CBL19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 112
•4 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CBL19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 112
File number(s):
SYG 1256 of 2019
Judgment of:
JUDGE PAPADOPOULOS
Date of judgment:
4 February 2025
Catchwords:
MIGRATION – judicial review – protection visa – interpreter error – whether the Tribunal discharged procedural fairness obligations – real and meaningful opportunity to give evidence and present arguments – materiality – jurisdictional error established – application allowed.
Legislation:
Migration Act 1958 (Cth)
Cases cited:
Applicant P 119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310
Fernando De La Espriella-Velasco v R (2006) 197 FLR 125
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12
MZAIB v Minister for Immigration & Border Protection [2015] FCA 139
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
R v Tran [1994] 2 SCR 951
SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109
SZOYU v Minister for Immigrationand Citizenship [2012] FCA 936
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511
Division:
Division 2 General Federal Law
Number of paragraphs:
69
Date of last submissions:
27 November 2024
Date of hearing:
25 September 2024
Place:
Sydney
Applicant
Appeared In Person
Solicitor for the Respondents
Mr L Dennis of Mills Oakley
ORDERS
SYG 1256 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CBL19
ApplicantAND: MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
4 FEBRUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 24 April 2019 into this Court for the purposes of quashing it.
2.A writ of mandamus shall issue, requiring the Administrative Review Tribunal to re‑determine, according to law, the application for review before it.
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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application filed on 21 May 2019, under s 476 of the Migration Act 1958 (Cth) (Act), seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 April 2019. By this decision, the Tribunal affirmed an earlier decision of a delegate of the first respondent (delegate) made on 22 August 2016 to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).
For the following reasons, the application before this Court succeeds.
BACKGROUND
The applicant is a male citizen of China who arrived in Australia on 30 September 2015 as the holder of a Subclass 600 Visitor (Class FA) visa.[1]
[1] Court Book (CB) 64.
The protection visa application
On 13 October 2015, the applicant applied for the protection visa, and on 18 August 2016, he attended a protection visa interview before the delegate. In a statement accompanying his application (original statement), the applicant made the following claims:[2]
(a)He served for approximately three years, from 1997 to 2000, at the Xichang Satellite Launching Centre (Satellite Centre) in the Sichuan Province of China.
(b)After his period of service, he worked as a sole trader in a small factory for seven to eight years.
(c)In 2010, he was invited by a friend, who was the then chief of staff of the Satellite Centre (comrade), to visit the Satellite Centre. The comrade had invited him on multiple occasions, and he finally accepted and brought his wife and son to visit the Satellite Centre with him.
(d)Whilst visiting the Satellite Centre, he and his son were shown some places that ‘are not supposed to have outsiders’ and his son ‘took some sensitive photos and VCRs’. They had access to these areas of the facility as the comrade was of high rank.
(e)Upon returning home, his son shared the photographs and videos with his friends which were then shared with friends of his friends outside of ‘his control’. The photographs reached someone who ‘is interested in Chinese satellite launching and aerospace developing’, and the ‘Chinese National Security Department noticed the widespread photos’.
(f)Following the above events, the ‘Centre and National Security Department visited’ his family home ‘again and again’ and raised questions about the purpose of his trip to the Satellite Centre and how long it had been planned. The comrade was also dismissed from the Army ‘earlier than he was supposed to’.
(g)The Chinese government prevented him from upgrading and operating his sole trader business by prohibiting the use of new machinery he had purchased. Further, the Chinese government prevented him from accessing his personal files and he was being watched.
(h)He fears returning to China as believes he and his family are being watched by Chinese officials. Although he and his son had not received ‘direct punishment’, he must be very careful about what he does and says.
[2] CB 57 to 58.
On 22 August 2016, the delegate refused to grant the applicant a protection visa. The delegate found that the applicant’s claims were ‘implausible’ and that there was no evidence to substantiate his claims.[3] The delegate did not accept that the applicant’s son took photographs and video recordings of a sensitive facility and uploaded that material to the internet. The delegate also did not accept that the applicant was of adverse interest to the Chinese authorities.[4]
[3] CB 68.
[4] CB 68 to 72.
The review application
On 14 September 2016, the applicant applied to the Tribunal for review of the delegate’s decision.[5] In this application, the applicant provided the Tribunal with a copy of the delegate’s decision record and notification letter, a completed Form 956 – Advice by a migration agent/exempt person of providing immigration assistance, and a brief statement explaining an error made in his protection visa application. The applicant also notified the Tribunal of his appointment of Ms Wei Burns, a registered migration agent, as his representative.[6]
[5] CB 73 to 92.
