Yarach v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 868
Federal Circuit and Family Court of Australia
(DIVISION 2)
Yarach v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 868
File number(s): MLG 806 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 21 October 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred by failing to provide the applicant with an interpreter in accordance with s 366C of the Migration Act 1958 (Cth) – whether that error was material – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 366C, 476
Migration Regulations 1994 (Cth), cl 572.223 in Schedule 2
Cases cited: Ahmed v Minister for Immigration & Multicultural Affairs [2001] FCA 1101
Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673
GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Pannu v Minister for Immigration and Multicultural Affairs [2006] FMCA 883
Shrestha v Minister for Immigration and Citizenship [2013] FMCA 32
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission: 5 August 2022 Date of hearing: 17 June 2022 Place: Perth Counsel for the Applicant: Mr D Perkins Solicitor for the Applicant: Fairfields Lawyers Counsel for the First Respondent: Ms K Hooper Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 806 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHONNAPUT YARACH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
21 OCTOBER 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 6 March 2018.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
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 KENDALL:
Background
The applicant is a citizen of Thailand (Court Book (“CB”) 10). He arrived in Australia in July 2009 as the holder of a student visa, which was valid until 12 March 2010. The applicant subsequently held various student or associated bridging visas (CB 68).
On 5 May 2016, the applicant applied for a Student (Temporary) (Class TU) (Subclass 572) visa (the “visa”) (CB 10-16). At the time of the application, the applicant was enrolled to study Certificates III and IV in Commercial Cookery (CB 68).
On 16 May 2016, the then Department of Immigration and Border Protection (the “Department”) asked the applicant for more information in relation to his visa application (CB 20-29), including information addressing the genuine temporary entrant criterion (as set out in cl 572.223(1)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”)) (CB 25).
The applicant provided additional information to the Department, including a statutory declaration, a “statement of purpose”, a financial declaration, a declaration and documentation from a financial “sponsor” and supporting business and financial information, reference letters, overseas health cover and educational records (CB 30-61).
On 4 November 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 66-71). The delegate was not satisfied that the applicant met the criteria set out in cl 572.223(1)(a) in Schedule 2 of the Regulations. Specifically, the delegate was not satisfied that the applicant “genuinely intended to stay in Australia temporarily” (CB 70).
On 21 November 2016, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal’) (CB 72-73). In that application, the applicant nominated a representative from Fairfields Lawyers as his authorised representative (the “representative”).
On 10 January 2018, the Tribunal invited the applicant (through his representative) to attend a hearing before it scheduled for 9 February 2018 (CB 78-87).
On 11 January 2018, the applicant’s representative contacted the Tribunal to request an adjournment of the hearing (CB 88-90) on the basis that the representative was unable to attend the hearing scheduled on 9 February 2018 “due to circumstances beyond his control” (CB 90).
On 15 January 2018, the Tribunal agreed to postpone the hearing (CB 91-93).
On 31 January 2018, the Tribunal invited the applicant (through his representative) to attend a rescheduled hearing before it on 6 March 2018 (CB 94-98).
On 2 March 2018, the applicant’s representative sent additional information and documents to the Tribunal comprising educational records, Overseas Student Confirmation-of-Enrolment documents (“CoEs”) and “student interview details” (CB 104-137).
On 6 March 2018, the applicant appeared before the Tribunal to give evidence and present arguments (CB 138-140). At that hearing, the Tribunal made an oral decision in which it affirmed the delegate’s decision refusing to grant the applicant the visa (CB 144).
On 4 May 2018, the Tribunal reduced its oral decision to a written statement of its decision and reasons (CB 148-153). A copy of those written reasons was provided to the applicant’s representative via email on 4 May 2018 (CB 145-147).
On 28 March 2018, the applicant sought judicial review of the Tribunal’s decision in this Court (CB 1-6). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
The Tribunal’s decision
Before determining whether the Tribunal has fallen into jurisdictional error, it is useful to first summarise the Tribunal’s decision in some detail.
The Tribunal’s written statement of decision and reasons is six pages in length and spans 48 paragraphs.
The Tribunal began by identifying the visa decision under review and acknowledged that it had initially made an oral decision in the matter on 6 March 2018 (at [1]-[2]).
