Thai v Minister for Immigration
[2020] FCCA 389
•23 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THAI v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 389 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of partner visas – Tribunal not satisfied that the couple were in a genuine spousal relationship – whether the Tribunal complied with its statutory procedural fairness obligations considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 359, 359A, 359AA, 360, 424A, 425, 476 |
| Cases cited: Carlos v Minister for Immigration [2001] FCA 301 |
| Applicant: | NGOC MINH THAI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2137 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms U Okereke-Fisher |
| Solicitors for the Applicant: | Independence Lawyers |
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
ORDERS
The application as amended on 16 November 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2137 of 2018
| NGOC MINH THAI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Mr Thai, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 July 2018. The Tribunal affirmed decisions made by a delegate of the Minister (delegate) not to grant three visa applicants provisional partner visas. The visa applicants were the wife of Mr Thai and her two children.
The following statement of background facts is derived from submissions filed on behalf of the Minister on 17 February 2020.
The primary visa applicant, Mrs Pham Thuy Trang Huynh (the visa applicant), a female citizen of Vietnam, applied for a partner (subclass 309) visa and partner (subclass 100) visa on 30 December 2015.[1] She applied for the visa on the basis of her relationship with an Australian permanent resident, Mr Thai, the applicant in these proceedings.[2]
[1] Court Book (CB) 1-21
[2] CB 60-70
On 20 June 2016, the visa applicant was invited to attend an interview with the delegate scheduled for 19 July 2016[3] which she attended.[4]
[3] CB 92-94
[4] CB 106
On 18 July 2017, the visa applicant provided a completed 1023 Form stating she had given incorrect information in her previously filed 47SP form including Mr Thai’s address (Q46), and the date she first met Mr Thai (Q57).[5] On the same day, Mr Thai also provided a completed 1023 Form confirming he had provided incorrect information on Part F of the 47SP Form the visa applicant had submitted, mainly, that his mother was still alive, and that his address had changed.[6]
[5] CB 95-96
[6] CB 97-98
The delegate’s decision
On 21 December 2016, the delegate refused to grant the visa applicant a subclass 309 visa on the basis that he was not satisfied that the couple were in a genuine and continuing spousal relationship. Since the visa applicant did not hold a subclass 309 visa, the delegate also refused to grant the visa applicant a subclass 100 visa.[7]
[7] Migration Regulations 1994 (Cth) (Regulations), clause 100.221(2); CB 99-113
The Tribunal
On 16 January 2017, Mr Thai applied to the Tribunal for review of the delegate’s decision.[8] He provided a copy of the delegate’s written notification and was represented by Independence Lawyers.[9]
[8] CB 111-122
[9] CB 113
On 18 December 2017, the Tribunal requested further information pursuant to s.359(2) of the Migration Act 1958 (Cth) (Migration Act).[10] On 24 January 2018, Mr Thai’s representative responded to the request and provided a cover letter, identification documents, written statements, statements from friends and relatives, phone records, financial documents and photographs.[11]
[10] CB 123-127
[11] CB 131-210
On 6 March 2018, Mr Thai was invited to a hearing scheduled for 24 April 2018.[12] On 7 March 2018, Mr Thai’s representative requested that Mr Thai appear via video link as he lives in Darwin.[13] The Tribunal requested an update to Mr Thai’s address.[14]
[12] CB 222-229
[13] CB 230
[14] CB 234-240
On 24 April 2018, Mr Thai did not attend the scheduled hearing.[15] On 26 April 2018, Mr Thai’s representative submitted a statutory declaration regarding Mr Thai’s failure to attend the hearing.[16] In consideration of this, the Tribunal issued a new hearing invitation, scheduled for 31 May 2018.[17] The hearing was adjourned on 31 May 2018, due to technical difficulties when communicating with the visa applicant on the phone.[18] The hearing resumed on 4 June 2018.[19]
[15] CB 246-248
[16] CB 250-252
[17] CB 253-257
[18] CB 274-280
[19] CB 289-291
On 21 June 2018, the representative lodged submissions and a transcript of the hearing.[20]
[20] CB 302-389
The Tribunal’s decision
On 5 July 2018, the Tribunal affirmed the decision under review.[21]
[21] CB 391-401
The Tribunal accepted that Mr Thai was an Australian citizen.[22] It also accepted on the evidence before it that the parties were married to each other under a marriage that was valid for the purposes of s.5F(2)(a) of the Migration Act[23] but was ultimately not satisfied on the basis of the “substantial inconsistent evidence” the parties provided that they were credible[24] or that they were in a spousal relationship.[25]
[22] CB 396, [12]
[23] CB 396 [13]
[24] CB 395, [5]
[25] clauses 309.211 and 309.221; CB 400, [33]-[34]
The Tribunal found the parties did not have any joint ownership of assets or liabilities or any legal obligations to each other or any sharing of day-to-day household expenses.[26] The Tribunal considered Mr Thai’s evidence about the parties’ intention to open a joint bank account but identified the parties had provided inconsistent information about their future financial affairs (discussed below). The Tribunal accepted that the parties lived in different countries and had not pooled their finances.[27]
[26] regulation 1.15A(3)(a)(i),(ii), (iv) and (v)
[27] regulation 1.15(3)(a)(iii); CB 396, [17]
The Tribunal found the parties represented themselves socially as being married to each other and considered third party statements attesting to the parties presenting as being in a married relationship and photographs that showed them together. However, the Tribunal identified that the parties had provided inconsistent evidence about visiting Mr Thai’s mother in Vietnam (discussed below) and found that those concerns and its concerns about the parties’ credibility were not outweighed by the third party statements.[28]
