BBB16 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1288
•27 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BBB16 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1288
File number(s): SYG 1906 of 2018 Judgment of: JUDGE TAGLIERI Date of judgment: 27 November 2024 Catchwords: MIGRATION – Protection visa application – application for an extension of time – whether leave should be granted to amend application for review – whether Tribunal’s reliance on inconsistencies in interpreted evidence across two days of hearing when making adverse credit findings amounted to jurisdictional error – failure to afford procedural fairness as required by s 425 Migration Act – jurisdictional error established – ground 1 of amended application for review upheld Legislation: Migration Act 1958 (Cth) ss 424AA, 425, 476, 477 Cases cited: Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75
BAU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1169
BZAID v Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310
DSN16 v Minister for Immigration and Border Protection [2021] FCA 202
DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525
DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Home Affairs v CAK16 [2019] FCA 32
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 61; [2010] HCA 16
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376
Soltanyzand v Minister for Immigrationand Multicultural Affairs [2001] FCA 1168
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
SZSEI v Minister for Immigration and Border Protection [2014] FCA 465
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission/s: 3 October 2024 Dates of hearing: 4 June 2024 & 1 August 2024 Place: Hobart (by MS Teams) Counsel for the Applicants: Mr McManus Solicitor for the First Respondent: Mr Taverniti, Sparke Helmore ORDERS
SYG 1906 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BBB16
First Applicant
BBI16
Second Applicant
BBE16 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
27 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the Second Respondent be substituted to “Administrative Review Tribunal”.
3.The time allowed for the Applicants to make an application for judicial review in this matter is extended to 10 July 2018 pursuant to s 477(2) of the Migration Act 1958 (Cth).
4.Leave is granted to the Applicants to rely on the proposed Amended Application for Review filed 15 July 2024.
5.A writ of certiorari issue quashing the decision of the Second Respondent dated 6 April 2018.
6.A writ of mandamus issue directed to the Second Respondent as constituted by a different member to review the Applicants’ claims for protection according to law.
7.The First Respondent pay the Applicants costs to be agreed and if not agreed as taxed in accordance with the applicable scale.
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 TAGLIERI
The first and second applicants are husband and wife, and are both citizens of Fiji. The third to eighth applicants are their children. The current proceedings first commenced when an application for a protection (class XA) visa was lodged on 3 October 2013. A delegate of the first respondent refused that application on 17 July 2014. The applicants applied for review of that decision and it was considered by the second respondent, the Administrative Appeals Tribunal (“the Tribunal”).[1] The Tribunal affirmed the delegate’s decision on 15 February 2016.[2]
[1] Which was replaced by the Administrative Review Tribunal as at 10 October 2024.
[2] Court Book filed 13 August 2018 (“Court Book”) at pp 353-380.
On 6 April 2017 the Tribunal's decision was remitted by consent by the Federal Circuit Court as it was agreed that the Tribunal had erred in finding that the risk to the eighth applicant of suffering significant harm in the form of physical or sexual violence was a risk faced by the population generally, when the claim made was of a risk faced specifically by women and female children (which is a class discernible from the general population).
The first applicant’s claims were considered by a differently constituted Tribunal at a hearing over the course of two days, 8 November 2017 and 4 December 2017. The first and second applicants appeared before the Tribunal on both hearing days to give evidence, with the assistance of different Fijian interpreters on each day.
The Tribunal, in a decision dated 6 April 2018, affirmed the decision of the delegate not to grant the applicants’ protection visas.[3]
[3] Court Book pp 475-510.
On 10 July 2018 an Application for Review was filed in this Court. It was an agreed fact that the Application for Review was filed 60 days out of time.
Following a pro bono referral initiated by the Court, the applicants, through their counsel, sought to rely on a proposed Amended Application for Review filed on 15 July 2024 (“the Amended Application”) which contains three grounds of alleged jurisdictional error.
The two underlying issues to be determined by the Court are:
(a)Whether the applicants ought to have leave to proceed with their review out of time and in accordance with the proposed Amended Application; and
(b)If leave is granted, whether any of the grounds of review are established.
BASIS OF TRIBUNAL DECISION OF 6 APRIL 2018
Before the Tribunal, the first applicant made claims for protection based on political opinion, ethnicity and religion. The Tribunal rejected each of the claimed bases for protection and found that the first applicant did not meet the statutory criteria for protection either as a refugee or through complementary protection.[4]
[4] Sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth).
The Tribunal’s written reasons for decision of 6 April 2018 are extensive and dense. The first applicant’s claims are examined by the Tribunal historically across evidence and statements attributed to him in:
(a)His application for a protection visa;
(b)Before the delegate;
(c)Before the Migration & Refugee Division of the Tribunal (“MRD”) (which involved a hearing which was held over two days about four months apart); and
(d)Before the Tribunal whose decision is under review, also over two days and about one month apart.
The documents in the Court Book demonstrate that the delegate, the MRD and the Tribunal all took the view that there were inconsistencies in the first applicant’s claims for protection and that his evidence was variously vague, confused and unpersuasive.[5] All prior decision makers placed reliance on the fact that the first applicant’s claims about harm because of political opinion/activity or religion were only raised after the second applicant’s protection visa was refused and that they had not been mentioned in his initial statutory declaration dated 12 September 2013.[6]
[5] Court Book at pp 173, 353-380, 475-510 (see, in particular, [36], [41], [96], [97], [98], [101], [104], [105], [118], and [120].
[6] Court Book at pp 24-30.