[6] CB 74.
On 25 October 2018, the Tribunal sent a letter to the applicant’s representative advising that that the file was being prepared for allocation to a Tribunal Member and for the applicant to provide any additional relevant evidence, regarding the application, to the Tribunal.[7]
[7] CB 97 to 99.
By a response to the above letter on the same day, the applicant’s representative sent an email to the Tribunal attaching an identification card, in a language other than English, and 11 photographs claimed to have been taken during the applicant’s ‘time in the army’.[8]
[8] CB 100 to 113.
On 1 March 2019, the Tribunal invited the applicant and his representative to attend a hearing, originally scheduled to take place on 12 April 2019. In this invitation,[9] the Tribunal stated:
You should provide a written submission setting out all claims made and maintained by the applicant by 5 April 2019. The submission should be accompanied by a signed declaration from the applicant that the submission has been read and explained to them and that it accurately and completely presents their claims.[10]
[9] CB 114 to 118.
[10] CB 115.
On 10 March 2019, the applicant’s representative sent an email to the Tribunal attached to which was a completed ‘Response to hearing invitation – MR Division’ form.[11]
[11] CB 119 to 123.
On 27 March 2019, the Tribunal sent an email to the applicant’s representative advising that the hearing had been rescheduled to a different date and time. By this letter, the hearing was rescheduled to take place on 17 April 2019 at 1:00pm (ACT Time).[12]
[12] CB 124 to 126.
On 17 April 2019, the applicant and his representative attended the rescheduled Tribunal hearing. At that hearing, communication between the applicant and the Tribunal was facilitated through the services of an interpreter in the Mandarin and English languages.[13]
[13] CB 127 to 128.
On 24 April 2019, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa, and on 26 April 2019, the Tribunal notified the applicant of its decision by way of an email sent to the representative.
THE TRIBUNAL’S DECISION
In paragraph 7 of its decision, the Tribunal recorded the following aspects of the applicant’s oral evidence at hearing: [14]
(a)he had been ‘visited by the national security/army twice in 2013’;
(b)these visits from security officials occurred because during his family’s visit to the Satellite Centre in 2010 ‘he himself took photos and video recordings to keep as memories’ and that someone saw the photographs and video recordings;
(c)when he tried to upgrade his factory in 2014 by purchasing machinery ‘the government stopped him’, and his friend explained that this was due to the photographs he had taken at the Satellite Centre.
[14] CB 141 at [7].
At paragraph 8 of its decision, the Tribunal recorded it had:
(a)put to the applicant that his evidence regarding the number of times the Security Department visited his house was inconsistent because in his statement he had indicated that it was ‘again and again’, whereas at hearing he said they came twice. The Tribunal recorded that the applicant ‘did not comment’ by way of response.
(b)put to the applicant that in his original written statement, the applicant said that his son took the photographs and that this was inconsistent with his oral evidence where he said that he himself had taken the photographs. The Tribunal recorded the applicant’s response was that he had made a mistake at hearing. The Tribunal noted that the representative then stated that the applicant’s oral evidence at hearing was that his son took the photographs (as per his original written statement) to which the Tribunal responded that it had heard the oral evidence was that the applicant had taken the photographs. The Tribunal also noted that the applicant said his son was seven years old at the time of the visit to the Satellite Centre in 2010.
(c)queried how the photographs became known to the authorities. The Tribunal noted that the applicant said his son used the computer in his home and someone found out about the photographs. The applicant was not clear when this happened, though stated that the authorities first visited his home at the end of 2012. The Tribunal put to him that this was inconsistent with his earlier evidence that the Security Department first visited his home in 2013.
(d)queried that if his son had taken the photographs in 2010, then why was it not until 2012 or 2013 that the photographs became known. The Tribunal recorded that the applicant’s response was that he was ‘unclear’.
At paragraphs 9 to 10 of its decision, the Tribunal recorded exchanges it had with the applicant at hearing about aspects of the Satellite Centre’s history and operations. The Tribunal recorded the applicant’s oral evidence that:
(a)the Satellite Centre had been established ‘a long time ago’; having been asked when it commenced;
(b)satellites were best launched at night and in December and April, having been asked when they were best launched;
(c)four satellites had been launched between 1997 and 2000 with one the first in 1997 and another in 1998, having been asked how many had been launched between 1997 and 2000. The Tribunal also noted the representative’s oral submission at hearing that the applicant said ‘1998 twice’, and the applicant’s confirmation of the representative’s oral submission such that he had said two satellites had been launched in 1998.