[28] regulation 1.15(3)(c)(i)-(iii); CB 396, [18]
The Tribunal found the parties did not have any joint responsibility for the care and support of children.[29] The Tribunal considered the parties’ evidence about their shared household responsibilities when Mr Thai visited the visa applicant in Vietnam but found they had provided inconsistent information about how often they lived together, where they lived and who they visited. The Tribunal accepted the parties lived in different countries and had not formed their household.[30]
[29] regulation 1.15A(3)(b)(i)
[30] regulation 1.15(3)(b); CB 397, [19]
The Tribunal identified that at the time of its decision the parties had been married for more than three years. It had regard to their evidence about their relationship and found that they had provided inconsistent information about their time together, where they lived, about their travel, about future financial arrangements and about the financial support of the visa applicant’s sons. The Tribunal found that their evidence was not indicative of a couple who provided support and companionship for each other or who saw their relationship as long term.[31]
[31] regulation 1.15(d); CB 397, [20]
The Tribunal had regard to the visa applicant’s and Mr Thai’s evidence about his travel to Vietnam. Ultimately, it found that their evidence about Mr Thai’s time in Vietnam was consistent.[32]
[32] CB 397, [22]-[23]
The Tribunal put to Mr Thai that the visa applicant’s evidence that the parties married on 2 November 2015, lived at her home and also travelled to Thailand to see his mother was not consistent with his evidence that they lived at the visa applicant’s home the entire visit. The Tribunal had regard to Mr Thai’s response to this inconsistency but found the parties were unable to provide consistent information about where they lived and what they did after they married.[33]
[33] CB 397, [24]
The visa applicant gave evidence that the parties did not talk about financial matters and this was put to Mr Thai because it was not consistent with his evidence that they planned to combine their finances when the visa applicant arrived in Australia. The Tribunal again had regard to Mr Thai’s response to this inconsistency but found it was reasonable to expect that a couple intending to live together in the future would have some discussion about their financial affairs.[34]
[34] CB 398, [25]
The Tribunal also identified that the visa applicant had claimed that Mr Thai assisted her financially to support her sons. However, Mr Thai claimed the visa applicant’s adoptive father provided support for her sons and otherwise she provided full care and support of her children. Again, the Tribunal had regard to Mr Thai’s response to its concerns about this inconsistency but found it was reasonable that the parties would provide consistent evidence about the financial support provided to the visa applicant’s sons and was not satisfied the parties shared day-to-day matters or planned their future together.[35]
[35] CB 398, [26]
In Mr Thai’s post-hearing submissions, his migration agent claimed that he was emotionally unstable when he attended the hearing and had travelled straight from the airport. Mr Thai claimed he was emotional because of his mother’s illness and because he had memory problems. The Tribunal did not accept this explanation for the inconsistent information provided by Mr Thai and the visa applicant and noted it had not been provided with any independent information to support the claim that Mr Thai was not of sound mind when he appeared before the Tribunal. The Tribunal also identified that the evidence before it indicated that Mr Thai’s mother had been unwell for many years and there was no independent evidence to explain why, at the time of the hearing, her illness would have caused Mr Thai to give evidence that was not consistent with the visa applicant’s evidence. Further, the Tribunal was concerned that Mr Thai’s evidence about his “vulnerability” was only provided to the Tribunal after its hearing and after the parties provided inconsistent information.[36]
[36] CB 399, [30]
Having considered all of the evidence before it, the Tribunal was not satisfied by the parties’ evidence or that they demonstrated a sound knowledge of each other’s lives that was commensurate with a couple in a genuine and ongoing spousal relationship. The Tribunal did not accept the parties’ evidence in respect of whether there was a mutual commitment to a shared life as spousal partners.[37]
[37] CB 399, [31]
The Tribunal found that the parties knew each other personally, had lived together, had socialised in Vietnam and had communicated with one another. However, it was not satisfied at [32] the parties were in a genuine spousal relationship. Further, given the parties’ inconsistent evidence and the Tribunal’s credibility concerns, the Tribunal was not prepared to accept their evidence about their commitment to the relationship and found the visa applicant did not meet the requirements of s.5F.[38]
[38] CB 400, [33]
Therefore, the Tribunal found the visa applicant did not meet clause 309.211 and clause 309.221 of the Regulations and also found the secondary named visa applicants had not met the relevant criteria as a member of the visa applicant’s family unit.[39]
[39] CB 400, [34]-[35]
The present proceedings
These proceedings began with a show cause application filed on 2 August 2018. Mr Thai now relies upon an amended application which was annexed to the affidavit of Christopher Levan (Mr Thai’s solicitor) made on 16 November 2018. That affidavit was read and also included a transcript of the Tribunal hearing conducted on 31 May 2018. The grounds in the application as amended are:
Ground 1: Jurisdictional Error - The Tribunal failed to comply with its statutory obligations under s359A(1)(A) or s.359AA(1)(a) in that it failed to (i) provide clear particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the delegate's decision, (ii) ensure that the Applicant understood the relevance of the information; and (iii) advise the Applicant that he may seek additional time to comment on the information.