The reasons of the Tribunal essentially demonstrate that it accepted that the first applicant had claimed political and religious beliefs and was involved in some activities and movements contrary to the government in Fiji. However, it considered that the level of his involvement was not such that he met the statutory criteria for protection based on Department of Foreign Affairs and Trade (“DFAT”) country information, which it preferred.
REVIEW HEARING
The applicants were represented at the hearing before the Court on 1 August 2024 by counsel who had accepted the pro bono referral made pursuant to Orders dated 8 April 2024. The first respondent was represented by an experienced solicitor. Each party had filed written outlines of submissions that were relied upon and which I have read and considered.[7]
[7] Applicants’ written submissions filed 15 July 2024 and first respondent’s written submissions filed 21 May 2024 and 29 July 2024.
Counsel for the applicants asked the Court to read the following affidavits and they were taken as read unopposed and marked as Exhibits:
(a)Exhibit A1, the affidavit of the second applicant filed 15 July 2024; and
(b)Exhibit A2, the affidavit of Fardin Nikjoo, solicitor, filed 15 July 2024, which annexed transcripts from both days of the applicants’ hearings before the Tribunal as well as a copy of an article referred to by the Tribunal in the decision of 6 April 2018.
The Court Book filed by the first respondent on 13 August 2018 was also received in evidence and marked Exhibit R1.
WHETHER AN EXTENSION OF TIME SHOULD BE GRANTED
Explanation for the delay of 60 days is given by the second applicant in Exhibit A1. It states that the applicants sought assistance from their representative, Ms Clayton, after notification of the Tribunal’s decision but were unable to obtain that assistance because she did not return the applicants’ calls, messages or emails. It is further stated that ultimately the second applicant travelled from Sydney to Muswellbrook (approximately 260km) to personally locate Ms Clayton at her office to get assistance and explains that having already paid Ms Clayton’s fees the family had no further money to pay someone else for assistance.
The Court has power to grant an extension of the 35 day time limit applicable to making a review application pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).[8] The power is discretionary and to be exercised judicially. The approach required is guided by the High Court decision in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (“Tu'uta Katoa”) at [40]:
The text of the provision - the broad terms in which the discretion is conferred - recognises that there will be a range of potentially “permissible” considerations, depending on the case. It is, in each case, for the judge hearing the extension of time application to determine which of a range of potentially relevant factors are to be taken into account in evaluating whether the interests of the administration of justice make it necessary for an extension of time to be granted in that particular case.
[8] Sections 477(1) and 477(2) of the Act.
Consistent with well-established authority, the High Court in Tu'uta Katoa confirmed that the following considerations were relevant to determining whether the discretion should be exercised to extend a prescribed time period:
(a)The length of the delay;
(b)The explanation for the delay;
(c)Whether there is any prejudice to the administration of justice as a result of the delay; and
(d)The prospects of the applicants succeeding in the application, or the strengths and weaknesses of the case sought to be advanced and the utility of advancing it.
The first respondent does not take issue with the principles of law that ought to be applied but contends that although not specifically prejudiced by the delay in bringing the application, the extension of time ought not be granted because:
(a)The explanation for the delay is unsatisfactory or inadequate. Particularly, financial constraints and difficulty obtaining legal or migration assistance to complete the forms is not sufficient, citing QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9;
(b)The prospects of the grounds of appeal succeeding are not reasonable and there is no utility in granting the extension of time. Ground 1 incorrectly relies on common law procedural fairness when the Tribunal did all it was required to do to afford the applicants a fair hearing. Further, contrary to that asserted, there were no material or real difficulties with the translation at the first and second Tribunal hearings and the applicants had every opportunity to give relevant evidence. The Tribunal put adverse matters to the applicants and it cannot be said that they were not on notice of credit issues; and
(c)The general delay is prejudicial to the just and efficient administration of justice.
Although the first respondent submits that the evidence of the second applicant in Exhibit A1 is not corroborated and I should not accept it uncritically or as an adequate or reasonable explanation for the delay, I disagree.
I am prepared to accept the evidence at face value and I prefer the submissions on behalf of the applicants that the delay has been satisfactorily explained. In particular, I accept the explanation that they knew documents had to be filed for an appeal but they required assistance to do so and went to considerable lengths to obtain such assistance.
In view of the complex history of their visa applications and Ms Clayton's knowledge of it, regardless of whether or what, if anything, they had paid her to provide advice, it was entirely reasonable that they seek her advice given her knowledge and the likelihood that this would reduce costs and time to prepare and file the required documents. This is particularly so in circumstances where they likely had limited means.
I accept that the applicants went to considerable lengths to seek advice about the Tribunal's decision in circumstances where a representative already familiar with their matter was not responsive to their many efforts to get advice and assistance.
As there is absence of specific prejudice, I consider that whether the extension of time ought to be granted balances on the prospects of the grounds of review succeeding. The parties agreed that the preliminary issue of the extension of time be determined at the same time as the substantive proposed Amended Application.
PROSPECTS OF THE PROPOSED GROUNDS OF REVIEW
There are three grounds in the Amended Application filed 15 July 2024 that the applicants seek leave to rely upon.
Ground 1
Ground 1 of the Amended Application relies on jurisdictional error based on an alleged failure to comply with the fair hearing rule, thereby denying procedural fairness as required by s 425 of the Act. The following are particulars of the ground:
Particulars
(a) There were two hearing days in 2017, during the first of which, it became obvious that there were issues with the Fijian interpreter who was unable to properly interpret the First Applicant's evidence, this occasioned the adjournment for the second day.
