Shrestha v Minister for Immigration - [2013] FMCA 32

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 32

MIGRATION – Application for judicial review of Migration Review Tribunal decision – applicant requesting interpreter – Tribunal not dealing with request – Tribunal not satisfying itself sufficiently as to applicant’s command of English – jurisdictional error established – further hearing not denied on discretionary grounds.

Migration Act 1958, ss.353(2)(b), 357A(3), 366C
Migration Regulations 1994

Minister for Immigration and Citizenship v Li and Another [2012] 202 FCR 387
Ahmed v Minister for Immigration & Multicultural Affairs [2001] FCA 1101
Pannu v Minister for Immigration and Anor [2006] FMCA 883

Applicant:

KUSHALTA SHRESTHA

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 729 of 2012

Judgment of:

Burchardt FM

Hearing date:

16 November 2012

Date of Last Submission:

16 November 2012

Delivered at:

Melbourne

Delivered on:

31 January 2013

REPRESENTATION

Counsel for the Applicant:

Ms Costello

Solicitors for the Applicant:

Da Gama Pereira & Associates Pty Ltd

Counsel for the First Respondent:

Ms Whittemore

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

That the decision of the Migration Review Tribunal dated 15 May 2012 be set aside.
The matter be remitted to the Tribunal differently constituted for determination according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 729 of 2012

KUSHALTA SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 15 May 2012. There are, in essence, two grounds to the application.
The first ground is that the Tribunal fell into jurisdictional error by failing to provide an interpreter for the applicant when she had requested one, this allegedly constituting a breach of s.366C of the Migration Act 1958 (Cth) (“the Act”) and constituting jurisdictional error.
The second ground advanced by the applicant is that the Tribunal breached both s.353(2)(b) and s.357A(3) of the Act because it failed to act in a way that was fair or just. This alleged deficiency arose because the Tribunal, it was said, failed to alert the applicant to the financial capacity issues arising out of the Migration Regulations 1994 (Cth) (“the Regulations”).
For the reasons that follow, I think that both grounds are made out and it follows that the application must succeed.

Uncontroversial facts

The following facts are not controversial and are taken from the Court Book (“CB”) and the submissions of the first respondent.
The applicant first arrived in Australia on 3 January 2008. She is a citizen of Nepal. She arrived on a student visa and was granted a second student visa on 26 February 2008. She applied for her third student visa on 9 March 2010, and it is the outcome of that application that has led to this proceeding.
On 6 May 2010, a delegate of the first respondent refused to grant the applicant a student visa (CB16-20). At CB19, the delegate recorded:
“On 11/03/2010, an email was sent requesting documentation to satisfy Schedule 5A criteria. Ms Shrestha was required to provide evidence of meeting English language requirements and Overseas Student Health Cover (OSHC) within 28 days.”
It was noted that despite a further email, those documents were not provided.
As a result, the delegate refused the application.
It should be noted that it is not apparent, at least to me, whether the delegate was otherwise satisfied that the applicant might have met the relevant requirements within the Regulations, including English language proficiency and adequate finance.
The applicant applied on 24 May 2010 for review of the decision of the delegate but the hearing did not take place until 2012. The applicant submitted various documents including financial documents (see, for example, CB41-42) with her application.
It is apparent that the applicant has completed a Certificate III and Certificate IV in Hairdressing, a Diploma of Salon Management and a Certificate IV in Business. From CB54, it is apparent that the Certificate IV in Business course was conducted entirely in English, although from CB53, which shows the subjects studied, it might be thought not wholly clear how much proficiency in English might be required to complete it.
In the response to hearing invitation (CB59), the applicant ticked the box to seek an interpreter but did not identify the language to be interpreted. It should also be noted that the applicant’s application to the Tribunal nominated a representative who, it appears, attended the hearing with her.
It will be necessary to return to what occurred at the Tribunal in due course.