PARTICULARS
1.At paragraph 27 of the Decision Record the Tribunal referred to certain Department movement records. The Tribunal put it to the first applicant at the hearing that the Department had certain movement records, which were inconsistent with the Applicant's evidence.
The Tribunal relied on this finding in concluding that the Applicant was not a credible witness.
2.The information in the Department movement records undermined the Applicant's claims. Accordingly, the requirements under s.359A or s.359AA of the Migration Act were triggered. Hence, the Tribunal should have made complied with the trinity of obligations in ss.359A or s.359AA of the Act.
Jurisdictional Error - The Tribunal failed to comply with its statutory obligations pursuant to s.425 and 422B(3) of the Migration Act in that it did not constructively, give the Applicant an opportunity to give evidence causing the decision-making process to miscarry and leading to a reasonable conclusion that the Applicant was denied procedural fairness. Furthermore, the Transcript of the hearing reveals a departure from the standard of interpretation, the departure related to matters significant to the Applicant's claims (being matters on which the Tribunal made adverse findings against the Applicant and ultimately relied on to make its decision), there is a sufficient connection between the inadequate translation and the Tribunal's decision. The inadequacy and ineffectiveness of the translation denied the Applicant an opportunity to obtain a hearing in accordance with s.425. The misinterpretation is of such character or frequency that the hearing was unfair and was not a proper opportunity to be heard.
PARTICULARS
1.Prior to the Tribunal's decision, the Applicant's Registered Migration Agent sent a letter to the Tribunal alleging misinterpretation and challenging the adequacy and accuracy of the transcript of the Applicant's interview on 31 May 2018. The Registered Migration Agent highlighted the areas of error in interpretation.
2.At Paragraph 29 of the Decision Record, the Tribunal outlined the certain aspects of the Applicant's Registered Migration Agent's contention that certain aspects of the transcript did not reflect the responses provided by the Applicant, accurately.
3.The Tribunal found that (i) the transcript does not provide an independent transcript of what the sponsor said (ii) it cannot weigh the veracity of the claims because it has not been provided independent evidence of what the Applicant said other than that provided by the interpreter to the tribunal at the hearing and as recorded in the hearing.
I also have before me as evidence the court book filed on 31 October 2018.
Both Mr Thai and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial of this matter on 24 February 2020.
Consideration
Ground 1 – did the Tribunal breach ss.359A or 359AA?
Mr Thai’s contentions
Mr Thai’s primary contention in Ground 1 is that the Tribunal failed to comply with the requirements of s.359AA in respect of all of the information contained in “certain Department movement records” (“Movement Records”), such information being information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review. The Movement Records are located from CB 211–215 and CB 241-245. The Tribunal referred to the Movement Records pertaining to Mr Thai without providing specific details, such as the provenance of the records, how they were obtained, the provider of the records, or why the Movement Records were relevant to the review.
Mr Thai submits that the Tribunal’s failure to comply with s.359AA is reflected in its failure to:
a)provide clear particulars of the Movement Records;
b)ensure that Mr Thai understood the relevance of the Movement Records; and
c)advise Mr Thai that he may seek additional time to comment on the Movement Records. Furthermore, Mr Thai submits that s.359A required the disclosure of the entire Minister’s Department Movement Records.
Mr Thai submits that s.359AA(1) of the Migration Act required the Tribunal to give to him clear particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review. It must also have ensured, as far as reasonably practicable, that Mr Thai understood why the information was relevant to the review and the consequences of it being relied on in affirming the decision under review, and advise Mr Thai that he may seek additional time to comment on or respond to the information. The requirements of s.359A are strict.[40]
[40] SZEOP v Minister for Immigration [2007] FCA 807 at [36] per Rares J
In support of Mr Thai’s submission, reliance is placed on the remarks of Flick J in SZNKO v Minister for Immigration[41] at [23]. His Honour proffered that s.424A (the equivalent of s.359A in relation to the Migration Review Tribunal) required the disclosure “of so much as to ensure that the opportunity to ‘comment... or respond...’ is meaningful”.
[41] [2010] FCA 297
At the commencement of the hearing on 31 May 2018, the Tribunal informed Mr Thai as follows:
During the hearing I may put to you information that would be the reason or part of the reason for affirming the decision. If I do that, I will explain to you the relevance and the consequence of the information and I will invite you to comment on or respond to the information. You may comment on or respond to the information.
This statement was consistent with the statutory obligations imposed on the Tribunal pursuant to s.359AA.
