BYY18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 229
•14 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 229
File number(s): MLG 1033 of 2018 Judgment of: JUDGE TAGLIERI Date of judgment: 14 March 2024 Catchwords: MIGRATION – protection visa – claim about inability to get documents for Tribunal hearing – concern about possible incorrect interpretation at Tribunal hearing – inability to obtain documents when no request to adjourn made does not constitute jurisdictional error – onus of demonstrating deficiencies in interpretation and connection with decision – no evidence of incorrect interpretation – jurisdictional error not established – application for review dismissed Legislation: Evidence Act 1995 (Cth)
Migration Act 1958 (Cth)
Cases cited: Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Minister for Immigration v WACO (2003) 131 FCR 511
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Perara v Minister for Immigration (1999) 92 FCR 6
SZHEW v Minister for Immigration and Citizenship [2009] FCA 783
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 5 February 2024 Place: Hobart For the Applicant: The Applicant in person Solicitor for the Respondents: Ms Liddy, Sparke Helmore ORDERS
MLG 1033 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYY18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1.The application for review filed 19 April 2018 is dismissed.
2.The Applicant pay the First Respondent’s costs in the fixed sum of $5,000.
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:
By application filed on 19 April 2018, the applicant seeks review of a decision of the second respondent, the Administrative Appeals Tribunal (“the Tribunal”) dated 13 March 2018 (“the reviewable decision”). By the reviewable decision, the Tribunal affirmed the first respondent’s decision to refuse a protection (class XA) (subclass 866) visa (“the protection visa”) to the applicant.
The application filed 19 April 2018 invokes the Court’s review jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND AND PROCEDURAL HISTORY
The background and procedural history to this review is not disputed and largely demonstrated by the documents in the Court Book filed by the first respondent, which the Court received in evidence without objection at the hearing on 5 February 2024 and marked as Exhibit R1.
In summary, the factual background and history is as follows:
(a)As a Malaysian citizen and having arrived in Australia on 6 October 2016, the applicant applied for the protection visa on 14 December 2016 claiming fear from harm associated with his work as a bookie, including being threatened and attacked and needing to go into hiding;[1]
(b)On 24 April 2017, the delegate of the first respondent decided to refuse the protection visa, not being satisfied of the statutory criteria for protection either as a refugee or a person entitled to complementary protection;[2]
(c)On 24 May 2017, the applicant applied to the Tribunal for a review of the first respondent’s decision;[3]
(d)On 10 October 2017, the Tribunal invited the applicant to attend a hearing.[4] The applicant advised that he would attend the hearing scheduled for 26 October 2017 and would require a Mandarin interpreter;[5]
(e)The applicant attended the Tribunal hearing and was assisted by a Mandarin. interpreter;[6] and
(f)On 13 March 2018, the Tribunal, by written decision, affirmed the decision to refuse the protection visa to the applicant.[7]
[1] Court Book filed 9 May 2019, pp 1-40.
[2] Court Book filed 9 May 2019, pp 41-52.
[3] Court Book filed 9 May 2019, pp 58-59.
[4] Court Book filed 9 May 2019, p 68.
[5] Court Book filed 9 May 2019, p 78.
[6] Court Book filed 9 May 2019, pp 82-84.
[7] Court Book filed 9 May 2019, pp 90-100.
COURT REVIEW
The application to this Court was heard on 5 February 2024, with the parties appearing by Microsoft Teams. The applicant was assisted by a Mandarin interpreter and I invited the interpreter to converse with the applicant prior to the commencement of the hearing and confirm he was satisfied with their mutual comprehension.
In order to obtain the relief sought the applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] and many other authorities since.
The application contains what might be interpreted as three possible or purported grounds of jurisdictional error, being in substance that:
·Ground 1: The applicant could not get supporting documents to provide to the Tribunal. I infer that the grievance is that the Tribunal did not consider unspecified documents that were sought to be relied upon.
·Ground 2: That the applicant lacked English but it is not identified how this may amount to jurisdictional error.
·Ground 3: That the interpreter might not have interpreted the exact meaning of responses given by the applicant in evidence at the Tribunal hearing.
The applicant advised the Court that it was his preference to hear the submissions on behalf of the first respondent and then respond, rather than making his submissions first. The hearing proceeded in that manner.
THE COMPETING CONTENTIONS
The first respondent relied on written submissions filed 11 August 2023 and Ms Liddy, who appeared for the first respondent, essentially spoke to these. Her submissions were translated by the interpreter.
Concerning grounds 1 and 2 it was submitted that these did not identify jurisdictional error and there was no evidence to demonstrate that the applicant had sought additional time to provide documents or further information to the Tribunal for it to consider.
Further, Ms Liddy submitted that the Tribunal adequately considered the claims for protection raised in the visa application and oral claims made at the Tribunal hearing but rejected them on the basis that they were inconsistent, vague and lacking detail.[8]
[8] Referring to the Tribunal’s written reasons: Court Book filed 9 May 2019, pp 93-95 at [19]-[29].
