AZJ22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 287
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AZJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 287
File number: PEG 55 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 27 April 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether inadequate interpretation services resulted in a failure by the Tribunal to comply with s 425 of the Migration Act 1958 (Cth) – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 5J, 36, 360, 362A, 425, 427, 476 Cases cited: ATU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1165
AWN17 v Minister for Immigration and Border Protection [2019] FCA 440
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
SZNCY v Minister for Immigration and Border Protection [2018] FCA 611
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
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
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 13 February 2023 Place: Perth Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Oxford Law Group Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 55 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZJ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
27 APRIL 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 1 February 2022.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Vietnam (Court Book (“CB”) 14. She first arrived in Australia in October 2017 as the holder of a Sponsored Family Visitor (Class FA) (Subclass 600) visa (CB 23 & 50).
On 5 January 2018, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-37). In her application, the applicant claimed to fear harm after borrowing money from relatives which she could not repay. As a result of the money owed, the applicant further claimed that she would be beaten, injured or killed and that she had already received verbal threats (CB 32-33).
On 19 January 2018, the then Department of Immigration and Border Protection (the “Department”) acknowledged receipt of the visa application and asked the applicant to provide additional information in relation to that application (CB 38-46).
On 29 March 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 50-61). The delegate found that “the harm the applicant may face from creditors [was] not for a reason mentioned in s 5J(1)(a)” of the Migration Act 1958 (Cth) (the “Act”) (CB 51). On that basis, the delegate was not satisfied that the applicant met the refugee criteria set out in s 36(2)(a) of the Act. In relation to the s 36(2)(aa), the delegate was not satisfied that the applicant would face economic or employment difficulties or that she would otherwise be denied basic services impacting upon her capacity to subsist. The delegate otherwise considered that the authorities would afford the applicant an adequate level of protection if she returned to Vietnam (CB 56).
On 11 April 2018, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 62-68).
On 8 November 2018, the applicant provided the Tribunal with a new email address in relation to her review application (CB 72).
On 11 January 2022, the Tribunal invited the applicant (via email) to attend a hearing before it scheduled for 28 January 2022 at 10.00am (QLD time) (CB 73-76).
The applicant appointed a representative from Armstrong Legal to assist her with her review application (the “representative”). On 25 January 2022, the applicant’s representative sought an adjournment of that hearing to allow them “more time” to “articulate [their] advice and representation” (CB 77-79).
On 27 January 2022, the Tribunal refused to grant the applicant the adjournment requested (CB 80-83).
Later that day (also on 27 January 2022), the applicant’s representative contacted the Tribunal and requested access to written material pursuant to s 362A of the Act (CB 84-89).
The Tribunal refused that access request that same evening (CB 90).
On 28 January 2022, the applicant attended a hearing before the Tribunal. She was assisted at the hearing by her representative. An interpreter in the Vietnamese language also attend that hearing (CB 92-94).
On 1 February 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 98-109).
On 8 March 2022, the applicant lodged an application for judicial review in this Court. The applicant seeks review of the Tribunal’s decision pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
APPLICATION TO THIS COURT
In written submissions filed by the applicant on 6 February 2023, the applicant sought leave to amend her grounds of review (and an amended application for judicial review was annexed to those submissions). The amended grounds provide as follows:
1.Inadequate translation services were provided during the hearing, with the result that the hearing was procedurally unfair and the Tribunal failed to comply with s 425 of the Act. This constituted jurisdictional error.
PARTICULARS
a.The interpreter stated that the applicant had said that she had borrowed “2 Billion Baht”.
b. However, the applicant did not say this.
c.The purported reference to “2 Billion Baht” formed a critical part of the Tribunal’s reasoning.
d. The hearing was therefore affected by inadequate translation.
e.This constituted procedural unfairness and/or a constructive failure to afford the applicant a hearing under s 425 of the Act.
2.The Tribunal reached a decision that was legally unreasonable, due to a fundamental misunderstanding of the applicant’s evidence on a critical matter. This constituted jurisdictional error.
PARTICULARS
a.The applicant stated that she had borrowed “Two billion of Vietnamese money”. The Tribunal did not refer to this evidence and it is to be inferred that it disregarded it.
b.The Tribunal erred in relying on the representative’s reference to “baht” because this was introduced in error by the Tribunal, and the representative did not speak Vietnamese.
c.The Tribunal erred in failing to consider and recognise that the applicant’s conversion of the borrowed amount into Australian dollars accorded with the amount borrowed being in Vietnamese currency.
d.The Tribunal erred in suggesting that it had given the applicant multiple opportunities to confirm that the amount was borrowed in Baht and not Dong when it did not do so.
The Minister did not oppose leave being granted to amend the grounds of review but requested leave to rely on further written submissions in response. The Minister also sought costs thrown away.
The matter proceeded to a hearing on 13 February 2023.
The applicant was represented by Mr Jones of counsel. The Minister was represented by Ms Ellis from Sparke Helmore. Both lawyers provided detailed written submissions (Ms Ellis on 24 January 2023 and 10 February 2023 and Mr Jones on 6 February 2023).
Mr Jones and Ms Ellis also appeared, respectively, at the hearing before the Court on 13 February 2023.
The Court thanks Mr Jones and Ms Ellis for the clarity of their submissions and the considerable assistance they provided the Court. Others would do well to emulate their efforts in this regard.