In the course of the hearing, the Tribunal posed a number of questions revolving around Mr Thai’s visit to Vietnam and how and where he spent his time whilst in Vietnam. The Tribunal asked Mr Thai how many times he returned to Vietnam in 2017. Mr Thai responded, “one”.[42] The member then looked at the Movement Records and noted that information from the Movement Records indicated that Mr Thai travelled to Vietnam twice or travelled outside Australia twice in 2017. Subsequently, the member changed her representation and then stated that the Movement Records indicate that Mr Thai travelled outside of Australia on three occasions in 2017.
[42] CB 354 at [35]
Mr Thai submits that the Tribunal’s reference to or reliance on the Movement Records enlivened the operation of s.359A because:
a)the information in the Movement Records constituted information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review;
b)the Movement Records contained information that undermined Mr Thai’s claim with respect to his response to the question how many times he visited Vietnam in 2017; and
c)the Movement Record information was adverse to Mr Thai because the Tribunal relied on this information for the purpose of concluding as it did at [20].[43]
[43] CB 397
In the High Court’s decision in SZBYR v Minister for Immigration,[44] the plurality suggested at [17] that material said to be information should contain in its terms “a rejection, denial or undermining” of the applicant’s claims. Furthermore, the plurality stated in SZBYR at [17]:
The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal,” or “the Tribunal's published reasons.” The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case.
(counsel’s emphasis retained)
[44] (2007) 235 ALR 609
From lines 5-30 of the transcript,[45] it would appear that Mr Thai accepted that the information in the Movement Records was correct and he had in fact visited Vietnam on three occasions in 2017. Consequently, the Tribunal is said to have drawn an adverse inference from the change in Mr Thai’s response and made adverse findings against him, stating:[46]
The Tribunal found that the Sponsor was of the view that he had travelled to Vietnam once or twice in 2016 and once in 2017 and the parties had lived together during his visits.
[45] CB 355
[46] CB 397
Subsequently, the Tribunal found that:[47]
They provided inconsistent information about their time together, about where they live, about their travel, about future financial arrangements and about the financial support for the sponsor’s sons. These inconsistencies led the Tribunal to find that the parties’ evidence is not indicative of a couple who provide support and companionship for each other or see their relationship as long term.
[47] CB 397 at [20]
Mr Thai submits that the question is not whether the Tribunal provided particulars of the information available to it, but whether it has provided clear particulars of any information that the Tribunal “considers would be the reason, or a part of the reason for affirming the decision that is under review”.[48]The provision of clear particulars requires that the information must be provided with sufficient specificity.[49] As Flick J stated in SZMTJv Minister for Immigration (No.2)[50] at [45]:
language which fails to identify information with sufficient specificity” and which fails to “unambiguously” set forth information may fail to comply with the requirement in s359A (1)(a) to provide “clear particulars” of information”.
[48] Minister for Immigration v Brar [2012] FCAFC 30
[49] MZXKH v Minister for Immigration [2007] FCA 663 at [20] and [27]
[50] (2009) 109 ALD 242
Mr Thai submits further that when considering whether clear particulars have been provided, it is necessary to consider the character of the information and the clarity with which that information has been provided. In SZMTJ at [52] in relation to s.424A(1) (which is analogous to s.359A(1)), Flick J noted as follows:
Although s 424A(1) imposes the trinity of requirements set forth in paragraphs (a), (b) and (c), it is not considered that compliance with s 424A(1) is necessarily to be approached by considering each of the three requirements as though it were divorced from the rest. The greater the degree of clarity in the “particulars of any information” provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.
In Carlos v Minister for Immigration,[51] the Federal Court at [21] noted that:
The operation of s 424A of the Act, which is the counterpart of, s 359A in relation to the Refugee Review Tribunal (“the RRT”), has been considered in a number of cases. The following propositions can be taken to have established:
·the obligation to provide the information in question is enlivened when the Tribunal forms the view that there is knowledge communicated about some fact or circumstance that is material to the review and is adverse to the applicant: see Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336 at [32], Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 at [58]-[59]; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [52]-[54], Bhasani v Minister for Immigration and Multicultural Affairs [2000] FCA 1773 at [8]-[9];
·if information adverse to an applicant is relied upon in the reasons of the Tribunal, a failure to have complied with the statutory requirements in respect of that information will found a ground of review: see Naing at [33];
·untested assertions communicated to, or received by, the Tribunal can constitute information irrespective of whether the information received is reliable or has a sound factual basis; thus, the section can apply when the Tribunal has received information “regardless of its source” if it considers the information would be a reason or part of the reason for affirming the delegate’s decision: see Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 at [18]-[20];
·the section is concerned with information of which the Tribunal becomes aware, rather than with its subjective decision making process: see Tin at [54].