The Tribunal put to the applicant that country information, extracted at paragraph 11 of its decision, indicated that the Satellite Centre had been established in 1970, that the ideal time for launching satellites was from October to May, and that one satellite was launched in 1997, another in October 2000 and another in December 2000.
At paragraph 10 of its decision, the Tribunal summarised the following concerns it raised with the applicant at hearing, that:
(a)the applicant did not know a lot about the Satellite Centre;
(b)it was hard to accept that he and his child would be allowed to roam around a satellite launching centre taking photographs;
(c)he had given inconsistent evidence in relation to:
(i)who took the pictures at the Satellite Centre, first stating that it was his son and later stating that it was him;
(ii)the number of times the authorities had turned up at his home – first stating it was ‘twice’, later stating that it was ‘again and again’;
(d)this happened in 2010, yet ‘somehow in 2013 the authorities had turned up asking about it’;
(e)after these events, the applicant had obtained a passport, travelled to Italy to watch a sporting match and returned to China, suggesting that these were not the actions of someone who would be harmed.
The Tribunal noted that by way of response, the applicant stated that ‘what he had said was true’.
In consideration of the applicant’s claims and evidence, between paragraphs 18 and 25 of its decision, the Tribunal found that the applicant provided:
(a)inconsistent evidence in relation to:
(i)who took the pictures at the Satellite Centre. In reaching this finding, it had reviewed the audio recording of the hearing to verify whether the applicant had said his son had taken the photographs contrary to his original written statement in which it had been claimed that the applicant took the photographs and video recordings. Further, the Tribunal indicated that even if it were to accept the applicant’s explanation for the inconsistency that he misspoke at hearing, it found that it still would not accept the claim because no plausible explanation had been given as to ‘why a young child would be allowed to roam around a satellite launching centre taking sensitive photographs or why distributed photographs taken in 2010 only became known in 2012/2013’.
(ii)the number of times the authorities visited the applicant in 2013.
(b)evidence at hearing inconsistent with country information about the history and operations of the Satellite Centre, and that his degree of knowledge was inconsistent with that of a person who last worked at there in 2000, returned there in 2010 and took sensitive photographs the dissemination of which gave rise to monitoring by and interference from the authorities.
Having made these findings, the Tribunal did not accept that:
(a)the applicant and his family visited the Satellite Centre in 2010;
(b)the applicant or his son took photographs at the Satellite Centre or that these were shared with his son’s friends;
(c)the comrade was dismissed from the army;
(d)the applicant’s home was visited by officials from the Satellite Centre and National Security Department.
Having rejected central aspects of the applicant’s claims, the Tribunal did not accept that the applicant’s business expansion plans were stymied by government officials as a result of the claimed security breach, that his personal files were locked and that he was put on a watchlist and observed from a distance and not permitted to work and live normally or conduct business without interference from government officials. On this basis, it did not accept that the applicant has been linked to, or had been imputed with, an actual or imputed anti-government opinion and therefore did not meet the refugee criterion in s 36(2)(a) of the Act. Further, having rejected the applicant’s claims, the Tribunal was not satisfied the applicant met the complementary protection criterion in s 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the delegate’s decision.
PROCEEDINGS IN THIS COURT
The applicant commenced proceedings by way of an application filed on 21 May 2019. The application was accompanied by an Affidavit affirmed on 17 May 2019 (first Affidavit). The only ground listed in the application was specified in the following terms:
PLEASE REFER TO MY AFFIDAVIT
Annexed to the first Affidavit is the Tribunal’s decision record and a page that has not been translated into English marked as Annexure A. The first Affidavit contains 5 paragraphs, hereafter referred to as Grounds 1 to 5 respectively, which read as follows (reproduced without alteration):
1.On the 10 pages long AAT report, I only want to point out some obvious mistakes.
2.On page 3, para 7 and 8. In which mentioned that in the interview I confirmed that the officers from Security Department visited me twice. However, in my original statement, I mentioned “again and again. They were both right, because they saw myself twice, other times, they talk to my family as I was not home.
3.On page 4, para 9. I was a soldier at Xichang Satellite Launching Centre, I joined the army was purely to fulfil the duty as I have to, so I only do whatever I have to do as a soldier physically. This was a reason why I was discharged from the Army after 3 years (a minimum period at that time, these days only 2 years). I have left the army nearly 20 years by now, I did not care much at the time, I could not care more after I left. So when asked when the Centre was established, what is the best time to launch the satellite and how many were launched while I was there, I did not provide a satisfaction answer to the Member. Because I had to serve the army to avoid fine, it was a duty, not a loving.