At the start of the hearing, the Court made procedural orders (including granting the parties leave to rely on the additional materials filed) as follows:
1.Counsel for the applicant have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The applicant have leave to rely on the written submission, proposed amended application and affidavit of Kate Khanh Hoang filed on 6 February 2023.
4.The first respondent have leave to rely on further written submissions filed on 10 February 2023.
5.The applicant have leave to rely on the further affidavit of Kate Khanh Hoang filed on 12 February 2023.
The Court also had the applicant’s affidavit (deposed and filed on 8 March 2022) and the two affidavits of Kate Khanh Hoang (deposed and filed on 6 and 12 February 2023 respectively) read and taken into evidence.
The materials before the Court thus include written submissions filed on behalf of the applicant on 6 February 2023 (including the amended application for judicial review), the applicant’s affidavit deposed and filed on 8 March 2022, a Court Book numbering 110 pages (marked as Exhibit 1), the two affidavits of Kate Khanh Hoang (deposed and filed on 6 and 12 February 2023 respectively) and written submissions filed on behalf of the Minister on 24 January 2023 and 10 February 2023.
THE TRIBUNAL’S DECISION
Before considering the application for judicial review and whether an error arises in the Tribunal’s decision, it is useful to first consider the Tribunal’s decision.
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32].
Here, the core issue before the Court relates to the Tribunal’s assessment of the applicant’s protection claims (and, in particular, the credibility findings made by the Tribunal) and the extent to which the applicant’s evidence was properly interpreted and thus properly understood by the Tribunal when it made its assessment of the applicant’s evidence.
Relevantly, the Tribunal’s reasons provide as follows:
Assessment of the Applicant's claims
15.The applicant told the Tribunal that she was in danger if she returned to Vietnam, as she had borrowed a significant amount of money from a “very distant relative” and she could not repay it. She claims to be afraid of being beaten or killed. She claims to have borrowed money from [a relative] - a distant nephew of her grandfather. She says that she borrowed “2 Billion Baht” - the Tribunal confirmed through the interpreter that it understood the claimed amount correctly. The applicant told the Tribunal that this would convert to approximately $150,000 - $200,000 AUD.
16.While the Tribunal does not expect that applicants are able to confirm foreign exchange rates in the stress of a hearing context, the comprehensive inaccuracy of the applicant's estimation lends weight to a finding that the applicant is not being truthful about the amount of money she claimed to have borrowed. 2 billion Baht converts to, as at the time of hearing, more than 85 Million AUD. Again, the Tribunal does not expect applicants to engage in mathematical calculations or know exchange rates, but what the comparison demonstrates to the Tribunal is that the claimed value in Baht is so enormous that it is implausible.
17.The applicant did not explain to the Tribunal why she was borrowing money in Baht, which is the currency of Thailand, when she is from Vietnam, which uses the Dong. The Tribunal provided multiple opportunities through the interpreter, and the applicant's representative clarified that she said “2 Billion Baht” at one point during the evidence. The Tribunal does not accept that the applicant borrowed any amount, let alone in the quantum claimed.
The Tribunal continued:
18.The reason the applicant said she needed to borrow money was to pay “people to get a job”. She says that she had already finished her studies and was seeking employment at the “[Omitted]” school in Vietnam. She claimed that in Vietnam, that it was necessary to pay to acquire a job. The Tribunal asked the applicant if she had been successful in obtaining employment, and she said that she gave the money to a “person who said he would help” and that she did not deal with the [Omitted] school directly. The person then “disappeared” with her money.
19.The Tribunal asked the applicant if she had been to the police to report the matter. She repeatedly claimed that she had been, but the police “could not intervene” as she “didn’t have evidence”. These events are claimed to have transpired in 2014-15. The Tribunal asked the applicant if she had been threatened at any point, and she claimed that she had been. She then mentioned that the “lender” gave her different amounts at different times, and she did not receive all of the money at one juncture. The Tribunal’s impression is that the applicant's story evolved as the Tribunal asked questions - the applicant provided scant detail, and limited particulars of the transaction, claimed engagement with police, and alleged threats.
20.The applicant, and her sister, both claimed that the last time her family was contacted was in December of 2021. At that point, she says her family was visited and they took “valuable things” and tried to negotiate. Unfortunately, she does not have a record of any of these telephone calls or messages as they have been deleted. The applicant told the Tribunal that there was no additional evidence that she wanted to be able to submit to the Tribunal, and that she would provide copies of any message or calls if the loan sharks contacted her or her family in the future.
21.The applicant's sister’s evidence, which is based on what the applicant has relayed to her sister, struck the Tribunal as largely rehearsed. The applicant's sister had limited detail, and repeated the same story, including the claim that their family had been visited in December of 2021.
22.Both the applicant and her sister say that the police would not do anything because there is “no evidence”.
23.The applicant is currently working in a nail shop in Toowoomba, and wants to have a peaceful, good life in Australia.
The Tribunal ultimately found as follows:
24.The Tribunal considers the applicant’s story implausible, and illogical. The Tribunal does not accept that it would be necessary for the applicant to pay to acquire employment. Nor does the Tribunal accept that the applicant actually borrowed money, that she borrowed money from a distant nephew of her grandfather, or that her family has been contacted by any loan sharks making threats. Put simply, the Tribunal finds that the applicant is not credible, and has contrived a story that is devoid of meaningful or verifiable detail in order to try and obtain a migration outcome.