(b) While the quality of interpretation on the second hearing day improved, the Tribunal member did not revisit substantive matters of evidence examined with the first applicant on the first day, instead these answers were used to undermine his otherwise coherent answers given on the second day by drawing inconsistencies, and to otherwise make adverse credibility findings against the applicant;
(c)The applicants were not on notice that answers given on the first day would be used adversely against them nor invited to comment on this fact, to the contrary the procedure adopted would have 'left them in the dark', or led them to believe that first applicant would be able to revisit his evidence on the second occasion;
(d)The cumulative affect of this approach was that the applicants were not afforded notice that the Tribunal would rely on the first set of interpreted answers to undermine the first applicant's credibility and provide the basis for a series of adverse findings against him.
Properly understood, this ground and the submissions about it rely on a denial of procedural fairness as required by s 425 of the Act because of the way the Tribunal used the evidence of the first applicant given through interpretation on two separate days to make adverse credibility findings.
As clarified by counsel for the applicants in his oral submissions in reply, they do not assert that particular inaccuracy of interpretation led to jurisdictional error. That is, the first applicant does not rely on error as discussed in DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177.
Instead, the applicants rely on jurisdictional error based on apparent misunderstanding and confusion during interpretation of the first applicant’s evidence on the first day of hearing, evident from comparison of his evidence recorded in the transcript of the second hearing day, and the use to which the Tribunal relied on inconsistencies across both days to make adverse credit findings about his claims.[9]
[9] Absence of a fair hearing in the nature discussed in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [9] and [24]; and Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [41].
In summary, the submissions for the first respondent are that a fair and reasonable reading of the transcripts and the exchanges with the first applicant on both days demonstrate that there was no misunderstanding or confusion arising from the interpretation of the evidence. Instead, the first applicant was simply a poor witness and as he was unable to provide material detail of his claims for protection, it was open to the Tribunal to reject them for the reasons given.
Further, the first respondent submits that the Tribunal considered the possibility of the applicant’s evidence being significantly hampered by interpretation problems but rejected that possibility for reasons stated.[10]
[10] Court Book pp 480-481 at [39] and first respondent’s submissions filed 29 July 2024 at [12].
Disposition of this ground requires two questions to be answered:
·First, whether the interpretation of the first applicant’s evidence on day one was deficient such that the Tribunal did not obtain an accurate appreciation of the evidence given or sought to be given; and
·Secondly, if that is the case and the evidence given on the second day was overtly clearer with a different interpreter, was it fair for the Tribunal to rely on inconsistencies in the first applicant’s evidence across the two days for the purpose of making adverse credit findings which led to the rejection of his claims.[11]
[11] The latter being relevant to materiality.
Both counsel took care to address the transcripts of evidence given on the first and second days of the hearing, stating this was painstakingly necessary. They highlighted different parts of the transcripts and cross-referenced these to the Tribunal's reasons for decision.
Counsel for the applicants referred to parts of the transcript on the first day said to highlight what he submitted to be either misunderstanding, incoherence or confusion between the first applicant and the interpreter or Tribunal. This included reference to short or vague answers when the first applicant frequently said he could not recall what was asked of him, which his representative at the Tribunal hearing later submitted or explained was because he had misunderstood advice given to him to say he could not recall if he did not know a date.
The first respondent's representative highlighted other passages said to demonstrate either that the first applicant had said he understood, answered in English or that he did not meaningfully answer questions about his claims that he could reasonably be expected to know.
As both counsel had referred to particular parts of the transcripts, I requested they provide a joint table with pinpoint references to the evidence in the two transcripts they had referred to and also the related findings of the Tribunal.
For reasons I do not need to repeat, the parties did not produce the joint table requested by me as an aide memoire. Instead, I obtained a transcript of the oral submissions of counsel and the solicitor for the first respondent given at the review hearing on 1 August 2024 to assist me in evaluating what transpired at the hearing before the Tribunal.
Legal principles relevant to ground 1
The parties each referred the Court to various authorities but it is unnecessary to address those in any detail because it was apparent that once the true purport of ground 1 was clarified, there was no dispute about the relevant principles of law. Where jurisdictional error relies on the Tribunal’s failure to meet its statutory duty pursuant to s 425 of the Act, the authorities establish that the first applicant must demonstrate on the balance of probabilities that he has not been afforded a real chance to present evidence and argument, which issue is typically fact dependent as is illustrated by the reasoning in many authorities.[12]
[12] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [60] to [61]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376 at [27]-[28]; Perera v Minister For Immigration [1999] FCA 507; and Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168 [2001] FCA 1168.
It is open to demonstrate jurisdictional error on the basis of a failure to comply with s 425 of the Act by reference to a transcript showing that the interpretation was so incompetent it effectively prevented an applicant from giving evidence.[13]
[13] Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [39].
It is convenient and efficient to refer to the summary of legal principles provided by Edelman J, as he then was, in BZAID v Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310 at [52] and [53], for guidance about incompetent or defective interpretation issues as a basis for alleged jurisdictional error:
52. The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, “Working with Interpreters: Judicial Perspectives” (2015) 24 JJA 207. The relevant principles are summarised below:
(1) Interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;
(2) Whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;
(3) In making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;
(4) Where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;
(5) Where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;
(6) Where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;
(7) If an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;
(8) However, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.
53. The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (215 [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.
It is also important to be reminded that the authorities place emphasis on the nature of the process by which the interpretation is utilised to facilitate the giving of evidence by a witness who does not speak or comprehend English or for whom English is a second or non-preferred language.[14]
[14] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [9] and [10]; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [74].