Notably, the Tribunal is said to have implied in its decision, that it had complied with the statutory requirements in s.359AA and that led to Mr Thai requesting and receiving additional time to respond to “these matters” and to provide documents.[52] Mr Thai submits that this representation is inaccurate because, the grant of additional time leading to his post-hearing submission of 21 June 2018[53] arose as a result of his claim. The claim was that an alleged inconsistency in respect of a statement that the visa applicant had listened to Mr Thai’s fifth elder sister when she was deceased, had arisen because of a translation by a non–NAATI accredited translator. Subsequently, the Tribunal invited Mr Thai to have the document transcribed by a NAATI translator.[54]
[51] [2001] FCA 301
[52] CB 397 at [21]
[53] CB 385-389
[54] CB 368 at [15]-[45]
Hence to the extent that the Tribunal at [21][55] alludes to compliance with s.359A in respect of the Movement Records, that representation is said to be inaccurate and is not supported by the transcript of the hearing. It is noteworthy that Mr Thai did not request additional time.
[55] CB 397
Mr Thai submits that information adverse to him was relied upon in the reasons of the Tribunal and a failure to comply with s.359A led to jurisdictional error. The failure constituted a failure to observe a procedure required to be observed for the purposes of s.476(1)(a).[56]
[56] Carlos at [24]
Minister’s contentions
The Minister submits that Ground 1 cannot succeed. The movement records were not “information” for the purposes of s.359A(1) because they did not, in their terms, contain a “rejection, denial or undermining” of the visa applicant’s claims be in a genuine spousal relationship.[57] That is, there is nothing in the movement records which denied that the visa applicant was in a spousal relationship with Mr Thai. Viewed objectively, the Movement Records simply showed the dates Mr Thai departed and arrived in Australia.
[57] Dang v Minister for Immigration & Anor [2018] FCCA 268 at [25]; citing SZBYR at [17] and Minister for Immigration v SZFLX (2009) 238 CLR 489 at [22]
The Tribunal recorded at [27][58] that the Movement Records details were “inconsistent” with Mr Thai’s evidence that when he departed Australia he only went to Vietnam and had visited the visa applicant on three or four occasions. The Tribunal’s basis for “putting” this information to Mr Thai was because it was “inconsistent” and it is well established that “information” for the purposes of s.359A does not extend to the existence of doubts and inconsistencies.[59]
[58] CB 398
[59] Cf, SZBYR
Further, the movement records merely gave rise to inconsistencies in the evidence which led it to the conclusion that Mr Thai was not credible.[60] This comparative process was not “information” for the purposes of s.359A.[61].
[60] CB 400 [33]
[61] SZTNL v Minister for Immigration [2015] FCA 463 at [52]–[53]
Resolution
Ground 1 alleges that the Tribunal breached its obligations under either s.359A or s.359AA. The particulars in support of this contention refer to [27] of the Tribunal decision and contend the Tribunal put to Mr Thai the contents of the movement records which were inconsistent with his evidence but did not comply with s.359A or s.359AA.
I was not taken to any authority which dealt definitively with the question of whether Movements Records do or do not enliven the disclosure obligations under s.359A (or s.359AA). That is surprising and I invited the parties to conduct further research on that point. I also searched for relevant authorities myself. Nothing further of use was found or provided.[62]
[62] The discussion of the issue in MZARM v Minister for Immigration & Anor [2018] FCCA 965 at [31]-[34] (unearthed by my staff) is hard to follow and unhelpful. I note that the applicant in that case was granted an extension of time for an appeal to the Federal Court (MZARM v Minister for Immigration [2019] FCA 607 but to date there has been no judgment on that appeal
It cannot be said that movement records per se necessarily enliven the disclosure obligation in s.359A. It depends upon the context in which the movement records assume relevance to the outcome of a particular case and what is in them. In the present case, there was a discrepancy between Mr Thai’s evidence as to the number of times he visited Vietnam (where his wife was located) and the movement records. The movement records disclosed more trips than Mr Thai had stated had occurred. That was an inconsistency but the movement records worked in Mr Thai’s favour in that they showed that he had made more visits (presumably to visit his wife) than he had given evidence about. That bore on the existence of a genuine relationship.
Although it is arguable from the transcript of the first Tribunal hearing at pages 16-20 that the Tribunal put the movement records to Mr Thai purportedly for the purposes of disclosure under s.359AA, that does not establish that the disclosure obligations in the section were enlivened. In the first place, Mr Thai was willing to concede the omission. In the second place, it appears from the Tribunal’s reasons at [22][63] that the issue was revisited with the visa applicant at the resumed hearing. While the Tribunal expresses some dissatisfaction with the evidence at [23], it ultimately concluded that the parties’ evidence about Mr Thai’s time in Vietnam was consistent.
[63] CB 397
In my view, the information in the movement records was, on its face, neutral. It is apparent from the transcript of the first Tribunal hearing that the Tribunal had some concern about the inconsistency of the movement records with Mr Thai’s evidence but that inconsistency was not “information” enlivening the disclosure obligation in s.359A.
I find that the first ground fails.
Ground 2 – did the Tribunal afford Mr Thai a fair hearing opportunity?
Mr Thai’s contentions
In Ground 2, Mr Thai submits that:
a)the Tribunal failed to comply with s.360;
b)the Tribunal’s failure to comply with s.360 caused the decision process to miscarry and led to denial of procedural fairness;
c)the transcript depicts departure from an acceptable standard of interpretation;
d)the departure related to matters significant to Mr Thai’s claim leading to adverse credibility findings against him; and
e)the Tribunal failed to consider all the allegations of error put forward by Mr Thai’s representative and failed to have regard/assess the cumulative effect of those errors on the Tribunal’s decision.