25.The only claim made by the applicant in relation to the need for protection arises from her alleged fear that she will be beaten or killed by loan sharks.
APPLICANT’S EVIDENCE BEFORE THE COURT
Tribunal transcript
As the central concern in this case revolves around the applicant’s contention that the interpretation services provided at the Tribunal hearing were inadequate, it is useful to detail those sections of the Tribunal transcript that are relevant to the concerns raised.
In support of the application for judicial review, the applicant’s representative filed two affidavits relating to the translation at the Tribunal hearing. The first affidavit of Ms Kate Khanh Hoang (“Ms Hoang”) (deposed on 1 February 2023 and filed on 6 February 2023) (the “first Hoang affidavit”) annexed a transcript of the Tribunal proceeding and relevantly provides as follows (pp 11-12 of the first Hoang affidavit):
MEMBER: How much money did you borrow?
INTERVIEWEE: (INTERPRETER) Two billion of Vietnamese money.
MEMBER: Sorry, how much?
INTERVIEWEE: (INTERPRETER) Two billions of Vietnamese money.
MEMBER: Two million baht?
INTERPRETER: No, no, two billion, 2,000 million.
MEMBER: 2,000 million. That’s not a denomination that I’m understanding. Can you ask the Applicant again. Yes, Mr Representative?
DELEGATE: The interpreter said two billion initially, 2 billion baht, Vietnamese baht, two billion.
MEMBER: Okay, I want to make sure that I've understood correctly what the Applicant is saying. Mr Interpreter, could you ask her to clarify the amount again?
INTERVIEWEE: (INTERPRETER) Two billions.
MEMBER: Two billion baht. Okay, how much –
INTERPRETER: No, no, two billion, B-I-L-L-I-O-N-S, B for Bob.
MEMBER: Yes, that what I’m saying as well. Two billion baht.
INTERPRETER: That's right, yes.
MEMBER: Okay. And why did she need to borrow money?
INTERVIEWEE: (INTERPRETER) I have just been graduated in childcare studies and I have to – I need money to pay to the school, to get into the school to teach.
MEMBER: How much does two billion baht convert to approximately in Australian dollars, if you know?
INTERVIEWEE: (INTERPRETER) I am not sure. I am not sure but it is between 150 and 200,000 Australian dollars.
MEMBER: Sorry, between how much?
INTERPRETER 150 and 200,000.
INTERVIEWEE: (INTERPRETER) I am not sure about the exact amount.
Correction of transcript
The second affidavit of Ms Hoang (deposed and filed on 12 February 2023 (the “second Hoang affidavit”) annexed a “correction of the misinterpretation in the transcript” above, prepared by a NAATI accredited interpreter and relevantly provides as follows (p 4 of the second Hoang affidavit):
At minute 20:20
MEMBER: How much does two billion baht convert to approximately in Australian dollars, if you know?
INTERPRETER (In Vietnamese): The two billion that you said, if converted to Australian dollars nowaday, how much does that make?
INTERVIEWEE (In Vietnamese): I’m not sure, perhaps it is between one hundred and fifty to two hundred… one hundred and fifty to two hundred thousand.
At minute 29:05
MEMBER: Okay. And you say the price was the price, the two billion baht?
INTERPRETER (In Vietnamese): You say that the price you paid was two billion, is it right?
INTERVIEWEE (In Vietnamese): Yes.
INTERPRETER : Yes.
INTERVIEWEE (In Vietnamese): Two billion, what does that mean?
INTERPRETER : Hello…
CONSIDERATION
Amended Ground 1
As outlined above, Amended Ground 1 provides:
1.Inadequate translation services were provided during the hearing, with the result that the hearing was procedurally unfair and the Tribunal failed to comply with s 425 of the Act. This constituted jurisdictional error.
PARTICULARS
a.The interpreter stated that the applicant had said that she had borrowed “2 Billion Baht”.
b. However, the applicant did not say this.
c.The purported reference to “2 Billion Baht” formed a critical part of the Tribunal’s reasoning.
d. The hearing was therefore affected by inadequate translation.
e.This constituted procedural unfairness and/or a constructive failure to afford the applicant a hearing under s 425 of the Act.
Applicant’s submissions
Written submissions
The applicant’s written submissions (filed on behalf of the applicant on 6 February 2023) relevantly provide (at [9]-[16]):
(a)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 & Multicultural Affairs (1999) 92 FCR 6, [17] & [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; AWN17 v Minister for Immigration and Border Protection [2019] FCA 440 (“AWN17”) at [18] per Derrington J;
(b)the hearing in the present case was materially affected by a significant error in the translation services provided at the hearing;
(c)the Tribunal stated at [15] of its reasons that the applicant had stated at the hearing that she had borrowed “2 Billion Baht”;
(d)however, it is clear from the transcript that the applicant never said this. In fact, the applicant said, on two separate occasions, that she borrowed “[t]wo billion of Vietnamese money”;
(e)in reaching this (erroneous) conclusion, the Tribunal was likely referring to the following exchange between the member and the interpreter:
“MEMBER: Yes, that [is] what I’m saying as well. Two billion baht.
INTERPRETER: That’s right, yes”.
