Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 700
•15 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 700
File number(s): SYG 1594 of 2021 Judgment of: JUDGE MCCABE Date of judgment: 15 May 2025 Catchwords: MIGRATION – judicial review of a decision made by the Administrative Appeals Tribunal – student visa – whether s 366C of the Migration Act 1958 (Cth) was enlivened – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 366C
Migration Regulations 1994 (Cth)
Cases cited: Mustafa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1011
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 1 May 2025 Place: Sydney Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr M Burnham (Sparke Helmore Lawyers) Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1594 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI HA MY NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVCES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
15 MAY 2025
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MCCABE:
It surely comes as no surprise that applicants in migration matters might experience language difficulties. For this reason, s 366C(1) of the Migration Act 1958 (Cth) requires the Administrative Appeals Tribunal to provide applicants seeking review of a Part Five reviewable decision - which includes student visas - with an interpreter on request. (Section 366C(2) contemplates the Tribunal refusing that request where "it considers that the person is sufficiently proficient in English", but that presumably does not occur very often.) Access to competent interpreters is essential if applicants with poor English language skills are to get a fair hearing. If applicants cannot understand what is being said, or cannot make themselves understood, they are effectively denied the opportunity to present their case. But what happens where an applicant with limited English does not ask for an interpreter, or denies they need one?
That eventuality is addressed in s 366C(3). Where "the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English", the Tribunal must appoint an interpreter. The Tribunal's obligation to act is engaged once it forms the requisite opinion of the applicant's language skills. The obligation is not conditioned on the applicant's agreement.
In this case, neither the applicant nor her representative requested an interpreter at any point in the proceedings. Yet the applicant argues the transcript of the Tribunal's hearing makes clear the applicant had difficulty communicating with the Tribunal. There is nothing in the transcript or the reasons for decision which suggests the Tribunal turned its mind to the question of whether the applicant was sufficiently proficient in English to continue. While the Tribunal obviously had some difficulty with the applicant's evidence, the Tribunal looked to the representative to clarify and explain what was said. After this unusual exercise in evidence gathering, the Tribunal decided to affirm the delegate's decision to deny the applicant a Student (Class TU) (Subclass 500) visa.
At the hearing before me, the applicant did have the assistance of an interpreter. She nonetheless repeatedly attempted to answer questions in English without waiting for the interpreter's assistance. She was difficult to understand when she did so. But her difficulties in communicating with me at the hearing were not solely attributable to her language skills. Her answers were often non-responsive to the questions she was asked, even with the assistance of an interpreter. She wanted to talk about the unsatisfactory performance of her representative at the hearing, and she insisted on attempting to clarify some of the factual matters that were discussed by the Tribunal. Those matters are not relevant to the central issue before me: namely, whether the Tribunal's decision is affected by a material jurisdictional error. The potential error referred to in the amended application for review filed 1 December 2021 was the denial of natural justice that supposedly occurred as a result of the Tribunal failing to comply with its obligation in s 366C(3). The statement of grounds in the amended application for review says the Tribunal was obliged to appoint an interpreter when the applicant's lack of proficiency in English became obvious during the hearing. To the extent the Tribunal missed what the applicant now says was an obvious problem with her English language skills, the applicant says the Tribunal's decision to proceed was irrational, and therefore legally unreasonable.
The minister says the applicant did not ask for an interpreter, and the Tribunal had no reason to question whether she required one in the circumstances. While the minister concedes there were some communication difficulties apparent in the transcript, the minister argues the Tribunal would not necessarily have attributed those difficulties to insufficient proficiency in the English language.
I am satisfied the Tribunal had no reason to summon an interpreter prior to the hearing. While there were difficulties with the applicant's participation apparent in the transcript, I am not persuaded the obligation to provide an interpreter under s 366C(3) was enlivened as the hearing unfolded, which means there was no want of procedural fairness. I am also not persuaded the Tribunal failed to seek comment or request evidence as alleged. That means the application for review must be dismissed. I explain my reasons below.
Background to these proceedings
The applicant is a citizen of Vietnam. She entered Australia in 2013 on a student visa. She has held several different types of visas while remaining here, including visitor visas and bridging visas. She has also undertaken courses involving the study of English. In March 2019, she applied for a new student visa so she could undertake further study.
A delegate of the minister refused the visa application. That decision is dated 9 August 2019. The delegate was not satisfied the applicant genuinely intended to stay in Australia temporarily. The applicant was therefore unable to satisfy the requirements in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth).