Ground 1- the failure to provide interpretation

The applicant submitted that the failure to provide an interpreter was a clear breach of s.366C of the Act and that this gave rise to jurisdictional error. Section 366C reads:
“(1) A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person.
(2) The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English.”
Counsel for the applicant submitted that there was no reference in the Tribunal’s decision to any conclusion on the part of the Tribunal member that the applicant was competent in English. It was submitted that there was nothing said in the transcript of the hearing (annexed to the affidavit of Ms Valerie Dagama Pereira sworn 18 June 2012) about the question of an interpreter and/or the applicant’s understanding of English.
Following receipt of the written submissions of the first respondent, the applicant filed an affidavit on 15 November 2012 in which the applicant relevantly deposed that she was not given an interpreter, assumed that she was not allowed to have one, and that:
“6.    The Tribunal Member spoke very fast and I did not understand some of the words he said. I did not know what documents he wanted me to provide to him. He said that I should have funds from an acceptable source. I did not understand what that meant.
7.    I was nervous and got flustered and confused. I thought that he said to me that I had provided everything that he needed. He also told me that if he needed any more information he would contact me.
8.    I did not realise that he required more information.
9.    I had the amount required for the financials. Now produced and shown to me at the time of swearing this affidavit and marked as KS1 is a copy of a financial statement in the name of my mother Ms Minu Shrestha for the year 2009.”
Counsel for the first respondent took objection to this affidavit on the ground that it was not before the Tribunal, but I accept the submissions made by the applicant’s counsel that this affidavit goes to the utility of granting relief in the event that I am otherwise favourably disposed to the application.
The first respondent submitted that the Court should infer that the Tribunal was satisfied as to the applicant’s proficiency in English. The matters relied upon are set out at paragraphs 21-28 of the first respondent’s written submissions. Essentially, what the first respondent says is that the applicant has been in Australia for almost five years, her proficiency in English was a requisite criterion for the grant of the two student visas she had received, she has undertaken and successfully completed the courses of study referred to earlier, including the Certificate IV in Business, and indeed provided, at CB38, a letter in English. It was pointed out that the Certificate IV in Business was conducted entirely in English and that at transcript P3, at line 18, the Tribunal member said to the applicant:
“The Second requirement is the English language proficiency requirement, which in your case I think is met, because you have done a certificate IV in Australia in the English language.”
To which the applicant replied, “Yes.” The Minister pointed out that neither the applicant nor her agent, who was with her throughout the hearing, took issue with the Tribunal’s assessment of her English language proficiency.