(f)as is evident from the transcript (and the audio recording of the hearing) this statement by the interpreter was not a translation of an answer given to that question by the applicant; where a translation is made of an answer through the interpreter, the Transcript records it as “INTERVIEWEE (INTERPRETER)”;
(g)the interpreter’s answer, therefore, purported to communicate what the applicant had said in Vietnamese in response to previous questions from the Tribunal. However, at no point did the applicant say in answer to those questions that she had borrowed “Two billion baht”. Rather, she stated that she had borrowed “[t]wo billion of Vietnamese money”; and
(h)this error in translation was plainly critical to the Tribunal’s reasoning. It resulted in procedural unfairness, and in the Tribunal constructively failing to afford the applicant a hearing pursuant to s 425 of the Act. This constituted jurisdictional error.
Oral submissions
In oral submissions before this Court, Mr Jones (for the applicant) submitted as follows:
(a)there were a series of inadequacies in the translation services provided to the applicant at the Tribunal hearing which resulted in a fundamental misunderstanding of the applicant’s evidence;
(b)this amounted to jurisdictional error on the part of the Tribunal because the role of the interpreter was to assist the applicant with communicating her evidence and to allow the Tribunal to understand that evidence. As a result of the breakdown in translation, the applicant was not provided an adequate hearing and was thus denied procedural fairness and denied a hearing, as required by s 425 of the Act;
(c)contrary to the Minister’s submissions, the incorrect translation was material. The test for materiality is an undemanding one and the Court will need to determine whether there is a possibility that the incorrect translation “could realistically have affected the outcome”;
(d)at [15] of its decision, the Tribunal refers to “supposed” evidence relating to “two billion baht” and the “supposed” confirmation (through the interpreter) that the Tribunal had understood the amount correctly. There were material errors made by incorrect interpretation in that regard;
(e)at [16] of its decision, the Tribunal discussed the conversion of money to Australian dollars (and mistakenly references Thai baht instead of Vietnamese dong). The Tribunal further states that the amount is so enormous that the applicant’s evidence is implausible;
(f)at [17] of its decision, the Tribunal notes that the applicant failed to explain why she borrowed money in baht (the currency of Thailand) instead of the currency used in Vietnam (being the dong). Further, the Tribunal (incorrectly, according to the applicant) claims to have provided the applicant with multiple opportunities (through the interpreter and the applicant’s representative) to clarify her evidence about borrowing two billion baht. It was on that basis that the Tribunal concluded as follows:
The Tribunal does not accept that the applicant borrowed any amount, let alone the quantum claimed.
(g)the applicant’s evidence in relation to the quantum that was borrowed and whether the Tribunal believed that the applicant borrowed any amount are intimately connected and both were “underpinned by the misunderstanding that occurred” as a result of the misinterpretation; and
(h)relying on Derrington J’s decision in AWN17 at [18], [22], [24], [30], [58] & [60]-[61], when a Tribunal’s decision is concerned with credibility findings of the nature arising in this matter, once it is determined that there has been material unfairness, that is as far as the position needs to be taken.
Minister’s submissions
Written submissions
In further written submissions (filed on behalf of the Minister on 10 February 2023) at [4]-[9] the Minister contends as follows:
(a)the particulars to both grounds refer to the exchange in the transcript concerning the applicant’s claims to have borrowed a certain sum of money from a distant relative of her grandfather;
(b)the Minister does not concede that the Tribunal hearing was affected by inadequate translation or that the Tribunal fundamentally misunderstood the applicant’s evidence (as claimed) in circumstances where the transcript shows that the applicant’s representative stated that the applicant had borrowed “2 billion baht” and the interpreter confirmed this. However, more critically, the Minister submits that any error in the Tribunal’s understanding of the quantum of money the applicant claimed to have borrowed was not material to its conclusion on this issue at [17] (CB 104) where it recorded: “The Tribunal does not accept that the applicant borrowed any amount, let alone in the quantum claimed.” What can be seen from this conclusion (in the Minister’s submission) is that the Tribunal did not accept that the applicant had borrowed any money at all, irrespective of the amount of money claimed to have been borrowed. Accordingly, any alleged error regarding the applicant’s claims about the quantum of money borrowed simply had no bearing on the Tribunal’s ultimate conclusion that no money had been borrowed at all;
(c)this conclusion was repeated by the Tribunal at [24] (CB 105) where it recorded: “Nor does the Tribunal accept that the applicant actually borrowed money, that she borrowed money from a distant nephew of her grandfather, or that her family has been contacted by any loan sharks making threats.” Again, there is no reference to the amount of money claimed to have been borrowed. Rather, the claim was rejected at a higher level.
