BJG18 v Minister for Home Affairs

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJG18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2082

Catchwords:
MIGRATION – Application to quash decision of AAT – where AAT failed to comply with obligations under sections 424A and 424AA of the Act – where the Member took into account irrelevant considerations – where the Member based its finding on ambiguous and vague questions – where the AAT ought not to have allowed the unilateral intervention of an interpreter to muddy evidentiary issues - where jurisdictional error is established.

Legislation:

Migration Act 1958 (Cth), ss.65, 424A, 424AA.

Cases cited:

Minister for Immigration and Citizenship v SZLSP & Ors [2010] FCAFC 108

Applicant:

BJG18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 769 of 2018

Judgment of:

Judge Egan

Hearing date:

31 July 2018

Date of Last Submission:

31 July 2018

Delivered at:

Sydney

Delivered on:

31 July 2018

REPRESENTATION

Counsel for the Applicant:

Mr Clark

Solicitors for the Applicant:

D’Ambra Murphy Lawyers

Counsel for the Respondents:

Mr Kay Hoyle

Solicitors for the Respondents:

DLA Piper Australia

THE COURT ORDERS ON A FINAL BASIS:

That the name of the first applicant be suppressed and not appear in the transcript of proceedings.
That the decision of the Administrative Appeals Tribunal made on 20 February 2018 be quashed.
That a writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine the applicants’ application for review of the first respondent's decision according to law, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
That the first respondent pay the applicants’ costs of the proceedings fixed in the amount of seven thousand, three hundred and twenty-six dollars ($7,326.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 769 of 2018

BJG18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are citizens of China. The first applicant is married to the second applicant, and the third applicant is a child of their union. The applicants made applications for protection visas on 11 October 2013. A delegate refused to grant the visas on 3 November 2015.
Before the court is an application for review of the decision made by the Administrative Appeals Tribunal (“AAT”), handed down on 21 February 2018. The AAT had affirmed a decision made on 3 November 2015 by a delegate of the Minister to refuse to grant visas under section 65 of the Migration Act1958 (Cth) (“the Act”).
The issue before the court is that the Applicants claim that they are Roman Catholics who, by reason of their religion, would be persecuted if required to return to China. The matter seems to have proceeded at all levels on the basis that those who are of the Roman Catholic faith would be persecuted, in the Republic of China, by reason of their religious faith.
The first question for consideration to be addressed is whether there have relevantly been contraventions of the provisions of sections 424A and 424AA of the Act. What transpired is that a hearing before the AAT was conducted on 31 October 2017. After the hearing, on 7 November 2017, a letter was sent by the AAT to the first applicant, relevantly addressed to each of the applicants, such letter having been sent pursuant to the provisions of section 424A of the Act. (See pp 137 – 142 inclusive of Court Book) Section 424A provided as follows:
Information and invitation given in writing by Tribunal?
(1) Subject to subsections (2A) and (3), the Tribunal must:?
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non-disclosable information.

