FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration & Multicultural Affairs [2001] FCA 1101

MIGRATION – appeal from decision of Migration Review Tribunal – family (residence) (class AO) visa application – whether applicants special need relatives – duty of Tribunal to appoint interpreter under s 366C(3) of Migration Act 1958 (Cth) – whether failure to appoint interpreter gives rise to ground of review – whether Tribunal complied with requirement by requesting applicants’ daughter to act as translator where daughter also gave evidence

Migration Act 1958 (Cth) ss 360, 361, 366C, 476(1)(a)

Stone v Minister for Immigration and Ethnic Affairs [1996] FCA 547 cited

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 cited

Phan v Minister for Immigration and Multicultural Affairs [2000] FCA 89 cited

Cotofan v Minister for Immigration and Multicultural Affairs [2000]FCA 1042 cited

Long v Minister for Immigration and Multicultural Affairs [2000] FCA 1172 cited

Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1858 cited

MUSHTAQ AHMED and KAMRUL NISA AHMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 129 OF 2001

HILL J

20 JULY 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicants pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicants are nationals of Fiji.  Mr Mushtaq Ahmed applied together with his wife, Mrs Kamrul Nisa Ahmed, for a family (residence) (class AO) visa subclass 806 (family).  The basis of the application was that the applicants were special need relatives in respect of their daughter, a Mrs Buniyadi Begum (the “nominator”) who is an Australian citizen. 

2                     The case, as revealed in the visa application, was that the applicants wished to give “emotional and psychological support” to their daughter and her family in respect of the applicants’ grand daughter, Famiza, whom the applicants claimed suffered from cerebral palsy. 

3                     To succeed in their application, it was necessary that the applicants establish that one or both of them was a special need relative as that expression was defined at the relevant time in reg 1.03 of the Migration Regulations 1994 (Cth) (the “Regulations”).  The expression “special need relative” was defined as follows:

“[I]n relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a)               the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b)              the assistance cannot reasonably be obtained from:

(i)                 any other relative of the citizen or resident, being a relative who is an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii)               welfare, hospital, nursing or community services in Australia.”

4                     In support of the application, the applicants submitted certain documentary evidence of Famiza’s condition.  These included (i) a speech pathology initial assessment report dated 13 January 1999 by Liverpool Health Service; (ii) a paediatric occupational therapy assessment report dated 8 April 1999 by Fairfield Health Services; (iii) a referral form from Learning Links dated 11 May 1999 recommending speech pathology and some occupational therapy.  For reasons which are unknown, no medical evidence was submitted to the Tribunal otherwise concerning Famiza’s health or disabilities or indeed showing that she did suffer from cerebral palsy as was claimed, and the extent of that condition.

5                     The material submitted by the applicants was considered by the Migration Review Tribunal (the “Tribunal”) which decided that it should extend an invitation to the applicants to appear before the Tribunal in accordance with s 360 of the Migration Act 1958 (Cth) (the “Act”).  Relevantly, s 360(1) provides that:

“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.” 

6                     The decision under review was a decision of a delegate of the Minister refusing to grant to the applicants the visas applied for.  In accordance with section 360A of the Act, notice was in due course given by the Tribunal to the applicants of the time and place at which the applicants were entitled to appear.  The hearing took place before the Tribunal on 17 January 2001.  It is conceded on behalf of the applicants from the bar table that Mr Ahmed was sworn.  It is not clear, because the transcript omits the early introductory material, whether or not the nominator was likewise sworn.

7                     From the transcript, an extract of which was tendered without objection through an affidavit filed by the applicants’ solicitors, it appears that at the very outset Mr Ahmed was asked by the presiding member whether he spoke English.  He responded, “yes, probably not 100 percent”.  After some questions identifying the persons who were present at the Tribunal hearing, the Tribunal announced that it would commence the hearing at 10 past 11.  It then asked Mr Ahmed, apparently, “you're following what I'm saying, are you?”.  Mr Ahmed responded in the affirmative.  The Tribunal member then said, “because I’m concerned that if you don't follow you know we are going to end up having a problem because we don't have an interpreter.  What's your native language?”.  Mr Ahmed’s response is recorded as being indecipherable. 

8                     The Tribunal member then said, “pardon, I wonder if you can arrange to get an interpreter?”.  There was again an indecipherable response and subsequently Mr Ahmed said, “my daughter” indicating presumably that Mr Ahmed could arrange to have the daughter do the translation.  The daughter intended to be present at the hearing and indeed as will appear was asked some questions at least by the Tribunal.  At one stage, the Tribunal member asked the daughter whether Mr Ahmed understood what the Tribunal member was saying.  The daughter responded that he did understand.  Some small number of questions were then asked of Mr Ahmed.  One of those questions was why he believed that Famiza required assistance.  Mr Ahmed answered the question and the Tribunal member then turned to ask some direct questions of the daughter before very shortly afterwards stating that there was no basis for the application at all.

