CMI19 v Minister for Immigration
[2020] FCCA 1326
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMI19 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1326 |
| Catchwords: MIGRATION – Protection (Class XA) (Subclass 866) visa – decision of the Administrative Appeals Tribunal – whether findings as to credit were open to be made – whether the Tribunal was biased – whether there were interpretation errors – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.423A, 476 |
| Cases cited: BAX15 v Minister for Immigration & Border Protection [2016] FCA 491 |
| First Applicant: | CMI19 |
| Second Applicant: | CMJ19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 227 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 26 May 2020 |
| Date of Last Submission: | 26 May 2020 |
| Delivered at: | Perth |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the First Respondent: | Ms C Allen |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 227 of 2019
| CMI19 |
First Applicant
| CMJ19 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants in this proceeding are citizens of Malaysia. They arrived in Australia on a travel visa on 7 April 2011 and 27 March 2013 respectively (Court Book (“CB”) 50 and 160). Those visas expired on 7 July 2011 and 21 June 2013 respectively.
The applicants remained unlawfully in Australia until they applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) on 5 May 2015 (CB 1-43) – some 4 years after their travel visa. In that protection visa application the first applicant was named as the primary applicant. The second applicant was named as a member of the family unit.
The first applicant’s claims for protection can be summarised as follows:
a)the first applicant’s life is in danger and the “Muslim people” threatened to kill him (CB 19);
b)he has been beaten up “very hard” by Muslims who would come to his shop and house and disturb him and break things (CB 20);
c)the first applicant is a different religion to the Muslims (he is Buddhist) and they will take revenge on him (CB 20);
d)the first applicant’s parents have been told that if the applicant returns the Muslims will find him and hurt him (CB 21); and
e)the first applicant has reported this to the police but they ignore him (CB 22).
Despite an invitation (dated 8 July 2015) inviting the applicants to arrange an interview before a Ministerial delegate, the applicants did not attend an interview (CB 44-45).
On 16 May 2016, the delegate refused to grant the visa (CB 46-61).
The applicants then sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 62-68).
The applicants attended hearings before the Tribunal on 22 September 2017 and 28 September 2017 (CB 82-94).
On 3 October 2017, the applicants sent a document to the Tribunal that contained a screenshot of a statement from an Australian Senator and various other photographs (CB 97-108). The applicants also provided the name of two witnesses.
On 28 September 2018, the applicants attended a further hearing before the Tribunal (CB 114-119).
The applicants then attended further hearings before the Tribunal on 29 October 2018 and 23 November 2018 (CB 121-137).
On 30 November 2018, a handwritten statement from the first applicant’s mother was sent to the Tribunal (CB 138-139).
In total, the applicants participated in five hearings before the Tribunal.
The Tribunal then invited the applicants to attend a further hearing on 30 May 2019 (CB 141-146). The Tribunal made an oral decision that affirmed the delegate’s decision not to grant the applicants the visa (CB 152-153).
On 26 June 2019, the applicants sought judicial review of the Tribunal’s decision in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”).
Tribunal’s Decision
The Tribunal’s decision is 11 pages long. It transcribes the oral decision made by the Tribunal at the hearing conducted on 30 May 2019. Unfortunately, the written decision does not include paragraph numbers. This is a practice that makes appellate referencing difficult and is perhaps best avoided.
The Minister’s written submissions to this Court (dated 8 May 2020 at [12]-[21]) accurately summarise the Tribunal’s decision. The Court adopts those submissions, with some alterations, as follows.
The Tribunal began by outlining the first applicant’s claims and noted that the delegate had refused the visa. The delegate had concerns that the claims had limited detail and supporting evidence and that there were concerns about the delay in applying for protection (CB 159).
The Tribunal also noted that it had outlined the visa criterion to the applicants during the introduction to the hearing (CB 159).
The Tribunal then outlined the applicants’ migration history and noted that the first applicant had stated that he had not sought advice about his unlawful status because he was afraid that he would be deported (CB 160).
