EBS18 v Administrative Appeals Tribunal

[2020] FCA 1338

FEDERAL COURT OF AUSTRALIA

EBS18 v Administrative Appeals Tribunal [2020] FCA 1338  

Appeal from:	EBS18 v Administrative Appeals Tribunal [2019] FCCA 3147
File number:	WAD 558 of 2019
Judgment of:	PERRAM J
Date of judgment:	17 September 2020
Catchwords:	MIGRATION – appeal from Federal Circuit Court – whether Court’s failure to allow Appellants to produce further evidence constituted denial of procedural fairness – where Appellants contend evidence before Administrative Appeals Tribunal was mistranslated by interpreter – where Appellants did not provide Court with transcript
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	7
Date of last submissions:	28 May 2020 (Appellants) 5 June 2020 (Second Respondent)
Date of hearing:	Determined on the papers
Division:	General Division
Registry:	New South Wales
Solicitor for the Appellants:	Lily Chen & Associates
Counsel for the First Respondent:	The First Respondent filed a submitting notice
Counsel for the Second Respondent:	S J Oliver
Solicitors for the Second Respondent:	Australian Government Solicitor

ORDERS

WAD 558 of 2019

BETWEEN:

EBS18

First Appellant

EBT18

Second Appellant

EB418

Third Appellant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

ORDER MADE BY:	PERRAM J
DATE OF ORDER:	17 SEPTEMBER 2020

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The First and Second Appellant pay the Second Respondents’ costs.

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

REASONS FOR JUDGMENT

PERRAM J:

1. In this appeal from the Federal Circuit Court, the Appellants submit they were denied procedural fairness because that Court did not give them an opportunity to lead further evidence at trial.  The trial was held on 9 October 2019 at which time they were represented by a solicitor.  Their application was dismissed immediately following the trial with the trial judge delivering oral reasons in open court: EBS18 v Administrative Appeals Tribunal [2019] FCCA 3147. The application had been to quash a decision of the Administrative Appeals Tribunal (‘the Tribunal’) affirming the Minister’s refusal under delegation to grant the Appellants protection visas so they would not have to return to Malaysia. The Appellants are a Malaysian family and include a husband (First Appellant), his wife (Second Appellant) and their infant child (Third Appellant).

2. In the Tribunal an interpreter in Mandarin had assisted the Appellants. One of the Appellants’ submissions to the trial Court was that the Tribunal had denied them procedural fairness because of mistranslations by the interpreter (Ground 2). The trial Court rejected that argument. In this Court the Appellants advance only one argument that the trial Court ‘should have allowed time for the Appellants to produce a transcript of the hearing or audio and highlight the mistakes of the interpreter’: Appellants’ Submissions [4].

3. At trial the salient features of the affidavit evidence given by the First and Second Appellants were as follows:

   ·There were three hearings in the Tribunal.

   ·At the second hearing the interpreter did not translate the answers given by the husband and wife into correct English.

   ·The interpreter had made about 40 mistakes in translating the testimony of the husband and wife into English for the Tribunal.  Of these 40 mistakes, one was specifically identified in the evidence as an incorrect rendering of an answer given by the wife from ‘From 2013’ to ‘Since 2012’ but the remaining mistakes were not explained.

   ·The errors had been noticed by the wife who spoke a little English but not by the husband whose English was not good.

   ·The Tribunal appeared to regard some of the answers given by the husband and wife as illogical and appeared upset by them.

   ·The wife protested about the quality of the interpreter during the second hearing.

   ·The Tribunal told the wife to be silent otherwise she would be thrown out of the hearing.

4. The trial Court observed at [41]-[42] that the Appellants had not put into evidence the transcript of the second hearing before the Tribunal.  At [48]-[49] it concluded that the evidence of the husband and wife was not sufficiently detailed to permit a conclusion in their favour as to the unfairness of the second hearing.  The Appellants’ submission is that rather than rejecting their case at that point (for want of detail) the trial Court should instead have granted them an adjournment to obtain more evidence.

5. It is not clear that the Appellants sought an adjournment from the trial Court or, if they did, that it rejected the application.  However, it is not necessary to resolve those issues.  If one assumes the Appellants are correct that the trial Court erred in law in not granting them an adjournment, the submission goes nowhere.  This is because the trial Court also reasoned at [45]-[46] that whatever the problems with the second hearing might have been, the reasons of the Tribunal showed that the Appellants had an opportunity at the third hearing where a different interpreter was used to point out those difficulties but had not done so.   According to the trial Court at the start of the third hearing the Tribunal member summarised what had been said at the second hearing and invited the Appellants to comment.

6. It is clear from the written submissions prepared on the Appellants’ behalf in this Court that they do not contest that conclusion.  I do not say that the trial Court’s reasoning in this fashion is incontestable but only that the Appellants have not, in fact, contested it.  As a matter of logic their failure to do so is fatal to their appeal.  Proving that the second hearing was unfair is a pointless endeavour whilst there remains in place a finding that the third hearing cured any such unfairness.

7. Assuming in the Appellants’ favour that the trial Court erred in not granting them an adjournment to gather evidence to prove the unfairness of the second hearing, this can go nowhere where there is no challenge to the reasoning that any such unfairness was cured by the third hearing.  The error the Appellants contend for in the trial Court’s reasons cannot therefore ever be material to the outcome of the case and there is no point resolving it.  The appeal must be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

Associate:

Dated:       17 September 2020