In my view it is also relevant to be conscious of the cautionary views of Kirby P, as he then was, in Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 77 to 78. Namely that there is a difference between what can be regarded as a sufficient command of English for daily communication and the communication required in a formal court setting, including where questions are sometimes put at speed, accents not fully understood or otherwise.
Evaluation – proposed ground 1
In my view, the first respondent’s written submissions do not grapple with the real purport of ground 1,[15] however, the oral submissions made on their behalf did.
[15] Written submissions filed 29 July 2024 at [7] to [11].
I have read and carefully considered the parties written submissions together with the oral submissions made at the hearing on 1 August 2024.
I have also read and considered the entire transcript of the two days of hearing before the Tribunal because although the first respondent submitted the Court should not focus on those parts of the transcript referred to by counsel for the applicant when evaluating this proposed ground, he similarly invited focus on different parts of the transcript.[16] This was said to be either as an adjunct to the transcript highlighted by counsel so not to be misled, or alternatively to demonstrate there was ample basis for the adverse credit findings which underpinned the rejection of the first applicant’s claims for protection.
[16] Those transcripts being annexure FN-1 to the affidavit of Fardin Nikjoo filed 15 July 2024, hereafter referred to as “transcript”.
I am mindful of not myopically examining the transcripts to which each party directed me but in order to determine if this ground is made out, examination of the transcripts is necessary to gain a reliable appreciation of what occurred before the Tribunal, what evidence was received during the two days of the hearing and how it was used by the Tribunal to reach its final conclusion.
I consider that the transcript of day one of the first applicant’s evidence as interpretated reveals a process whereby the Tribunal became progressively more concerned about the responsiveness to questions posed and the interpreted answers of the first applicant. This is illustrated by:
(a)The very first question posed by the Tribunal, which is responded to by the interpreter translating that the first applicant had not understood and then that he could not recall even before another question was asked.[17]
[17] Transcript dated 8 November 2017, p 2, lines 22-30.
(b)A few statements by the Tribunal, the first applicant and the interpreter being recorded as “indistinct” and it sometimes being recorded that the first applicant could not recall.[18]
[18] Transcript dated 8 November 2017, pp 3-4.
(c)A direction that the first applicant should not respond “too much” because the interpreter wouldn’t be able to keep up, after a long proposition had just been put in a question from the Tribunal.[19]
[19] Transcript dated 8 November 2017, p 4, line 40 to p 5, line 2.
(d)The first applicant answering questions about his activities related to the Soqosoqo Duavata ni Lewenivanua (“SDL”) party in part in English, in part in a language other than English and sometimes through the interpreter.[20]
[20] Transcript dated 8 November 2017, p 5, lines 13-24.
(e)An incomprehensible question from the Tribunal of “were you a member of [sic] a supporter”, which led to an equally strange answer in English of “supportive member”, a statement subsequently clarified by the first applicant stating he was a member.[21]
[21] Transcript dated 8 November 2017, p 5, lines 26 -34.
(f)The Tribunal challenging the first applicant’s evidence that he was a member of the SDL and asking about his activities because “the only thing” he had done was confront people and the interpreter states “[h]e (indistinct) speak against the new government.”[22]
[22] Transcript dated 8 November 2017, p 5, line 40.
(g)An exchange where the first applicant states in English that he cannot recall how many meetings of the SDL party he attended or when he joined the SDL party, followed by a warning from the Tribunal that it was having considerable difficulty believing he had absolutely no clue when he joined or how often he attended meetings. Following the warning, the interpreter states “[c]annot recall (indistinct).”[23]
[23] Transcript dated 8 November 2017, p 6, lines 19-26.
(h)The Tribunal stating that it assumes the first applicant is very confident that he understands what she is saying, to which he responds: “[s]ome of it, yes.”[24]
[24] Transcript dated 8 November 2017, p 6, lines 28-30.
(i)Further enquiries are made of the activities and speaking out he did with the SDL party and the interpreter responds in the third person “[h]e always speaks against the government”, with some further interpretation and then indistinct words.[25]
[25] Transcript dated 8 November 2017, p 6, lines 39-44.
(j)The interpreter again providing an answer in third person and the first applicant then answering partly in English and a language other than English,[26] and the Tribunal questioning “[w]here are we going?”[27] to which the interpreter makes further statements in the third person.[28]
[26] Transcript dated 8 November 2017, p 7, lines 5-10.
[27] Transcript dated 8 November 2017, p 7, line 12.
[28] Transcript dated 8 November 2017, p 7, lines 14-16.
(k)Asked by the Tribunal how many times he spoke out against the government, the first applicant states he could not recall and when probed an answer given by the interpreter is recorded as “indistinct”.[29]
[29] Transcript dated 8 November 2017, p 7, line 30-39.
(l)The Tribunal then puts to the first applicant that he had previously said he had spoken out when he worked as a lay preacher and at only two meetings in the village, to which the interpreter states “[y]es, he admits to that”. This exchange apparently being a change of topic from claims based on the SDL party and those relating to religion being juxtaposed.[30]
[30] Transcript dated 8 November 2017, p 7, lines 41-45.