The Tribunal noted that, to be eligible for a student visa, applicants must satisfy a range of legislative criteria. The Tribunal confirmed that the applicant had applied for the visa on 5 May 2016 and that a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant “met the Genuine Temporary Entrant criteria”. The Tribunal further confirmed that it had received the applicant’s review application and a copy of the delegate’s decision (at [3]-[5]).
The Tribunal identified that, in order to satisfy the requirements set out in cl 572.223 in Schedule 2 of the Regulations, the applicant was required to be a genuine student (noting the requirement for the applicant to be engaged and applying himself to studies and progressing academically on “an identifiable path”) and a genuine temporary entrant (noting that the applicant’s circumstances must indicate that he genuinely intends to stay temporarily in Australia) (at [6]-[8]).
The Tribunal then noted that, in considering whether the applicant met the genuine temporary entrant criteria, it must have regard to Ministerial Direction No. 53 (“Direction No. 53”). The Tribunal explained that Direction No. 53 should not be used as a “checklist” but, instead, as a “guide”, when making findings on whether the applicant satisfied the genuine temporary entrant criteria. The Tribunal further explained that its role was to “take a fresh look” at the applicant’s visa application and that it needed to be satisfied that the applicant was a “genuine student who intend[ed] to stay in Australia temporarily” (at [9]-[11]).
The Tribunal continued:
12.You told the Tribunal you had read and understood the primary decision which was discussed in detail. We read from the decision and it appeared you understood why the decision had been made.
The Tribunal explained that the delegate’s decision put the applicant on notice of the issues in his matter and the hearing invitation again put the applicant on notice of the issues the Tribunal would consider (at [13]-[14]).
The Tribunal then summarised the evidence before it as follows:
(a)the applicant’s representative provided submissions detailing the applicant’s study history (at [15]);
(b)that study history identified significant gaps in the applicant’s study and the Tribunal found the applicant’s explanation of those gaps to be unsatisfactory (at [16]-[17]);
(c)the Tribunal did not believe those gaps in study where the behaviour of a genuine student or someone keen to be granted a visa for study purposes (at [18]); and
(d)the applicant was a qualified Industrial Technician before coming to Australia (in 2009 at the age of 28) and had a mobile phone repair business (which ultimately failed) (at [19]).
The Tribunal then discussed the applicant’s study history, noting as follows:
(a)he came to Australia to learn a trade and enrolled to study Automotive Mechanical Technology with a view to becoming a qualified mechanic (at [20]);
(b)he changed his course of study to a Certificate IV in business, commencing in October 2010, and then enrolled in a number of short, inexpensive courses (at [21]-[22]); and
(c)the Tribunal was concerned that the applicant had completed courses containing units already studied by him but did not seek recognition of prior learning for those units (at [23]).
The Tribunal continued:
24.This leads the Tribunal to find that either you did not research the courses you chose to study, or alternatively you chose those courses not in the pursuit of academic progression but to maintain residence in Australia
The Tribunal noted that the applicant’s last student visa (granted in May 2015) was as a dependent on the visa of the applicant’s then partner. Although that relationship broke down in August 2015, the applicant remained on that visa until its expiration in May 2016 and there was no evidence to suggest that the applicant had notified the Department in that regard. The Tribunal interpreted this as evidence that the applicant’s motivation was to remain in Australia (at [25]-[26]).
The Tribunal explained that the applicant had been in Australia since 2009 and that studies to become either a mechanic or a chef would each only take approximately three years. The Tribunal acknowledged the applicant’s evidence that he had begun working as a chef in 2009 and that cooking became his passion. However, the Tribunal found it implausible that the applicant would have spent seven years studying unrelated courses if cooking was his passion. Further, the applicant had not managed to complete his most recent course within the scheduled time and had completed no courses in either the mechanic or chef disciplines (at [27]-[30]).
The Tribunal continued:
31.You say your parents are separated and you need to go home and look after your mother. While that may provide some incentive to return, you appear settled in Australia. You have provided a range of references stating you have worked since shortly after you arrived.