4.Page 6, para 24. On the question on whether I was a soldier during the 1997 to 2000 at the Centre and whether I returned to the centre in 2010, I have provided photos to prove the first one, but I do not keep any evidence for the later one as it was a nightmare for me and my family, they were burned at the time of incident.
5.The Xichang Satellite Launching Centre was located at Mianning county, not in Xichang City, I have emphasised this at the time of interview.
On 13 June 2019, Registrar Morgan made orders by consent (June 2019 Orders) requiring, among other things, the applicant file and serve any affidavit containing additional evidence relied upon, including any transcript of the Tribunal hearing, and any amended application setting out each ground of review relied upon and complete particulars by 22 August 2019. It was further ordered that any party wishing to rely on evidence of a Tribunal hearing must file and serve a copy of a transcript of that hearing annexed to an affidavit.
The applicant filed a further Affidavit affirmed on 2 August 2019 (second Affidavit) annexed to which is a page that had been translated into English marked as Annexure A. The second Affidavit contains five paragraphs which, properly understood, raise an additional ground of review by which the applicant contends that an error was made by the interpreter at the Tribunal hearing, hereafter referred to as Ground 6. The second Affidavit reads as follows (reproduced without alteration):
In addition to my submission in May 2019, I would like to add more information on AAT report.
On the AAT report point 21, there is a very serious mistake/misunderstanding on what I have said on the interview.
The report point 21: … “ it says that at the hearing, the applicant provided inconsistent evidence when he stated that he himself and not his child took the photos and recording to keep memories”….
I do not think I would say that because it is impossible as it is not true, it was my son did it. So I listen to the audio record. It was proved that I said is the same as my previous statement, I never mentioned I took the photos and recorded video at the AAT interview.
I think it is possible caused by not so accurate interpretation. I would like you to engage someone who knows both English and Chinese to listen to the record to prove what I said.
At a callover on 13 August 2024, Registrar Lindsay made orders (August 2024 Orders) providing the applicant with an opportunity to file any amended application, written submissions and any further evidence in respect to the final hearing on or before 21 August 2024. The August 2024 Orders also provided the first respondent the same opportunity, with the relevant documents to be filed on or before 28 August 2024.
The applicant avail himself of the opportunity provided by the August 2024 Orders and affirmed and filed an Affidavit on 21 August 2024 (third Affidavit). The third Affidavit contained a further written statement of the applicant (further written statement) and various translated and untranslated documents pertaining to the applicant’s son’s academic performance and entrance into tertiary education facilities in China. By way of the further written statement annexed to the third Affidavit, the applicant seeks to introduce evidentiary material demonstrating that he is of interest to the Chinese authorities because they have ‘hurt his family members’.
The Minister opposes the third Affidavit being tendered into evidence on the basis that the documents it annexes were not before the Tribunal. Further, the Minister submits that the documents post-date the Tribunal’s decision and appear to have been provided in support of the applicant’s claims for protection.
In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J considered whether the primary judge had erred by not accepting fresh evidence which seeks to contradict a factual finding made by the Tribunal. His Honour found, at [8], that it is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal.
I accept the Minister’s submissions that the documents pertaining to the applicant’s son’s academic performance and entrance into tertiary education facilities in China post-date the Tribunal’s decision and were not before the Tribunal at the time of its decision. Further, I accept that the documents purport to agitate the merits of the applicant’s case before the Tribunal.
Accordingly, I do not accept the third Affidavit into evidence, and have not relied on the annexed documents, including the further written statement, in my consideration of the applicant’s grounds of review.
Hearing
At the hearing before me on 25 September 2024, it became apparent that the Court would be assisted by further submissions by both parties, and a transcript of the Tribunal hearing that took place on 17 April 2024 (including translations of all statements made by the applicant in Mandarin). As such, I made orders for the filing of post-hearing supplementary submissions and Affidavit evidence.
The applicant did not avail himself of the opportunity to file any further submissions. On 30 October 2024, the Minister’s representatives filed supplementary submissions, and an Affidavit of Avutyutka Anand (Anand Affidavit), affirmed on the same date. The Anand Affidavit contained three annexures.
(a)AA-1 – a transcript produced using the audio recording of the Tribunal hearing;
(b)AA-2 – a copy of a NAATI-certified translation of the statements made by the applicant in Mandarin at the Tribunal hearing; and
(c)AA-3 – a copy of a collated transcript which collates the contents of AA-1 and AA-2 (collated transcript).
On 13 November 2024, the applicant filed a further Affidavit affirmed on the same date (fourth Affidavit) The fourth Affidavit contains a response to the Anand Affidavit.