The application for review in the Tribunal
The applicant asked the Tribunal to review the delegate's decision. The Tribunal's lodgement records are reproduced in exhibit one (the court book) at pp 85-86. The form asks whether the applicant requires an interpreter, and the applicant answered 'no' (at p 85). She was not represented by an agent at the time.
The Tribunal wrote to the applicant on 21 May 2020 to invite her to provide information about her case pursuant to s 359(2) of the Act. She appointed a lawyer to represent her. The response to the s 359 letter is reproduced in the court book at pp 107ff. At p 108, she confirmed she did not require an interpreter at the hearing. The Tribunal then wrote to the applicant on 15 January 2021 to invite her to appear at a hearing on 22 February 2021. That hearing was postponed twice. When a fresh hearing was listed for 1 July 2021, the applicant was again asked to provide information in the ‘Response to hearing invitation' form like the one she filed earlier (reproduced in the court book at pp151ff). In that form, she confirmed there was nothing that would affect her ability to participate in the hearing. She did not answer the separate question in the form about whether she required an interpreter: at p 152.
The applicant attended the hearing on 1 July 2021 with her representative. The applicant told me she was unhappy with the representative's service on that occasion: the applicant says she had not met the representative prior to the hearing and only conversed with them over the phone. Be that as it may, the pair joined the hearing together. The hearing was held remotely by video conference. The Tribunal's documents (reproduced at p 166 of the court book) record the hearing attendant administering an affirmation to both the applicant and her representative at the start of the hearing. (The representative, Mr Pham, was sworn in at the express request of the presiding member.) There was no interpreter present.
Things did not go smoothly in the hearing. That much is apparent from the transcript which was annexed to an affidavit of Arash Arabghani affirmed 8 November 2021.
The Tribunal commenced by asking the applicant a series of questions seeking clarification of information contained in a statement she had provided. The applicant answered the questions in English. The Tribunal asked the applicant why she appeared to enrol in the same course twice. The following exchange occurred (transcript at p 3):
Q. --from April to July. I don't understand that. Why would you enrol in the
same course twice?
A. APPLICANT: Do you know why? I didn't, I didn't attend one meeting forum
at the college and the provider actually ran our college mentioned I had very
much potential if it's the proper career path for a number of student,
international student, in, in future if they would like to be a, a room leader and
support interpersonal skill in general, education skill so - and I took the advice
from .. (not transcribable) .. from my trainer but, and so I took advice from the
.. (not transcribable) .. and should I attend, should I enrol in this course or not
and--
Q. Yes, could you explain that, Mr Pham, thanks?
A. PHAM: I'm sorry to interrupt, member.
The Tribunal and the representative then interacted at length about what occurred and some of the records without reference to the applicant. After that lengthy exchange, the applicant resumed her evidence as the Tribunal read through documents recording her study history. At p 6 of the transcript, the Tribunal is recorded asking a specific question about a document described as a progression letter. The applicant responded confusingly: "Yes, please, would you like to have any question, Mr Brian?". (Mr Brian was a reference to the Tribunal member.) When the Tribunal went on to ask about another certificate of enrolment, Mr Pham interjected to explain the documents. The Tribunal then reverted to the applicant to ask about her plans. The following exchange is recorded at p 7 of the transcript:
Q. …Now just explain to me, Mr Nguyen, why are do you propose to do this further course in leadership and management? How is that going to assist your skill level?
A. APPLICANT: Sorry, Mr Brian, can you please restate why…[not transcribed]…
Q: Yes. No, that's all right.
A. APPLICANT: Thank you.
That exchange is confusing on its face, but I accept it may be made less comprehensible to the reader because the transcription apparently did not capture everything that was said. Perhaps it made more sense to those on the call. But I note the transcript records (at p 7) the Tribunal essentially repeating the question. The applicant responded:
A. APPLICANT: In general it's a - I would like to answer. Actually, this Diploma in Leadership and Management will support the students who working in childcare actually develop in policy and procedures but also they will go by the learning outcomes .. (not transcribable) .. seeking employment into the manager position. So, in my prior field that will prove in my general, in general education skill and interpersonal skill in future.
The applicant’s answer was responsive, if not fluent. The applicant was thereafter asked a series of questions about her family. The answers are provided coherently until the applicant was questioned about her father's business (transcript at p 8). The following exchange occurred:
Q. Okay, and what does your father do?
A. APPLICANT: My father run a small business--
Q. And what's his business?
A. APPLICANT: --like a house business, like sell some stuff for building the
house, you know.
Q. Sorry, could you repeat that?
A . PHAM: Can I speak on her behalf if that's all right?