(m)A statement of doubt about political claims is made by the Tribunal and the interpreter apologises. The Tribunal then has an exchange with the interpreter which conveys that a conversation is occurring between the first applicant and interpreter, rather than what was said being translated.[31]
(n)Immediately following this, a very long proposition is put to the first applicant about the Tribunal finding it strange that he is so confused about what he did in Fiji, including speaking out about belonging to the SDL and against the government in some way. The Tribunal continues by noting that advice from DFAT is that while senior members of opposition political parties may face a moderate risk, mere supporters are unlikely to face serious problems. The proposition ends with “[d]o you understand or you want me to repeat it?” The first applicant states “[y]es” but then, through the interpreter, declines to comment on the many propositions put by the Tribunal.[32]
(o)The Tribunal asks the first applicant about a letter from someone called Iliatia Bavadra and asserts the information in it is “at odds with some of the information that you’ve provided. He says you’re an active member of the SDL. This does not appear to be the case, and you do not even appear to be making that claim.”[33] This is plainly wrong on the Tribunal’s part because of the evidence the first applicant gave.[34] The Tribunal incorrectly asserts a second time that the first applicant had not claimed to be a member of the SDL party and the interpreter states “he’s still confused and forgot all that had happened.”[35]
(p)From page 9 onwards of the transcript of 8 November 2024, the Tribunal addresses the first applicant about his claims relating to fear of harm or risks due to his religion. There are more “indistinct” statements from the interpreter and references in the third person, perhaps indicative that what is said is not being translated.[36]
(q)The Tribunal asks the first applicant if he or any family member faced any problems of any kind before leaving Fiji that would impact on their treatment if they returned. The transcript records the following exchange:[37]
INTERPRETER: I think I better repeat because he still said that he couldn’t recall it.
MEMBER: That’s okay. That’s fine.
INTERPRETER: What was the question?
MEMBER: No, it’s okay. You understood the question, but you can’t remember, is that correct? --- Yes.
[31] Transcript dated 8 November 2017, p 8, lines 6-16.
[32] Transcript dated 8 November 2017, p 8, lines 18-33.
[33] Transcript dated 8 November 2017, p 8, lines 34-41.
[34] Referred to above at [46](e) of these reasons.
[35] Transcript dated 8 November 2017, p 9, lines 9-15.
[36] Transcript dated 8 November 2017, pp 9-10.
[37] Transcript dated 8 November 2017, p 10, lines 27-39.
The transcript also demonstrates that the Tribunal raised concerns about whether the interpreter was keeping up either with what had been asked or answered. The first applicant, having some grasp of English, says that the interpreter was interpreting some but not all of what he said.[38]
[38] Transcript dated 8 November 2017, p 14, lines 27-41.
The transcript reveals that the applicant’s representative directly raised a genuine concern about whether the first applicant’s frequent answers to the effect that he could not recall were because he had misunderstood advice she had given. The Tribunal appears to accept this at face value.[39]
[39] Transcript dated 8 November 2017, p 52, lines 34-41.
The progressive dysfunction of interpretation in the process of taking the first applicant's evidence illustrated from the transcript as described above at [46] to [48] plainly caused the Tribunal to stop the hearing and adjourn to a second day where a different interpreter was provided.
Applying the legal principles referred to at [37] to [41] of these reasons, I am satisfied that the interpretation on day one and the process of taking the first applicant's evidence was defective and incompetent, such that the first applicant was impeded or deprived of effectively giving his evidence.
I reject the first respondent’s submission that the first applicant did not raise any issues or concern about interpretation.[40] Statements by the first applicant himself, including that the interpreter did not interpret everything he said and sometimes did not get it on point,[41] in my view reasonably did raise concern. In any event, following binding authority, a person who has English as a second language cannot be expected to raise concerns about inaccurate interpretation.[42]
[40] First respondent’s written submissions filed 29 July 2024 at [11.2].
[41] Transcript dated 8 November 2017, p 14, lines 35-43.
[42] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57.
Further, the representative raised concerns about the first applicant misunderstanding what was required when giving evidence, albeit because he had an unusual mode of speech or had not understood advice she had given.[43] The Tribunal appears to have accepted these concerns at face value.[44] Importantly in my view, the first applicant does not appear to be present when the Tribunal states:[45]
MEMBER: Well, I mean I did give him lots – I mean, I appreciate that, and I appreciate – I mean, it is good advice, if you don’t remember, say so. And I usually start my hearings by saying similar things, I want it to be the best of your recollection. And I didn’t think it was a lie, but it does go to credibility ---
REPRESENTATIVE: No. I understand.
MEMBER: --- and he was given ---
REPRESENTATIVE: (Indistinct.)
MEMBER: Well, but he was given, I think, a lot of opportunities to give some rough idea which was all I was asking him. But thank you for that.
REPRESENTATIVE: (Indistinct) what you were asking, I just don’t know that he understood.
MEMBER: I mean, I did clarify it a number of times. But anyway, okay. Thank you very much and we’ll see you next time.
[43] Transcript dated 8 November 2017, p 52, lines 34-39.
[44] Transcript dated 8 November 2017, p 52, line 41.
[45] Transcript dated 8 November 2017, p 52, lines 45-47 and p 53, lines 1-2.
The Tribunal also took evidence from the second applicant on the first day, but no submission is made about the interpretation of her evidence being defective.
The transcript of the second day of the hearing shows that the first applicant was recalled to give evidence after the second applicant. He gave evidence through a different interpreter and in summary stated:
(a)He joined the Fiji Democracy and Freedom Movement (“FDFM”) in 2015 but could not remember the exact date.[46]
[46] Transcript dated 4 December 2017, p 63, line 20 onward.
(b)He attended meetings of the FDFM in 2015 but could not recall exactly how many.[47]
[47] Transcript dated 4 December 2017, p 63, line 27 onward.
(c)The Tribunal put to him that he had previously mentioned joining the FDFM in 2011 and not 2015 and the following exchange occurred: [48]
[48] Transcript dated 4 December 2017, p 63, line 41 onward.
MEMBER: Because before, you said you joined in 2011, not 2015.