(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

It is clear from the contents of the 7 November 2017 letter that the AAT was purportedly complying with its obligation pursuant to section 424A(1)(a) to provide particulars of information that the AAT considered might constitute the reason, or part of the reason, for affirming the decision under review. Reference was made in the letter to the question of the first applicant’s knowledge of the Trinity.On page 141 of the court book, under the heading, “Ms Wu’s knowledge of the Trinity”, the following was recorded:
At departmental interview on 4 February 2015, it is orally recorded that when asked what is the Holy Trinity? Ms Wu said the Holy Father, Holy Son and Holy God. This is relevant because the Tribunal may find that at interview, Ms Wu did not display knowledge of the Trinity that is consistent with her alleged Catholic practice. If the Tribunal finds that Ms Wu did not display knowledge of the Trinity that is consistent with her alleged Catholic practice, then subject to your comments, the Tribunal would affirm the decision under review.
What is clear, in respect of what can conveniently be referred to as “the Trinity issue”, is that the AAT was flagging to the applicants that it may be found by the AAT that the first applicant did not display the requisite knowledge of the Trinity issue consistent with her alleged Roman Catholic practice. It is also clear that the Tribunal was flagging that if the Tribunal was not satisfied that the applicants were practising Catholics, then the Tribunal was open to affirm the decision under review.
Exhibit 2 is an affidavit affirmed by one Justin Moyes, a solicitor, and it relevantly annexes a copy of the transcript of the first hearing before the AAT held on 31 October 2017. Between pages 41-44 inclusive, the Trinity issue was dealt with as follows:
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: Not yet
Ms Wu: [Foreign Language]
Interpreter: It’s an arrangement
Member: Okay. Well, if you got married in 2012 and you’re still not married in the Catholic Church, why not?
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: Because in my church they are more than 1,000 members, and the priest, I need to organise time.
Ms Wu: [Foreign Language]
Interpreter: Sometimes at the time given, that didn’t mention our time. And our time, that didn’t [unintelligible 01:05:58] time of the priest.
Member: Do you read the Bible?
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: Yes
Member: So how is the Bible divided?
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: Old Testament and New Testament
Member: And what is the Old Testament?
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: The Old Testament was the things that happened before the Birth of Jesus.
Member: And what’s the New Testament?
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: And the New Testament are the holy law, when the holy [unintelligible 01:07:02] was crucified, and [foreign language].
Ms Wu: [Foreign Language]
Interpreter: And he set a covenant with us, and that’s the New Testament.
Member: So where would I find the Ten Commandments?
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: That’s in the Old Testament.
Member: And who did God give the Ten Commandments to?
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: Moses
Member: Okay. So when the Department of Immigration asked you that question, you said the Old Testament was the process of how God preached.
Interpreter: [Foreign Language]
Member: And the New Testament was about the new rule that must be obeyed after God was resurrected.
Interpreter: [Foreign Language]
Member: And the new rule was that we need to obey the Ten Commandments.
Interpreter: [Foreign Language]
Member: Do you want to comment on that?
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: I didn’t really understand what you said.
Member: Well, what you basically said is that when the Department asked you what was the difference between the Old and New Testament …
Interpreter: [Foreign Language]
Member: … you said the Old Testament is the process of how God preached.
Interpreter: [Foreign Language]
Member: And the New Testament is about the new rule …
Interpreter: [Foreign Language]
Member: And you said that the new rule was that we need to obey the Ten Commandments
Interpreter: [Foreign Language]
Member: But today you’ve told me that the Ten Commandments were in the Old Testament
Interpreter: [Foreign Language]
Member: So it’s a little bit different to understand why you told the Department that the Ten Commandments was the new rule which was in the New Testament.
Interpreter: [Foreign Language]
Member: Do you want to comment?
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: Because it’s been a long time, I didn’t know what I said.
Member: Alright. So who is the Holy Trinity?
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: Holy Father, Holy Son and the Holy Spirit
Member: When the Department asked you that question, you said it was the Holy Father, Son and God.
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: No I didn’t say God.
Ms Wu: [Foreign Language]
Interpreter: No, I said Holy Father, Holy Son and Holy God.
Member: You’ve told me today that you can’t go back to China because you’re Catholic.
Interpreter: [Foreign Language]
Member: But you’ve consistently gone back since you arrived in Australia in 2008.
Interpreter: [Foreign Language]
Member: So if you’ve been able to go back all those times, and one of those times you stayed there for six months, why can’t you go back now?
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: For this I want to explain
Member: Mm hm.
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: The first time when I went back, the purpose was a health check.
Ms Wu: [Foreign Language]
When one reads the above pages of the transcript, one sees that the AAT Member was addressing questions to the first applicant which, on one view, were sought to extract from the first applicant evidence relating to her knowledge and experience of the contents of the Bible. The questioning was somewhat confusing because of the lack of specificity of some of the questions asked, even if the thrust of the questioning was clear enough.
For example:
a)the question asked by the Member, “So how is the Bible divided?”, is so open-ended, and ambiguous, as to reasonably lead the person being asked such question into confusion.
b)the question, “And who did God give the Ten Commandments to?”, also falls into such category, albeit that historically, as was conceded by those representing both parties to the proceedings, the clear biblical answer to that question was “Moses.”
c)the question, “All right. So who is the Holy Trinity?”, is also a confusing question. How was reference to the Trinity to be interpreted on any one basis as being a reference to a person?
The purpose of the Member asking the questions as referred to above was to compare the evidence of the first applicant given before the AAT with that which was given before the departmental officer. The relevance of the question relating to who the Holy Trinity was, is evident on page 44 of the transcript to exhibit 2 as quoted above.