Q. Yes. Yes, that's why you were sworn in. Yes.
A. PHAM: What the applicant was referring to is her father sells, you know,
equipment used for - you know, one of those warehouses where people buy
equipment to build a house and maintain houses.
The Tribunal's comment directed to Mr Pham when he sought to intervene ("Yes. Yes, that's why you were sworn in") is perplexing. Mr Pham was there as a representative, not a witness or interpreter. Having said that, the applicant's answer was reasonably clear. The answer might not have been fluent, but it was intelligble and does not suggest a lack of comprehension on her part. Mr Pham interjected again when the applicant was being questioned (transcript at p 9) about her ability to support herself. The exchange unfolded as follows:
Q. How are you supporting yourself?
A. APPLICANT: How can I support by myself?
Q. Yes, how much does it cost you to live?
A. PHAM: Can I speak on the applicant's behalf?
Q. Yes, that's why you were sworn in. Yes.
Mr Pham then proceeded to answer the Tribunal's question. A few moments later, the Tribunal asked the applicant about the relative with whom she lived. The exchange (transcript at p 9) followed:
Q. Yes, you live with a relative. Who is the relative? It's on your father's side.
Is it an uncle or is it a couple? Is it an aunt? What's the relationship?
A. APPLICANT: That a, they're relations, like from second generation but
they do, they run a restaurant. They run a restaurant and so father and the
mother--
Q. Yes, but what is the relationship? Is it your father's brother? Is it your
father's cousin? What is the relationship?
A. APPLICANT: My father's aunty, you know.
Q. Mr Pham, could you explain what--
A. PHAM: There's a person there who she is referring to an aunty.
Q. So what is the relationship then to the family with this woman?
A. PHAM: I would probably say just the far distant aunty, not as in close as in
the siblings of her parents but just say a far distant aunty.
It is unclear why the Tribunal so quickly resorted to dealing with Mr Pham in the course of this exchange. The applicant's responses did not obviously suggest she required an interpreter, let alone an interlocutor. (Anyone with a passing reference to the Vietnamese culture would be aware the reference to an ‘aunty’ or ‘uncle’ was not necessarily to be interpreted literally.) Later, the Tribunal asked the applicant about who met her living expenses (transcript at p 10). The applicant's answer was detailed but not directly responsive: she discussed her earnings and savings but did not address whether she was receiving any support. It is worth quoting the answer and the immediate response of the Tribunal as follows:
Q. All right. So I'll come back to the question, who provides you with your
living expenses?
A. APPLICANT: Who provide? Excuse me, Mr Brian, I will
.. (not transcribable) .. provide calculation but from a couple of years ago I do,
when I live in Brisbane and living with my, with my partner, so per week I will
probably work part time .. (not transcribable) .. I'll earn approximately 500 but at
the same later in 2015 I took the advice from the bank at lnala, so every week
I was saving $200. So one month, one month equal four week, so it means
four week times 200 equal 800, and 800 times 12 it means one year I earn,
I, I can save 9,600. So I took 9,600. I can, can, three year it mean I only, I can
probably earn 28,800 saving. So I took that saving to put in a saving account.
So since I come back I took that saving account to use for my expense in
Australia currently in two years.
Q. All right.
A. APPLICANT: Do you get what I mean right, yeah?
Q. More or less, yes. Yes.
A APPLICANT: Yes.
The bolded portion of the exchange is troubling. The applicant was checking to see whether she had answered the question intelligibly to the satisfaction of the Tribunal, but the Tribunal offers an equivocal response when it might have asked for clarification. Mr Pham obviously recognised the Tribunal was struggling at that point: he intervened to offer a more responsive explanation. Mr Pham then summarised the applicant's case. The hearing concluded shortly thereafter.
The Tribunal decided to affirm the delegate's decision. The Tribunal's decision to that effect is dated 19 July 2021. The statement of reasons is reproduced in the hearing book at pp 173ff.
The (amended) application for judicial review
The amended application for judicial review filed 1 December 2021 sets out two grounds of review. The first ground of review contends the Tribunal made a jurisdictional error by failing to appoint an interpreter. The particulars refer to reasoning of the Full Court in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376 where Tamberlin, Mansfield and Emmett JJ explained (at [28]):
… the proficiency in English contemplated by s 427(7) is the proficiency necessary to enable an applicant to give evidence and present arguments in English in order to communicate the substance of his or her case and to respond to issues raised. It does not require any greater expertise in English. If the applicant can comprehend and articulate English sufficiently well to enable him or her, in a real sense, to give evidence and present arguments in English to the Tribunal, the requirements of s 425(1) will have been satisfied. On the other hand, if an applicant does not have such proficiency, s 425(1) may well not be satisfied in the absence of a direction under s 427(1). Either way, there is no independent obligation imposed on the Tribunal by s 427(1).