The Tribunal recorded in detail the first applicant’s claim that in 2010 he was installing air-conditioners for a man named M who was part of a powerful Muslim family (CB 160-162). The first applicant claimed that he accidentally dropped an air-conditioner on M’s son’s foot and, as a consequence, M organised for people to harass and assault the applicant and damage his shop. The first applicant further claimed that police were called and that he went to hospital after an attack that occurred the following day. The Tribunal noted that the first applicant had indicated that he was not sure if M was aware that he was a Buddhist at the time of the initial incidents (CB 160-161).
The Tribunal referred to the first applicant’s evidence that he did not fear the Muslim population generally. Further, the first applicant was “very confused” about why M had pursued him. The Tribunal noted that the incident with M was not part of the first applicant’s initial claims to the delegate. Further, the Tribunal did not accept the first applicant’s explanation that he did not know what to include in the application and that he and his wife used Google Translate (CB 161 and 164).
The Tribunal considered it conjecture that M had connections to the police (CB 162) and noted that the first applicant told the Tribunal that he intended to return to Malaysia if “things calm down” (CB 162).
The Tribunal then referred to the second applicant’s evidence and found that her evidence was unsatisfactory, unconvincing, inconsistent with the country information and inconsistent with the first applicant’s evidence (CB 163).
The Tribunal found that there was no evidence of any specific discrimination against the applicants for being Malaysian Chinese and that there was no real chance of harm on this basis (or for being Buddhist) (CB 164). The Tribunal later considered if there was a chance of harm to the applicants from non-Buddhists generally. The Tribunal was not satisfied there was such a chance or risk of harm (CB 167).
The Tribunal recorded the first applicant’s evidence that he was involved with the Rocket Party and had attended a Bursi 5 rally in Perth. It accepted that he had a low level of involvement with the party and that the party now formed part of the coalition government in Malaysia (which represented a “significant change in circumstances”). The Tribunal found that the political environment in Malaysia had changed since the first applicant left in 2011 and that it was unlikely that the first applicant would be involved in political rallies now that the party the first applicant supported was in government (CB 164-165).
The Tribunal noted that it had put various country information extracts to the applicants relating to official and societal discrimination against Chinese Malaysians, political opposition in Malaysia and the Malaysian police (CB 164-165).
The Tribunal then referred to the evidence of the first applicant’s mother and sister and noted this evidence was inconsistent in some aspects with the first applicant’s evidence (CB 165).
The Tribunal made no adverse finding based on the brevity of the application (CB 165-166). However, the Tribunal considered that the applicants’ delay in making the application was significant and not satisfactorily explained, particularly in circumstances where the first applicant claimed he fled Malaysia in fear of his life, leaving his wife and two children behind (CB 166).
The Tribunal found that the claim surrounding the air conditioner was the “key incident” behind the threats and harassment but noted that no mention was made in the visa application. The Tribunal did not accept that a reasonable person would not have raised the claim in the initial application. Considering all of the evidence before it, the Tribunal was not satisfied that the “key incident” occurred. The Tribunal did not accept that people attended the first applicant’s home and shop upon M’s instruction, or at all (CB 166).
On the basis of that rejection, the Tribunal considered whether there was any other reason for the alleged harassment. Overall, the Tribunal was not satisfied that there were any reasons for the harassment. The Tribunal was not satisfied that there were any visits from groups that amounted to harassment (CB 167).
The Tribunal considered whether the first applicant faced a chance of harm arising from his political involvement. The Tribunal found that there was not a real chance that the applicants faced harm for reason of the first applicant’s political involvements (CB 167).
Further, the Tribunal found that country information did not support any claim of harm based on the applicants being returnees to Malaysia (CB 168).
Based on its adverse credibility findings, and the facts before it, the Tribunal was not satisfied that the applicants held a well-founded fear of persecution if returned to Malaysia.
Relying on its anterior findings, the Tribunal found that the applicants did not satisfy the complementary protection criteria (CB 168-169).
On the basis of the above, the Tribunal affirmed the decision not to grant the applicants the visa.
Proceedings in this Court
The applicants’ application for judicial review filed on 26 June 2019 contains the following grounds:
1. AAT tried discrediting me with the fact I should understand and write full fuel English while I’d opportunities for four staying in Australia and should not vague and scant in the application
2. AAT tried to discredit me by making unreasonable presumption that accidently dropping the air-conditioning unit should be shared equally and there should not indications of any retribution against to me.