32.One of those references states you worked as a cook from 2009 to 2013 for 20 hours a week. You also provided a CV that shows that during that same period you worked as a cook for 20 hours a week, from February 2010 to December 2010 you were working as a casual in the production department of Accent Global factory in Clayton, from January 2011 to June 2011 you were working as a casual curtain assembler at Gilligan’s Blinds and from August 2011 to June 2012 at Oaks on Lonsdale. So if you were working 20 hours a week as a cook and also doing those other roles, you were clearly working a lot more than the 40 hours per fortnight you are permitted to work on a student visa. The fact you have had such disregard for your visa conditions means I am not satisfied you would abide by conditions attaching to any future visa.
33.While you say it is your intention to return home, having been here for over 8½ years you now seek to remain longer. Your words and your actions seem to be different. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of any incentive to return which outweighs the issues we have discussed and your immigration history.
The Tribunal confirmed that the applicant had provided evidence of enrolment in a Diploma of Hospitality Management but noted that the applicant had not completed prerequisite units in the Certificate IV (which had been scheduled for completion in December 2017). The Tribunal acknowledged that the applicant had provided evidence that he had submitted four assignments in February 2018 relating to that Certificate IV. Nonetheless, the Tribunal “could not be sure” if or when the applicant would commence studying the Diploma (at [34]-[35]).
The Tribunal noted that the applicant had completed a Certificate III in Commercial Cookery and had been working as a chef for more than 8 years. However, the Tribunal was not satisfied that the applicant’s proposed course of study would add significant value to the applicant’s future (given his previous study and on the job training) (at [36]).
The Tribunal also acknowledged the applicant’s evidence that Thai people “like to see certificates” but noted that the applicant had many educational certificates. The Tribunal explained that the applicant had a history of enrolments in short and inexpensive courses in unrelated disciplines and that the Tribunal did not consider the studies to be leading to a career pathway. The Tribunal also noted that the applicant had held four previous student visas and that his proposed further stay would bring his total time in Australia (on temporary visas) to more than nine years (at [37]-[39]).
The Tribunal found that the applicant’s extensive proposed stay in Australia indicated he was seeking to use the student visa program as a means of remaining in Australia. The Tribunal also noted that, in the applicant’s first course of study, his attendance was “marked as unsatisfactory” (being below 80%) (at [40]-[41]).
The Tribunal determined as follows:
42.You claim to be an experienced and competent cook, yet your intended Diploma of Hospitality is subject to you finishing units you did not satisfactorily complete in your Cert IV of Commercial Cookery that was scheduled for completion in December last year. The Tribunal believes this indicates you are not a genuine student.
The Tribunal noted the significant study gaps (and that there was no satisfactory explanation for those gaps), explaining that it is expected that a student visa holder will remain enrolled and study and progress academically (at [43]-[44]).
The Tribunal did not believe that the applicant’s study history was that of a genuine student and was not satisfied with the applicant’s explanations for his behaviour and study gaps. Overall, the Tribunal concluded that his behaviour was not that of a genuine student. Further, the Tribunal found that “the timing of the visa application” (being on the date that his previous visa expired) indicated that the applicant was motivated by the need for a further visa (rather than academic progression) (at [45]-[46]).
Having reviewed the applicant’s circumstances as a whole, the Tribunal was ultimately not satisfied that the applicant was a genuine student or that he genuinely intended to stay in Australia temporarily. On that basis, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [47]-[48]).
APPLICATION TO THIS COURT
The applicant obtained legal representation in this matter in early 2019.
On 21 December 2021, the applicant’s legal representative provided Judge Lucev’s chambers with an amended application, written submissions and audio recordings of the Tribunal’s hearing “to be attached to the supplementary Court Book”. The amended grounds of review raised in the amended application are lengthy and will be discussed further below. The applicant’s material was not accepted for filing by Judge Lucev’s chambers at the relevant time on the basis that it had been “supplied outside of the date stipulated for the applicant to file submissions”.
Orders were subsequently made by Judge Lucev (by consent) on 11 February 2022 extending the time within which the applicant could file and serve, inter alia, an amended application, supplementary Court Book and written submissions (to 14 February 2022). Unfortunately, the documents referred to above were not filed by the applicant’s representative.
On 11 March 2022, written submissions and an affidavit (annexing a copy of a transcript of the Tribunal hearing which took place on 6 March 2018) were filed on behalf of the Minister.