At the heart of Ground 2 is the contention that the interpreter made errors in the course of the hearing on 31 May 2018. The Tribunal is said to have failed to deal with the entire errors as alleged, the errors affected the Tribunal’s decision and constructively prevented Mr Thai from giving evidence effectively or in the alternative, the mistranslation was “of such a character or frequency” as to deny any conclusion that the hearing was a proper opportunity for Mr Thai to give evidence pursuant to s.360, leading to a denial of procedural fairness and jurisdictional error.
The interpreter’s alleged errors were outlined in the post-hearing submission to the Tribunal of 21 June 2018.[64] Here, Mr Thai’s representative set out in detail the statements recorded on the transcript which Mr Thai alleged he did not make, clarifications on certain aspects of the evidence given by Mr Thai and correction of the Tribunal’s alleged misconstruction of his evidence.
[64] CB 385-387
Inaccurate representations
Mr Thai contends that this category of error consists of errors made by the interpreter in putting forward statements, which allegedly were not made by Mr Thai in the course of the hearing. The following errors as identified in the representative’s post-hearing submission are said to fall into this group: error numbers 1, 2, 3, 4, 5, 6, 7, 8,9, 11, 12 and 26.[65]
[65] CB 385-387
Clarifications
In the second category of errors, the representative identifies errors allegedly arising from the Tribunal misconstruing Mr Thai’s evidence. Here, the representative has provided clarifications, explanations and commentaries on certain aspect of Mr Thai’s evidence. The following errors as identified in the representative’s submission are said to fall into this group: error numbers 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24-27.[66]
[66] CB 385-387
Mr Thai submits that it is necessary to consider not only individual allegations of mistranslation or non-translation, but also to have regard to their cumulative effect.[67] He submits that, rather than have regard to the entire alleged errors and consider the cumulative effect of those errors on its decision, the Tribunal found:[68]
unfortunately, the transcript does not provide an independent transcript of what the sponsor said. Therefore, the Tribunal cannot weigh the veracity of the sponsor’s RMA’s claims because it has not been provided independent evidence of what the sponsor said, other than that provided by the interpreter to the Tribunal at the Tribunal hearing and as recorded in the transcript provided to the Tribunal by the sponsor.
[67] SZSEI v Minister for Immigration [2014] FCA 465 at [80] and SZRMQ v Minister for Immigration [2013] FCAFC 142 at [116] per Robertson J
[68] CB 399 at [29]
Mr Thai submits that the Tribunal erred here, because it failed to consider the entire category of errors as set out by the representative and proceeded on the erroneous assumption that the claim of error was limited to “what the sponsor said”. However, the representative’s claim of error was not restricted to errors arising from what Mr Thai said but it also extended to inaccurate representations, which Mr Thai alleges he did not make, clarifications, commentaries and allegations that the Tribunal had misconstrued Mr Thai’s evidence. The Tribunal is said to have failed to deal with the consequences of those claims, failed to assess the extent to which the errors affected the Tribunal’s findings and led to adverse credibility findings against Mr Thai.
Mr Thai submits that the there is a sufficient connection between the inadequate translation and the Tribunal’s decision. The alleged inadequacy and ineffectiveness of the translation is said to have denied Mr Thai an opportunity to obtain a hearing in accordance with s.360 leading to denial of procedural fairness. Mr Thai acknowledges that in SZSEI at [72]–[74] Griffiths J noted the Chief Justice’s observations in SZRMQ at [25] stating:
Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ). To similar effect, in SZRMQ at [68], Robertson J emphasised that “the process is central”. His Honour reinforced the point at [85] when he posed the relevant question as whether a mistranslation “affected or could have affected the quality of the hearing, or the findings and reasons”. The Minister did not contest the correctness of those observations, nor their application to a s 425 case”.
The question of whether inadequate interpretation has deprived an applicant of the opportunity required under s.425 of the Migration Act (which is the equivalent of s.360) “involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole”.[69]
[69] SZHEW v Minister for Immigration [2009] FCA 783 at [52] and SZSEI at [81]
In SZTTO v Minister for Immigration & Anor[70] at [47]–[54], the Court set out in details the principles governing the consideration of the issues of interpretation as follows:
[70] [2016] FCCA 2128
[47]In considering the issues of interpretation raised by ground 2 I have borne in mind the approach of the Federal Court in relation to when inadequate interpretation during a Tribunal hearing will constitute or give rise to a jurisdictional error. The law in this respect was summarized by Griffiths J in SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [71]-[81] in relation to a decision of the Tribunal. As his Honour pointed out, the underlying principles were discussed and analyzed at length by the Full Court of the Federal Court in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 (see in particular Allsop CJ at [13]-[25]; Flick J at [42]-[44] and Robertson J at [65]-[75]).