3. AAT has prejudice against not be a real risk that I will suffer significant harm in my country.
4. AAT was very biased and didn’t accept my claims explanation there are no indications that a lack of funds may have prevented me seeking professional advice.
5. AAT has prejudice against me and did not believe me bashed or otherwise harmed by religious beliefs.
In the first applicant’s affidavit he further states:
AAT has prejudice against not be a real risk that I will suffer significant harm in my country and also did not believe me bashed or otherwise harmed by religious beliefs.
The applicants were given an opportunity to file an amended application, supporting affidavits and an outline of written submissions. Unfortunately, no further materials were filed.
The applicants appeared before the Court without legal representation. The first applicant spoke on behalf of the second applicant with the assistance of a Mandarin interpreter. The hearing took place by video-conference on 26 May 2019.
Other than the materials already referred to above, the Court has referenced a Court Book (marked as Exhibit 1) and correspondence confirming service of the Minister’s written submissions (marked as Exhibit 2). The applicants had a copy of the Court Book but indicated that they did not have a copy of the Minister’s submissions with them. The Court notes that the applicants were served with the written submission. In the circumstances the Court also asked Counsel for the Minister to summarise the Minister’s submissions in court for the applicants. This was done with considerable accuracy and clarity by Ms Allen for the Minister.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicants an opportunity to outline orally what they thought the Tribunal “did wrong”.
To assist the applicants, the Court explained to them what this Court “can and cannot do”. The Court explained that its task is limited to assessing whether the Tribunal fell into jurisdictional error. Further, the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court invited the first applicant to explain what errors he thought the Tribunal had made.
In effect, the first applicant stressed that the interpretation services provided at the “second and third hearing” (which the Court understands to be the hearings on 28 September 2018 and 29 October 2018) was not adequate. In this regard, the first applicant advised that he had made a complaint to the Tribunal at the end of the hearing on 29 October 2018 that on the next occasion (being 23 November 2018) the applicants have a different interpreter. This issue is addressed below.
The first applicant also said that he wished to clarify why he delayed applying for a visa. As the Court indicated at the commencement of the hearing, its role is not to engage in a merits review of the Tribunal’s decision. The clarification provided by the first applicant provided was not relevant to the Court’s role on judicial review.
Consideration
Ground 1
For ease of reference, ground 1 provides:
AAT tried discrediting me with the fact I should understand and write full fuel English while I’d opportunities for four staying in Australia and should not vague and scant in the application
The applicants appear to be referring to the following statement in the Tribunal’s decision:
The tribunal inquired why the injury to the boy was not part of his initial claims to the department. He said he did not have a very clear clue as to what should be included. He wrote answers with the help of his wife. They used Google Translate to write the application in English. The tribunal did not find this explanation to be convincing. He had four years to consider his opportunities for staying in Australia. When the time came to submit the application, the information was vague and scant.
The Tribunal did not “discredit” the first applicant on the basis that he lacked English language skills or because the application was “vague and scant”. Indeed, the Tribunal drew no adverse inference from the brevity of the application.
The Tribunal’s findings as to the first applicant’s credit are made later in the decision at CB 166. There, the Tribunal expressly recognises that the applicants speak Malaysian. Despite this the Tribunal found that this did not satisfactorily explain the delay and that a reasonable person in the shoes of the first applicant (that is, with the same language capacity) would have included at least some reference in the written materials to the relevant claim.
It was open to the Tribunal to take into account the fact that that the applicants had “four years” to consider what to include in the visa application (a reference to the delay): BAX15 v Minister for Immigration & Border Protection [2016] FCA 491 at [40]-[43] and that the explanation that they did not do so because they did not know what to include and did not speak proper English was “not convincing”.
Further, the Court notes that s.423A of the Act required the Tribunal to take an adverse view as to the credibility of the claim because it was not raised until the hearing. Here, the Tribunal did not “discredit” the first applicant’s claim on the basis of a lack of English skills. Rather, the claim was already viewed adversely and the explanation, in all of the circumstances, was deemed not satisfactory as an explanation for why it was not raised. There is no error in this regard.
Ground 1 is not established.
Ground 2
For ease of reference, ground 2 provides:
AAT tried to discredit me by making unreasonable presumption that accidently dropping the air-conditioning unit should be shared equally and there should not indications of any retribution against to me.