When this matter came before the Court, Mr Perkins of counsel appeared on behalf of the applicant. Ms Hooper of counsel appeared on behalf of the Minister.
After discussion with the parties, an order was made by this Court granting the applicant leave to rely on the amended application and written submissions dated 21 December 2021. A further order was made requiring the applicant’s representative file those documents in this Court by 20 June 2022. Unfortunately, the documents remain unfiled. The Court is, however, satisfied that the Minister was aware of the material and able to address issues raised therein.
On 23 June 2022, following the hearing, the Court made orders allowing the parties to file further written submissions addressing “the issue of alleged bias on the part of the Tribunal”. This issue will be discussed further below.
The materials before the Court thus include the affidavit of the applicant affirmed and filed on 28 March 2018 (taken as read and in evidence at the hearing), the applicant’s amended application for judicial review and written submissions dated 21 December 2021, a Court Book numbering 153 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 11 March 2022, the affidavit of Freda Taah sworn and filed on 11 March 2022 (the “Taah affidavit”) (taken as read and in evidence at the hearing), further written submissions filed on behalf of the applicant on 22 July 2022 and further written submissions filed on behalf of the Minister on 5 August 2022.
Consideration
Broadly, the amended application filed on behalf of the applicant contains five grounds of review with particulars. In effect, however (and as canvassed by the parties before this Court), the applicant’s amended application now raises two broad “issues” relevant to jurisdictional error on the part of the Tribunal:
(1)whether the Tribunal breached s 366C(2) of the Act or otherwise denied the applicant procedural fairness by failing to comply with the applicant’s request for an interpreter (the “interpreter issue”); and
(2)whether the Tribunal showed apprehended bias as evidenced by the questioning put to the applicant and his representative and the Tribunal’s approach and conduct more generally (the “bias issue”).
The interpreter issue
Before this Court, Mr Perkins for the applicant submitted that the Tribunal member erred because the Tribunal hearing proceeded without the assistance of an interpreter, despite the Tribunal member making a “ruling” that an interpreter would be available and relied on.
Ms Hooper for the Minister, in turn, submitted that a failure to provide an interpreter does not necessarily breach s 366C of the Act. Ms Hooper also submitted that, in this matter, it should be inferred that the Tribunal was satisfied that the applicant was sufficiently proficient in English, thus negating the need for the Tribunal to provide the applicant with an interpreter. Further, even if the Tribunal had erred by failing to provide an interpreter, in Ms Hooper’s submission, such an error would not have been material.
Before considering whether the Tribunal erred by failing to provide an interpreter to the applicant, it is useful to first set out the relevant legislative provisions in this regard.
Section 366C of the Act provides:
366C Interpreters
(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.
(3)If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection (1).
It is clear that the Tribunal must comply with a request made by an applicant for an interpreter to be made available at a hearing unless the Tribunal considers that the applicant is “sufficiently proficient in English”: s 366(2) of the Act.
Section 366C(3) of the Act further specifies that the Tribunal must also appoint an interpreter, even where one has not been requested by an applicant, in circumstances where the Tribunal considers that the applicant is not sufficiently proficient in English.
Here, the applicant first requested that the Tribunal provide an interpreter in the Thai language on 21 November 2016 in his application filed with the Tribunal (CB 72). He again requested a Thai interpreter in his completed response to hearing invitation form (CB 101).
The Court is satisfied that the applicant specifically requested that the Tribunal appoint an interpreter for the purpose of communication between the applicant and the Tribunal. The Court is further satisfied that the applicant was entitled to make such a request pursuant to s 366C(1) of the Act.
The Tribunal was thus required to comply with that request unless it considered that the applicant was sufficiently proficient in English.
Whether an applicant has a sufficient level of English proficiency is determined on a case by case basis: Pannu v Minister for Immigration and Multicultural Affairs [2006] FMCA 883 (“Pannu”); Shrestha v Minister for Immigration and Citizenship [2013] FMCA 32 (“Shrestha”).
The Migration Hearing Record suggests that a Thai interpreter was present by telephone and used for the hearing (CB 138). That is not entirely accurate.