It is apparent that in relation to the question about the Holy Trinity, the first applicant was firstly interpreted as having answered, “Holy Father, Holy Son, and the Holy Spirit”, but that secondly, when it was suggested that her answer to the departmental officer had been “Holy Father, Son and God,” the interpreter, though firstly recording the first applicant as replying, “No, I didn’t say God,” then went on to interpret a response, “No, I said Holy Father, Holy Son and Holy God.”
At the end of such dialogue, the first applicant, lacking in an understanding of the spoken English language as she was, would not have appreciated that there was necessarily an issue about her answer being in terms other than of, “Holy Father, Holy Son and the Holy Spirit.”, because, on her case, that was always her answer. It probably came as a surprise to her that it was asserted as part of the letter sent to her on 7 November 2017 that her answer, on the 31 October 2017 hearing, had been, “Holy Father, Holy Son and Holy God,” rather than, “Holy Father, Holy Son and the Holy Spirit.”
As she was entitled to do, she sent a response to the 7 November 2017 letter by letters dated 20 November 2017 and 28 November 2017 respectively. The first of those response letters made it clear that the first applicant was reasserting her commitment to the Roman Catholic faith, as well as her commitment to her having at all times said, both before the departmental officer, and at the first AAT hearing, “Holy Spirit” rather than “Holy God”.
Consequent upon receipt of the responses, a further hearing was convened before the AAT. That hearing took place on 19 January 2018. Exhibit 3 is an affidavit affirmed by Mr Moyes, by which the transcript of the 19 January 2018 proceedings was annexed. When dealing with the issue addressed in the letters of 7 November 2017 and 20 November 2017 concerning the Trinity issue, the first applicant, for the first time, was able to express to the AAT that there had been a misinterpretation in respect of her dealings with the departmental officer.
The relevant parts of the transcript are at pages 20 to 22 inclusive, as follows:
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: Last time when I had an interview with Immigration Department
Member: Yes
Ms Wu: [Foreign Language]
Interpreter: I previously mentioned that there was a communication between me and the interpreter was not good
Ms Wu: [Foreign Language]
Interpreter: And I think because of that so there was misunderstandings between me and the Immigration Officer.
Ms Wu: [Foreign Language]
Interpreter: Although the language is the same.
Ms Wu: [Foreign Language]
Interpreter: Although sometimes the things that the person expressed to me. I was unable to understand.
Ms Wu: [Foreign Language]
Interpreter: And I believe that from the video, from the recording, you can tell, regards to that situation.
Ms Wu: [Foreign Language]
Interpreter: and when I read the letter from Immigration Department
Ms Wu: [Foreign Language]
Interpreter: And I realised the interpreter actually misinterpreted it.
Ms Wu: [Foreign Language]
Interpreter: From example, Trinity.
Ms Wu: [Foreign Language]
Interpreter: And I said the Holy Father, Holy Son and Holy God.
Ms Wu: [Foreign Language]
Interpreter: Well, Member, I need to explain. When she said ‘Holy God’, in Chinese it means God, and then she corrected me, she said it should be “Holy Spirit”. But a spirit in Chinese has a different word, called [unintelligible 00:34:01].
Member: Thank you. Thank you, interpreter. I would indicate to you that the interpreter we’re using at the moment is the highest level you can get in Australia.
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: No, I’m saying about the interpreter at the time.
Ms Wu: [Foreign Language]
Member: I understand, but I will be taking into account the interpreter’s comments.
Interpreter: [Foreign Language]
Ms Wu: [Foreign Language]
Interpreter: So that’s why I got this imagination, maybe at that time the person also missed interpreting from other parts.
Ms Wu: [Foreign Language]
Interpreter: Although I don’t really know what kind of questions the Member would consider.
Ms Wu: [Foreign Language]
Interpreter: But because God again made this chance for me to appear in front of Member, so I need to make it really clear.
Ms Wu: [Foreign Language]
Interpreter: I am telling the truth
Ms Wu: [Foreign Language]
Interpreter: So I hope the Member can hopefully see that.
What is of significance, as recorded on page 21 of the transcript, is that immediately after the applicant had said that her comments before the departmental officer had been misinterpreted, she was again recorded as having said, in relation to the Trinity issue, “And I said the Holy Father, Holy Son and Holy God.” At that point, one would have expected the AAT Member to have appreciated that something was amiss and in need of closer scrutiny.
The next answer, recorded next to the word “Interpreter”, constitutes what was an impermissible intervention by the interpreter into the proceedings of the Tribunal. What transpired was that the interpreter then sought, and was allowed, to himself give evidence as to what the word “Holy God” meant in Chinese, stating in part that the first applicant had corrected him, saying it should be, “Holy Spirit”. The latter exchange was only capable of being productive of confusion.
Rather than excluding such evidence from the proceedings, or otherwise seeking to pursue the issue by asking further direct questions of the first applicant which might have clarified the Trinity Issue, the Member merely thanked the interpreter, indicating at the same time that the interpreter being used was of the “highest level” obtainable in Australia. The latter was presumably a way of the Member suggesting that it was the interpretation as advanced by the interpreter in his unsolicited evidence about the meaning of “Holy God”, rather than the evidence of the first applicant herself, which should be preferred.
Exhibit 4 was an affidavit tendered on behalf of the applicants, without objection, by Mr Clark of Counsel. It is an affidavit by one Roy Shen who, it was accepted, was a professional interpreter and translator possessed of qualifications requisite to constitute him an expert. Annexure C to that affidavit are pages marked number 1 and number 2 which relevantly coincide with parts of the transcript annexed to exhibit 3 – namely pages 19 to 22 of such transcript. The difference is that, in respect of the Trinity issue referred to on pages 20 and 21, the actual words recorded in exhibit 3 as “foreign language” are included.
When one reads the actual translation of what was spoken, it is important to note the translator’s note as it appears on page 2 of exhibit 4. Firstly, Mr Shen records that the first applicant said, before the member on 19 January 2018, that in relation to the term “Trinity”, she said, and no doubt meant, “the holy father, holy son and holy spirit”. Mr Shen commented that the Chinese words “sheng shen” can be used both in relation to the words “holy God” and to the words “holy spirit”. However Mr Shen goes on to record that the first applicant was adamant that she was referring to the words “holy spirit” and not “holy God” when referring to the Trinity. The applicant stated that the recorded translation was incorrect.