(d)insofar as the applicant may argue that the Tribunal relied on its credibility concerns about the amount of money borrowed to reject the overall claim that she borrowed money, the decision record does not support this. At its highest, the Tribunal only used its concerns about the amount of money it understood that the applicant claimed to have borrowed to question the applicant’s truthfulness about the amount alone. This can be seen at [16] (CB 104) where the Tribunal found that “the comprehensive inaccuracy of the applicant’s estimation lends weight to a finding that the applicant is not being truthful about the amount of money she claimed to have borrowed” (emphasis added). The remainder of the Tribunal’s reasons make no mention of the amount of money the applicant claimed she borrowed and instead show that the Tribunal based its rejection of the applicant’s overarching story about borrowing money on:
(i)the applicant’s “scant detail and limited particulars of the transaction, claimed engagement with police, and alleged threats” (CB 104-105, [19]);
(ii)the “limited detail” in the applicant’s sister’s evidence which the Tribunal recorded struck it as “largely rehearsed” (CB 105, [21]); and,
(iii)the fact it did not accept that it would be necessary for the applicant to pay to acquire employment, nor to borrow money from a distant nephew of her grandfather, nor that her family had been contacted by loan sharks making threats. It found that this story was implausible and illogical (CB 105, [24]);
(e)as the Tribunal recorded, it found that the applicant was not credible and had contrived a story that was devoid of meaningful or verifiable detail in order to try and obtain a migration outcome (CB 105, [24]). The amount of money the applicant claimed to have borrowed did not factor into this conclusion in any material way as there were quite separate bases upon which the Tribunal reached the adverse credibility finding in relation to the claim: ATU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1165 at [34]. Accordingly, the applicant’s submission (at [8]) that the Tribunal’s findings about the amount the applicant claimed to have borrowed (CB 104, [15]–[17]) were “central to its ultimate conclusion” cannot be accepted; and
(f)a majority of the High Court in Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 (“Nathanson”) reaffirmed that an assessment of materiality requires consideration of “how the Tribunal’s decision was in fact made”: at [39] (Kiefel CJ, Keane and Gleeson JJ); see also at [46] (Gageler J). The Court held that the standard of “reasonable conjecture” identified in MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 (“MZAPC”); 390 ALR 590 “is undemanding”: Nathanson at [33] (Kiefel CJ, Keane and Gleeson JJ); see also at [47] (Gageler J). The plurality’s reference to the “undemanding” character of reasonable conjecture was expressed in general terms, and the Minister accepts that it is potentially applicable to the Court’s task in the present case (insofar as the Court holds that an error was made, which is not conceded). Notwithstanding this low threshold, however, the Minister submits that, for the reasons given above, a close and fair reading of the Tribunal’s decision reveals that the quantum of money the Tribunal understood that the applicant claimed to have borrowed simply did not impact its finding that she did not borrow any money at all. The conclusory finding at [17] (CB 104) that “The Tribunal does not accept that the applicant borrowed any amount, let alone in the quantum claimed” leaves no space for the “reasonable conjecture” required for any error in this regard to have been material.
Oral submissions
In oral submissions before this Court, Ms Ellis for the Minister submitted as follows:
(a)the fundamental difference between the positions of the applicant and the Minister relates to the interpretation of how the Tribunal arrived at its finding in [17] in its reasons, which provides as follows:
The Tribunal does not accept that the applicant borrowed any amount, let alone the quantum claimed.
(b)while the applicant submits that the Court should find that the determination was a result of the Tribunal’s consideration at [15]-[17] of its reasons relating to the Tribunal’s concerns about the quantum of money borrowed by the applicant, the Minister disagrees. The Minister submits that the finding at [17] foreshadows the Tribunal’s ultimate finding that it did not accept that the applicant borrowed any amount of money. Relevantly, the Minister submits that, at [18]-[24] in its written reasons, the Tribunal explains the reasons why it did not accept that the applicant had borrowed any money;
(c)the Tribunal’s findings about quantum (which may or may not have been the result of incorrect interpretation) should be divorced from the remainder of its credibility findings;
(d)at [24] of its reasons, the Tribunal sets out the reasons why it did not consider the applicant’s story was plausible or logical and there is no reference, in that paragraph, to the applicant’s evidence regarding quantum. Instead, the Tribunal simply did not accept, at a higher level, that the applicant had to pay money to get a job;
(e)the fact that the Tribunal failed to mention the quantum of money in [24] of its reasons indicates that the Tribunal did not rely on that evidence when it did not accept the applicant’s overall claims;
(f)the Tribunal’s decision needs to be read as a whole, without an eye keenly attuned to error;
(g)in relation to materiality, the Minister’s position is that, given the way the Tribunal phrased its findings in [17] and [24] of its reasons, there is “no space for reasonable conjecture” to find that the quantum the applicant claimed she borrowed (as the Tribunal understood it) had any bearing on the Tribunal’s ultimate finding that the applicant did not borrow any money at all; and
(h)instead, the Tribunal rejected the applicant’s claim that she went to the police without evidence and they would not intervene. The Tribunal rejected the applicant’s sister’s evidence and ultimately found the applicant’s “story had been invented”. The quantum the applicant claimed to have borrowed was not a consideration and could not have been material to the Tribunal’s overall findings.
Court’s consideration in relation to Amended Ground 1
An applicant’s entitlement to natural justice by the Tribunal must be read within the context of s 425 of the Act, which relevantly provides:
425 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.
…
Any invitation in this regard must be “real and meaningful”: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [61]-[63]. Further, the purpose of s 425 of the Act is to give an applicant the “opportunity to present evidence and argument relating to the issues arising in connection with the decision under review”: Minister for Immigration and Citizenship v Li [2013] HCA 18 at [60].
Section 427(7) of the Act also includes a requirement for the Tribunal to provide an applicant with an interpreter in certain circumstances, as follows:
427 Powers of the Tribunal etc.
…
(7)If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.
In this regard, the Court notes the comments of Derrington J in AWN17, as follows:
18It 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.