The transcript of the hearing annexed to the Taah affidavit indicates that the hearing in this matter was effectively held in two parts. In part one of the hearing, an initial discussion was had with the applicant in this matter and an applicant in an unrelated matter (commencing at 1.42pm on 6 March 2018 and concluding at 1.51pm) in relation to how the hearings would proceed and any requirements in relation to interpreters. Part two of the hearing was the substantive Tribunal hearing for the applicant in this matter (commencing at 2.58pm on 6 March 2018).
In part one of the Tribunal hearing, the Tribunal member’s discussion with the applicant in this matter about interpreter requirements provided as follows (Taah affidavit, pp 6-7, transcript pp 3-4):
[TRIBUNAL MEMBER]: Yes. All right. No problem. We will start again. You have been invited here because the Department were not satisfied you met the requirements for the grant of a student visa. And you appealed that decision to be revealed by this tribunal. Actually before we go any further, and I don’t need you to interpret this, Madam Interpreter, what I am keen to know from both the applicants here today,
Ms [Omitted], how good is your English? Do you understand me? No. No. No. My question to you is do you understand me?
…
[TRIBUNAL MEMBER]: Okay. All right. And you, Mr Yarach, how good is your English?
MR C. YARACH: Not good.
[TRIBUNAL MEMBER]: Not good?
MR YARACH: Yeah.
[TRIBUNAL MEMBER]: I see on your CV you’ve put down that your English written and spoken is good?
MR YARACH: Maybe confuse some questions.
[TRIBUNAL MEMBER]: Maybe confuse what?
MR YARACH: Some questions.
[TRIBUNAL MEMBER]: All right. Good. Okay. Okay. Then we will continue and interpret everything, thank you. You appealed the decision to refuse your visa to be considered by review by this tribunal. I am now talking to the applicants.
THE INTERPRETER: Certainly.
[TRIBUNAL MEMBER]: And what I just said to them was they appealed the decision to refuse their application to be refused by this tribunal. When matters come here my job is to look at your application afresh and to make a new decision. I am keen to ask you a number of questions to get as clear picture of your circumstances as I can and it is important you understand this is your opportunity to tell me anything you think I should know in making the correct decision in your case. Are you happy that you understand what the interpreter is saying and what I am saying to you?
MR YARACH: Yes.
[TRIBUNAL MEMBER]: Good. It is important that we make decisions here based on the truth and so I am going to ask first, please, that the interpreter swears that she will interpret to the best of her ability. And then I will get each of you to swear that you will tell the truth here today.
<THE INTERPRETER, SWORN TO INTERPRET
TRIBUNAL OFFICER: That’s the Quran, there is no Bible.
[TRIBUNAL MEMBER]: Sorry. Please just wait. I’m sorry.
TRIBUNAL OFFICER: Sorry about that.
…
<CHONNAPUT YARACH, SWORN
[TRIBUNAL MEMBER]: Thank you. We are now going to hear each of these cases separately and when we are hearing your case I would ask, please, that you come and sit up the front here and you speak up loudly so that your voice can be heard. We are going to hear [omitted] case first and we are going to hear this case in camera in private. So if you would like to leave, I will call you when your case is ready, thank you.
TRIBUNAL OFFICER: This hearing is adjourned. The time is 1.51 pm. The Member will remain in the room. I will now stop the recording.
In the extract above, the Tribunal member advised the applicant that they would “continue and interpret everything”. To the extent that the Minister submitted (at [32] in written submissions filed in this Court on 11 March 2022) that the Tribunal did not make a ruling that the interpreter would be used for the applicant’s substantive hearing, the Court disagrees. It is clear to this Court that the Tribunal member considered, at that point, that the applicant was not sufficiently proficient in English and that an interpreter was required.
In part two of the Tribunal hearing, no interpreter is used and it is not entirely clear why this is the case. The Minister submitted (at [32] in written submissions filed in this Court on 11 March 2022) that it “should be inferred” that the Tribunal “considered the applicant was sufficiently proficient in English that an interpreter was not necessary for the balance of the hearing”. The Minister further submitted that, having done so, the Tribunal was then entitled to proceed without an interpreter, despite the applicant’s request to be provided with one and relied on the decision in Pannu (at [21]) in that regard.
The Court disagrees.