To the extent that the Tribunal rejected the credibility of the Applicant’s evidence and claims, this was open to the Tribunal for reasons given.[9]
[9] Relying on Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Concerning ground 3 and the references to “lack of English” and that “the interpreter might not have interpreted exact meaning”, it was contended by the first respondent that the applicant bore the onus of demonstrating that there had been a departure from the standard of interpretation in relation to a matter of significance and that there was sufficient connection between inadequate interpretation and the decision taken.[10]
[10] Citing SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52]; Perara v Minister for Immigration (1999) 92 FCR 6 at [38] and [45]; Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16]-[18]; and Minister for Immigration v WACO (2003) 131 FCR 511 at [69].
The first respondent ultimately submits that the applicant has not shown that there were any material errors in interpreting and so the Court cannot be satisfied that there were deficiencies in the standard and connection required such to establish material unfairness or the denial of a fair hearing and right to be heard.
In conclusion, Ms Liddy submitted that none of the grounds asserted by the applicant were established and the application should be dismissed, with an order to pay the first respondent’s costs in a fixed sum.
At the end of the first respondent's submissions, I confirmed with the applicant through the interpreter that, in reality and substance, the basis for the review and grounds relied upon involved two complaints, being: an inability to obtain documents he claimed he wanted to put before the Tribunal and related failure to consider these; and, an allegation that the interpreter may have incorrectly translated what he said at the Tribunal hearing.
I invited the applicant to tell me about these complaints and how or why they were apparent. I also asked him to tell me what was wrong with the Tribunal decision. Curiously, in response to these enquiries, the applicant stated he had nothing to say.
I repeated that I wished to give him a final opportunity to say anything about why the review application should succeed. The applicant simply stated that he had wished to engage a lawyer but that he was not in a position to do so financially, and his wife had given birth to a child prematurely in February 2023 and they had spent some time in hospital.
The first respondent had indicated that it would seek an order that the applicant pay their costs, should the review be dismissed.
EVALUATION
Each ground of review is expressed in terms that do not reflect possible jurisdictional error according to recognised and established law. However, because the applicant is self-represented, I have taken a generous interpretation to what he may be submitting based on my clarification of his intent as discussed above in these reasons at [16].
It is unfortunate that the applicant has apparently been unable to seek and obtain legal advice but there is no absolute right to legal representation in proceedings of this nature and the financial constraints of the applicant are not relevant to whether there was jurisdictional error on the part of the Tribunal.
Ground 1 suggests that the applicant may have had documents to assist in establishing his claims for protection but that he could not obtain them and put them before the Tribunal for consideration.
However, when invited to expand on the grounds of application, the applicant did not do so either by identifying what the documents were or seeking to persuade the Court that he had requested time to produce the documents before a decision was made by the Tribunal.
In the circumstances described above at [22] and [23] of these reasons, the applicant has failed to persuade me that that there was any jurisdictional error by the Tribunal. It is well-settled in law that the applicant carries the onus of proof in demonstrating jurisdictional error.[11] The applicant’s purported ground 1 amounts to a mere claim about an inability to get documents without explaining how this impacted on the Tribunal’s statutory function.
[11] See MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [39]. See also NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; and SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21].
Ground 1 accordingly fails.
Grounds 2 and 3 are interrelated and it is convenient to address them together.
The applicant asserts that he lacked English. I accept that to be the case as there was a request by him to be assisted at the Tribunal hearing by an interpreter of his chosen language, Mandarin.
The hearing record demonstrates that the interpreter took an affirmation and I infer this was consistent with the usual interpreter’s affirmation routinely used in Commonwealth Tribunals and Courts.[12] I am therefore satisfied that the interpreter understood the responsibility and task to be undertaken.
[12] Evidence Act 1995 (Cth), Schedule Oaths and Affirmations, ss 21(4) and 22(2) ‘Affirmations by interpreters’.
The applicant has not identified any part of the Tribunal’s findings that he claims is inconsistent with his evidence on affirmation and as submitted by the first respondent, he has not provided any account at all about how and why erroneous translation related to a material aspect of the Tribunal’s fact finding or application of those findings to the law.
I attempted to clarify how the applicant sought to argue that the lack of English or translation standard and quality led to asserted error. But no submissions were forthcoming. Although the applicant made a submission relating to not being able to afford a lawyer or legal advice, he did not provide any expansion of the grounds relied upon.
It is an unfortunate fact that many persons in Australia have difficulty affording legal representation, but this does not provide a basis for jurisdictional error and it is well established in law that the person asserting jurisdictional error must demonstrate it to the Court’s satisfaction.[13]
[13] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [39].
Consequently, I also reject grounds 2 and 3 for the above reasons and for the reasons submitted by the first respondent, particularly because they are supported by the authorities referred to at footnotes 9, 10 and 11 of these reasons.
CONCLUSION
None of the grounds of review are established and there will be an Order dismissing the application. I will hear the parties in relation to the costs order sought by the first respondent.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 14 March 2024
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