Thompson v Minister for Home Affairs

[2018] FCCA 1970

FEDERAL CIRCUIT COURT OF AUSTRALIA

THOMPSON v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1970

Catchwords:

MIGRATION – Judicial Review – partner visa – not valid marriage – no
de facto relationship – assertions of incorrect translation by interpreter – considerations of s.359A and s.359AA of the Act.

Legislation:

Migration Act 1958 (Cth), ss.359A, AA, 376

Cases cited:
BZAID v Minister for Immigration and Border Protection [2006] 242 FCA 310

Applicant: DONNA MARIE THOMPSON

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: LNG 16 of 2018

Judgment of: Judge McGuire

Hearing date: 19 July 2018

Date of Last Submission: 19 July 2018

Delivered at: Melbourne

Delivered on: 26 July 2018

REPRESENTATION

The Applicant: Appeared in person

Counsel for the First Respondent: Ms Watson

Counsel for the Respondents: Australian Government Solicitor

The Second Respondents: No appearance

ORDERS

1. That the application for Judicial Review be dismissed.

2. That the applicant pay the costs of the first respondent fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

LNG 16 of 2018

DONNA MARIE THOMPSON

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

And

ADMINISTRATIVE APPEAL TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made 1 March 2018 refusing the granting to the review applicant of a Visa under s.65 of the Migration Act 1958 (‘the Act’) being a partner Visa for Mr Mohammad Rostam Hassani.

2. The applicant says that she met Mr Hassani via his daughter who lives in Tasmania. They conversed through various media. In September 2015 she says that Mr Hassani asked her her to marry him.
   She travelled to Iran in March 2016 and a marriage ceremony was conducted on 3 April 2016. The applicant returned to Australia on
   23 May 2016 and therefore spent some two months in Iran. Mr Hassani applied for a Partner Visa being a Partner (Provisional) (Class UF) and Partner (Residence) (Class BC) Visa on 1 May 2016. The applicant made Application as his sponsor on the basis of him being her partner.

3. The Minister’s delegate refused the application on 15 May 2016 on findings that the marriage between the applicant and Mr Hassani was not a valid marriage. The delegate found that Mr Hassani had not provided a legal divorce certificate from his first wife but only a religious divorce certificate. Similarly, the delegate found that the applicant Mr Hassani had not provided a legal marriage contract but again filing a religious marriage certificate. The delegate concluded that the relevant marriage between the applicant and Mr Hassani was not a valid marriage pursuant to s.5F(2)(a) of the Act.

4. Similarly, the delegate found no evidence to support a finding that the relationship between the applicant and Mr Hassani met the definition of de facto relationship pursuant to s.5CB of the Act.

5. The applicant sought a review of the delegate's decision by application to the Tribunal of 29 June 2016.

6. The hearing of that application took place on 15 January 2018.
   The applicant attended the hearing and gave evidence and submissions. Mr Hassani gave evidence by telephone. Mr Hassani’s son, daughter and a friend all gave evidence before the Tribunal. An interpreter was engaged by the Tribunal.

7. The Tribunal's decision affirming the refusal of the Visa application was handed down on 1 March 2018.

8. On 22 January 2018, and following the hearing, the Tribunal wrote to the applicant pursuant to s.359A of the Act stating inter-alia:

   During the hearing on 15 January 2018, the member noticed you were taking medication and became increasingly affected by the medication. Further you participated in the hearing for over three hours. For these reasons the member decided to put the adverse and inconsistent evidence given at the hearing to you in writing and to allow you the opportunity to comment or respond in writing. We note that this was discussed with you at the conclusion of the hearing.

1. The letter to the applicant then set out eight paragraphs particularising the asserted inconsistent information/evidence.

2. Secondly, and also on 22 January 2018, the Tribunal wrote to the applicant attaching a certificate under s.376 of the Act and invited submissions from the applicant as to the validity of the certificate.
   That letter also set out the 'general gist' of the assertions made in the relevant document being that the marriage between the applicant and Mr Hassani was an illegal one or that they were intending to enter into an illegal marriage and that Mr Hassani’s two children in Australia had been actively recruiting people to marry their parents for the purposes of those parents coming to Australia.