It is also of note that in relation to the part of the transcript on page 21 of exhibit 3, where the interpreter first interposed himself upon the proceedings unilaterally, the translation of what the interpreter said as given by Mr Shen was that there was reference in the evidence of the interpreter to a spirit being called “ling”, the direct translation of which was “ghost” or “spirit”.
It is apparent from the transcript annexed to exhibit 3 and the transcript annexed to exhibit 4 that the AAT member stated, after the intervention of the interpreter, “I understand, but I will be taking into account the interpreter’s comments.” First, it would seem clear that the interpreter’s comments as contained on page 21 of the transcript annexure to exhibit 3 are different comments to those as recorded on page 2 of the transcript annexure to exhibit 4. The member ought to have appreciated that there was a serious allegation that the first applicant’s evidence had not been correctly interpreted. Had the member further explored the correctness or otherwise of what the first applicant had said, or had they been possessed of the extra information as conveyed in the Shen affidavit, then there might have been pause on the part of the member in making the findings that were made by them in paragraphs 39 to 61 inclusive of the tribunal reasons relating to the Trinity issue.
When confronted with the uninvited intervention into evidence by the interpreter, the AAT member ought to have, at the least, clarified the issue of the translation of the words “holy spirit” when spoken by the first applicant. The fact that the AAT member did not do so could, in part, have led the member into erroneously believing that for the whole of the proceedings before them in the AAT there was the same incorrect interpretation of the meaning of the Holy Trinity – namely “holy father, holy son and holy God” rather than “holy father, holy son and holy spirit”.
To the extent that the member has specifically addressed such matters in paragraphs 39 and 58 of the member’s reasons, I consider that those reasons are open to question. At the least, there was a basis for the AAT complying with its obligations pursuant to either section 424A or section 424AA after it became apparent that the first applicant had asserted that she had been misinterpreted. At the end of paragraph 58 of the reasons the member recorded that the applicant had not prior to 19 January 2018 previously made a claim that she had been misinterpreted. That was incorrect, as it was clear that, by her letter dated 20 November 2017, she had done just that.
It is also clear from the reasons at the end of paragraph 58 that the acceptance by the member that the first applicant had said “holy God” rather than “holy spirit” in her evidence was, at least in a substantial part, determinative of the question as to whether the first applicant and the second applicant were of the Catholic faith and likely to be persecuted upon their return to the Republic of China.
For those reasons, I consider that a jurisdictional error has been demonstrated in respect of a failure by the AAT to comply with its obligations pursuant to section 424A and 424AA from the Migration Act. That deals with ground 3 of the grounds for review.
I am otherwise satisfied, for the reasons set out in the applicant’s written submissions, that the ground 1 submissions ought to be upheld. I accept the submission of the applicants that the member has adopted an approach in relation to the assessment as to whether the applicants are of the Catholic faith or not which has been founded upon vague and ambiguous questions which are so lacking in specificity as to give rise to an inadequate basis for the findings of the tribunal as handed down. I have already referred, in that regard, to some of the questions directed by the tribunal member to the first applicant.
For the purposes of my judgment, I further rely, in relation to ground 1, upon the decision of Kenny J in Minister for Immigration and Citizenship v SZLSP & Ors [2010] FCAFC 108 at paragraphs 29, 31, 37, and 39. The decision of the AAT should not stand.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 16 August 2018

[2018] FCCA 2082

31 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction