CPN16 v Minister for Home Affairs - [2018] FCA 872

FEDERAL COURT OF AUSTRALIA
CPN16 v Minister for Home Affairs [2018] FCA 872

Appeal from: CPN16 v Minister for Immigration and Border Protection [2017] FCCA 2424

File number: VID 1107 of 2017

Judge: KERR J

Date of judgment: 7 June 2018

Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – where primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister refusing the appellant’s visa application – where appellant seeks to advance grounds of appeal not agitated before primary judge – whether interpretation of Tribunal hearings was so inadequate to constitute a failure to provide the appellant with a hearing as required by s 425 of the Migration Act 1958 (Cth) – where Tribunal made adverse credibility findings on the basis of the lack of detail in Appellant’s evidence – leave to rely on new grounds granted – appeal allowed

Legislation:
Evidence Act 1995 (Cth)

Federal Court of Australia Act 1976 (Cth) s 24

Migration Act 1958 (Cth) ss 36, 425

Cases cited:
Coshott v Crouch [2017] FCAFC 135; (2017) 253 FCR 413

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Habtegebriel v Minister for Immigration & Multicultural Affairs [1999] FCA 1470

M175 of 2012 v Minister for Immigration and Citizenship [2007] FCA 1212

Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1

Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6

SZHEW v Minister for Immigration and Border Protection [2009] FCA 783

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212

SZSFS v Minister for Immigration and Border Protection [2015] FCA 534; (2015) 232 FCR 262

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405

Date of hearing: 4 and 7 June 2018

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 123

Counsel for the Appellant: Ms G A Costello

Solicitor for the Appellant: Kajaliny Ranjith Legal

Counsel for the First Respondent: Mr G A Hill

Solicitor for the First Respondent: Mills Oakley

Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs

ORDERS

VID 1107 of 2017

BETWEEN:
CPN16

Appellant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

KERR J

DATE OF ORDER:

7 JUNE 2018

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of the Federal Circuit Court to dismiss the Appellant’s application for review be set aside.
3.In substitution therefor it be ordered that the decision of the Administrative Appeals Tribunal to affirm the delegate’s decision be quashed and the review be remitted to the Tribunal for reconsideration according to law.
4.Subject to the orders of 27 February 2018, the First Respondent pay the Appellant’s costs of the appeal as assessed or agreed.
5.The costs orders made in the court below not be disturbed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)
KERR J:

The Appellant is a Sri Lankan citizen of Tamil ethnicity who fled Sri Lanka in July 2012. The Appellant applied for a Protection (Class XA) visa (the visa) in January 2013, and on 8 January 2014 a delegate of the then Minister for Immigration and Border Protection (the Minister) refused to grant the visa on the basis that the Appellant failed to satisfy s 36(2) of the Migration Act 1958 (Cth) (the Act).
The Appellant sought review of that decision in the Administrative Appeals Tribunal (the Tribunal) but it affirmed the delegate’s decision. He then applied unsuccessfully to the Federal Circuit Court of Australia (the FCCA) for judicial review. He has brought an appeal from that decision in this Court. For reasons which are explained below he now seeks leave to rely on a single ground of appeal, not advanced in the court below, that the decision of the Tribunal was affected by jurisdictional error in that it did not provide adequate interpreting services thereby depriving him of the hearing he was entitled to under s 425 of the Act.
At the commencement of the hearing his counsel, Ms Costello, confirmed that the Appellant had expressly abandoned his grounds of appeal as originally advanced. I proceed on that basis.
THE APPELLANT’S CLAIMS
The Appellant was born in Annamalai, Ampara, Sri Lanka in 1990. The Appellant arrived in Australia by boat and was interviewed by the Department of Immigration and Citizenship as an “Irregular Maritime Arrival” over two sessions in September 2012. The form completed as part of that interview records that the Appellant had lived with his brother-in-law in Vavuniya since 2009. Prior to that he had spent six months in an army camp in the Vavuniya district.
The Appellant claimed to fear persecution on the basis of his Tamil ethnicity, an imputed political opinion in support of the Liberation Tigers of Tamil Eelam (the LTTE), and his membership of a particular social group, being failed Tamil asylum seekers.
During his entry interview, the Appellant was recorded as having said that he had visited his employer’s home in August 2008, but he had been unable to leave because of the conflict between the Sri Lankan Army and the LTTE. The Appellant claimed that his employer’s house was then shelled in May 2009, killing a number of the employer’s relatives and injuring the employer. The Appellant and his employer fled but were arrested by the army and detained for a period of some months, but he had avoided identification whilst being held at the camp.
The Appellant’s entry interview records the Appellant saying that his boss was injured and needed medical treatment, and as a result the Appellant and his employer were released from the camp. Before the Tribunal, the Appellant provided a statutory declaration explaining that he and his employer had in fact paid a bribe and a soldier had helped them to escape the camp (at [15]).
His evidence in the Tribunal was that he had returned to Vavuniya. The Sri Lankan authorities had located him and taken him away for interrogation regarding his involvement in “the movement” (the LTTE). The Appellant stated he had been beaten over two or three days and then released. He had returned to work, but later was kidnapped, blindfolded, and interrogated a second time about his involvement with the movement. He was held for two days. The Appellant’s family did not know where he was, and made a complaint to the Human Rights Commission. The following day, the Appellant was told to call his father and inform him that he would need to pay a bribe to arrange the Appellant’s release. The Appellant’s father had borrowed money from the Appellant’s employer to pay the bribe, and the Appellant was released.
The Appellant had returned home, but was afraid that the CID would come for him so he moved to Batticaloa to live with relatives. “Unknown people” went to his old house in Vavuniya looking for the Appellant, and as he was not there they took the Appellant’s father. The Appellant’s father was interrogated, and as result of his heart problems he became unwell and was admitted to hospital. The Appellant never returned home. His employer and his cousin gave him money and advised him to get on a boat to Australia.
A delegate of the Minister largely rejected the Appellant’s claims, and rejected his visa application.
DECISION OF THE TRIBUNAL
On 26 August 2016 the Tribunal affirmed the decision of the delegate.
The Tribunal accepted (at [42]-[43]) the Appellant’s claim that he was trapped at his employer’s house from August 2008 until the house was shelled in May 2009, killing some of his employer’s family members and wounding the Appellant’s employer. The Tribunal accepted that the Appellant was taken by the Sri Lankan army and detained in an army camp in Vavuniya in September 2009, where he may have been mistreated.
The Tribunal did not accept that the Appellant escaped identification whilst at the camp (at [44]) or that he had escaped from the camp (at [45]) on the basis that the Appellant was unable to describe the alleged escape in convincing detail. The Tribunal did not accept that the Appellant was detained twice by the CID. The Tribunal found the Appellant’s claims with respect to both the first and second detentions implausible. The Tribunal did not accept that the Appellant’s father made a complaint to the Human Rights Commission. The Tribunal found that the Appellant’s evidence was, in part, vague, inconsistent and implausible.
The findings of the Tribunal most material to these proceedings were:
44.However, I do not accept that the applicant was not identified at the camp. He claims to have given a false last name, the family name of his boss, at the camp. I do not believe this. He gave evidence that he had his ID card, which identifies him by name and picture. Given that one of the expressed purposes of the camps was to detain civilians and to separate and identify those who had involvement with the LTTE during the conflict, I do not accept as credible or plausible that the army would not have checked his ID card and determined his true identity, either at the point of his entry to the camp or shortly afterwards. l do not accept as credible that the army would not have checked his ID card because there were too many people, or because he did not want to give his ID card to them, given that a main purpose was to identify people who had possible links to the LTTE, which would require the authorities to know people's true identities, and that the army, in control of the camp, could have, and I find would have, compelled him to present his ID card. I find that the applicant has fabricated this claim.
45.I do not accept that the applicant escaped from the camp. The applicant was unable to describe in any convincing detail how he escaped. I asked him to try and describe the escape in detail but he was unable to provide more than general statements about getting out. He was unable to describe how the solder showed him to get out, how he was able to pass through a fence he said was electrified, and then some form of sharpened wire fencing. He was unable to describe how the wire was moved or cut or how a way was made for him and his boss to pass through. Despite passing through the fencing he was unable to provide any details about these things. This is despite me telling the applicant at the beginning of the hearing, and when asking him about his claimed escape, to describe events in as much detail as he could. When I noted that I had concerns with the vagueness of his claim of escape and noted that I may reach a view that he and his boss had been released, without a bribe, rather than escaped from the camp, the applicant said that I had asked different questions to those asked previously. His representative noted that the applicant had been through traumatic experiences and this may affect recall. I have also had regard to the reports from Foundation house. However, I find that in this case the lack of detail and a plausible description of how he and his boss escaped from the camp lead me to disbelieve this claim. When I put this together with my findings below in relation to what he claims to have done after escaping, I find that the applicant and his boss did not escape from the army camp but were released, because they were of no interest to the authorities. I do not accept that the applicant's boss or the applicant had to pay a bribe to anyone to escape or be released.
In light of the Tribunal’s rejection of the Appellant’s evidence as to the circumstances of his detention and how it had come to an end, the Tribunal then rejected as implausible CPN16’s claims of having been twice subsequently detained and mistreated (at [47]-[49]). At [50] the Tribunal emphasised that its rejection of those claims was based not only on inconsistencies between his evidence and what he had claimed in his Statutory Declaration, but also on his want of credit in the hearing. Confirming that the Tribunal found his claims implausible it added:
50.…. But more significantly, his responses at hearing did not satisfy me that he was detailing experiences which he had in fact experienced – the escape from the camp, for example was provided with little or no detail, and any detail provided was as a result of me pushing him to provide detail. He was also unable to provide clear or reasonable explanations for why he remained in Vavuniya, at the place he had been located by the CID previously, for a month to six weeks after his second detention….
The Tribunal then reasoned as follows:
58.… [W]hilst I accept that the [Appellant] was detained at an army camp from approximately May to December 2009, I find that he was released from that camp, without the need to pay a bribe, rather than escaped. I find, on the country information above, that this finding means that at this point he was determined not to have any involvement or association with the LTTE whatsoever, given the country information that the purpose of the camps was to separate civilians from those with any LTTE involvement. I find that the applicant was not detained, interrogated and beaten or tortured by the CID or anyone else after being released from the camp. I find that his father was not detained, interrogated or beaten. I find that the CID did not send a letter to the [Appellant] saying that they wished to interrogate him. I find that the [Appellant] was not required to sign after being released. I find that the CID did not come looking for him at any time after that, including November 2015. I find that the [Appellant] was released from the army camp because he was of no interest or concern to the authorities. I find that since that time he has not come to the attention of, nor is he of any interest to, the CID or any other authorities or anyone else in Sri Lanka.
59.I have considered the evidence I accept; that the [Appellant] is a Tamil male, of the Hindu religion, who lived in the East and Northern regions of Sri Lanka. I accept that he remained in the Vanni, the last area of LTTE control, before the end of the war, and was taken from there to an army camp in Vavuniya, and may have been mistreated there. However, I have found above that he was released from that camp, without having to pay a bribe, indicating that if he was of any interest to the authorities on being taken to the camp they ceased to have any interest or concern in him, and ceased to believe or suspect that he had any involvement with the LTTE during his detention there and released him. I find that since his release in approximately December 2009, he has been of no interest to the authorities. I note the country information that was discussed with the [Appellant] in relation to the changing situation for Tamils in the North and East, particularly since Sirisena came to power. I note and give weight to the conclusion of DFAT that monitoring has eased. I find that the country information indicates that if the [Appellant] were to return to his home village now, given what I have accepted of his claims, that there is no real chance or real risk that he would be of any interest to the authorities, nor that he would be questioned or harmed, nor, given the reduction in monitoring, that he would be monitored. On the basis of this reasoning, and my findings above, particularly my findings that he was released from the army camp as he was not if interest to the army or other authorities, I find that the [Appellant] will not be suspected of LTTE involvement because he was detained by the army whilst in the Vanni.
Accordingly the Tribunal did not accept that the Appellant had a “profile that would impute him with LTTE involvement” (at [70]), or that he would be treated in any way differently from other failed asylum seekers upon returning to Sri Lanka. The Tribunal recorded its findings as follows:
71.I have had regard to the country information, including that in the submission, but I find I prefer the specific, recent information from DFAT which deals with the specific situation for returnees, agrees with the more recent February 2015 information from DFAT, and with the information from IRBC and the other sources cited above. I note also that the reports from Freedom from Torture and other grounds deal with a small number of specific cases, are generally not verified and are generally allegations, against which, as DFAT notes, many thousands of asylum seekers have been returned but there have been few allegations of torture or trauma. I find that, on assessing all of the country information it indicates to me that there is not a real chance or real risk of people returning as failed asylum seekers being harmed or differentiation on that basis by the authorities, and that the authorities do not see the attempt to seek asylum as a concern, unless the person has actual or imputed links with the LTTE, certain opposition politicians and political activists, human rights activists or journalists. I have considered the [Appellant’s] profile and his claims, and I do not consider that he is a person whom the authorities would have any interest in, I do not accept that the [Appellant] has, or would be imputed with, any of these profiles. I do not accept he has any outstanding charges against him, and I do not consider, assessing what I accept of his claims, that there is any reason why the authorities would have any interest in him on return to Sri Lanka. I find that the [Appellant] is not wanted by the Sri Lankan authorities and will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT. I find that the [Appellant] will not be harmed during the questioning process at the airport on return to Sri Lanka, nor on his return to his home area.
The Tribunal concluded:
89.I have considered the totality of [the Appellant’s] circumstances as a young Tamil male with his background and family who left Sri Lanka illegally and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future. Having regard to all the circumstances and findings above, both individually and cumulatively, I find that there are not substantial grounds for believing that there is a real risk that the [Appellant] will suffer significant harm upon being removed from Australia to Sri Lanka.
Conclusion
90.For the reasons given above, the Tribunal is not satisfied that the [Appellant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the [Appellant] does not satisfy the criterion set out in s.36(2)(a).
91.Having concluded that the [Appellant] does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the [Appellant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
BEFORE THE FEDERAL CIRCUIT COURT
The Appellant applied to the FCCA for judicial review of the Tribunal’s decision.

Before the primary judge the Appellant advanced two grounds of appeal. The first ground was that the Tribunal had misconstrued s 36(2)(aa) of the Act “in finding that cruel or inhuman treatment or punishment required an intention on the part of the Sri Lankan authorities to cause harm to the [Appellant]”. The Appellant filed written submissions prior to the hearing before the FCCA acknowledging that that ground of appeal was dependent on the outcome of the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 (SZTAL). The primary judge dismissed that ground on the basis that it could not be successful given the decision ultimately made by the court in SZTAL.
The second ground of appeal before the FCCA is as set out at [14] of the decision:
The finding of the Tribunal that the [Appellant] will not face torture or mistreatment upon his return was irrational and/or unreasonable, in that it relied on DFAT country information for a proposition it did not support.
Particulars
The DFAT country report relied on by the Tribunal at [67] acknowledged that it was aware of reports of torture or mistreatment of returned asylum seekers, but had been unable to verify the reports. It could not sustain a finding that the [Appellant] did not face a real risk of harm upon his return, particularly in light of country information to the contrary.
On 5 November 2017, the primary judge dismissed the Appellant’s application.
BEFORE THIS COURT
The Appellant applied to this Court for judicial review of the decision of the FCCA. In his Notice of Appeal filed on 16 October 2017, the Appellant originally advanced a single ground of appeal:
The decision of the Federal Circuit Court is affected by jurisdictional error, in that it accepted the finding of the tribunal that the applicant will not face torture or mistreatment upon his return. The Court also erred by rejecting that it was irrational and/or unreasonable in that it relied on DFAT country [information] for a proposition it did not support.
Particulars:
The DFAT country report relied upon by the Tribunal acknowledged that it was aware of reports of torture or mistreatment of returned asylum seekers, but had been unable to verify the reports. It could not sustain a finding that the applicant did not face a real risk of harm upon his return, particularly in light of country information to the contrary.
The hearing of CPN16’s appeal was listed for 28 February 2018. The Appellant did not file written submissions pursuant to the timetabling orders made by a Registrar of this Court on 23 October 2017.
Instead, on 21 February 2018, the Appellant’s solicitor Ms Ranjithkumar contacted my chambers to advise that, having recently been instructed, she sought an adjournment of the hearing of this appeal for a period of three weeks “to enable … sufficient time to prepare necessary evidence”. Ms Ranjithkumar’s email advised that errors had been identified in the interpretation of the hearing before the Tribunal and she was waiting for a full interpretation of the recording which would be produced to support a new ground of appeal not advanced before the FCCA that “the decision is affected by jurisdictional error in relation to translation errors affecting the appellant’s opportunity to be heard”.
Ms Ranjithkumar’s email advised that the Minister opposed the application to adjourn.
The Court advised the parties that due to the short notice and the Minister’s opposition to the request, the application to adjourn, together with any application to amend the Notice of Appeal, would be heard prior to the hearing of the substantive appeal on Wednesday 28 February 2018.
On 22 February 2018, an affidavit dated 19 February 2018 was filed in support of the request to adjourn, in which the Appellant deposed:
2.My application for a protection Visa was refused and I applied to the Administrative Appeals Tribunal. The Administrative Appeals Tribunal provided me with hearing dates to provide the basis of my claim for protection. I attended the hearing on three different dates, 30 April 2016, 18 May 2016 and 22 May 2016.
3.Like me, my solicitor Kajaliny Ranjith, speaks Tamil.
4.Ms Ranjith and I have identified the following translation problems that occurred during my hearing:
(a)Interpreter provided on 30 April 2015, sounded like he was of Indian origin and spoke a dialect that was different to Sri Lankan Tamil. I was only able to vaguely understand the interpreter especially when he was interpreting technical words.
(b)The interpreter provided on 18 May 2016 over 2016 [sic] over-summarised [my] claim and failed to provide the details to the member, which I believe had the likely effect that my claims seemed vague or lacking in detail. In my language I had made more detailed and precise claims than what was translated.
(c)The interpreter provided on 22 May 2016 made errors in interpretation that caused confusion and changed what I said into something different.
5.Ms Ranjith and I are working on having the recording translated and transcribed, to provide the same as evidence during my hearing. This is a slow and costly process, given that the combined duration of the hearings is more than 10 hours.
6.I wish to inform the court, that no other Solicitor or Counsel whom I engaged, has ever asked me whether there were errors in interpretation. Until Ms Ranjith listened to the recording and identified interpreter errors, I was unaware of the errors or that this could be the basis of an argument that the Tribunal’s decision is affected by jurisdictional error.
7.I was represented by a different solicitor before the Federal Circuit Court. I was only referred to Ms Ranjith in February 2018.
8.I would be grateful if the hearing could be adjourned to another date, to allow us enough time to have the material prepared for the hearing.
…
10.I humbly request an adjournment of my appeal from 28 February 2018 to a date after 23 March so that I can obtain the translations I need in order to show the errors that affected my hearings and my representatives can file and serve consequential legal submissions in a timely manner.
On 27 February 2018, a signed memorandum of consent vacating the 28 February 2018 was sent to my chambers. On 28 February 2018, I made the following orders by consent:
1.        The name of the first respondent be amended to “Minister for Home Affairs”.
2.        The date for the hearing of the appeal on 28 February 2018 be vacated.
3. The matter be listed for hearing of the application for leave to raise new grounds on appeal and, if such leave is granted, the substantive appeal on a date to be fixed.
4. The appellant file and serve an application for leave to rely on new grounds of appeal on or before 13 March 2018.
5. The appellant file and serve an amended notice of appeal on or before 13 March 2018.
6. The appellant file and serve any additional evidence by way of affidavit in support of the application for leave to appeal and the substantive appeal on or before 13 March 2018.
7. The appellant file and serve any written submissions and a list of authorities on or before 20 March 2018.
8. The first respondent file and serve any additional evidence by way of affidavit on or before 27 March 2018.
9. The first respondent file and serve any written submissions and a list of authorities on or before 3 April 2018.
10. The appellant file and serve any written submissions in reply on or before 10 April 2018.
11. The appellant pay the first respondent’s costs thrown away by reason of the adjournment and the amended notice of appeal as agreed or assessed, but not exceeding a sum of $3,000.
12. A copy of the particular provisions of the relevant legislation as it applied at the date the decision under law was made, be filed and served by the lawyer for the appellant no later than three (3) business days before the hearing date, including sufficient copies for the Court.
13.      The parties have liberty to apply on two days’ notice.
The hearing of the appeal was then relisted for 29 May 2018. On 11 March 2018 the Appellant filed what purported to be an amended notice of appeal. The Appellant did not file an application for leave to rely on new grounds of appeal, as required by the 28 February 2018 orders.
On 27 March 2018, the time for compliance with orders 8, 9 and 10 of the 28 February 2018 orders was extended by consent. The Minister filed submissions on 13 April 2018 in compliance with those orders.
On 18 April 2018 the appellant lodged for filing an affidavit of the Appellant’s solicitor Ms Ranjithkumar annexing an “accredited translation” by Mr Kathiravelu of part of the Tribunal hearing heard on 18 May 2016 which the deponent identified as having been “the third Tribunal hearing”.
That affidavit did not contain details of the alleged errors in the interpretation of the hearing, but foreshadowed that a further affidavit would be filed annexing the full transcript. The parties were advised by my chambers that the Appellant would not be permitted to rely on that affidavit as it had been filed without leave of the Court. The parties were advised that any application for leave should be accompanied by an affidavit. No such application was made prior to the hearing of this appeal.
On 25 and 29 May 2018 two further affidavits affirmed by the Appellant’s solicitor were filed. Both were in near identical terms. They annexed typed “accredited translation[s]” undertaken by Mrs Somasundaram of the balance of the Tribunal hearing on 18 May 2016 and of the Tribunal’s hearing of 22 May 2015. Ms Ranjithkumar also annexed to those affidavits materials regarding the level of NAATI accreditation possessed by the interpreters who had assisted in the first, second and third hearings conducted by the Tribunal. Ms Costello later advised the Court that the only difference between the two affidavits was that the 29 May 2018 affidavit also annexed a copy of the Tribunal’s “Guidelines on Interpreters”, which was identified as annexure “KR5” in the 24 May 2018 affidavit, but had in fact been omitted.
Following the filing of Ms Ranjithkumar’s affidavit of 25 May 2018, the hearing scheduled for 29 May 2018 was relisted for 4 June 2018 after an unopposed request on behalf of the Minister’s legal representatives that they be allowed a short period of time to seek instructions regarding that development.
LEAVE TO RELY ON NEW GROUNDS
The Appellant was represented at the hearing of this appeal by Ms Costello, who had not appeared as counsel before the primary judge. At the commencement of the hearing, Ms Costello made an oral application for the Appellant to have leave to rely on the amended notice of appeal, which was in the following terms:
The Appellant appeals from the whole of the judgment of Judge Riley delivered on 5 October 2017.
Grounds of appeal
1.The decision of the Tribunal is affected by jurisdictional error in that the Tribunal did not provide adequate interpreting services to the appellant, and thereby:
(a)deprived the appellant of the meaningful hearing to which he was entitled under s425 of the Migration Act 1958 (Cth); and
(b)further and alternatively, constructively failed to exercise its jurisdiction to review the delegate’s decision because the Tribunal was unable to understand the appellant’s claims and evidence.
Particulars
In this appeal, the appellant will rely on a typed transcript of parts of his Tribunal hearings, along with translations by a properly accredited translator to demonstrate how material interpretation errors affecting the proceeding before the Tribunal.
While expressed as an appeal from the “whole of the judgment of Judge Riley”, the proposed amended ground of appeal identifies an asserted error made by the Tribunal. In Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 at [40]-[41] the Full Court (Griffiths, Kerr and Farrell JJ) gave attention to the nature of an appeal from a decision of a single judge of the FCCA brought under s 24 of the Federal Court of Australia Act 1976 (Cth):
40.It is an appeal in the nature of a rehearing. This has important implications for the nature and scope of the appeal. It is well established that a rehearing is not a new hearing during which the original application is determined without regard to what happened in the Court below and without regard to its findings (see Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192 at 208-210 per Windeyer J and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [73] per North, Barker and Katzmann JJ).
41.It is equally well established that the role of the Court on an appeal by way of rehearing is the correction of error. As Allsop J (as his Honour then was) emphasised in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [21] in such a case there is a “need to show error on appeal”. It is desirable to set out in full that paragraph from his Honour’s judgment (noting that Drummond and Mansfield JJ agreed with it):
However, this conclusion does not alter the need to show error on appeal. In Hamsher Beaumont J and Lee J identified the need for the demonstration of error in the trial judge's findings or conclusions and they expressed the view that the statements in Warren v Coombes (1979) 142 CLR 531 (dealing with an appeal by way of rehearing) that an appellate court must not shrink from giving effect to its own conclusion were premised on a conclusion that the decision of the trial judge was wrong and should be corrected.
Special leave was granted to the appellant in those proceedings to appeal the judgment of the Full Court. Argument on that appeal has been had before the High Court, but on my reading of the submissions that were advanced, it is not contended that the propositions set out at [40]-[41] are incorrect. Rather, the appeal goes to the nature of the error that must be established.
In the ordinary course, a party to an appeal will not be permitted to rely on a contended error not pressed in the court below: see Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7, and notably and, recently, Coshott v Crouch [2017] FCAFC 135; (2017) 253 FCR 413 at [51]-[54]. However that rule is not inflexible, particularly in the instance of a vulnerable self-represented appellant. In that regard, I refer to and adopt the comments of Logan J in SZSFS v Minister for Immigration and Border Protection [2015] FCA 534; (2015) 232 FCR 262 (SZSFS) at [9]:
In cases like the present and in relation to an application for leave to raise on appeal a point not taken below, it is always necessary to remind oneself of a number of matters. The disparity between the resources available to the Minister and an applicant for a Protection Visa is usually likely to be very great. An explanation of the kind proffered by the Appellants may be all that can be proffered. Further, an appeal to this Court is the final means by which, as of right, a Protection Visa applicant may secure a fresh opportunity to press on the merits before the Tribunal a claim for such a visa. Yet further, in terms of the future health, comfort or even life of an appellant, much possibly may turn on whether he or she has that further opportunity, given that the alternative to securing a Protection Visa is leaving Australia.
The Minister did not oppose the leave sought on the basis that the ground proposed did not assert a relevant error of law. Nor did the Minister submit he would suffer prejudice if leave were granted. The Minister confined his opposition to the argument that the proposed ground lacks merit. Mr Hill who appeared as counsel for the Minister accepted that consideration of merit might properly be addressed upon hearing the appeal on the premise that leave might be given.
Mr Hill did not press that the Appellant’s appeal should be dismissed for want of compliance with the Court’s procedural orders.
Having regard to the reasoning in SZSFS and the conclusions I have reached as to the merits of the ground proposed, I would grant leave to the Appellant to rely on his proposed amended ground of appeal notwithstanding that it was not agitated in the court below.
The evidence in these proceedings
At the commencement of the hearing Ms Costello sought to read the affidavit of the Appellant of 19 February 2018 and the affidavits of Ms Ranjithkumar dated 18 April 2018 and 29 May 2018 respectively. Ms Costello did not seek to read Ms Ranjithkumar’s affidavit of 25 May 2018 into evidence on the basis that it was in identical terms to the 29 May 2018 affidavit, save that it incorporated an additional annexure.
Notwithstanding the procedural circumstances, Mr Hill did not object to those affidavits being admitted into evidence, subject only to an objection to [6] of Ms Ranjithkumar’s 29 May 2018 affidavit on the basis that it purported to express an expert opinion in a form inconsistent with the provisions of the Evidence Act 1995 (Cth). At [6] Ms Ranjithkumar deposed that, having herself listened to the recordings and read the interpretations her client had secured in writing, she believed the oral interpretation of the Appellant’s evidence in the Tribunal had over summarised his testimony and that the detail and narrative of his testimony had been lost at various points.
With the consent of the parties, the Court admitted into evidence the three affidavits Ms Costello sought to read, subject to [6] of the affidavit of Ms Ranjithkumar of 29 May 2018 being admitted only as a submission.
The critical evidence in these proceedings includes the three typed interpretations of the hearings before the Tribunal which took place on 22 May 2015 and 18 May 2016. Towards the commencement of this hearing I therefore raised with Ms Costello that there appeared to be no evidence of the qualifications of those who had provided the “accredited translations” or any affidavit from their makers deposing to the accuracy of them. Ms Costello accepted that to be so but indicated from the bar table that she understood that Mrs Somasundaram was a NAATI level 3 interpreter.
I asked Mr Hill if the Minister accepted that she was a NAATI accredited level 3 interpreter whose translations the Court was entitled to rely on in these proceedings.
Mr Hill noted that Mrs Somasundaram had signed the final page of her interpretation (KR2) and had identified herself as a NAATI accredited provisional interpreter which was equivalent to NAATI level 2; she was qualified but no more qualified than the interpreters who had been assisting in the Tribunal.
However, that appropriate observation aside, Mr Hill took no issue during the hearing with the proposition that the typescript interpretations annexed to Ms Ranjithkumar’s affidavits as produced by Ms Somasundaram and Mr Kathiravelu were other than completely accurate. I have earlier noted that the Minister’s legal representatives had approached the Court to relist the hearing to allow for the opportunity to take instructions. I infer from the absence of any challenge to any part of the typescript interpretations, with the opportunity open to the Minister to take the point, that Mr Hill’s instructions had been that there was no basis to contest their accuracy in this appeal. I proceed on that basis.
The Appellant’s submissions
Ms Costello filed written submissions as to the relevant principles the Appellant contended for as follows:
10.As Kenny J observed in Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 at [24], it is the “… function of an interpreter in the tribunal … to place the non- English speaker as nearly as possible in the same position as an English speaker” and that the interpreter “provides the means for communication between the applicant, the tribunal and other participants in the tribunal hearing, in cases where the applicant’s own linguistic capacities are not, on their own, sufficient to that end”.
11.As Lee J more recently observed in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [34] (with reference to Kenny J’s judgment in Perera) not every departure from the standard of interpretation that prevents an applicant for refugee status from properly giving evidence will establish jurisdictional error, the error will only be established if the departure relates to a matter of significance to the applicant’s claims or the tribunal’s decision.
12.In SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 Allsop CJ at [5], “[w]hether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case”. His Honour said further at [9]:
“[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.”
13.In SZTFQ at [37]-[40], Lee J emphasised three principles which emerge from relevant cases. To paraphrase his Honour:
(a)First, the qualitative assessment of mistranslation must have regard to the circumstances; the focus is on the process afforded to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(b)Secondly, it is undesirable to overly define the relevant tests relating to errors in translation in a s.425 context.
(c)Thirdly, the court should consider whether the mistranslation had or could have had significance.
14.In cases where mistranslations occur in the context of credit findings, it is difficult to measure the impact of the error because the assessment of credibility is “not necessarily linear”: VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79]. An unfavourable view of an otherwise minor issue may be decisive as to credibility based upon matters of impression: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR at 89, per Gleeson CJ.

Ms Costello’s written submissions then identified (at [15]-[22]) how the Appellant contended the interpretation had gone wrong in this case:
15.The Appellant attended three hearings in the Tribunal. At two of them a NAATI level 2 accredited interpreter was used. At one of them an interpreter of no stated accreditation was used.
16.According to the Tribunal’s “Guidelines for Interpreters” dated 20 December 2017 at [91], the Tribunal prefers to use interpreters accredited at Interpreter level 3 or above with the National Accreditation Authority for Translators and Interpreters (NAATI). There is nothing in the Appeal Book explaining why that preference was not followed here.
17.The reasons for having an adequately accredited interpreter are obvious: without one, the interpreter’s skill may be such that the detail, accuracy or sense of an applicant’s testimony is conveyed without giving an applicant a meaningful opportunity under s.425 to give evidence.
18.Here, NAATI level 3 interpreters appear not to have been used in any of the three hearings.
a.The first hearing was on 30 April 2015 before Tribunal Member Anthony Krohn. The RRT hearing record is at AB 183. The interpreter used was Srinivasan Venkataraman, from ON CALL Melbourne. The interpreter’s level of accreditation is not stated on the RRT hearing record (see AB 183).
b.The second hearing was on 22 May 2015, again before Tribunal Member Anthony Krohn. The hearing record is at AB 204. The interpreter was Ariyanayagam Amirthanesan from ONCALL Melbourne. The interpreter’s level of accreditation was NAATI level 2 (see AB 204).
c.Then Mr Krohn left the Tribunal (having not been reappointed to the Tribunal).
d.The third hearing was on 18 May 2016 before Tribunal member Sean Baker. The RRT hearing record is at AB 204. The interpreter was Nandakumar Ramalingam. His level of accreditation was NAATI level 2 (see AB 204).
19.On 26 August 2016, the Tribunal (member Sean Baker) affirmed the delegate’s decision not to grant the Appellant a protection visa.
20.After setting out the Appellant’s written claims at AB 231-233 and describing the Appellant’s further written statements and submissions provided by the Appellant at [6] to [12] at AB 233, at [13] the Tribunal referred to the Appellant’s hearing held on 18 May 2018.
21.The Tribunal’s reasons make clear that the Tribunal did not accept the Appellant’s evidence (inter alia) about being:
a. detained in an army camp; and
b. escaping from the army camp.
22.The Tribunal’s reasons also demonstrate that the reasons the Tribunal did not accept these claims included that the Appellant’s evidence was not “detailed.
Ms Costello quoted the Tribunal’s reasons at [44] (see above at [14]) and submitted:
24.The Tribunal’s finding in respect of being put in the camp was affected by erroneous translation in that his evidence was that he pretended to be the son of the shop owner because single males were detained in the intelligence division of the camp. This was not translated. Details he said about his entry into the camp were not conveyed effectively by the interpreter.
Ms Costello then quoted the Tribunals reasons at [45] (see above at [14]) and submitted:
22.The Tribunal’s finding in respect of escaping from the camp was affected by erroneous translation in that the translation missed the details of how he escaped. Also, the reasons he left the camp due to the shop owner’s need for eye treatment and the appellant’s injuries were not translated in sufficient detail or with sufficient accuracy to convey his testimony effectively to the Tribunal.
Ms Costello followed those more particular submissions with a general submission regarding the quality of the interpretation in the Tribunal hearing and concluded as follows:
23.In addition to these two specific areas of inadequate translation above, there was in general a poor standard of interpretation which affected the Tribunal’s findings that the Appellant’s evidence was vague, lacking in detail and implausible. The overall impression of the Appellant’s evidence could have been affected by the poor interpreter services afforded to him.
Conclusion
24.In this case, inadequate interpreter services deprived the appellant of the meaningful hearing to which he was entitled under s425 of the Act.
25.Further and alternatively, the Tribunal constructively failed to exercise its jurisdiction to review the delegate’s decision because the Tribunal was unable to properly understand the appellant’s claims and evidence at a level of detail and granularity to make the correct and preferable decision about the Appellant’s credibility and claims.
26.The Tribunal’s decision ought to be quashed and the matter remitted for redetermination according to law.
In oral submissions, Ms Costello developed the arguments she had made in writing and took the Court in considerable detail to the text of the translations. It is not necessary to refer at this point of these reasons to those matters. I will deal with the specifics when I turn to my consideration of the merits of this appeal.
The Minister’s submissions
Understandably in the short time available Mr Hill did not provide detailed responsive written submissions but instead provided a short “supplementary note” summarising the Minister’s position as follows:
3.Response to Appellant’s arguments: The difference between NAATI 2 and NAATI 3 qualifications does not establish jurisdictional error by itself.
•Perera (1999) 92 FCR 6 at [31] (Kenny J); SZSUT [2015] FCA 190 at [48] (Katzmann J); MZAHK (2017) 72 AAR 257 at [43] (the Court)
The AAT guidelines only express a “preference” for NAATI 3 accredited translators, and do not create any expectation that a translator will have that qualification.
4.The Appellant asserts that there are errors of translation, but has not particularised what those errors are. The Minister emphasises three points.
5.First, translation is not a perfect science, and it may well be enough that a translation conveys the idea or concept being communicated.
•SZSEI [2014] FCA 465 at [79] (Griffiths J); Perera (1999) 92 FCR 6 at [29]-[31] (Kenny J); WACO (2003) 131 FCR 511 at [66] (the Court)
6.Second, there will only be jurisdictional error if an error of translation is material.
•SZSUT [2015] FCA 190 at [39] (Katzmann J);
7.Third, it must be remembered that the translator in the AAT is translating “live”, as compared to a person preparing an affidavit of translation after the event.
•Tobasi (2002) 122 FCR 322 at [50] (Mansfield J)
That is particularly relevant to arguments that a translation was not sufficiently detailed.
(emphasis omitted)
Mr Hill also made extensive oral arguments responding to the specifics of the interpretation and to the oral arguments advanced by Ms Costello.
Consideration
It is clear that the adequacy of interpretation of a hearing will depend on the circumstances of a particular case: see SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 (SZRMQ) per Allsop CJ at [5]. At [9], Allsop CJ found as follows:
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.
The “Hearing Record” of the 30 April 2015 hearing appears at AB 183. The interpreter is identified but no details of their NAATI level or accreditation number, if any, is recorded. Ms Costello submitted from the bar table that a search had been made of the NATTI public register and no person with the name of the interpreter appears. The Minister did not suggest otherwise. I proceed on the basis that it is open to the Court to infer that the interpreter who assisted during the hearing of 30 April 2015 was not a formally accredited interpreter.
The “Hearing Record” of the 22 May 2015 and 18 May 2016 Tribunal hearings appear at AB 204 and AB 222 respectively. The interpreters for both hearings each identified that they had NAATI Level 2 accreditation in Sri Lankan Tamil. However I note that the evidence (KR4) establishes that Mr Ramalingam who interpreted at the third hearing only very shortly afterwards in December 2016 achieved NAATI level 3 (professional) accreditation.
I proceed on the basis that it is not contentious that the interpreter provided for the first Tribunal hearing (on 30 April 2015) did not hold NAATI accreditation and that the interpreters provided at the second and third Tribunal hearings (22 May 2015 and 18 May 2016) each held “Level 2” accreditation in Sri Lankan Tamil, equivalent to a “paraprofessional” accreditation, which is a level below that of “professional”, the standard that NAATI considers to be required for interpretation of court proceedings.
In M175 of 2012 v Minister for Immigration and Citizenship [2007] FCA 1212 (M175), Gray J set out the relevant NAATI accreditation standards as follows at [23] to [28]:
23NAATI is a national standards body, established by the Governments of the Commonwealth, States and Territories. It sets and maintains standards of translation for written communications and interpretation for oral communications. It is also an accrediting body, providing the only officially accepted credentials for the profession of translating and interpreting in Australia.
24NAATI currently accredits at four levels for translators and interpreters. These levels are described as: Paraprofessional Translator and Paraprofessional Interpreter; Translator and Interpreter; Advanced Translator and Conference Interpreter; and Advanced Translator (Senior) and Conference Interpreter (Senior). The level of Paraprofessional corresponds with what was called NAATI Level 2 at the time of the Tribunal hearing, and the level of Interpreter corresponds with what was described as NAATI Level 3 at that time. Currently, the Interpreter level is described by NAATI as follows:
This is the first professional level and represents the minimum level of competence for professional interpreting. Interpreters convey the full meaning of the information from the source language into the target language in the appropriate style and register. Interpreters at this level are capable of interpreting across a wide range of subjects involving dialogues at specialist consultations. They are also capable of interpreting presentations by the consecutive mode. Their specialisations may include banking, law, health, and social and community services.
25 The standard required for Interpreter accreditation is described as follows:
This represents the minimum level of competence for professional interpreting. It may be regarded as the Australian professional standard. Interpreters are capable of interpreting across a wide range of subjects involving dialogues at specialist consultations. They are also capable of interpreting presentations by the consecutive mode.
26Under the heading “related tasks”, NAATI describes the Interpreter standard as involving:
•interpreting in both language directions for a wide range of subject areas usually involving specialist consultations with other professionals, e.g. doctor/patient, solicitor/client, bank manager/client, court interpreting
•interpreting in situations where a depth of linguistic ability in both languages is necessary
27It is to be noted that NAATI sees the Interpreter level (formerly Level 3) as being the standard required for interpreting court proceedings. In contrast, the Paraprofessional Interpreter, which was formerly known as Level 2, is described as follows:
This represents a level of competence in interpreting for the purpose of general conversations. Paraprofessional Interpreters generally undertake the interpretation of non-specialist dialogues. Practitioners at this level are encouraged to proceed to the professional levels of accreditation.
28The standard required for the Paraprofessional Interpreter is “a level of competence in interpreting for the purpose of general conversations, generally in the form of non-specialist dialogues.” The related tasks are:
•interpreting in general conversations
•interpreting in situations where specialised terminology or more sophisticated conceptual information is not required
•interpreting in situations where a depth of linguistic ability is not required
(emphasis added)
In SZHEW v Minister for Immigration and Border Protection [2009] FCA 783 (SZHEW), Jagot J held at [91] that:
The lack of NAATI accreditation may bear upon the drawing of inferences about the adequacy of the interpretation. But neither the lack nor the holding of NAATI accreditation provides a necessary answer to the question as to whether a hearing miscarried by reason of inadequate interpretation.”
I am satisfied that her Honour correctly expressed the law in that regard. Adopting such an approach is not to condone the use of unaccredited or lesser accredited interpreters if that can be avoided. Aspirational objectives such as set in the Tribunal’s guidelines are to be met whenever possible. However the pool of NAATI level 3 interpreters is not unlimited and their use in proceedings in the Tribunal is not the legal test for the validity or invalidity of a hearing required by s 425 of the Act.
Conversely, the adequacy of interpretation is not immunised from challenge merely because the interpreter possesses NAATI level 3 accreditation. The absence of NAATI accreditation may be relevant to the Court’s entitlement to draw inferences about the adequacy of a translation but I accept Mr Hill’s proposition that an interpretation is not established to be inadequate merely upon proof that the interpreter held no such accreditation.
I also accept Mr Hill’s submission that the absence of “professional” level interpreters for the Tribunal hearings is insufficient in and of itself to support a finding that the Appellant was deprived of a meaningful hearing and that the proceedings miscarried for want of procedural fairness.
I more specifically reject Ms Costello’s submission that, having regard to the evidence, the absence of a NAATI certified interpreter for the first hearing entitles the Court to infer that the standard of interpretation provided on that occasion fell below the Perera standard (Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6).
The only evidence before the Court as to the standard of interpretation provided during the first hearing is at [4] of the Appellant’s affidavit of 19 February 2018 in which he deposed:
Interpreter provided on 30 April 2015, sounded like he was of Indian origin and spoke a dialect that was different to Sri Lankan Tamil. I was only able to vaguely understand the interpreter especially when he was interpreting technical words.
Notwithstanding the Appellant and his legal advisors having had since that time to put on further evidence, the Appellant has neither identified any significant specific error in the interpretation of the evidence he gave in the first hearing before the Tribunal, nor has he put on evidence to demonstrate that, in the entirety of the circumstances, the overall level of interpretation provided was inadequate such that on that occasion he was deprived of the right to a meaningful hearing as required by s 425 of the Act.
Further and in any event, I do not accept Ms Costello’s submission that any error that might have been established (which I have declined to find to have been established) can be inferred to have infected the conduct and reasoning of the Tribunal as constituted when it affirmed the delegate’s decision.
The Tribunal was reconstituted when the member originally constituting it was not reappointed and ceased to be a member before completing the review. Ms Costello did not refer me to anything in the reasons of the Tribunal as reconstituted to suggest that it had taken into account anything stated by CPN16 during the first hearing as is relevant to the Tribunal’s conclusions regarding his failure to provide details of his experiences. That the Tribunal as reconstituted was referencing exclusively what had occurred during the hearing it had conducted is made clear at [50] of its reasons where the member stated:
his responses at hearing did not satisfy me that he was detailing experiences which he had in fact experienced - the escape from the camp, for example was provided with little or no detail, and any detail provided was as a result of me pushing him to provide detail.
Thus even if, contrary to my conclusion, inadequacy of interpretation can be imputed by reason of the want of accreditation of the interpreter and the evidence of the Appellant I find that such inadequacy was not material. If there was a deficiency in the interpretation of the first hearing, it was immaterial in respect of the hearings conducted by the Tribunal as reconstituted.
I therefore turn to that question.
Firstly, I reject that the standard of interpretation in the second and third hearings was generally inadequate. I accept Mr Hill’s submission that it must be remembered that the interpreter in the Tribunal was translating “live”, as compared to a person preparing an affidavit of interpretation after the event.
I acknowledge that Ms Costello took the Court to a number of specific instances in which the later typescript interpretations annexed to Ms Ranjithkumar’s affidavits show that, by contrast to the considered written text, the live interpretation of the Tribunal hearings contained obvious flaws. However, subject to an issue that I will later turn to (the adequacy of the translation in so far as it might have affected the Tribunal’s findings relating to the Appellant’s credit at [44], [45] and [50]), I reject that I should find that the translation of the proceedings in the Tribunal failed to meet the standard required to ensure the fairness of the hearing.
I accept Mr Hill’s oral submission that there was no flaw in the interpretation of either hearing in failing to communicate the substance of the Appellant’s claims to the Tribunal. I accept Mr Hill’s submission that the Court is entitled to reach that conclusion taking into account the Tribunal’s relatively comprehensive summary of the Appellant’s evidence at [14] and following.
The Court has read all of the transcripts annexed to Ms Ranjithkumar’s affidavits. In its opinion rather than casting doubt upon, their reading justifies the Court making such a finding. There was no relevant material inconsistency between the correctly interpreted evidence and the Tribunal’s summary at [14] and following of it, nor is there any material omission. I find that while CPN16’s evidence was not interpreted perfectly, its substance was more than adequately communicated to the Tribunal. I am reinforced in that conclusion by Ms Costello not having made a responsive submission to the contrary.

Had the Tribunal simply doubted the objective probability of such an account and made findings on that basis, the position may have been as Mr Hill submitted – that any flaws in interpretation were not material. However that is not what happened. Instead, at [45] the Tribunal rejected CPN16’s account of his having escaped from detention for reasons including those going to his credit and veracity. His want of credit was established by CPN16’s incapacity to provide details of the account he had provided and that such detail as he had provided had been provided only when pushed by the Tribunal. For that reason CPN16 did not satisfy the Tribunal that his evidence was an account of events he had actually experienced.
I accept Mr Hill’s submission that for a decision to be set aside because of an error or errors in interpretation, that error or those errors must be shown to have been material. It or they must go to an important point of the reasoning of a decision maker. Jurisdictional error is not established in the absence of such materiality.
I also accept that at [44] the Tribunal had also made findings about the objective improbability of one aspect of the Appellant’s account.
However, in the Court’s opinion, it is clear that what the Tribunal found at [45] with respect to the Appellant’s incapacity to provide details, reinforced with additional emphasis at [50], went to an important point of the reasoning of the Tribunal.
The Tribunal’s reasoning that the Appellant’s incapacity to provide details of what had happened to him entitled it to find that he had not told the truth about having paid a bribe to escape from detention with his employer, together with its findings at [44], explicitly became the foundation for the Tribunal further finding that CPN16 had not been the subject of further detention and interrogation by the Sri Lankan authorities. Those further findings flowed into the Tribunal’s ultimate conclusion that CPN16 would not be a person of any interest to them.
I distinguish Habtegebriel v Minister for Immigration & Multicultural Affairs [1999] FCA 1470 (Habtegebriel) in which Tamberlin J at [24] reasoned as follows:
I accept that there have been some misinterpretations by the original interpreter, but I am not persuaded that these misinterpretations are sufficient to warrant the setting aside of the findings of credibility made by the RRT member. This is because the RRT made its findings on the basis of country information and other evidence independent of these particular failures of communication.
I distinguish Habtegebriel on the basis that the impugned findings of the Tribunal at [44] and [50] in the present case were not independent of its other findings. Each flowed into and were relied upon in the Tribunal’s ultimate conclusions.
I therefore turn to whether or not Ms Costello makes good her submission that it was the mistranslation of CPN16’s evidence that led the Tribunal to make the findings it first recorded at [44] and repeated with additional explanation at [50].
The Tribunal’s interview with CPN16 as is directly relevant to his account of having been detained with his employer and his employer having been able to secure their release by payment of a bribe is reproduced in typescript in annexure KR1 to the affidavit of Ms Ranjithkumar dated 18 April 2018. The most relevant passages commence at p 5 of KR1 and run to p 15. The typescript signals anything said by the Tribunal by a line commencing with the letter “M” and anything said by CPN16 by a line commencing by the letter “P”. The interpretation of what was actually said is indicated by a line commencing with the letter “I”.
I have set out the relevant excerpts without alteration.
There are many instances where it is evident that during the interview, although the substance of a question may have been interpreted, the detail was not.
Thus (at 6) the following discussion occurred:
M: And where were you detained?
I: Where did they take you, which camp did they keep you?
P:When in I came [sic] from Vanni to Vavuniya, when the war was happening, and when the fighting stopped, that is when I came to Vavunya, The Army called us, and wanted us to move into their area. That is when they brought us to the camp.
I:So, I was taken from Vanni to Vavunya.
It is evident that in that instance a complex explanation with some considerable detail was summarised to its most basic component.
The exchange was continued immediately as follows:
M:       And do you know what kind of camp it was?
I:        What kind of camp was it?
P:There was a barbed wire all around, no one was able to go out, it was blocked all around, four stomps [sic] and there was a tin roof kind of thing, it was a temporary camp.
I:        That was a temporary camp. (Inaudible) fencing and had a temporary hut.
It is again evident that a responsive answer with some detail was not translated with that detail.
At p 8 the Tribunal asked about the false name CPN16 claimed he had given, and whether the Army had checked his ID card:
M: So the army soldiers would’ve checked your I.D. card wouldn’t they?
I: Then the army would have checked.
P:No they didn’t do it at that time. What was happening is, as they were conducting physical checks on people, there were more and more people coming through. On that day itself, they were conducting full physical checks on people including their belongings such as their bags, cloths [sic] and loading the people.
I:No they haven’t checked the I.D. card. Because too many people at the time, they were only looking for weapons.
Again a complex and detailed responsive answer was given but interpreted without that detail or any colour, and omitting much of the context.
The Tribunal then asked (at p 9) about how he and his employer had escaped:
M:       How did you leave this camp?
I:        How did you leave that camp?
P:        Gave money and escaped secretively.
I:        I paid money, then I escaped.
I:        Do you know who?
P:Those people who were there, without any of the army people’s knowledge, our shop owner has a a [sic] lot of influence there. He is the one who paid someone money and brought us out secretively.
I: My shop owner had some uh organised me to escape.
Again the interpretation was adequate to convey the basic facts of CPN16’s answer but it omitted the detail, including the contextually important element that went to how it might have been plausible that his employer had the influence to secure their release.
The Tribunal followed up immediately:
M: So how did you escape?
I: So how did you escape?
P:So there was an army who was working there, there was communication with outside that there are two people in the camp, and that those people should be let out. There was further communication with a more superior, and another person worked there has assisted by making a path for us to escape.
I:Member I need a clarification. Say it from the start.
P:An army who was working there, had communicated with his superior and told him that two people in the Camp, and asked to let us go. It was such people who arranged our path out.
I:Army who was working there right?
P:Yes someone who was is in army had arranged this for us to go out.
I:My shop owner spoke to the superior in the army, and then they helped me to escape and ….. (Inaudible)
I:You and your friend?
P:No one else, there were [sic] communication between different people in the Army hierarchy, one of them had arranged our escape secretively.
I:That superior spoke to an army soldier in the camp and he helped two of us to get out of the camp.
As I understand that exchange, the Tribunal had asked how the Appellant and his employer had escaped. CPN16 had given a detailed and responsive answer which perhaps the interpreter found too long to capture, but in any event his original reply was not interpreted. The interpreter then had asked him to “say it again” and again a complex and detailed answer was given, but which was summarised to his shop owner having spoken “to the superior in the army, and then they helped me to escape”. The exchange as the Tribunal would have apprehended it lacked all colour, context and detail of the negotiation.
The Tribunal then asked (at p 10):
M: But how did that happen?
I: How did that happen?
P:One night, our shop owner was the one who was communicating with those people, I didn’t know anything about that. He is the one who spoke to them. Then once when we were in our cottage, the Army came, and called our names as registered in the camp, and directed us two to escape through a way.
I:That was the night time; shop owner spoke to them and one day the army soldier came and he called my name and he showed me the way to get out of the camp.
Again a responsive answer with details including references to the cottage where they had been staying and their having been called by the names in they had been registered was interpreted without that detail and context.
The Tribunal then asked about how they had been assisted through the camp’s fence:
M:       And where was the way through the fencing?
I:        Which way did they let you go?
P:Which way? At the back, they arranged like a bridge and asked us to go through that.
I:        He made a way at the back of the fencing.
M:       How?
I:        How?
P:        How I can say that.
I:        You said they made you a way, how was that?
P:During that night. The fence was electrified, so they were the people who had arranged the way to get out. I don’t know how they did that. However, they called me and the shop owner and asked us to follow them. They made a way out secretively and told us to go through that, and that is how we left.
I:Usually that fencing was electrified, but my shop owner spoke to the army and then they organised us organised [sic] then they showed the way to (inaudible).
Again, while the core point may have been conveyed, most of the detail was lost in the interpretation.
The Tribunal then asked about the fence (at p 11):
M: Can you describe the fence to me?
I: How was that fence? The fence?
P:Actually, there was a barbed wire fence. The barbed wire was at arm level, which was taller than a person. And the outside was looped with big curly metal wires.
In this instance CPN16’s answer was interpreted as:
It was a two layer fencing, and that has a that’s [sic] a wire fencing above a man’s normal height and there was one layer was straight wires and next layer was spiral wires.
That interpretation did not convey the ease of expression “at arm level” of the original. Nor did it describe the fence as having been made of barbed wire. It interpreted that “the outside was looped with big curly metal wires” as meaning that there were two layers of fencing, the second with spiral wires. CPN16’s answer set off a chain of queries from the Tribunal about the “spiral wires”.
In response CPN16 continued to refer to the wire outside as “curly looped” and being outside. That resulted (at p 12) in an almost Monty Python absurd exchange:
M:       Spiral wires?
I:        Did you say curly curly looped?
P:        They had curly metal wire at the outside.
I:        That was the outer layer.
M:       It was spiral wire though?
I:        Was it curly curly looped?
P:        Yes it was curly and long at the bottom.
I:        Yes that was spiral.
M:       With sharp bits on the spirals?
I:        On the curly bit were there thorns?
P:        Yes there were thorns
I:        Yes it had.
The upshot of that exchange was that the Tribunal had no idea that CPN16 had sought for a considerable time to convey what he had said originally, but never had been able to do so.
The Tribunal then asked how the Appellant had got through the fence:
P:In that area, they were holding it for us, asking us to go through that. They made like a way for us to go through, two army persons had made such a way.
I: That army soldier made a way for us to come out.
That interpretation may have conveyed the core of what CPN16 explained to the Tribunal but it did not convey the detail or some of its sense – that there were two soldiers already holding the way open for him and his employer to pass through. To the contrary, it conveys as CPN16’s evidence that only one soldier was involved and he had had to make a way for them to come out. That understandably led the Tribunal to ask (the typescript interpretation might suggest cynically), “Yea how?”
The Tribunal’s question, when it was interpreted, was responded to by CPN16 with understandable puzzlement: “Do you mean how the made for us to get out? They were holding the fence apart and made way to get out”. The interpreter then appears to have made things worse by asking, unprompted by the Tribunal, “so did they cut it?” Confusion appears to have ensued. CPN16 continued to give his answers on the premise he had explained that the fence was being held open when he and his employer had come out; the Tribunal wanting to know if he had seen it being cut.
The Tribunal then pressed CPN16 regarding a possible inconsistency between his account of his employer having to bribe their way out and his description of events in an earlier statutory declaration:
M:Now you’re saying in your statutory declaration that earlier you had said you’re [sic] allowed to go because your boss needed medical attention.
I:You said in your statutory declaration that you had to escape as your shop owner needed medical attention.
P:Not only that, we couldn’t stay in there. Also my leg was injured and his eye sight was lost, that is why he tried our escape.
I: We both had medical issues.
(p 12 line 414 to p 13 line 419)
The interpretation “we both had medical issues” omits all contextual detail from the answer the Appellant had given.
The same is true of the Appellant’s response to further questioning by the Tribunal on the same subject when it had been suggested to him that he was changing his story:
I: I feel that you are changing what you are saying a little now.
P:The question before was as to how I came out, not why I came out, that I why I responded like that.
I:You asked me how I came out of the camp, you didn’t ask me the reasons for that. That’s why I said how I came out.
P:You only asked how I went out, who organised it, but he didn’t ask why I went out, that is why I said like that.
I:Yes member, I only explained about how I came out, you haven’t asked me about the reasons.
M:So what were the reasons for you coming out?
I:What is the reason for coming out.
P:The reason was his eyes. There was no medical fascilities [sic] at the camp. There was no proper treatment at the camp. And we also had to do a surgery for him. Also I had a leg injury. Based on that the owner was able to bargain our escape.
I:There was no medical facilities in the camp to treat his eye and I had an injury in my foot in my leg so we decided to go out.
(p 13 line 428 to 444)
It is evident that the interpretation of the Appellant’s explanation omitted critical detail as to the circumstances that had been involved. As Ms Costello submitted, it omits any mention of his employer having bargained for their escape.
There are many more such instances but those examples are sufficient in the Court’s opinion to establish that the Tribunal’s foundation for concluding that CPN16 had been unable to provide details of the circumstance of his escape from detention, and, to the extent he had provided details he had done so as a result of the Tribunal’s pushing him, was flawed.
In this more specific context I am entitled to distinguish between the general adequacy of the interpretation to identify the history given by CPN16 and its gross inadequacy to convey details in context of his account. For that task more than NAATI para-professional skill was required. In that regard I am entitled to proceed on the basis of Jagot J’s reasoning in SZHEW at [91] that “[t]he lack of NAATI accreditation may bear upon the drawing of inferences about the adequacy of the interpretation”. In any event, I am satisfied that the interpretation was inadequate to provide a legitimate basis for the findings made by the Tribunal at [45] and [50].
I accept Mr Hill’s submission that the Tribunal then took CPN16 back to that evidence with the intention of giving him an opportunity to clarify and respond to the concerns the member had formed as it later expressed at [45] and [50]. I accept that had the Tribunal presented CPN16 with a genuine opportunity to respond to those concerns that may have been sufficient for the Court not to hold that CPN16’s hearing was substantively unfair as required by s 425 of the Act.
However such intended opportunities were also inadequately interpreted.
Thus at p 35 of the annexure KR1 to the affidavit of Ms Ranjithkumar of 25 May 2018, the following appears as an aspect of what Mr Hill appropriately described as “puttage”:
M:      Okay let me be clear. Given the inconsistencies in your evidence over time.
I:        In the evidence you gave there are inconsistencies.
M: Given the vagueness of the description of how you escape from the camp and your periods of detention
I: there are some faulse [sic] information about how you escaped from the camp
M:      Given the implausibility of many of your claims, including remaining in Vavuniya for six weeks
I: You are telling you stayed in Vavuniya six weeks. The credibility of that also like this…
M:      For the reasons you’ve claims [sic]
I:        The reasons you say also not true.
What the member intended to put to CPN16 as the Tribunal’s concerns regarding the vagueness of his evidence to which he might have responded was interpreted to CPN16 as the Tribunal already having concluded that he had given false evidence regarding his escape from the camp. His responses understandably went to denials that his account was false, rather than to providing further details of his account.
Similarly, following the long passage so commenced in which the member recites what he expected would be interpreted to CPN16 as what he might find the Tribunal put the following to CPN16 (at p 38):
M:Yes today I asked you more questions about how you escape from the camp. But you answered those in a vague and generalised way.
That proposition was interpreted as follows:
I:I asked you to explain how you escaped. But, you haven’t explained it properly.
Given such misunderstandings of interpretation bedevilled even the Tribunal’s intent to permit CPN16 to respond to its concerns regarding the vagueness of what (incorrectly) had been conveyed to it as the detail of his account of his first detention and release, I reject Mr Hill’s submission that I should find that that intended purpose was given effect to.
I also accept the submission put by Ms Costello that the effect of the Appellant’s evidence as to why his employer had registered him as his son was not fully communicated to the Tribunal. The Appellant had sought to communicate that the purpose of being registered as the employer’s son was to avoid being identified as a single male, as single men were detained in the intelligence division of the camp. That explanation was not conveyed to the Tribunal. That omitted detail may also have played its part in respect of the Tribunal’s conclusion that the Appellant was giving a vague or implausible account of the events that took place, and contributed to its finding that his evidence lacked credit.
As the effect of the deficient interpretation the Court has identified led the Tribunal to make a material finding relevant to the Tribunal’s ultimate conclusion without a proper basis, the Court is satisfied that CPN16 was thereby deprived of the hearing to which he was entitled under s 425 of the Act. The Tribunal’s decision should have been set aside by the primary judge on that basis.

Consistent with the Minister’s submission that the question of leave to rely on a ground not advanced in the Court below is to be resolved having regard to the Court’s conclusions as to its merits, I grant such leave.
Finally, I observe that Ms Costello submitted that what occurred in these proceedings was the fault of the interpreters not the Tribunal. The Court finds no necessity to attribute blame. It notes this case is a reminder that the Tribunal’s “Guidelines for Interpreters” exist for good reason. A Tribunal unable to secure the assistance of an interpreter holding NAATI level 3 accreditation or higher should be conscious of potential dangers in making findings as to credit based on considerations such as arose in this proceeding.
DISPOSITION
The Court allows the Appellant’s appeal on the single ground for which leave has been granted.
On 27 February 2018 the Court made an order that the Appellant pay the First Respondent’s costs thrown away by reason of the adjournment and the amended notice of appeal as agreed or assessed, but not exceeding a sum of $3,000.
Subject to that order, the Appellant should have his costs of this appeal.
The Court will not disturb the costs orders made in favour of the Minister in the court below. The Court’s exercise of discretion in that regard has been influenced both by the absence of merit in the grounds CPN16 originally contended for before the primary judge, and the absence of any merit in the single ground of appeal CPN16 originally advanced in this Court. The Court also takes into account the general delinquency on the part of the Appellant in complying with procedural orders made by this Court. But for the restraint exercised by the Minister and his legal representatives as a model litigant, the merits of this appeal may never have been reached.