3. The applicant responded to both letters in her own letters of 3 February 2018.

4. The Tribunal found that the s.376 certificate was valid and that the document covered by the certificate should not be disclosed otherwise as to its content or source.

5. The Tribunal in its reasons affirmed the findings of the Minister’s delegate that the marriage was not a valid marriage for the purposes of the Act and, secondly, that the applicant and Mr Hassani were not in a de facto relationship.

Application for Judicial Review

1. The applicant appeared in person before this Court. She had not provided written submissions in usual form pursuant to the orders and directions of the Registrar made 18 May 2018. She had, however, filed with the Court three affidavits being two affidavits of herself sworn
   4 April and 7 June 2018 and an affidavit of Mr Hassani’s son, Ahmed Faved Hassani, sworn 6 June 2018. I have read into evidence before me the contents of each affidavit subject to the formal objections taken by Counsel for the first respondent on the basis of relevance and non-expert opinion. These affidavits confirm three areas of complaint by the applicant in respect of the Tribunal’s determination and as identified in the first respondent's written submissions.

2. Counsel appeared for the first respondent and spoke to the written submissions. The applicant was invited to make oral submissions and also to make submissions in response to the first respondent's oral submissions.

3. The applicant confirms that she makes three grounds of complaint against the determination of the Tribunal being as follows: –

   (i)That the Tribunal’s decision was affected by incorrect translation/interpretation of evidence by the interpreter engaged by the Tribunal;

   (ii)That the Tribunal adopted a process under s.359A inviting the applicant to comment in writing rather than the applicant being given the opportunity to comment at the hearing pursuant to s.359 of the Act; and

   (iii)That the Tribunal did not investigate the veracity of a document being the subject of a s.376 certificate and where the applicant says that the document was provided with malicious intent and comprised false allegations.

A – That the Tribunal's determination suffered by reason of incorrect translation by the interpreter

1. I accept the submission of Counsel for the first respondent that the applicant does not support this contention by providing a transcript or any evidence in proper form from an independent translator of any incorrect translation.

2. The asserted errors are set out in the affidavit of the applicant herself sworn 4 April 2018 and in generalised form and then in more particularised form in the affidavit of Ahmed Faved Hassani sworn
   6 June 2018 which, of course, is filed some three months after the Tribunal’s decision. The applicant, in her oral submissions to this Court, made only generalised and non- particularised assertions as to the misinterpretation/translation similar to [4] and [5] of her earlier affidavit.

1. The applicant's written response to the Tribunal of 3 February 2018 raises this issue of translation.  Essentially, I understand the applicant's complaint here to be the inconsistencies in evidence raised by the Tribunal can be explained, or substantially explained, by errors in the translation either in whole or in part but, in any event, such errors in translation have caused the Tribunal itself to fall into error in its determination.

2. The Tribunal was therefore armed with the applicant's response prior to handing down its reasons on 1 March 2018. Notably, the Tribunal addresses the applicant's complaints in respect of translation at [29] and following. For example at [30] of its reasons the Tribunal states:

   However, I accept the review applicant's claim in relation to the possible unsatisfactory interpreting and I will give no weight to the inconsistent evidence in relation to the claimed changed school times from morning to afternoon…

3. Undoubtedly, a finding of incorrect translation may lead to a finding that a Tribunal has fallen into jurisdictional error. Such a nexus, however, is not a strict or necessary one. Again, the Tribunal here was appraised of and considered the submission by the applicant as to incorrect translation in respect of its concerns as to inconsistencies in the evidence of and on behalf of the applicant which was clearly a major basis for its final determination.

4. Edelman J in BZAID v Minister for Immigration and Border Protection[1] considered issues of translation and offered the following helpful guidelines:

   [1] (2006) 242 FCA 310 at [54]

   (1)Interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a 'perfect' interpretation;

   (2)Whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;

   (3)In making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;

   (4) Where interpretation is necessary, it must be adequate to convey 'the substance of what is said.' Or 'the essential elements that were being conveyed by the appellant' in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;

   (5) Where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;

   (6) Where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;

   (7)If an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;

   (8)However, it is not necessary, and many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.