The applicants appear to be referring to the following passages in the Tribunal’s decision:
There was no evidence before the tribunal that M and associates had any connections to the Malaysian Police. And it seems that this was simply conjecture on the behalf of the applicant. He no longer had any contact details for the co-worker he was with when the boy was injured. He confirmed that to his knowledge the co-worker had never been harassed or assaulted. And he was asked why he thought that was so and he said because he was the boss and the owner of the business.
The tribunal found this to be a curious answer because it seems that the responsibility for the dropping of the air-conditioning unit should be shared equally between the applicant and the employee. There are no indications of any retribution against that employee.
Contrary to what is stated in ground 2, the Tribunal did not make an “unreasonable presumption”. Rather, the Tribunal, made an observation that the first applicant’s evidence was “curious”. This was one of many observations that the Tribunal made in relation to the first applicant’s evidence. It is not uncommon for a Court or Tribunal to refer to an applicant’s evidence as “curious”. A fair reading of the Tribunal’s decision suggests that the Tribunal was simply stating that the first applicant’s response was not implausible but that in the ordinary course the Tribunal would have expected things to be different (i.e., that the first applicant’s co-worker would have also been targeted). It was open to the Tribunal to consider that the first applicant’s answer was “curious”. It cannot be said that no reasonable decision-maker could have considered that the first applicant’s answer was “curious”.
It is not the case that the Tribunal’s non-acceptance of the claim was based on this one observation that the first applicant’s answer was “curious”. Nor is it the case that this observation can be seen to be an initial credibility finding that had a “cascading” effect. As is apparent from the Tribunal’s decision, the Tribunal had multiple concerns in relation to the first applicant’s claim. These included:
a)the delay in applying for protection (which was based almost entirely on this claim);
b)the failure to include the claim in the applicants’ visa application;
c)the lack of corroborative evidence (such as business records) which one would have reasonably expected the first applicant (or his business) to have kept; and
d)the inconsistencies in the first applicant’s evidence, the second applicant’s and the witnesses’ evidence.
Here, the Tribunal made observations about the first applicant’s evidence which formed a logical and probative basis upon which, when considered as a whole, Tribunal could conclude that the claim was not credible.
Ground 2 is, accordingly, dismissed.
Ground 3
For ease of reference, ground 3 provides:
AAT has prejudice against not be a real risk that I will suffer significant harm in my country.
On its face, this ground suggests that the Tribunal was biased because it did not find in favour of the applicants. This is, in effect, simply a disagreement with the decision and does not amount to jurisdictional error.
It is well established that such an allegation must be distinctly made and clearly proven. To prove bias, it is for the applicants to establish that:
a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicants’ case: SZRUI at [2].
Here, the applicants seem to suggest bias on the basis that the Tribunal did not find that they met the relevant criteria. This is not a basis for a finding of bias: VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21] (“VFAB”).
Having reviewed the Tribunal’s decision and the materials in the Court Book, there is nothing to suggest that the Tribunal was not impartial or had “already decided the matter”. If that were the case, the Tribunal would not have invited the applicants to attend five hearings and made arrangements for witnesses to appear. The Tribunal was clearly open to receiving any evidence and information it could receive in order to make a fully informed and objective decision. Indeed, the Tribunal appears to have done everything it could do to accommodate the applicants concerns and needs.
The applicants have not demonstrated that the Tribunal was biased.
Ground 3 is, accordingly, dismissed.
Ground 4
For ease of reference, ground 4 provides:
AAT was very biased and didn’t accept my claims explanation there are no indications that a lack of funds may have prevented me seeking professional advice.
This ground appears to take issue with the following statement in the Tribunal’s decision:
The tribunal notes that he has worked during the period of time in Australia. There are no indications that a lack of funds may have prevented him from seeking professional advice. The tribunal does not accept the explanations as to the delay.
The applicants have isolated this statement from the context in which it appears to suggest that the Tribunal was biased. In full, the Tribunal stated:
The primary applicant applied for the protection visa about four years after entry into Australia. He has never returned to Malaysia. He was an unlawful non-citizen for the vast majority of those years. He sought to explain the delay and the unlawful stay by claiming he feared harm in Malaysia. It was not until either mid or late 2014 that he heard from friends that there was a visa called a refugee visa but he did not know how to apply but when he started to understand he started the application. He had not thought to seek any assistance or guidance from the department whilst he was unlawful. He was concerned that he might be deported. He then said it was 2015 when he commenced his application.
The tribunal inquired as to which friends provided advice and he gave the name of [A]. He did not know any other details of [A]. Even if the tribunal accepts that it was in about the middle of 2014 that he was given advice by Alex or anybody else this still does not satisfactorily explain why it was nearly a further 12 months until the lodging of the application. And the tribunal has already identified that the application was very scant.
There can be legitimate reasons for delay in applying for protection. In this case the applicant had departed his home country leaving behind a wife and two children because he feared serious harm. It would be reasonable to expect an asylum seeker in such circumstances to commence inquiries and proceedings at a much earlier point in time. The tribunal acknowledges the applicant is a speaker of Malaysian and that there are cultural differences between the two countries but these aspects do not satisfactorily explain the significant delay.
The tribunal notes that he has worked during the period of time in Australia. There are no indications that a lack of funds may have prevented him from seeking professional advice. The tribunal does not accept the explanations as to the delay.
The Tribunal was, in fact, indicating that it had considered (though it was not claimed) whether a lack of funds might explain the delay in applying for protection. It was doing so for the benefit of the applicants to ensure that it had addressed any possible satisfactory explanation for why the applicants may not have sought assistance when preparing their application. This does not demonstrate bias. Rather, is demonstrates a methodical and careful assessment of all relevant circumstances to ensure that the Tribunal was affirmatively satisfied as to the reasons for the delay in question. Others would do well to emulate this commitment to procedural fairness.
Ground 4 is dismissed.
Ground 5
For ease of reference, ground 5 provides:
AAT has prejudice against me and did not believe me bashed or otherwise harmed by religious beliefs.
Again, the applicants appear to suggest that because the Tribunal did not believe them then the Tribunal is biased. Again, this is not a sufficient basis upon which to prove bias: VFAB at [21].
For the reasons provided in relation to ground 2, the Tribunal’s finding that it did not believe the first applicant was based on its concerns as to his credibility and its finding that he was not a credible witness. The Tribunal noted throughout its decision various matters of concern in relation to the first applicant’s evidence about M and made clear its concerns that the first applicant’s evidence as to how his religious beliefs were a cause of the claimed harassment was not entirely clear.
While the Tribunal had rejected the basis of the first applicant’s claim for protection, the Tribunal in any event went on to consider if the applicants would otherwise be harmed for their religious belief. The Tribunal found as follows:
There is no evidence of previous discrimination or interference with the applicant for reason of his religion in Malaysia. The tribunal does not accept there is any general or inferred basis for any claim based on the applicants being followers of Buddhism. There is not a real chance of the applicants facing serious harm and discrimination for this general reason.
…
The tribunal is not satisfied that any group attended at the applicant’s workshop or at the home. This leaves open consideration of any general claim based upon a fear of suffering harm from non-Buddhists. It accepts that the Malaysian population is primarily made up of followers of the Islamic faith and that these people can accept favourable treatment and consideration from the government. It accepts that non-Muslim people can be subject to a degree of discrimination. This is however experienced broadly and is not directed to any individuals. There is no evidence the applicants were ever subjected to serious harm or discrimination for reason of their religious beliefs. He confirmed to the tribunal that he did not fear Muslims in general.
A portion of his work involved Muslim clients although his clients were mostly Chinese Malay. The tribunal finds there is not a real chance of the primary applicant suffering serious harm for reason of his religious beliefs.
The Tribunal’s reasons for finding that the applicants did not face harm for reasons of their religion more generally was based on country information and a lack of previous harm for that reason. These findings were entirely open to the Tribunal.
Ground 5 is, accordingly, dismissed.
First Applicant’s Affidavit
For ease of reference, the first applicant’s affidavit provides:
AAT has prejudice against not be a real risk that I will suffer significant harm in my country and also did not believe me bashed or otherwise harmed by religious beliefs.
The first applicant’s affidavit essentially combines grounds 3 and 5. For the reasons given above in relation to those grounds, the Court finds that there is no identifiable jurisdictional error.