The law in relation to ground 1

The applicant relied strongly on the decision of the Full Federal Court in Minister for Immigration and Citizenship v Li and Another [2012] 202 FCR 387. That case, which concerned a Migration Review Tribunal refusal to grant an adjournment, was concerned with whether an unreasonable refusal of an adjournment meant, inter alia, that the applicant was denied a meaningful opportunity to present her case as required by s.360 of the Act and thus gave rise to jurisdictional error.
It is clear from the Judgment of the majority, Greenwood and Logan JJ, that this was what the Court found. Counsel submitted that the same deficiency existed here.
In my view, the decision of Hill J in Ahmed v Minister for Immigration & Multicultural Affairs [2001] FCA 1101 is of assistance. In that case, an applicant had attended the Tribunal and, in the ultimate, her daughter had acted as an interpreter.
Having set out s.366C, his Honour went on to say at [14]:
“[14] As appears from such extracts of the transcript as I have already set out, there seems little doubt that the Tribunal concluded that Mr Ahmed was not sufficiently proficient in English to communicate with the Tribunal. In other words, the pre-condition for the obligation in s366C(3) was established. The consequence was a duty on the Tribunal to appoint an interpreter under s366C(3). Although counsel for the Minister was not prepared to concede the point, no doubt on instructions, for my part I have little doubt that a failure to appoint an interpreter under s366C(3), in aid of the right to give evidence and present arguments, would be a procedure required by the Act to be observed, and failure to comply with it would give rise to a ground of review. So much is consistent with such case law as there has been on the question of accurate translations. I shall say something more about those cases in a moment.”
His Honour went on at paragraphs [16]-[17] to say:
“[16] In my view, the Tribunal should take special care in a case which comes before it where it forms the view that a person appearing before it to give evidence is not proficient in English. It is desirable that the Tribunal actually advise the person that the Tribunal must appoint an interpreter. While, no doubt, the person might be happy in a particular case to select another person as a competent interpreter, it is at least desirable that that person know what rights he or she may have in this regard.
[17] As I have already indicated, there are a number of cases where the consequence has been considered of the failure by the Tribunal to provide a competent interpreter in circumstances where it has been alleged that there has been a mistranslation.” [authorities omitted].
His Honour went on to say that on the facts of that particular case, it appeared that the applicant’s daughter was a competent translator and accordingly, if he had been of the view that the Tribunal had in fact failed to comply with its obligation under s.366C, he would not set the Tribunal’s decision aside as a matter of discretion. This was because it was not suggested on the facts that any miscarriage of justice arose from what had occurred.
In Pannu v Minister for Immigration and Anor [2006] FMCA 883, a decision of Emmett FM given on 7 July 2006, a similar issue arose. It should be noted that at [14], her Honour said:
“The First Respondent referred to the following exchange between the Tribunal and the Applicant at the commencement of the hearing:
Tribunal: Thank you. Mrs Pannu, I just want to make sure, are you able to understand all that I am saying?
Mrs Pannu: If I am having any problem can I ask you again, is that okay?
Tribunal: Absolutely, and I will speak very slowly and I will try and use very simple language, very simple words, okay?
Mrs Pannu: Thank you.”
It should be noted that in that case, counsel for the applicant was only able to identify one exchange in the transcript which might be capable of revealing a misunderstanding between the Tribunal and the applicant.
At [19], her Honour continued:
“Plainly s 366C of the Act is part of the statutory scheme of the provision of procedural fairness to an applicant. The intention is to ensure that a person appearing before a Tribunal is not disadvantaged by reason of insufficient proficiency in English. Not only does the Applicant not claim any disadvantage by the absence of an interpreter, there was no complaint by the Applicant during the hearing and no meaningful error of understanding on the part of either the Tribunal or the Applicant was identified by the Applicant in the transcript.”
Scarcely surprisingly in the circumstances, her Honour found that there was no jurisdictional error arising from the interpretation issues.
In this case, the Tribunal, having set out the relevant law, described what occurred at the hearing (which lasted only 24 or so minutes) relevantly as follows, at paragraph 18 (CB77):
“The Tribunal welcomed the applicant, and explained the purpose of the hearing and the issues to be decided.”
In my view, that is a slightly overgenerous description. What actually happened was that the Tribunal member said the following (P-2):
“Please have a seat. The purpose of this morning’s hearing is to review a decision by a delegate of the minister to refuse a subclass 572 visa to Ms Shrestha on 6 May 2010. That was two years ago. The reason we are convening a hearing is that I have been unable to make a decision in your favour on the information in front of me, and that information includes everything on the department’s file, which I have here - it’s a very thin file; we will discuss that in a moment - and anything that has been submitted to this tribunal since you filed the application two years ago.
The focus of the hearing will be on the reason why the application was refused. It was refused because, fundamentally, you have failed to meet the scheduled 5A requirements, and the reason why you failed to meet those requirements was that you didn’t provide any evidence to the department in support of your claim. It is quite a common tactic and one that can backfire very badly. You submitted nothing to this Tribunal in two years, until 11 May or thereabouts - yes, when you lodged a little batch of documents. I have been away for a few days, so I have only seen them this morning.
I haven’t gone through them in great detail, but we will get to that. So we are holding a hearing. Had the documents arrived earlier, it might have been possible to decide it on the papers; but, since I only received them this morning, the hearing goes ahead. The schedule 5A requirements, what are they? They require firstly that the person has the funds - from what is called an acceptable source - sufficient to sustain them to meet their college fees; their travel costs; and their self-support costs, their personal expenses for the period of the course or courses. In your case there are a couple of courses you’re proposing to take, one you were doing, and there is one there after, isn’t there? Is that right? You’re doing one course.”
The hearing then proceeded.
Whether that extract, including a remark which might be thought to have been hostile to the applicant (“it is quite a common tactic which often backfires”), could be described as a welcome might be open to question.
What is clear is that the Tribunal did not do anything such as that done in the case considered by Emmett FM in Pannu to establish whether or not the applicant’s command of English was sufficient.
It is entirely possible that the Tribunal inferred that the applicant was able properly to conduct the proceeding in English, both because of the matters referred to in the first respondent’s submissions, of which the Tribunal would have been clearly aware, and because the applicant and her representative did not object.
Nonetheless, s.366C is, as Emmett FM pointed out, part of the statutory scheme designed to give procedural fairness to an applicant. Its terms are mandatory. There is no indication in the materials that the Tribunal ever discussed the question of the applicant’s capacity to speak in English or that the member turned his mind to this question. I agree that at least some passages of the transcript, such as the passage at P-6 from line 25 to line 42 (at which point it appears the adviser had to interpret), suggest that the applicant’s command of English was not in fact fully functional.
The applicant has deposed that she did not understand various aspects of the proceeding, and there has been no request to cross-examine.
In my view, in the particular circumstances of this case, the failure to provide an interpreter constitutes a clear contravention of the imperative obligation contained in s.366C and, with great respect, I entirely agree with Hill J in Ahmed that “failure to comply with it would give rise to a ground of review”.
In this instance, relief should not be withheld on discretionary grounds as the applicant has forwarded financial information, a matter to which I shall return, which suggests that there is a significant utility to giving the applicant the opportunity to be further heard, and indeed to be heard properly for the first time, on the various issues that would otherwise have troubled the Tribunal.

Ground 2

Here the applicant submitted that the Tribunal fell into jurisdictional error by failing to make clear to the applicant the full extent of her obligations in relation to her financial matters, including having funds available from an acceptable source.
The first respondent’s submission is that the applicant was reasonably to be understood to have appreciated this in circumstances where she twice had to satisfy this matter before.
In my view, this matter can be dealt with relatively shortly. The fact is that in her previous applications, the applicant would no doubt have provided financial information relatively readily because there was not any extensive delay between her application and its, no doubt, successful grant by a delegate. Here there was a delay of some two years, for whatever reason. It is wholly unsurprising that the applicant might not have understood the requirement to provide evidence of her financial situation in the six months leading up to the application and indeed thereafter. Nonetheless, she has provided (at least in a prima facie way) evidence in her most recently filed affidavit.
In the circumstances of this case, and particularly given the fact that the Tribunal alerted the applicant only to the requirement to provide finances, so to speak, as of now, I think that the Tribunal’s failure to make the matter clearer does give rise to jurisdictional error.

Conclusion

In the circumstances of this case, there will be orders in the form sought by the applicant.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 31 January 2013