[48]SZRMQ involved a decision of an independent merits reviewer and was primarily concerned with the application of common law procedural fairness requirements. As Griffiths J pointed out in SZSEI at [71], there is some overlap in the relevant principles in the non-statutory and statutory context. However, Robertson J (with whom Allsop CJ agreed, subject to some further comments) had observed at [74] in SZRMQ that compared with the common law principles of procedural fairness, s.425 of the Act poses “the blunter question as to whether the Tribunal has given the applicant an opportunity to appear before it to give evidence” and to present arguments in relation to the issues arising in relation to the decision under review, as considered in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507. In SZSEI (at [71]) Griffiths J found it unnecessary in the circumstances of that case to define with precision the extent of the overlap between common law principles of procedural fairness and those arising under s.425 of the Act. The same may be said in this case.
[49]Relevantly, in SZSEI Griffiths J set out the approach to be taken in a case, which raised the application of s.425 of the Act. His Honour stated at [72]-[74]:
In my view, subject to some important observations which I will make shortly, the approach to be taken in a case such as this, which raises the application of s 425 of the Act, is essentially that which was applied in cases such as Perera, SZOYU, Appellant P 119 and WALN. In WALN, Ryan J (with whom Tamberlin and Middleton JJ agreed) set out the relevant approach relating to alleged errors in translation in s 425 context in the following terms at [29]:
To succeed on this ground, the appellant must establish that he was effectively prevented from giving his evidence; see Perera (above) at [38]-[41]. Alternatively, he must establish that errors have occurred in translation which were so material as to cause the decision-making process to miscarry…
In SZRMQ at [22] and [23], the Chief Justice highlighted the need for passages such as the one set out immediately above from WALN to be read with care. That is for two reasons. First, it is clear that there is no requirement to demonstrate that there was a complete incapacity to interpret such that the applicant is prevented from giving any evidence. As the Chief Justice stated in [22], Kenny J in Perera at [45]-[46], “was referring to matters of significance involving important issues, not to a complete incapacity to interpret”. The Chief Justice also highlighted the undesirability of overly defining the relevant tests in circumstances where what is involved “is a more easily expressed and broader requirement: a fair hearing”. In my view, there is considerable force and attraction in expressing the matter that way, while giving effect in a relevant case such as here to the statutory text not only of s 425 of the Act but also other relevant provisions, such as ss 414 and 422B (noting the exhortatory command in s 422B(3) that, in applying Div 4, the Tribunal must act a way (sic) that is fair and just and see also the observations of the Full Court on that provision in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [15] and [18].
Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ). To similar effect, in SZRMQ at [68], Robertson J emphasized, “the process is central”. His Honour reinforced the point at [85] when he posed the relevant question as whether a mistranslation “affected or could have affected the quality of the hearing, or the findings and reasons”. The Minister did not contest the correctness of those observations, nor their application to a s 425 case.
[50]Griffiths J also referred with approval to the remarks of Allsop CJ in SZRMQ at [17]-[18] about the importance of the decision-making process and to the suggestion of Robertson J in SZRMQ at [67]-[69] that if a mistranslation or non-translation “could have affected the outcome, then, depending on the circumstances, that may be sufficient to establish a denial of procedural fairness”. Griffiths J expressed the view (at [77]) that such observations applied equally to an assertion of non-compliance with the requirements of s.425 of the Act.
[51]I have borne in mind the distinction between a case in which mistranslation or non-translation is “frequent or continuous, as opposed to a case where the errors are intermittent” (see Robertson J in SZRMQ at [70] and SZSEI at [78]). It is also important to keep separate questions of mistranslation and non-translation, as opposed to mere errors of fact (see Robertson J in SZRMQ at [73] and Griffiths J in SZSEI at [78]) and the distinction between a mistranslation and a lack of detail in the relevant question or answer that is the subject of translation (see SZRMQ at [114] and SZSEI at [78]).
[52]It is well-established (see generally Kenny J in Perera at [29] to [31]) that “interpretation or translation is not a perfect science” (SZSEI at [79]). This is relevant when considering whether or not mistranslations or non-translations give rise to jurisdictional error. It was suggested in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 at [66] that it may suffice if “the translation is sufficiently accurate so as to convey the idea or concept being communicated” (SZSEI at [79]).
[53]At the same time, it is necessary to consider not only individual allegations of mistranslation or non-translation, but also to have regard to their cumulative effect (see SZSEI at [80] and SZRMQ at [116] per Robertson J). In essence, as Jagot J stated in SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52], the question of whether inadequate interpretation has deprived an applicant of the opportunity required under s.425 of the Act “involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole” (also see SZSEI at [81]).
[54]As the First Respondent submitted, the onus of establishing jurisdictional error falls upon the Applicant (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] per Gummow J; and SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109; [2009] FCAFC 106 at [71] per Buchanan J).
Mr Thai submits that the Tribunal failed to exhaustively deal with the claims of errors in interpretation as raised by him. He contends that the Tribunal’s adverse findings and ultimate decision was affected by the claimed errors and the errors of translation effectively prevented Mr Thai from giving his evidence, leading to a denial of procedural fairness. Furthermore, Mr Thai submits that the errors of translation were so material so as to cause the Tribunal’s decision to carry. In SZRMQ at [67]–[69] Robertson J notes that if a mistranslation or non-translation “could have affected the outcome, then, depending on the circumstances, that may be sufficient to establish a denial of procedural fairness”.