The circumstances of this matter differ to those in Pannu. In Pannu, the Court stated (emphasis added):
21.I am satisfied that the Tribunal, by its conduct in its exchange with the Applicant at the commencement of the hearing and the ease of its communication with the Applicant during the hearing, make it clear that the Tribunal considered that the Applicant was sufficiently proficient in English such that an interpreter was not required “for the purposes of communication between the Tribunal and the person.” There is no evidence to suggest that an interpreter was required for that purpose. In those circumstances the Tribunal was entitled to proceed with the hearing in the absence of an interpreter, even though one was originally requested by the Applicant.
The exchange at the commencement of the hearing referenced in Pannu provided as follows:
14.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.”
This exchange in Pannu differs significantly to the discussion at the commencement of part one of the Tribunal hearing in this matter (detailed above) where the question was asked of the applicant about his level of English and the Tribunal member, having been told by the applicant that his English level was “not good”, agreed to continue with the hearing and have “everything interpreted”.
If the Tribunal member had later considered that the applicant was significantly proficient in English, after having already told the applicant, in no uncertain terms, that everything would be interpreted, that ought to have been communicated and explained to the applicant at the relevant time. Context matters.
The Court also notes the comments made by FM Burchardt in Shrestha in relation to potential inferences made by the Tribunal about English proficiency, as follows:
34.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.
35.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.
Here, as was the case in Shrestha, there is no indication from the materials before the Court that the Tribunal had any further discussion on the question of the applicant’s English proficiency in the second part of the Tribunal hearing or that the Tribunal member turned his mind to that question again (having already asked that question and determined that interpretation was required in part one of the Tribunal hearing).
The Court in Shrestha determined as follows:
37.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”.
38.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.
That approach applies equally here. As outlined by the Federal Court in Ahmed v Minister for Immigration & Multicultural Affairs [2001] FCA 1101, a failure to comply with s 366C of the Act “would give rise to a ground of review”. To the extent that the Minister submitted that any error on the part of the Tribunal in this regard would not be material, the Court disagrees.
As outlined by this Court in its decision in Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673 (citing GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9), an error will only be jurisdictional where it is material or, more simply put, where the error would have realistically deprived the applicant of the opportunity of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (“SZMTA”); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (“MZAPC”).
MZAPC further confirmed that, as outlined in SZMTA, the “existence or non-existence of a realistic possibility that the decision could have been different” is a “question of fact” and the applicant in a judicial review application “bears the onus of proof” in that regard: MZAPC at [2]-[3].
The question for the Court to consider is: had the Tribunal complied with the applicant’s request that the Tribunal appoint an interpreter for part two of the Tribunal hearing, was there a “realistic possibility” that its decision would have been different.
The Court considers that there is a realistic possibility that the outcome could have been different in this matter. This is not a matter that turned on a single fact or a matter where there was only one decision open to the Tribunal. It is not, for example, a matter where the applicant had not provided a confirmation of enrolment. This is a matter where the Tribunal, after consideration of all of the applicant’s circumstances as a whole, was not satisfied that the applicant genuinely intended to stay in Australia temporarily.
The Tribunal member questioned the applicant at length about his circumstances at the hearing. The questions were asked of the applicant in English and his responses were provided in English – without the use of an interpreter. It cannot be said that the applicant could not or would not have had a better understanding of what was being asked of him or that he would not have been able to provide more detailed responses had an interpreter been used (as the applicant had requested and as the Tribunal member had agreed to in part one of the Tribunal hearing). It also cannot be said that, as a result of providing more detailed responses in his own language, the applicant could not have addressed some of the concerns that the Tribunal had in relation to the applicant’s circumstances.
The Court is satisfied that the Tribunal’s failure to comply with s 366C of the Act amounted to jurisdictional error.
The bias issue
In circumstances where the interpreter issue has identified jurisdictional error on the part of the Tribunal, it is not necessary for the Court to consider the applicant’s further concerns raised in relation to the issue of bias.
Conclusion
The amended application provided to the Court on behalf of the applicant has identified jurisdictional error on the part of the Tribunal.
The Tribunal’s decision will be set aside and the matter will be remitted to the Tribunal for reconsideration.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 21 October 2022
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