While that judgment dealt with the operation of a different section, it is clear the reasoning applies to the operation of s 366C, at least for present purposes: see Mustafa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1011 at [29] per Judge Driver. I would adopt and apply the reasoning in Singh in this case.
I note that in both Singh and Mustafa, the Court reviewed the transcript of the hearing and concluded the Tribunal's obligation to provide an interpreter was not enlivened. In each case, the Court acknowledged the applicant experienced some difficulties but those difficulties were not such as to call into question their English proficiency in the sense intended by s 366C(3) of the Act.
Mr Burnham, who appeared for the minister, emphasised in this case:
·The applicant had said she did not need an interpreter and had not asked for one in advance of the hearing (as was the case in Mustafa);
·The applicant had been in Australia since 2013 during which time she had completed courses delivered in English, and she had completed two English language courses (referred to in the reasons for the Tribunal’s decision at [24]). I note the applicant in Mustafa had also completed English courses;
·The transcript confirms the applicant or her representative at the hearing did not at any point ask for the assistance of an interpreter (just like in Mustafa).
I accept the Tribunal had no reason to doubt the applicant's proficiency in English when the hearing commenced given her educational history and the fact she had not asked for an interpreter. The question in this case is whether the Tribunal realised - or should have realised - there was a problem with the applicant's proficiency once the hearing began.
There were certainly some difficulties evident in the exchanges I have reproduced from the transcript, but I am not satisfied they suggest the applicant was not sufficiently proficient in the sense that expression has been interpreted in Singh and Mustafa. The applicant's answers were mostly responsive; to the extent the answers might have missed the mark or lacked clarity, they could have been clarified by asking the questions differently. That is what the Tribunal did when faced with a confusing response in Mustafa (at [34]). The Tribunal did not always do that in this case because it preferred to turn to Mr Pham, the representative, to elicit the evidence it required. That was an unusual course given Mr Pham was not appearing as a witness, but his contributions and interventions masked any want of proficiency on the part of the applicant. Therein lies the problem: if the applicant had appeared on her own without the assistance of Mr Pham, it might have been possible for the Tribunal (and for that matter, the Court on appeal) to more accurately gauge her proficiency because the Tribunal would have had to engage with her as a witness. The Tribunal was quick to look for assistance from Mr Pham when it questioned the applicant; perhaps too quick. As it was, the applicant's answers recorded in the transcript do not of themselves suggest she lacked the level of proficiency required to participate in the proceedings. In those circumstances, the obligation under s 366C(3) was not enlivened. While the applicant experienced some challenges, and the Tribunal's approach to her evidence was less than ideal, I am not satisfied jurisdictional error has been established. That means the first ground of review must fail.
The applicant contends in the second ground of review that the Tribunal denied her procedural fairness:
…by failing to invite the applicant to comment during the hearing on the following before making a decision:
a.The applicant's failure to disclose her assets, work history and or further education in Vietnam prior to entering Australia; and
b.The evidence which the Tribunal stated in its decision “was confusing and inconsistent”.
When I asked the applicant what she meant by this, she was unable to assist. I gather the grounds had been drafted by her former lawyer who had withdrawn prior to the Court hearing. It is difficult to know what to make of the grounds in those circumstances.
The minister pointed out in written submissions that it was the applicant's responsibility to provide the evidence required to substantiate her claim. The applicant had been invited to submit that material and appear at a hearing to explain her case pursuant to s 360 of the Act. The Tribunal did not rely on ‘information’ for the purposes of s 359A that gave rise to an obligation to invite comment, and the Tribunal was not required to alert the applicant to its perception of gaps in the material or ventilate its doubts as it weighed that evidence: see generally SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
This ground of review has not been made out.
Conclusion
The applicant wanted to provide additional information at the hearing before me that supported her argument in favour of getting a visa. She also wanted to complain about the shortcomings of her representation at the Tribunal. As I explained at the outset of the hearing, the Court does not have jurisdiction to decide whether she should get a visa. The question of whether she should get a visa is a matter for the executive government – the delegate of the minister and the Tribunal on review. The Court's role under s 476 of the Act is to review whether the Tribunal's decision is affected by material jurisdictional error such that it was appropriate to require the Tribunal to perform its function all over again. As it happens, I have been unable to identify a material jurisdictional error. That means the application for review must be dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 15 May 2025
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