Minister’s contentions
The Minister submits that the Tribunal’s findings at [29] must be read in context. On 21 June 2018, Mr Thai provided the Tribunal with written submissions and a transcript of the Tribunal hearing conducted on 31 May 2018. In those written submissions, Mr Thai’s representative contended that a number of Mr Thai’s responses (as recorded in that transcript) had not been given, were inaccurate or had been misrepresented. Although it was not expressly stated, Mr Thai’s submission to the Tribunal appeared to contend that it was a result of interpreting errors or misunderstanding by the Tribunal. In that context, the Tribunal finding at [29] that the transcript “does not provide an independent transcript of what the sponsor said” is said to have been open to it.
This was not a matter where Mr Thai had provided independent expert evidence to show that the translations were inaccurate or incorrect. Accordingly, it was open to the Tribunal to conclude that it did not have independent evidence of what the sponsor said, other then what was provided by the translator and as had been provided in the transcript.
The question of whether inadequate interpretation has deprived an applicant of the opportunity given by s.360 of the Migration Act “involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole.” [71]The relevant question is whether any errors in interpretation are of such a character, whether viewed individually or in aggregate, that the process mandated by s.360 of the Migration Act miscarried. This involves focusing on the relationship between the alleged mistranslations or non-translations and the quality or fairness of the process, such as by having regard to the frequency and character of any mistranslations, non-translations or interventions by the interpreter. First, the Minister submits that the alleged errors identified by Mr Thai were not significant to his case before the Tribunal or to the Tribunal decision.[72] Secondly, the Minister submits that it is not possible to determine from the transcript alone whether any interpretation errors even occurred. In the absence of any expert evidence to show there were material errors in the translation, this ground cannot be made out.[73]
[71] SZHEW at [52]
[72] Liu v Minister for Immigration (2001) 113 FCR 541 at [44]; W284 v Minister for Immigration [2001] FCA 1788
[73] SZUYU v Minister for Immigration [2018] FCA 786 at [103]-[105]
Resolution
Ground 2 contends the Tribunal breached its obligations under s.360 of the Migration Act because it did not give Mr Thai an opportunity to give evidence and denied him procedural fairness. The particulars in support of this complaint refer to [29] of the Tribunal decision when it considered the transcript of the first Tribunal hearing (held 31 May 2018) that was provided to it with Mr Thai’s submissions.
The Tribunal conducted two hearings in this case. It appears that the first hearing was conducted with the Tribunal in one location, the interpreter by telephone and the visa applicant by a different telephone line. While no complaint is raised about the technical quality of the telephone connection for the purposes of Mr Thai’s evidence, it is apparent that there were technical problems in relation to the telephone connection to the visa applicant, which necessitated the second hearing.
It is also clear from the transcript of the first Tribunal hearing that no complaint about the quality of the interpretation was raised at that hearing. It was raised after the hearing by Mr Thai’s representative in the form of a submission.[74] In that submission, the representative states that he puts the asserted interpretation problems to the Tribunal by instruction from Mr Thai. The representative gave no evidence as to the quality of the interpretation and may not have been in a position to do so. Mr Thai, who required the assistance of an interpreter, and hence (it may be safely assumed) has no particular expertise in the English language was also not in a position to give evidence about the quality of the interpretation.
[74] CB 385
The Tribunal dealt with the submission in the following terms:[75]
The sponsor provided the Tribunal with an, in part, transcript of the Tribunal hearing of 31 May 2018. The sponsor’s migration agent challenges many aspects of the transcript. He claims that although the transcript recorded the sponsor’s responses to questions given through the interpreter, that the sponsor did not provide various responses. The transcript provided to the Tribunal recorded the Tribunal’s questions and information put to the sponsor and the sponsor’s responses as provided by the interpreter to the Tribunal at the Tribunal hearing. Unfortunately, the transcript does not provide an independent transcript of what the sponsor said. Therefore, the Tribunal cannot weigh the veracity of the sponsor’s migration agent’s claims, because it has not been provided independent evidence of what the sponsor said, other than that provided by the interpreter to the Tribunal at the Tribunal hearing and as recorded in the transcript provided to the Tribunal by the sponsor.
[75] CB 399 [29]
The Tribunal’s reference to the absence of an “independent transcript” was initially troubling to me as the transcript is an Auscript transcript, which should not require any particular verification. I accept, however, the Minister’s oral submission that the Tribunal’s difficulty was not the reliability of the transcript but the absence of any expert evidence about the quality of the interpretation at the first hearing. Further, there was a second hearing at which the Tribunal explored the issues with both the visa applicant and Mr Thai. I do not have a transcript of the second hearing and hence am unable to conclude what was said at that second hearing.
On the state of the evidence before me, I am unable to conclude that the Tribunal failed to provide Mr Thai with a fair hearing opportunity as required by s.360. I find that the second ground is not made out.
Conclusion
I conclude that Mr Thai is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 March 2020
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