The Court also references and relies on the comments of Wigney J in SZUYU v Minister for Immigration and Border Protection [2018] FCA 786, wherein His Honour sets out some of the circumstances in which deficiencies in interpretation services may lead to jurisdictional error, as follows:
75.A failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground for review within s 476 of the Act, because it would involve a failure by the Tribunal to comply with ss 425(1) and 427(7): Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [17] and [20]. The same applies where an interpreter is provided, but the quality of the interpretation or translation was so poor or incompetent that it can be concluded that the Tribunal did not give the review applicant an effective opportunity to give evidence about important matters or matters of significance: Perera at [38]-[41]; SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 at [22].
76.In Perera, Kenny J said (at [29]), in relation to the required standard of interpretation, that while there is “rarely an exact lexical correspondence” between different languages, the “interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language”. As for the question how bad must an interpretation be to render reliance on it a reviewable error, her Honour said (at [41]):
What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter: cf Gonzales v Zurbrick at 936-937; United States v Urena (10th Cir 1994) 27 F 3d 1487 at 1492; Acewicz v Immigration and Naturalization Service at 1062.
77.It will generally be easier to conclude that the hearing process miscarried where there were frequent or continuous mistranslations or non-translations: SZRMQ at [70]-[71] (per Robertson J). Where the errors are intermittent, the errors must be considered in the context of the overall hearing: SZRMQ at [72] (per Robertson J).
78.In Perera, Kenny J noted (at [45]) that not every departure from the standard of interpretation will effectively prevent an applicant for refugee status from giving evidence before the Tribunal; “the departure must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision”. It does not necessarily follow, however, that it is necessary to demonstrate a direct causal effect; it may be sufficient to show that “material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another”: SZRMQ at [10] (per Allsop CJ, with whom Robertson J agreed at [67]). It may be enough to show that “a mistranslation or non-translation could have affected the outcome” SZRMQ at [69] (per Robertson J); see also SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [75]-[77]; BZAID at [52].
80.In relation to the potential impact of deficient or defective translation on the Tribunal’s findings concerning the credit or credibility of the review applicant, Kenny J said in Perera (at [49]):
A witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation. In the present case, the incompetence of the interpretation cannot have assisted the Tribunal in making a reliable finding about Mr Perera’s credit. It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness: cf Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and Warren v Coombes (1979) 142 CLR 531 at 537 and 552-553.
81.It may be of considerable significance that initial errors in translation were either corrected by subsequent questioning and answers, or were otherwise detected in the course of the hearing. In SZRMQ, Flick J said (at [46]):
For present purposes, it is considered to be a mistake to fix the standard of interpretation by reference to touchstones such as whether a translation has been “accurate” or whether any particular interpreter meets the standard of a “first-flight interpreter”. Errors in translation will inevitably occur. Even in the absence of such errors, words or expressions used may initially fall short of conveying an intended meaning. Even when proceedings are being conducted in English by those fluent in the English language, it may require two or more attempts to accurately convey a particular meaning. In those contexts where a claimant is entitled to be heard, that entitlement necessarily demands that any hearing involves a meaningful opportunity where that which is sought to be conveyed by both the claimant and the decision-maker is conveyed in a real and meaningful manner. Initial errors in translation may be corrected by subsequent questioning and answers. A danger necessarily lurks in errors that may go undetected at a hearing and which only emerge after a hearing has concluded. But whether the error emerges during the administrative hearing itself, or subsequently, the fact that an error in translation may have occurred may assume no ultimate significance if the true meaning and content of that which is sought to be expressed ultimately emerges.
81.Flick J was in dissent in SZRMQ, though this statement was referred to with approval by Griffiths and Moshinsky JJ in Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309; [2017] FCAFC 51 at [87].
82.The focus, ultimately, is on “the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act”: SZSEI at [74]; SZRMQ at [8] and [17]. The question whether the process was sufficient in that regard, or miscarried, 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”: SZRMQ at [9] (per Allsop CJ).
With the above jurisprudence in mind, the Court first needs to determine whether the interpretive services in this matter were adequate. In this regard, the Court notes the evidence set out in the first and second Hoang affidavits. In particular, the Court references the transcript annexed to the first Hoang affidavit (at p 11) as follows (emphasis added):
MEMBER: How much money did you borrow?
INTERVIEWEE: (INTERPRETER) Two billion of Vietnamese money.
MEMBER: Sorry, how much?
INTERVIEWEE: (INTERPRETER) Two billions of Vietnamese money.
The Court highlights that, as outlined above, the applicant’s evidence to the Tribunal was that she had borrowed “two billion of Vietnamese money”. It is necessary to also note that the currency used in Vietnam is Vietnamese dong. It is reasonable to assume then that the applicant’s reference to “Vietnamese money” means Vietnamese dong (being the currency used in Vietnam).
The Tribunal member then seeks clarification in relation to “the amount”, as follows (emphasis added):
MEMBER: Two million baht?
INTERPRETER: No, no, two billion, 2,000 million.
The Court notes that the Tribunal member first introduces or references “baht” as the currency in which the money was borrowed and the interpreter (without seeking clarification from the applicant) responds in relation to the amount, without making comment on the currency.
The Tribunal member then seeks further clarification, as follows (emphasis added):
MEMBER: 2,000 million. That’s not a denomination that I’m understanding. Can you ask the Applicant again. Yes, Mr Representative?