INTERPRETER: I don’t understand how I mentioned that. I don’t know why I mentioned (indistinct) or when I did.
MEMBER: Okay. So that’s definitely wrong. 2011 is definitely wrong.
INTERPRETER: I remember nothing about 2011, but I became a member in 2015.
MEMBER: Okay. Well, maybe I’m the one that’s confused. I’ll have another look. But I thought that you had said that you joined earlier than that.
INTERPRETER: (Indistinct) SODELPA.
MEMBER: Sorry, what did you say?
INTERPRETER: Most probably, it’s SODELPA.
MEMBER: So when did you join SODELPA?
INTERPRETER: Perhaps SODELPA in 2011, I think.
(d)He joined the Social Democratic Liberal Party (“SODELPA”) in 2011 and attended meetings but could not remember how many.[49]
[49] Transcript dated 4 December 2017, p 64, lines 16-27.
(e)He joined Government in Exile (“GIE”) but could not remember when. He said he and the second applicant joined because of what they stand for, being against the government in Fiji and what they are doing to the country and the people, and because they believe in GIE principles.[50]
[50] Transcript dated 4 December 2017, p 65, lines 1-15.
(f)After the Tribunal clarified that it wanted to know how it came to be that he had joined GIE, he stated that it was when they met a lady when they attended the Tribunal in September 2015.[51]
[51] Transcript dated 4 December 2017, p 65, line 18 onward.
(g)Asked what he did as a member of GIE, he stated that he supported their aims and contributed financially to the movement.[52]
[52] Transcript dated 4 December 2017, pp 65-66.
(h)He could not remember if he had attended a GIE meeting between the Tribunal hearings in September 2015 and January 2016;[53]
[53] Transcript dated 4 December 2017, p 66, lines 3-6.
(i)He said the principles of the FDFM and GIE were more or less the same and the only difference was that the FDFM was established in Australia and remains here whereas GIE was established in Fiji. This was challenged by the Tribunal and the first applicant maintained that the lady who started GIE in Fiji and Sydney is the same person and is the head of both organisations.[54]
[54] Transcript dated 4 December 2017, p 66, lines 35-42.
(j)He said the difference between GIE, the FDFM and SODELPA is that the former are only in one side of Viti Levu in Fiji, being the Northern and Western side, whereas SODELPA is in opposition to the government at the moment and is “Fiji-wide”.[55]
[55] Transcript dated 4 December 2017, p 67, lines 9-16 and lines 35-39.
(k)He was tested by the Tribunal about why he would be a member of two groups with different aims regarding a single government or breakup of Fiji and it was put to him that he joins any group he can “maybe more for reasons of getting protection than any deep commitment.”[56] The first applicant replied that he only wants one government, but good, to which the Tribunal states “[t]hat’s all I need to know.” He continues to give evidence and the Tribunal moved onto further questions about not facing serious problems if he returned to Fiji and was a member of SODELPA.[57]
[56] Transcript dated 4 December 2017, pp 68-69.
[57] Transcript dated 4 December 2017, p 69
(l)The first applicant attempted to clarify that it was not so much his membership of SODELPA that caused him to fear problems if he returns to Fiji but membership of the other group. The Tribunal says more will be discussed about that later when the second applicant returns to give her evidence.[58]
[58] Transcript dated 4 December 2017, p 69, lines 34-46 and p 70.
(m)He feared harm or being killed due to his photo being published in Drum Pasifika (a paper publication in Fiji), which the Tribunal thought was published in Australia and comments that maybe she “missed that.” it’s a while since I’ve …”[59] The first applicant also gave evidence about the photo being published on social media because his brother saw it in Fiji and called him.[60]
(n)That a lot of people going to Fiji are killed because the government is influenced by Muslims,[61] to which the Tribunal moves onto another topic about soldiers and says he can give evidence later about the current situation in regards to Muslims.
(o)A lengthy exchange occurs about a letter authored by the first applicant’s brother and the Tribunal puts to him that the contents of the letter is at odds with his evidence about his name being on a list at the airport. A warning is given about providing false information because he had stated that the contents of the letter was not true.[62] It is critical to note that the first applicant at no time stated that the information in the letter was untrue, rather he gave evidence about what he had been told by his brother in a phone call and that the brother had stated he would write a letter to explain.[63]
(p)That he had posted something on Facebook once that would cause problems for him if he returned to Fiji but he couldn’t recall when he had posted it.[64]
(q)That his fear about being Christian related to who was now ruling in Fiji, the Muslims. The Tribunal put contradictory DFAT information to the first applicant, to which he stated that they are getting passports and that Khaiyum had said that refugees from Muslin countries were welcome. The Tribunal replied that he will have an opportunity to provide any relevant independent evidence about this after the hearing.[65]
(r)When asked about fears related to being indigenous and his land being taken away, the first applicant stated it is because they are speaking out against the government and “their names are there in Fiji” because they are not in agreement with what is happening.[66] He also disputed the DFAT information stating that it is what is said to provide “a good face in the world order.”[67]
(s)When invited to comment on how human rights abuses reported in documents he relied upon affected him, he made no comment.[68]
(t)The Tribunal returned to the topic of the letter from Iliatia Bavadra, suggesting that the first applicant was not involved in events in Fiji and doubts the letter is genuine because it says things differently from what he said.[69]
(u)He gave evidence about attending a meeting in Revesby referred to in a more recent submission, stating he supports the group financially and that Bainimarama knows who the members are because he said so and stated they would be taken into custody.[70]
(v)He gave further evidence about his involvement and membership of GIE, when he joined, about his uncle ringing him to tell him to join and not being able to recall how many meetings he had attended in 2016 and 2017.[71]
[59] Transcript dated 4 December 2017, p 70.
