [2018] FCA 611

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

SZSEI v Minister for Immigration and Border Protection [2014] FCA 465

SZUYU v Minister for Immigration and Border Protection [2018] FCA 786

WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511

WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131
Date of hearing: 7 December 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 93
Counsel for the Appellant: Mr S Blount with Mr P Bodisco
Solicitor for the Appellant: Shelly Legal
Counsel for the First Respondent: Mr BD Kaplan
Solicitor for the First Respondent: MinterEllison

ORDERS

NSD 288 of 2018
BETWEEN:

AWN17

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

DERRINGTON J

DATE OF ORDER:

3 APRIL 2019

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders of the Federal Circuit Court of Australia dated 15 February 2018 wherein it was ordered:

1.        The amended application is dismissed;

2.The applicant pay the further costs of the respondent fixed in the sum of $6,825;

be set aside and in lieu thereof it be ordered that:

(a)The amended application is allowed.

(b)A writ of certiorari be issued to the Administrative Appeals Tribunal quashing its decision of 10 February 2017.

(c)The matter be remitted to the Administrative Appeals Tribunal for determination according to law and in accordance with these reasons by a differently constituted Tribunal.

(d)The first respondent pay the appellant’s costs of the hearing before the Federal Circuit Court of Australia.

3.The appellant pay 50% of the first respondent’s costs of the interlocutory application…

Continue reading AWN17 v Minister for Immigration and Border Protection

Sign in free to access the full text

Details
AGLC
AWN17 v Minister for Immigration and Border Protection [2019] FCA 440
Case
[2019] FCA 440
Decision Date

CaseChat Overview and Summary

In the case of AWN17 v Minister for Immigration and Border Protection, the applicant, AWN17, challenged the decision of the Administrative Appeals Tribunal (AAT) regarding his application for a protection visa. AWN17 claimed that the AAT did not provide him with a real and meaningful hearing due to significant translation errors during the proceedings. He argued that these errors breached section 425 of the Migration Act 1958 (Cth) and denied him procedural fairness. The Federal Circuit Court of Australia (FCC) dismissed his application for a Constitutional writ, but AWN17 appealed to the Full Court of the Federal Court. The Full Court had to determine whether the translation errors were material and whether they constituted a breach of procedural fairness or a failure to comply with section 425 of the Migration Act.

The Full Court considered the arguments advanced by both parties, particularly focusing on the significance of the translation errors and their impact on the fairness of the hearing. The primary judge of the FCC had concluded that the mistranslations did not adversely affect the outcome or the fairness of the hearing. However, the Full Court found that the translation errors were significant and material. They not only affected the understanding of the proceedings by AWN17 but also led to adverse credibility findings against him, which were crucial to the AAT's decision. The Full Court held that the mistranslations amounted to a material breach of procedural fairness and a failure to comply with section 425 of the Migration Act. This constituted jurisdictional error on the part of the AAT.

Consequently, the Full Court allowed the appeal and set aside the orders of the FCC. It ordered that the amended application be allowed, the decision of the AAT be quashed, and the matter be remitted to the AAT for redetermination by a differently constituted Tribunal. The Full Court also ordered costs, directing that AWN17 pay 50% of the respondent's costs of the interlocutory application and that the respondent pay AWN17's costs of the appeal and the hearing before the FCC. This decision underscores the importance of accurate translation services in ensuring fair hearings in migration cases.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders of the Federal Circuit Court of Australia dated 15 February 2018 wherein it was ordered:

1. The amended application is dismissed;

2. The applicant pay the further costs of the respondent fixed in the sum of $6,825;

be set aside and in lieu thereof it be ordered that:

(a) The amended application is allowed.

(b) A writ of certiorari be issued to the Administrative Appeals Tribunal quashing its decision of 10 February 2017.

(c) The matter be remitted to the Administrative Appeals Tribunal for determination according to law and in accordance with these reasons by a differently constituted Tribunal.

(d) The first respondent pay the appellant’s costs of the hearing before the Federal Circuit Court of Australia.