DELEGATE: The interpreter said two billion initially, 2 billion baht, Vietnamese baht, two billion.
Here, the applicant’s representative purportedly clarifies what the interpreter had “initially” said and mistakenly references “Vietnamese baht” – again, without comment from the applicant herself (and without comment or confirmation from the interpreter).
The Tribunal attempts to clarify their understanding a final time, as follows (emphasis added):
MEMBER: Okay, I want to make sure that I’ve understood correctly what the Applicant is saying. Mr Interpreter, could you ask her to clarify the amount again?
INTERVIEWEE: (INTERPRETER) Two billions.
MEMBER: Two billion baht. Okay, how much –
INTERPRETER: No, no, two billion, B-I-L-L-I-O-N-S, B for Bob.
MEMBER: Yes, that what I’m saying as well. Two billion baht.
INTERPRETER: That's right, yes.
The Court notes that in the exchange above, the applicant herself simply references an amount, being “two billion”, without making any reference to the type of currency. The subsequent reference to baht was made by the Tribunal member and the interpreter confirmed that to be correct (again, without confirming with the applicant herself).
The Court also references the transcript annexed to the second Hoang affidavit (at p 4) as follows (emphasis added):
At minute 20:20
MEMBER: How much does two billion baht convert to approximately in Australian dollars, if you know?
INTERPRETER (In Vietnamese): The two billion that you said, if converted to Australian dollars nowaday, how much does that make?
INTERVIEWEE (In Vietnamese): I’m not sure, perhaps it is between one hundred and fifty to two hundred… one hundred and fifty to two hundred thousand.
At minute 29:05
MEMBER: Okay. And you say the price was the price, the two billion baht?
INTERPRETER (In Vietnamese): You say that the price you paid was two billion, is it right?
INTERVIEWEE (In Vietnamese): Yes.
INTERPRETER : Yes.
INTERVIEWEE (In Vietnamese): Two billion, what does that mean?
INTERPRETER : Hello…
The Court notes that the questions put to the applicant by the Tribunal member above specifically refer to “two billion baht”. However, based on the available translations (prepared by a NAATI accredited interpreter), it is clear that the interpreter did not phrase the questions to the applicant in that way. Instead, the interpreter only includes the amount of “two billion” in the question – without any reference to currency.
It is evident, based on the extracts above, that the applicant did not state that she had borrowed money in the baht currency. She simply says that she borrowed “Vietnamese money”. As set out above, baht is not used in Vietnam. It is thus incorrect to refer to Vietnamese money as baht. Further, when the Tribunal member (on two separate occasions) seeks to confirm that the relevant amount was “two billion baht”, the applicant only confirmed borrowing the sum of “two billion” (without any reference to any specific currency).
On the basis of the above, the Court is satisfied that the interpretive services in this matter were not adequate. While the initial confusion in the currency being referenced was initiated by the Tribunal member, the interpreter does not appear to have corrected that error. Further, the failure to properly relay questions from the Tribunal member to the applicant (as outlined above) meant that the applicant was not given an opportunity to correct that error herself.
Having found that there were errors in the interpretation in this matter, it is now necessary for the Court to consider whether those errors impacted on the Tribunal’s ultimate decision and, further, whether that ultimately led to the applicant being denied a meaningful hearing (as required by s 425 of the Act).
In this regard, the Court again references the comments made by Derrington J in AWN17 (citing SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (“SZRMQ”)), as follows (emphasis added):
22.The foundations of the now accepted principles concerning the according of natural justice by the provision of adequate translation services were identified in SZRMQ, which concerned the application of common law procedural fairness requirements to mistranslations. In that case Allsop CJ said (at 215 [9]-[10]):
[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.
His Honour continued (citing SZNCY v Minister for Immigration and Border Protection [2018] FCA 611 and, in turn, SZRMQ), as follows (emphasis added):
24.…
[74]Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ). To similar effect, in SZRMQ at [68] Robertson J emphasised that “the process is central”. His Honour reinforced the point at [85] when he posed the relevant question as whether a mistranslation “affected or could have affected the quality of the hearing or the findings and reasons”. The Minister did not contest the correctness of those observations, nor their application to a s 425 case.
As outlined above, having considered the applicant’s evidence in relation to the amount borrowed, the Tribunal made the following findings (emphasis added):
Assessment of the Applicant's claims
15.The applicant told the Tribunal that she was in danger if she returned to Vietnam, as she had borrowed a significant amount of money from a “very distant relative” and she could not repay it. She claims to be afraid of being beaten or killed. She claims to have borrowed money from [a relative] - a distant nephew of her grandfather. She says that she borrowed “2 Billion Baht” - the Tribunal confirmed through the interpreter that it understood the claimed amount correctly. The applicant told the Tribunal that this would convert to approximately $150,000 - $200,000 AUD.
16.While the Tribunal does not expect that applicants are able to confirm foreign exchange rates in the stress of a hearing context, the comprehensive inaccuracy of the applicant’s estimation lends weight to a finding that the applicant is not being truthful about the amount of money she claimed to have borrowed. 2 billion Baht converts to, as at the time of hearing, more than 85 Million AUD. Again, the Tribunal does not expect applicants to engage in mathematical calculations or know exchange rates, but what the comparison demonstrates to the Tribunal is that the claimed value in Baht is so enormous that it is implausible.