[60] Transcript dated 4 December 2017, p 71.
[61] Transcript dated 4 December 2017, pp 71-72.
[62] Transcript dated 4 December 2017, pp 73-74.
[63] Transcript dated 4 December 2017, p 73 lines 35-36.
[64] Transcript dated 4 December 2017, p 74-75.
[65] Transcript dated 4 December 2017, p 76 lines 4-11.
[66] Transcript dated 4 December 2017, p 76.
[67] Transcript dated 4 December 2017, p 77.
[68] Transcript dated 4 December 2017, p 77, line 34.
[69] Transcript dated 4 December 2017, pp 77-78.
[70] Transcript dated 4 December 2017, pp 79-80.
[71] Transcript dated 4 December 2017, p 81.
In the circumstances of this matter, in my view, disposition of ground 1 requires consideration of:
(a)The process adopted for taking the first applicant’s evidence, including the quality and nature of interpretation on the first and second days of the hearing;
(b)Identifying if the process, quality or nature of interpretation impeded the first applicant from giving his evidence and presenting his claims effectively. That is, was the interpretation or the process of taking the evidence through the interpreter incompetent or defective;
(c)Whether the Tribunal unfairly or unreasonably used inconsistencies in the first applicant’s evidence (translated or otherwise) on the first and second days of the hearing to make adverse credit findings; and
(d)If so, whether this led to rejection of the first applicant’s claims for complementary protection, either in part or whole, based on credibility.
Noting the summary of evidence and course of the proceedings on the two days of hearing, I consider that the evidence given by the first applicant on the second day through the interpreter was somewhat clearer and better evidence. Although, I accept there was also a degree of consistency across both days in the first applicant not recalling dates or the exact number of times he had attended various meetings. In my view, whether the evidence on day two was better or worse is not the pertinent issue in disposing of ground 1.
Instead, the pertinent issue is whether the Tribunal’s reasoning used what it regarded as confusion or contradictions in the first applicant’s evidence given each day to make adverse findings about his credibility which either in whole or in part formed a basis for the Tribunal’s conclusion.
The Tribunal’s findings do rely on confusion and inconsistency in the first applicant’s evidence, in part as a basis for credit findings causing it to reject the claims made. For example, evidence relating to:
(a)His activities prior to leaving Fiji and involvement with SDL, including a statement that the contents of the letter from Iliatia Bavadra was “at odds” with information provided by the first applicant;[72]
(b)That he was a methodist preacher;[73]
(c)When he joined SODELPA;[74]
(d)When he joined FDFM;[75]
(e)When he joined GIE and his involvement with the group.[76]
[72] Court Book, pp 479-480 at [29], [30], [32], [33] and [36] and p 495 at [123].
[73] Court Book, p 481 at [40]-[41].
[74] Court Book, p 486 at [72], p 487 at [76] and p 492 at [108].
[75] Court Book, p 486 at [74], p 487 at [76] and pp 490-491 at [96]-[97].
[76] Court Book, p 486 at [75], p 487 at [78]-[80], pp 489-490 at [92]-[93] and pp 493-494 at [115], [120] and [121].
However, it is apparent that the Tribunal also accepted some of the claims but was not satisfied that they ought to reasonably cause fear of a risk of significant harm if the first applicant returned to Fiji because it preferred objective country information from DFAT to his subjective evidence.
The totality of the Tribunal’s written reasons show that great reliance was placed on the first applicant not having originally made claims in his visa application or when interviewed by the delegate, and that expanded and new claims were subsequently made by him. The Tribunal considered that the newer claims would have been mentioned initially if they were true.
For the reasons at [58] to [60] above, the Tribunal’s detailed but, respectfully, convoluted written reasons demonstrate that the use of confusion and inconsistencies in the first applicant’s evidence across the two days was only part of the reasons for the adverse credit findings leading to rejection of the entitlement to a protection visa.
In these circumstances, can it be said that the failure to afford procedural fairness as required by s 425 of the Act was material in the sense that a fair, like-minded individual may have reached different conclusion,[77] or can it be said that there is a realistic possibility that the outcome of the decision could have been different had that error not been made.[78]
[77] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506.
[78] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12.
I consider the applicants have met the onus of establishing jurisdictional error because:
(a)It is not necessary to establish a precise causal link between defective or poor interpretation and the adverse result;[79] and
(b)The failure to afford procedural fairness is material to the Tribunal’s rejection of the first applicant’s claim for complementary protection based on political activity or beliefs for the reasons following.
[79] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [10], BZAID v Minister for Immigration and Border Protection [2016] FCA 508, both followed in Minister for Home Affairs v CAK16 [2019] FCA 322.
Although it is plain from the totality of the Tribunal’s reasons that it had serious doubts about the veracity of the first applicant’s claims relating to political activity/beliefs before and after he left Fiji because of statements he made previously to the delegate and the MRD, it still relied in part on what it described as inconsistencies, confusion and incoherence in evidence given on the first and second day of hearing to reach its ultimate conclusion that the first applicant was not credible about his political claims and only had a low political profile.
In this sense, the Tribunal’s jurisdictional error was material because the adverse credit finding contaminated or infected the conclusion in relation to the nature of risks faced due to political activity.[80]
[80] DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 and BAU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1169 at [22].
The extension of time for the filing of the application for review is granted and leave is given for the first applicant to rely on the grounds contained in the Amended Application filed 15 July 2024, of which ground 1 is established.