On 21 November 2024, the applicant filed a further Affidavit affirmed on the same date (fifth Affidavit). The fifth Affidavit contains four paragraphs which particularise the allegation of interpreter error raised by Ground 6. The fifth Affidavit reads as follows (reproduced without alteration):
Dear Judge and Immigration Officer
I received the audio tape on 18 November 2024. I have since listened to it multiple times, and I found that an unfortunate but critical mistake was made by the interpreter (From audio tape 24:25 to 24:40). On the audio tape, the interpreter added the word “I” to the English translation. The correct translation of what I said in response should be: “And over there, some photos and videos were taken, to keep as a memory”. There was no “I” was said at all in that section of the audio tape.
It was because of this regrettable translation mistake, when the immigration officer asked me later during the interview (at 31:00 on the audio tape) why I said it was I who took the photos/videos previously but there and then I changed to say it was my son who did that, I was surprised and could not understand why the officer would have said that. This is because at that time I did not know the interpreter had made the crucial mistake (from 24:25 to 24:40 on the audio tape). In that stressful situation, I could only say that it might be a slip of tongue.
However, I believe because of this terrible mistake, which was not my own making, the immigration officer rejected my application on the basis that my responses were inconsistent.
Now we have the correct audio tape translation of that section of my response, I would like to appeal the decision and request you to reconsider my application in light of the correct information provided during my interview on the audio tape.
Having read through the supplementary submissions filed by the Minister, the Anand Affidavit and the applicant’s fifth Affidavit, on 22 November 2024, I caused my Chambers to send an email to the parties asking them for further supplementary submissions on two excerpts of the collated transcript, reproduced below:
Dear Parties and Practitioners,
His Honour invites submissions in relation to the allegation of interpreter error at the Tribunal hearing based upon the collated Transcript of proceedings at Annexure “AA-3” of the Affidavit of Thomas John Pattinson [sic] affirmed on 30 October 2024, particularly with regard to the passages:
•from line [43], page 52, beginning with the words “MEMBER CRANSTON: Right. Okay so, um have you ever been visited by the national security or army?” through to line [31], page 53, ending with the words “INTERPRETER: And somebody know my photo and my video, and the security go to me.”
•from line [10], page 56, beginning with the words “MEMBER CRANSTON: Okay then. The other thing is you say in your statement that your son took the photo.”, through to line [17], page 57, ending with the words “INTERPRETER: Yes.”
These submissions are to be filed by 26 November 2024.
On 27 November 2024, the Minister filed further supplementary written submissions addressing the excerpts of the collated transcript. The applicant filed an Affidavit, affirmed on 27 November 2024, which is taken to be submissions in relation to the above excerpts.
For convenience, I set out below two de-identified excerpts from the collated transcript:
Excerpt 1 – from line [43] page 52 to line [31] p 53 of the collated transcript
MEMBER: Right. Okay so, um have you ever been visited by the national security or army?
INTERPRETER: [Translates in Mandarin].
APPLICANT: Yes.
50 INTERPRETER: Yes
MEMBER: When?
INTERPRETER: [Translates in Mandarin].
APPLICANT: (20)13.
INTERPRETER: 2013.
60 MEMBER: In 2013. So, why?
INTERPRETER: [Translates in Mandarin].
[end page 52, start page 53]
10 APPLICANT: Because previously in 2010, I went there to go sightseeing and I took my child and my wife.
INTERPRETER: Um because in 2010 I go to some place for travel with my child and wife.
MEMBER: Yes, what else?
INTERPRETER: [Translates in Mandarin].
APPLICANT: And over there, just took some photos and videos, to keep as a memory.
20
INTERPRETER: And at that place, I took some photos and so some recordings to keep as memory.
MEMBER: Alright. Is there anything else?
INTERPRETER: [Translates in Mandarin].
APPLICANT: It seemed that the photos and videos became known to somebody and the people from the security bureau came to my home.
30
INTERPRETER: And somebody know my photo and my video, and the security go to me.
Excerpt 2 from line [10], p 56, to line [17], p 57, of the collated transcript
10 MEMBER: Okay then. The other thing is you say in your statement that your son took the photo.
INTERPRETER: [Translates in Mandarin].
MEMBER: Not you.
INTERPRETER: [Translates in Mandarin].
APPLICANT: Yes, that’s correct.
20
INTERPRETER: Yes.
MEMBER: Yes what?
INTERPRETER: [Translates in Mandarin].
APPLICANT: They were taken by my son.
INTERPRETER: Yes, it is my son.
30
MEMBER: Well then why did you tell me it was you?
INTERPRETER: [Translates in Mandarin].
MEMBER: Why did you tell me it was you who took the photos?