17.The applicant did not explain to the Tribunal why she was borrowing money in Baht, which is the currency of Thailand, when she is from Vietnam, which uses the Dong. The Tribunal provided multiple opportunities through the interpreter, and the applicant’s representative clarified that she said “2 Billion Baht” at one point during the evidence. The Tribunal does not accept that the applicant borrowed any amount, let alone in the quantum claimed.
It is clear to the Court that those findings were based, at least in part, on the incorrect interpretation of the applicant’s evidence regarding funds borrowed. In particular, the quantum was of concern to the Tribunal. Relevantly, at [16] of its reasons, the Tribunal notes that the sum of “two billion baht” converted to a sum of over 85 million AUD and found that the “value in baht [was] so enormous that it [was] implausible”. On that basis, the Tribunal did not accept that the applicant had borrowed any amount of money, “let alone the quantum claimed” (at [17]).
Where credibility findings are made based on errors in interpretation, it is difficult to determine, with certainty, whether those errors coloured the Tribunal’s overall assessment of the applicant’s credibility. As emphasised by Derrington J in AWN17 (emphasis added):
30.However, it is important to keep in mind that the Tribunal’s determination turned on credibility findings. If it is determined that those findings were contributed to by some of the interpreter’s errors, it would be difficult, if not impossible, to disentangle those adverse credit findings from the other credit findings and ascertain the extent to which the errors contributed to the overall conclusion. In the authorities referred to above, specific reference has been made to credit findings which arise as a result of mistranslations. If, of course, it can be ascertained that an interpretation error was obviously irrelevant, different considerations would apply. But once it is likely that the errors had some effect, the conclusion can be fairly easily reached that the person did not have a fair hearing. That is particularly so in cases such as the present where the credibility finding is conclusory and not based upon articulated reasoning.
…
58.The above analysis tends to bundle in the one analysis two distinct concepts. First, whether there has been a breach of s 425 and secondly, whether the breach is material. That necessarily arises by reason of the significance of the mistranslation being clearly causally connected to important findings. However, in isolation the second question concerns the materiality of the breach of s 425, being whether compliance with its requirements could realistically have resulted in a different decision for the appellant. However, as the above discussion reveals, the identified failures of the translation services were relied upon by the Tribunal in reaching its conclusions about the credibility of the appellant. Some were relatively central to that finding. At the very least it cannot be said that the findings in relation to the mistranslations were tangential or immaterial to the Tribunal’s ultimate conclusion. Whilst the above matters were not the only circumstances relied upon by the Tribunal in reaching its conclusion that the appellant lacked credibility, they were individually significant and collectively they were substantial. That being so the conclusion is easily reached that the provision of suitable translation services could realistically have resulted in a different decision for the appellant. On that basis alone the non-compliance with s 425 was material.
His Honour’s reasoning applies equally in this matter.
The errors in translation of the applicant’s evidence related directly to adverse credibility findings made by the Tribunal. The translations were clearly inaccurate and related to a matter of importance to the Tribunal’s credibility findings (being the quantum the applicant claimed she borrowed).
The Tribunal’s ultimate findings in this matter in relation to credibility are set out in its reasons as follows:
24.The Tribunal considers the applicant’s story implausible, and illogical. The Tribunal does not accept that it would be necessary for the applicant to pay to acquire employment. Nor does the Tribunal accept that the applicant actually borrowed money, that she borrowed money from a distant nephew of her grandfather, or that her family has been contacted by any loan sharks making threats. Put simply, the Tribunal finds that the applicant is not credible, and has contrived a story that is devoid of meaningful or verifiable detail in order to try and obtain a migration outcome.
As outlined above, the Tribunal considered the applicant’s story to be implausible and did not accept a number of different aspects of her story. The Court cannot be certain that the Tribunal’s initial finding that the applicant had not borrowed any amount of money, “let alone the quantum claimed” (at [17]) (which was at least in part based on interpreter mistranslations) was “tangential or immaterial” to the Tribunal’s ultimate findings at [24]. In particular, it is noted that the Tribunal again repeats (at [24]) that it “does not accept that the applicant actually borrowed money” (which it initially stated at [17] after making credibility findings about the quantum the applicant claimed that she had borrowed).
Whilst the issue of the quantum the applicant claimed to have borrowed was not the only circumstance relied upon by the Tribunal in determining that the applicant lacked credibility, in the Court’s view, it was arguably significant. In those circumstances, the Court considers that the provision of adequate interpretive services at the hearing could realistically have resulted in a different decision for the applicant in this matter. On that basis alone, the non-compliance with s 425 of the Act was material: AWN17 at [58].
Where an error is material or could have realistically deprived an applicant of the opportunity for a successful outcome, that error is jurisdictional: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [27]‑[30]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4], [45]‑[50] and MZAPC at [38]‑[39].
Jurisdictional error on the part of the Tribunal has thus been established.
Amended Ground 2
Having determined that the Tribunal has fallen into jurisdictional error in relation to Amended Ground 1, it is unnecessary for the Court to go on to consider the amended application for judicial review further and the Court does not do so.
CONCLUSION
The applicant’s amended judicial review application has identified jurisdictional error.
The Tribunal’s decision will be set aside and the matter will be remitted for reconsideration.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 27 April 2023
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