Kumar v Minister for Immigration and Border Protection
[2021] FCCA 1868
•10 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kumar v Minister for Immigration and Border Protection [2021] FCCA 1868
File number(s): MLG 167 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 10 August 2021 Catchwords: MIGRATION – judicial review – citizen of India – decision of Administrative Appeals Tribunal – Partner (Temporary) (Class UK) Subclass 820 visa
PRACTICE AND PROCEDURE – where applicant alleges errors in interpreting at first hearing – whether further submissions and hearings
Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s 55
Federal Circuit Court Rules 1999 (Cth)
Cases cited: Bunnag v Minister for Immigration (No.2) [2008] FMCA 430
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436
Number of paragraphs: 11 Date of hearing: 10 August 2021 Place: Perth For the Applicant: Appeared in person (via Microsoft Teams with the assistance of a Punjabi Interpreter) Counsel for the First Respondent: Mr K. Sypott (via Microsoft Teams) Solicitor for the Respondents: Australian Government Solicitor For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 167 of 2017 BETWEEN: RAKESH KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
10 AUGUST 2021
THE COURT ORDERS THAT:
1.By 7 September 2021 a Registrar of this Court provide to the parties by email:
(a)an electronic copy of the recording of the proceeding of this matter on 26 July 2021 at 10:01 am to 11:02 am (“the Proceedings”); and
(b)an electronic copy of the written transcript of the Proceedings, produced for the Commonwealth by Auscript.
2.By 7 October 2021 the Applicant file and serve any affidavits concerning any alleged errors by the interpreter in interpreting what was said by the parties or by the Court in the Proceedings.
3.If the Applicant does not comply with Order 2, the matter remains reserved for judgment on the basis of the Proceedings as they presently stand.
4.If the Applicant does comply with Order 2:
(a)the First Respondent to file and serve any affidavits in reply by 7 November 2021, limited to the issue of errors in interpreting the Proceedings;
(b)the Applicant to file and serve written submissions by 7 December 2021, limited to the issue of errors in interpreting the Proceedings;
(c)the First Respondent to file and serve any written submissions in reply by 7 January 2021, limited to the issue of errors in interpreting the Proceedings;
(d)the matter be listed for further hearing at 12:30 pm AWST / 3:30 pm AEDT on 24 January 2022, with leave for the parties to appear via video link; and
(e)pursuant to s 55(1) of the Federal Circuit Court of Australia Act 1999 (Cth) the hearing be limited to a total hearing time of 1 hour and 15 minutes, with the Applicant and First Respondent being given a maximum of 30 minutes each for oral submissions and the Applicant being given a maximum 10 minutes for oral submissions in reply.
5.The costs of today be reserved.
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
This matter was before the Court for final hearing on 26 July 2021. The matter was heard on that day by way of Microsoft Teams link, with the Court sitting in Perth, and the applicant (“Mr Kumar”), assisted by a Punjabi interpreter, and the Minister’s representative all appearing from Victoria. That hearing went for just over an hour, from 10.01 am to 11.02 am AWST. At 11.07 am AWST, five minutes after the hearing had finished, Mr Kumar emailed the Chambers of the presiding Judge. Relevantly, that email was in the following terms:
Thanks for giving me the opportunity, to attend the hearing I was not able to explain my best because the interpreter was not communicating properly and I am not satisfied with interpreter
In last I try explaining myself because the interpreter was not saying what I meant to say
The Court notes that the issue was raised promptly following the completion of the hearing, and although it was not raised at the hearing, that might be attributed to a number of factors, including the fact that Mr Kumar is self-represented, has English as a second language, and also that the matter might not have been appropriate to raise in front of the then interpreter.
A reply was sent at 2.53 pm AWST the same day, from Chambers, indicating as follows:
(a)that the hearing would be reconvened in light of Mr Kumar’s concerns;
(b)that the further hearing would be listed for today; and
(c)that a different Punjabi interpreter would be made available to assist Mr Kumar.
The Court notes that a written transcript of the proceedings on 26 July 2021 has already been produced. It has not presently been read by the Court. At the hearing today, Mr Kumar essentially reiterated his concern about the standard of interpretation by the previous interpreter, complaining that:
(a)the proceedings were not interpreted properly, and that “a few lines were being missed”;
(b)shortened versions of what he actually said were being interpreted by the interpreter; and
(c)there was at least one specific mistake with respect to a description of the nature of the visa presently under consideration.
The Minister’s lawyer made some submissions today but, both in opening and concluding, quite properly submitted that the matter was one, ultimately, for the Court to determine. With respect to the issue of interpretation, the Full Court of the Federal Court in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 (“SZRMQ”) per Allsop CJ at [9], said 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.
See also SZRMQ at [24] per Allsop CJ and [66] per Robertson J.
In essence, it is the case that to enable an applicant to understand the proceedings and therefore to be afforded procedural fairness, and for the principles of open justice to be met, the proceedings need to be adequately interpreted for an applicant.
In the Court’s view, it may be a risky endeavour, and possibly a denial of procedural fairness, were the Court to proceed to determine this matter without resolving Mr Kumar’s complaint. In the Court’s view, it would not be in the interests of justice to simply ignore the issue. It is not possible to determine whether Mr Kumar’s complaint has any substance unless there is further evidence. Evidence of any possible interpreter error can only be determined by listening to the recording of the proceedings on 26 July 2021 and either having the proceedings re-transcribed or by the identification of specific errors said to have occurred in the interpretation. It will be necessary for the parties to have access to the electronic recording of the proceedings on 26 July 2021 and the written transcript which has been produced by Auscript, in order to facilitate the necessary evidence of any alleged interpretation errors being put before the Court.
It will then be necessary for the parties to put on affidavit evidence with respect to the interpretation of the proceedings on 26 July 2021, whether by way of a complete reinterpretation or by reference to specific alleged errors in interpretation. If no affidavit as to any alleged error is filed by Mr Kumar, the matter will be determined on the basis of the papers as they presently stand. If Mr Kumar files an affidavit or affidavits alleging error in the interpretation of the proceedings on 26 July 2021, it is appropriate that the Minister be given an opportunity to reply to those affidavits. The parties will then have to file and serve written submissions concerning any of those alleged errors.
The Court notes that those submissions will need to be filed with the Melbourne Registry of the Court and that submissions are not to be made by way of forwarding emails to the presiding Judge’s Chambers. There was a tendency by Mr Kumar, prior to the previous hearing, to send what seemingly amounted to submissions to the presiding Judge’s Chambers. That is not a course of action that should be continued, and any submission directed to Chambers will not be considered. The submissions must be filed and served in the Melbourne Registry, and so too the affidavits.
The matter will then be relisted for a further hearing with a maximum duration of 1 hour and 15 minutes, with each of the parties being given 30 minutes to make oral submissions to the Court and 10 minutes for any oral submissions in reply by Mr Kumar. Those limitations are imposed in accordance with s 55(1) of the Federal Circuit Court of Australia Act 1999 (Cth). The Court stresses that this is not a reopening of the case generally but rather a reopening specifically for the purpose of addressing any alleged errors in the interpretation of the proceedings on 26 July 2021.
Insofar as the question of further and increased costs is concerned, the Court notes that costs in migration matters need not be limited to the schedule of costs under the Federal Circuit Court Rules 1999 (Cth) and that costs may be increased or decreased in the Court’s discretion: Bunnag v Minister for Immigration (No.2) [2008] FMCA 430, at [18] per Lucev FM. For today’s purposes, however, it suffices to observe that the costs of today will be reserved. In the circumstances, the Court proposes to make orders as outlined above.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 August 2021
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