Oral submissions
The first applicant’s oral submissions focussed on the quality of the interpretation services provide at the various Tribunal hearings. He stressed that the interpreter that had assisted during two hearings before the Tribunal had not “properly interpreted” the applicants’ evidence.
There is no hearing record for the hearing held on 22 September 2017. It is thus unclear which interpreter was actually used. At the hearing on 28 September 2017 an interpreter referred to as “Ms S” was used. For the hearings on 28 September 2018 and 29 October 2018, “Ms D” assisted the applicants. For the hearings on 23 November 2018 and 30 May 2019, “Ms C” assisted the applicants. Both Ms C and Ms D were accredited Mandarin interpreters.
The applicants have not provided any evidence (such as a transcript of the hearing) to demonstrate whether there were any interpretation errors. There is also no evidence that the applicants requested that they have a different interpreter. The Court will, however, infer that they did as Ms D was in fact replaced.
Unfortunately, the applicants did not identify what interpretive errors were made. They simply stated that they felt that things were not translated in their entirety.
The Court considered whether to adjourn the matter to allow the applicants to obtain a transcript of the hearing. The Court did not consider it appropriate to do so for the following reasons:
a)the application has been on foot for almost one year and if the Court were to grant an adjournment, it would be difficult to list the matter for further hearing until, at least, November 2020;
b)the applicants were provided an opportunity to file an amended application and any affidavit evidence and, notwithstanding that they thought there were interpretive errors in the earlier hearings “after they had received the Court Book”, the applicants did not file an amended application that would indicate, at the very least, that this was an issue;
c)there is no guarantee that if the Court granted the applicants leave to provide affidavit evidence of any mistranslations that occurred in the Tribunal hearing that the applicants would do so. The applicants have not complied with the Court’s previous orders; and
d)the Court is able to comfortably determine whether there is any interpretive error on the basis of the materials before it.
Here, the Tribunal’s decision records in detail the questions put to the applicants and their answers. Those answers were directly responsive to the questions asked and do not indicate that the substance of what the Tribunal was asking was not interpreted to the applicants or that their responses were incorrectly interpreted. The Tribunal’s account of the first applicant’s evidence as to what occurred is detailed and does not indicate that things were “missed”. The decision record does not indicate any interpretive difficulties such that the applicants can be seen to have been prevented from giving evidence.
In total, the applicants attended five hearings before the Tribunal. It appears that three different interpreters were used. The Court does not consider the applicants to have been deprived of the opportunity to participate in the process overall or suffered any unfairness because of any misinterpretation during the third and fourth hearings. The applicants had appeared before the Tribunal on two occasions prior to these hearings and there is no evidence that they raised any issue with the interpretation services offered. They also appeared at a hearing after this (which, it is noted, was nearly two hours in length) and did not appear to raise any issue or suggest to the Tribunal that they were dissatisfied with any of the previous hearings.
The Court considers that, given the number of opportunities the applicants had to present their evidence and arguments, they were able to meaningfully engage with the Tribunal and they were able to clarify any matters they believed may have been missed.
Ms D (the interpreter the applicants appeared to have issues with) was an accredited Mandarin interpreter. While this is not determinative, it does indicate that the interpreter was qualified and experienced in providing interpretation services.
On the materials before the Court, the Court is not satisfied that there were any material interpretive errors. The applicants have not provided any evidence or given any particulars about what errors were made which might suggest that language translation errors caused the Tribunal to draw an adverse conclusion towards the applicants. Rather, they have simply indicated that they “think” that errors were made and that some things were not translated properly.
The Tribunal’s decision does not indicate that the applicants were denied the opportunity to engage and participate in the hearing. The hearing records show that the amount of time during which the applicants appeared before the Tribunal to give evidence and arguments was in excess of 3.5 hours. The Tribunal’s decision indicates that the applicants actively engaged with the Tribunal’s questions and provided information when asked to do so.
On the materials before the Court, the applicants’ submission in relation to the quality of the interpretation services provided before the Tribunal do reveal jurisdictional error.
Conclusion
The applicants have failed to identify any jurisdictional error in the Tribunal’s decision. The Court is otherwise satisfied that no error arises.
The application is, accordingly, dismissed.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 29 May 2020
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