INTERPRETER: [Translates in Mandarin].
MS BURNS: Member? My records say his son.
40
MEMBER: Thank you. Why did you say you took the photos?
INTERPRETER: [Translates in Mandarin].
APPLICANT: Maybe a slip of tongue. I meant to say my son took them.
INTERPRETER: It was by mistake.
MEMBER: Okay.
50
INTERPRETER: I intend to say it was my son.
MEMBER: Okay. Your advisor has suggested to me that it was that you did say your son. I heard you, so I will go back and check.
INTERPRETER: [Translates in Mandarin].
MEMBER: How old was your son in 2010?
60 INTERPRETER: [Translates in Mandarin].
APPLICANT: 7 years old.
INTERPRETER: Seven years old.
[end page 56, start page 57]
10
MEMBER: He was a seven-year-old taking photos?
INTERPRETER: [Translates in Mandarin].
APPLICANT: Yes, taking photos for fun.
INTERPRETER: Yes.
CONSIDERATION
The Court has examined the application, the material before the Tribunal, the Tribunal’s decision, and the material before the Court to identify any jurisdictional error, noting the Court’s obligations towards unrepresented litigants as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [59] - [77], [100] and [112] - [113].
The applicant was asked to explain the basis of each of his grounds and to indicate whether there was anything the Tribunal had done, or not done, throughout the review application process, including at the Tribunal hearing, which he considered unfair or unreasonable.
The applicant succeeds on one ground. That ground is addressed below at [55] to [67]. Although his success on that ground relieves me of the necessity to address each of the other grounds, since all of the grounds were ventilated by the parties, I will nevertheless proceed to address each ground in the order and manner categorised above.
Ground 1
By ground 1, the applicant simply states that wants to ‘point out some obvious mistakes’ in the Tribunal’s decision. I accept the Minister’s submission that this, in and of itself, is incapable of establishing any arguable error.
Ground 2
By ground 2, the applicant attempts to clarify the inconsistency between the evidence set out in his original written statement and his oral evidence at the Tribunal hearing.
In particular, the applicant refers to his original written statement, which relevantly reads (in part) as follows:[15]
After what had happened, the Centre and National Security Department visited our home again and again. They tried very hard to find out whether our visit the Centre was long planned and have a purpose more than just to see my old friend and showing my wife and our son something they never see before.
[15] CB 57.
However, as provided in the collated transcript,[16] the following exchange transpired between the Member and the applicant at the Tribunal hearing:
[16] Anand Affidavit 55 at [40] to [62].
MEMBER: Oh okay, so how many times did the Chinese Government visit your home?
INTERPRETER: [Translates in Mandarin].
APPLICANT: Twice.
INTERPRETER: Twice.
MEMBER: Twice? Because your statements suggest that the Centre and National Security Departments visited your home again and again.
INTERPRETER: [Translates in Mandarin].
APPLICANT: Mhm
MEMBER: Do you want to comment because they seem a little bit different?
INTERPRETER: [Translates in Mandarin].
APPLICANT: No.
INTERPRETER: No.
As is borne out by the collated transcript, the Tribunal expressly offered the applicant an opportunity to comment on the inconsistency within his evidence at the time of the Tribunal hearing.
Before me at hearing, I asked the applicant if there was anything he wished to add in support of that ground, to which the applicant responded ‘No’.[17]
[17] Transcript of Hearing 13 at [23] to [33].
In circumstances where no justification for the inconsistency identified by the Tribunal was advanced before it, I accept the Minister’s submission that it was open to the Tribunal to find that the applicant’s evidence in this regard was inconsistent.
Accordingly, no jurisdictional error arises in this regard.
Grounds 3 and 4
At their highest, by grounds 3 and 4, the applicant is inviting the Court to engage in impermissible merits review. No jurisdictional error is disclosed by way of these two grounds.
Ground 5
By ground 5, the applicant states that the Satellite Centre was located at Mianning County, as opposed to Xichang City, and that he emphasised this fact at the time of the Tribunal hearing.
In its decision, the Tribunal stated that country information provided that the Satellite Centre and ‘its headquarters are located 60 kilometres northwest of Xichang City, in Sichuan Province.’[18] The Tribunal made no finding that the Satellite Centre was in Xichang City, nor were any adverse credibility findings made in relation to the location of the Centre.
[18] CB 142 at [11].
Accordingly, no jurisdictional error arises in this regard.
Ground 6
As I have foreshadowed in these reasons, the applicant’s second Affidavit sought to add a further ground of review whereby it appeared to the Tribunal that the applicant gave inconsistent evidence as a result of ‘not so accurate interpretation’ during the hearing. Properly construed, ground 6 is one alleging an error on the part of the interpreter before the Tribunal.