I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.
Associate:
Dated: 12 June 2018

Appeal from:	CPN16 v Minister for Immigration and Border Protection [2017] FCCA 2424
File number:	VID 1107 of 2017
Judge:	KERR J
Date of judgment:	7 June 2018
Catchwords:	MIGRATION – appeal from the Federal Circuit Court of Australia – where primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister refusing the appellant’s visa application – where appellant seeks to advance grounds of appeal not agitated before primary judge – whether interpretation of Tribunal hearings was so inadequate to constitute a failure to provide the appellant with a hearing as required by s 425 of the Migration Act 1958 (Cth) – where Tribunal made adverse credibility findings on the basis of the lack of detail in Appellant’s evidence – leave to rely on new grounds granted – appeal allowed
Legislation:	Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth) s 24 Migration Act 1958 (Cth) ss 36, 425
Cases cited:	Coshott v Crouch [2017] FCAFC 135; (2017) 253 FCR 413 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Habtegebriel v Minister for Immigration & Multicultural Affairs [1999] FCA 1470 M175 of 2012 v Minister for Immigration and Citizenship [2007] FCA 1212 Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 SZHEW v Minister for Immigration and Border Protection [2009] FCA 783 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 SZSFS v Minister for Immigration and Border Protection [2015] FCA 534; (2015) 232 FCR 262 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405
Date of hearing:	4 and 7 June 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	123
Counsel for the Appellant:	Ms G A Costello
Solicitor for the Appellant:	Kajaliny Ranjith Legal
Counsel for the First Respondent:	Mr G A Hill
Solicitor for the First Respondent:	Mills Oakley
Counsel for the Second Respondent:	The Second Respondent filed a submitting appearance, save as to costs