5. In this matter the applicant herself raised issues of interpretation/translation in her response of 3 February 2018.
   Those issues were not then highly particularised. Within the context of the substantive concerns of the Tribunal as to inconsistency of evidence, the Tribunal considered the applicant's then complaints as to mistranslation. That is, the Tribunal was appraised of an engaged with the issue as evidenced at [29], [30] and [34] of its reasons.  Notably, the Tribunal was not then provided with the particularised complaints later set out in the affidavit of Ahmed Faved Hassani. It was therefore open to the Tribunal to evaluate the evidence and submissions before it, which it did, and then to attribute weight to those submissions and evidence, which it did, in its process of reasoning.

6. Accepting that interpretation is not an exact art, and even considering the particularised evidence later provided in Mr Hassani’s affidavit (taken under objection as to relevance and being non-expert opinion) at its highest, such evidence does not, in my view, assist towards any conclusion that the Tribunal fell into error in the sense of its finding being unreasonable, irrational or illogical.

7. Consequently, I find no merit in the first ground of complaint.

B – That the Tribunal adopted a process under s.359A of the Act inviting the applicant to comment in writing rather than one pursuant to s.359AA of the Act permitting the applicant to comment at the hearing

1. Section 359AA provides:

   (1)If an applicant is appearing before the Tribunal because of an invitation under s.360:

   (a)the Tribunal may orally give the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and

   (b)     If the Tribunal does so – the Tribunal must:

   (i)     ensure, as far as reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)     orally invite the applicant to comment on or respond to the information; and

   (iii)   advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)    if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

2. Section 359A provides relevantly:

   (i)subject to subsections (2) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   (ii)the information and invitation must be given to the applicant:

   (a)except where (b) applies – by one of the methods specified in section 379A; or

   (b)if the applicant is in immigration detention – by method prescribed for the purposes of giving documents to such a person; and

   (c)the Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

3. The provisions of ss.359A, and 359AA operate in a complementary fashion and the Tribunal holds a discretion to engage in one or the other.

4. The applicant in her response did not request a reconvening of the hearing so as to provide oral submissions or evidence.

1. Where there exists a discretion in the Tribunal to proceed by either ss.359A or 359AA then no error of law can occur in the choice of one option over the other and where there is no legislative requirement to engage the applicant in the exercising of the discretion.

2. In any event, in the circumstances of this matter where the Tribunal observed medical difficulties in the applicant (which is not denied by the applicant) then the engagement of s.359A would seem entirely appropriate where there is an overall requirement for the Tribunal to provide a fair hearing to any applicant.

3. Consequently, I find no merit in the second ground of complaint.

C – That the Tribunal did not investigate the veracity of a document being the subject of a s.376 certificate and where the applicant says that the document was provided with malicious intent and contained false allegations.

1. Essentially, I understand the applicant's grievance to be that the Tribunal should not have given weight to the information in the document being the subject of the certificate.

2. Notably, given the certificate, the Tribunal did provide the applicant with the 'general gist' of the contents of the document and, in particular, the assertion that the Visa applicant intended an illegal marriage or had entered into an illegal marriage with this applicant and, secondly, that the visa applicant’s two eldest children had been actively recruiting people to marry their parents for migration purposes.

3. The applicant responded to the Tribunal's letter by her own letter of
   3 February 2018 in which she claimed the material in the document to be false and malicious.

4. The Tribunal's reasons at [10] – [12] show that the Tribunal engaged and considered the applicant's response in attributing weight to the document where this was a part, but not the whole, of the evidence considered by the Tribunal in making its substantive findings in respect of the relationship between the review applicant and the Visa applicant [38].

5. Where it is for the Tribunal to attribute weight to evidence and where the Tribunal adopted an appropriate process under s.376 of the Act,
   I am satisfied that the applicant here quibbles with the merits of the Tribunal's decision and does not demonstrate jurisdictional error.

Conclusion

1. There being no merit to any of the three grounds of complaint raised by the applicant, the application for judicial review is dismissed with an order for costs in favour of the respondent.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 26 July 2018