3. The appellant pay 50% of the first respondent’s costs of the interlocutory application of 26 October 2018.

4. The first respondent pay the appellant’s costs of this appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

As the analysis which follows shows, a significant number of failures in translation occurred in the course of the Tribunal hearing. Many were important and could clearly be seen as directly causative of findings on significant facts which adversely affected the Tribunal’s conclusion as to the appellant’s credibility. That conclusion became the foundation of its decision. Nevertheless, the Department for Immigration and Border Protection (the Department) has steadfastly denied the existence of any error which might have altered the outcome of the decision. Some of the arguments it advanced in response to the appeal seemed to border on the fanciful and appeared to be derived from a blinkered view of the realities of the decision making process. That said, the Court was not asked to make any finding in this matter as to whether the Department complied with its obligations under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) or any other statutory obligation concerning the conduct of litigation and, because it was not raised, no conclusion is ventured. Background The grounds of the application for a Constitutional writ made to the FCC were varied but included a claim that the Tribunal had failed to comply with s 425 of the Migration Act or had denied the appellant procedural fairness because he was unable to give evidence and present arguments at the hearing due to the flawed translation services provided. In relation to this ground, the FCC permitted the appellant to amend the application for review by including the seventeen particulars which appeared in paragraph 33 of the appellant’s written submissions to that Court. At the hearing of the application before the FCC the appellant relied upon the affidavit of Ms Alaska Ghosal, an accredited interpreter. Ms Ghosal had listened to the recording of the Tribunal hearing and prepared a transcript which revealed the existence of a number of inaccuracies in translation by the interpreter. That transcript records what Ms Ghosal heard as having been said in English by the persons present and also what was said in Bangla by the appellant and the translator present at the hearing. In this way, the transcription enabled a comparison to be made between what was spoken by the appellant in Bangla and the manner in which it was translated in English. The transcript reveals that there were errors in what was translated into Bangla from English and vice versa. Before the FCC the Minister did not adduce any evidence which contradicted anything contained in Ms Ghosal’s affidavit. He sought and obtained an adjournment of the hearing of the application for review before the FCC due to the late production of the evidence of Ms Ghosal but, ultimately, determined not to traverse it in any way. As mentioned, about seventeen identified errors in translation became the particulars relied upon in the appellant’s written submissions to the Court. The primary judge briefly referred to each of these particulars but found that neither any of them individually, nor taken together, were causative of any adverse credibility finding and neither did they give rise to any question that the appellant was not given a real and meaningful hearing. His Honour concluded there was no breach of the requirements of natural justice or any failure to comply with s 425 of the Migration Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In these reasons parts of the transcripts are “extracted”. They represent the combined evidence of Ms Ghosal and Ms Davyskib. Where the evidence of Ms Davyskib differs to Ms Ghosal’s, Ms Davyskib’s evidence is used although underlined. That is on the basis that Mr Blount for the appellant conceded that Ms Davyskib’s evidence was accurate. On some occasions, where the differences are great, both versions are identified.Decision of the FCC The FCC dismissed the application for a Constitutional writ directed to the Tribunal. It did so primarily because it concluded that the mistranslations were effectively irrelevant to the outcome of the case. At least, that was the conclusion reached by the primary judge although the particular reasons why that conclusion was reached are not apparent.Relevant principles It is far from overstatement to say that the principles of natural justice are essential aspects to the rule of law: Raz, The Authority of Law: Essays on Law and Morality (1979) at 217. The according of natural justice to all persons before courts and tribunals ensures equality under the law. An essential requirement of natural justice is the opportunity to be heard. That necessarily encompasses both the ability to understand what is being put and the ability to communicate a response. Each element is necessary for the existence of a fair hearing. The entitlement to be accorded natural justice before the Tribunal has been circumscribed by s 425 of the Migration Act which relevantly provides:Tribunal must invite applicant to appear(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. It has long been recognised that, in respect of persons who are unable to communicate in English, the satisfaction of that section can only occur if adequate translation or interpretive services are provided. In the absence of such services the invitation to appear at the hearing or the right to give evidence and present arguments is illusory. It follows that it is now well established that the absence of adequate translation or interpretive services may result in a denial of procedural fairness under the general law or, in the case of proceedings before the Tribunal, a failure to comply with s 425(1) (or s 360(1)) of the Migration Act: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, [17] and [20]; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131. Onus The Minister submitted that the appellant bore the onus of establishing that any departure from the required standard of translation services related to a matter of significance and there was a sufficient connection between that and the Tribunal’s decision. That submission, if once accurate, is no longer entirely correct. The manner in which s 425 might be breached and what a person must show to establish that is to be considered in the light of the decision of the Full Court in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (Allsop CJ, Flick and Robertson JJ) (SZRMQ) and in the light of the recent High Court authority in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252. There the plurality said:[2] … Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.…[4] Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.