Ground 2
Ground 2 asserts jurisdictional error based on illogicality, irrationality and/or unreasonableness in the manner the Tribunal made findings or gave reasons about the risk of harm based on the first applicant’s claims of association with GIE and Ms Kirwan. In particular, the Tribunal’s reference to media reports and the Fiji Sun that statements attributed to Prime Minister Bainimarama were a “diversionary” tactic or “sensationalist”. Elaboration was provided for this ground in oral submissions and reference made to [112], [145] and [146] of the Tribunal’s reasons. In essence, counsel for the applicants submitted that the characterisation by media was not determinative of the nature of the risk of harm and the Tribunal had failed to conduct a proper assessment of the risks.
The first respondent submitted that there was a high bar for the applicants to persuade the Court that this ground of asserted error is established. But descriptors such as “high bar” distract from the fundamental principles which are that the applicants bear the onus of establishing jurisdictional error and that it is material.[81]
[81] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 61; [2010] HCA 16 at [4], [41] and [46]; and DSN16 v Minister for Immigration and Border Protection [2021] FCA 202 at [101].
The parties competing submissions in summary distil into two contrary propositions. For the applicants, that the Tribunal failed to demonstrate a logical, rational and reasonable reasoning process by relying on media opinion and assessing the nature of the risk claimed to exist and then rejecting it as failing to meet the threshold for complementary protection.
On the other hand, the first respondent submits that the Tribunal’s reasons in referring to media opinion merely provided context to the claim being made. Ultimately, it submits the Tribunal relied on the finding that the first applicant was an ordinary member of the group with limited involvement in its activities and that he would not have a profile that would cause reasonable basis for fearing risk of significant harm if he returned to Fiji.
Having considered the reasons of the Tribunal, particularly those referred to by the parties in their submissions, I am not persuaded that the Tribunal erred as asserted by ground 2.
I consider that [112], [145] and [146] of the Tribunal’s reasons provide a commentary about the evidence before it which gave context to the first applicant’s claims for protection based on political opinion or association.[82] There is no part of the reasons that demonstrates there was express reliance on the commentary and instead it is clear that the Tribunal rejected much of the first applicant’s evidence in support of the nature of threats or risks of harm due to his association with GIE and Ms Kirwin.[83]
[82] Court Book pp 493 and 498.
[83] Court Book pp 493-494 at [115] to [121].
Although the Tribunal notes the views of Professor Brij Lal, the ABC News article and the Fiji Sun,[84] its assessment of the risks of harm based on association with GIE and Ms Kirwin was dependent on the DFAT information it accepted. Namely, that the first applicant as an ordinary member of GIE in Australia and not a person genuinely committed to the group’s cause would not face a real risk of suffering significant harm if returned to Fiji.[85]
[84] Court Book p 498 at [145] to [146], noting that the article in which Professor Brij Lal is cited is also annexed to the affidavit of Fardin Nikjoo at annexure FN-2.
[85] Court Book pp 498-499 at [147] to [148].
To be satisfied this ground is made out, the Court would need to infer that the commentary formed some part in the Tribunal’s finding that the first applicant was an ordinary member and person not genuinely committed to GIE. I am unwilling to draw that inference on the basis of the findings and reasoning of the Tribunal. Further, if I am wrong as to this I am not satisfied that any illogicality, irrationality or unreasonableness was material because the Tribunal accepted that the first applicant had membership and association with GIE and Ms Kirwin, but nonetheless assessed the risk of harm by virtue of it based on DFAT information that as an ordinary member, the first applicant would not reasonably be exposed to significant risk of harm in Fiji.
Ground 2 is not made out.
Ground 3
Ground 3 has not been established for the following reasons:
(a)I accept that the first applicant’s representative made submissions to the Tribunal that, as referred to at [45] and [46] of the written submissions of counsel,[86] occurred when the first applicant himself was not present;
(b)The submission or statement that Ms Kirwin was a fraudster was capable of constituting information to which s 424AA of the Act may apply;
(c)The Tribunal did not rely on the information referred to at [76](b) of these reasons for the purpose of making any finding or conclusion about the nature of the risk of harm the first applicant would reasonably be expected to face if he returned to Fiji; and
(d)Instead, the basis for rejecting the first applicant’s claims for protection was that the Tribunal preferred DFAT information about the nature of the risk of harm due to association with GIE and Ms Kirwin, being evidence about the risk to ordinary members, having earlier rejected claims that the first applicant had high level or significant involvement with GIE or Ms Kirwin.[87]
[86] See also [52] of these reasons.
[87] Court Book pp 498-499 at [147] to [148].
CONCLUSION
In view of ground 1 being established, the application for review succeeds and the relief sought by the applicants is granted.
Although conduct of the redetermination hearing is a matter for the second respondent, it is desirable that a differently constituted Tribunal conduct the hearing. Further, that the Member ensures that the evidence in the proceeding is taken through an interpreter whose proficiency and suitability is established before the substantive hearing proceeds. If the hearing time is expected to be more than one day, consecutive days without lengthy periods in between ought to be allocated for the hearing. To the extent that it is practicable, the guidance provided by the Recommended National Standards for Working with Interpreters in Courts and Tribunals should be followed.[88]
[88] Second edition, published by the Judicial Council on Cultural Diversity. See, in particular, standards 13, 14, 16 and 17.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 27 November 2024
SCHEDULE OF PARTIES
SYG 1906 of 2018 Applicants
Fourth Applicant:
BBF16
Fifth Applicant:
BBC16
Sixth Applicant:
BBH16
Seventh Applicant:
BBG16
Eighth Applicant:
BBD16
1
23
1