The applicant submits that the interpreter added the word ‘I’ in their response to the Member’s question in relation to who took the photographs at the Satellite Centre in 2010. The applicant submits that the Member’s question at [56] of the Anand Affidavit, was ‘obviously’ influenced by the interpreter’s addition of the subject ‘I’, and that this question took the applicant by surprise as he could not understand why this question was asked.
The Minister submits that for this ground to succeed, it must be demonstrated, by reference to the collated transcript, that the interpretation was so incompetent that the applicant was effectively prevented from giving his evidence: see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [39]. The Minister contends that the current case does not meet that threshold.
The Minister further submits that at no point in the excerpts extracted above, does the applicant state that it was his son that took the relevant photographs and videos. While the use of the word ‘I’ was inserted by the interpreter, the Minister submits that it is a well-established principle that it is neither realistic nor sensible to set the standard for interpretation as one of perfection, and that interpreted evidence should not be examined microscopically for inconsistencies: see R v Tran [1994] 2 SCR 951 at [958], cited in FernandoDe La Espriella-Velasco v R (2006) 197 FLR 125 at [9] per Roberts-Smith JA; SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 per Allsop CJ, Flick and Robertson JJ. The Minister submits that the applicant is, by this ground, inviting the Court to examine the transcript microscopically for error.
The legal principles in relation to the demonstrating that an error in interpretation constitutes jurisdictional error were helpfully summarised by Edelman J in BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310, at [50] to [54], whereby his Honour states:
[50] In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [29], Kenny J said of an earlier version of s 425 that:
Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.
[51] That statement has been described as the “seminal” statement in this area and has been applied to s 425 in its current form: SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [29] (Jacobson J).
[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) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs (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 (at [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.
[54] In some circumstances it might be the case that a process is procedurally unfair even if a conclusion cannot be reached that the irregularity might reasonably have led to an adverse finding. One reason for this is that the reviewing body, and the appellate court, does not have the benefit of all of the advantages of the Tribunal which sees and hears the witnesses and considers that evidence in the context of the whole record, usually with less time constraints. Those disadvantages of the review or appellate court could require a finding of procedural unfairness in some circumstances even if the reviewing or appellate court is unable to conclude that the irregularity might reasonably have led to an adverse finding. It is not necessary to consider that issue further in this case because, as I explain below, I consider that the irregularities in this case, when viewed as a whole, might reasonably have led to an adverse finding.
I accept the Minister’s submission that the requisite standard of interpretation should not be set as one of perfection. However, for the hearing to be ‘real and fair’, the interpretation must be adequate to convey ‘the substance of what is said’ or ‘the essential elements that were being conveyed’ by an applicant in order to sufficiently communicate both the substance of their case and their responses to the issues raised.
I find that the interpreter did not adequately interpret the applicant’s oral evidence at hearing in relation to the Member’s inquiry regarding the identity of the person who took photographs at the Satellite Centre in 2010. It is patently clear from the collated transcript that the interpreter stated that the applicant took those photographs, when indeed the applicant did not identify himself as having done so. The applicant’s failure to specify at that point in the hearing that his son took those photographs does not detract from the fact that the interpreter had erred as the substance of what the applicant had said had not been properly conveyed. Had it been properly conveyed, it would have been open to the Tribunal to seek further information from the applicant on this issue.
Furthermore, the error gave rise to the Tribunal raising with the applicant at a later point in the hearing an apparent inconsistency in his evidence. This line of inquiry was a path that need not have been taken had the interpretation error not occurred. It served only to confuse the applicant and gave rise to him proffering an explanation that his son had taken the photographs and that any indication by the applicant that he had done so was possibly because he misspoke when initially asked. That explanation is understandable in the circumstances, as is the Tribunal’s approach, given that both the applicant and Member were unaware of the interpreter error.
In the circumstances of this case, this error in interpretation was critical. The error derailed the Tribunal’s understanding of the applicant’s evidence in relation to the identity of who had taken the sensitive photographs which, when disseminated, gave rise to the manner in which the applicant and his family were targeted by the authorities and subjected to the claimed forms of persecution. In my view, the error related to a matter of significance to the applicant’s claims and there was a sufficient connection between the inadequate translation and the Tribunal’s decision: see SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [31] citing Perera at [38], [45]; Applicant P 119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [16] - [18]; WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 at [69]; SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109 a [72] - [73] per Buchanan J.
The Minister submits that the interpreted evidence should not be examined microscopically for inconsistencies and that, in evaluating errors of interpretation, ‘one needs to bear in mind that some infelicitous expression in the transcript may be attributable to errors in transcription, not errors in interpretation’: Perera at [39]. There is little force in that submission as the collated transcript was filed by the Minister and neither party submitted that there was an error in that transcription. Instead, the collated transcript reveals an unfortunate instance where a minor error in interpretation has had a significant impact upon the Tribunal’s ability to discharge its obligation to provide the applicant with a meaningful opportunity to give evidence and present arguments in the hearing context. Without wishing to labour the point, this minor error on the interpreter’s part deprived the applicant of having his evidence properly conveyed to the Tribunal and gave rise to a misunderstanding on the Tribunal’s part of that evidence. Further, the interpreter error gave rise to the Tribunal raising a misheld concern at a later juncture in the hearing about a significant inconsistency in the applicant’s evidence in relation to a key aspect of his claims. While I note that the Tribunal gave the applicant an opportunity at hearing to comment upon this apparent inconsistency, I accept the applicant’s submissions that he was understandably confused by that invitation given the fact that, as far as he could recall his evidence earlier in the hearing, he had not mentioned that he had taken the photographs. That submission is borne out by the collated transcript which demonstrates the applicant’s confusion in relation to the apparent inconsistency when put to him whereby he did not initially grasp the Tribunal’s concern. Notably, the collated transcript reveals that after pressing by the Tribunal, the applicant’s explanation involves an insistence that his evidence was not inconsistent and that if it had been inconsistent then ‘maybe it was a slip of the tongue’. On a fair reading of the transcript as whole, I reject the Minister’s submission that the applicant’s response amounts to an acceptance at hearing that his evidence was inconsistent. I further reject the Minister’s submissions that an unduly microscopic analysis of the collated transcript has occurred and that the error revealed within the collated transcript is merely a result of infelicitous expression rather than an error in interpretation.
Given the foregoing analysis, I am of the view that the applicant was not provided with a fair and meaningful opportunity to give evidence and present arguments in the hearing context about the identity of the person who took the sensitive photographs at the Satellite Centre once the interpreter had erred. This is particularly the case as neither the applicant nor the Tribunal understood that the interpreter had erred in conveying the applicant’s response to the Tribunal’s question relating to the identity of the person who took the photographs at the Satellite Centre in 2010. Further, there is no record in the collated transcript of the interpreter alerting the Tribunal of their error, or at the very least raising the possibility that such an error in interpretation may have occurred, at any point during the hearing. The misinterpretation was such that the applicant was denied an effective opportunity to give evidence in relation to his claims. The error also foreclosed the possibility of the Tribunal seeking further clarification from the applicant on that issue and the prospect of the applicant providing consistent evidence, or indeed further evidence, in relation to the claim that his son had taken the photographs. The error also unfairly placed the applicant in a position where he was required to engage with the Tribunal’s misheld concern about the consistency of his evidence, particularly in circumstances where he could not properly address it as he had no knowledge of the interpreter having erred. In my view, this error caused the decision-making process to miscarry and resulted in the applicant having been denied a fair and meaningful opportunity to be heard: see BZAID at [45].
A question then arises as to whether the error in this case was material. In my view, it was. While I accept the Tribunal expressed other bases upon which to reject the claim that the applicant’s son had taken the photographs – including because the applicant did not provide ‘a plausible explanation as to why a young child would be allowed to roam around a satellite launching centre taking sensitive photos or why distributed photos taken in 2010 only became known in 2012/2013’[19] – it nevertheless remains that the applicant had not been afforded a fair and reasonable opportunity at hearing to present evidence and arguments on this particular aspect of his claims. In my view, had the error not occurred, the Tribunal could have taken a different approach towards its examination of the applicant’s claims. That approach could have involved the asking a follow-up question in order to properly ascertain the applicant’s evidence as to the identity of the person who took the photographs. Such follow-up could have resulted in the applicant providing evidence consistent with his original written statement on this issue and even further detail which the Tribunal may have found persuasive. On that basis, the Tribunal’s ultimate evaluation of this claim, even allowing for other bases to reject the claim, could have been different. Accordingly, there exists a realistic possibility that the outcome of the decision could have been different had the interpreter error not been made: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12 at [16].
[19] CB 144 at [22].
Therefore, as a consequence of the inadequate interpretation, the Tribunal breached its obligation in s 425 of the Act. Accordingly, jurisdictional error has been established.
CONCLUSION
For the above reasons, the application before this Court succeeds.
I will hear the parties in relation to costs.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.
Associate:
Dated: 4 February 2025
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