9                     It may be said, to make these reasons easier to follow, that both the nominator and her husband worked during the day and it was the case of the applicants, apparently, that they would be available to look after Famiza, at least when she was home from school and/or assist in speech therapy and physiotherapy.  Ultimately, the Tribunal asked the nominator whether there was anything else the nominator wished to say and received a negative response.  The Tribunal then turned to Mr Ahmed and asked him whether there was anything else he wished to say.  The response was apparently indecipherable.  The Tribunal hearing concluded at 20 past 11, that is to say ten minutes after it had started.

10                  The reasons of the Tribunal were dated some 13 days after the date of the hearing.  The Tribunal noted that the documentary evidence, to which I have referred, disclosed disabilities of Famiza consistent with cerebral palsy although no medical evidence had in fact been submitted.  On this point, the Tribunal said at para 37:

“Evaluation of the evidence pertaining to the nominator's daughter reveals that the child appears to have a relatively mild form of cerebral palsy which manifests itself by speech impairment as well as some degree of lack of physical mobility.  In arriving at this view of the child's disabilities the Tribunal has taken into consideration the reports by the speech therapist, the occupational therapist, the descriptions of the type of assistance required by the child and the fact that the child is attending normal school. …”

11                  The Tribunal found that there was no evidence before it to suggest that the nominator had a need of assistance as envisaged in the circumstances referred to in reg 1.03. 

12                  It turned then to consider the question whether assistance in Famiza’s care could reasonably be obtained from sources other than the visa applicants.  It found that it could and rejected the claim that the applicants were special need relatives.  It is from the Tribunal’s decision that the applicants now seeks judicial review under s 476(1) of the Act. 

13                  The applicants’ case is founded upon s 476(1)(a) of the Act, namely, that procedures required by the Act or Regulations to be observed in connection with the making of the decision were not observed.  The procedures that were not observed are said to be those in   ss 360 and 361 relating to Mr Ahmed giving evidence and presenting arguments and, particularly, either alone or in combination with ss 360 and 361, the provisions of s 366C which provide as follows:

“(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).”

14                  As appears from such extracts of the transcript as I have already set out, there seems little doubt that the Tribunal concluded that Mr Ahmed was not sufficiently proficient in English to communicate with the Tribunal.  In other words, the pre-condition for the obligation in s 366C(3) was established.  The consequence was a duty on the Tribunal to appoint an interpreter under s 366C(3).  Although counsel for the Minister was not prepared to concede the point, no doubt on instructions, for my part I have little doubt that a failure to appoint an interpreter under s 366C(3), in aid of the right to give evidence and present arguments, would be a procedure required by the Act to be observed, and failure to comply with it would give rise to a ground of review.  So much is consistent with such case law as there has been on the question of accurate translations.  I shall say something more about those cases in a moment.

15                  Counsel for the Minister submits, however, that the Tribunal complied with the obligation under s 366C in requesting the applicants’ daughter to act as translator.  The solicitor for the applicants contends otherwise.  He submits that it would not be a proper compliance with s 366C for a person who is to give evidence to also be an interpreter.  The contemplation, he says, is that the Tribunal will appoint a competent translator being not a person otherwise involved in the inquiry.  Counsel for the Minister submits that the only requirement in s 366C is for the Tribunal to appoint a competent interpreter, one who in terms of the section will facilitate the communication between the Tribunal and the applicant.  It is conceded that the person so appointed would need to be competent but there has been no suggestion in the present case that the applicants’ daughter who has lived in Australia for more than ten years was not competent and certainly there is nothing in the transcript which suggested that she had any difficulty in communicating either with the Tribunal or, so far as it is possible to glean from the responses which came back, Mr Ahmed.

16                  In my view, the Tribunal should take special care in a case which comes before it where it forms the view that a person appearing before it to give evidence is not proficient in English.  It is desirable that the Tribunal actually advise the person that the Tribunal must appoint an interpreter.  While, no doubt, the person might be happy in a particular case to select another person as a competent interpreter, it is at least desirable that that person know what rights he or she may have in this regard. 

17                  As I have already indicated, there are a number of cases where the consequence has been considered of the failure by the Tribunal to provide a competent interpreter in circumstances where it has been alleged that there has been a mistranslation.  Cases of this kind include Stone v Minister for Immigration and Ethnic Affairs [1996] FCA 547; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; Phan v Minister for Immigration and Multicultural Affairs [2000] FCA 89; Cotofan v Minister for Immigration and Multicultural Affairs [2000]FCA 1042; Long v Minister for Immigration and Multicultural Affairs [2000] FCA 1172; and Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1858.

18                  A significant and material mistranslation would, these cases suggest, found a ground of review just as failure to comply with s 366C would.  Although I think it is undesirable that a person who is to give evidence should act as an interpreter, if only because that person's views may contaminate the evidence if the person both interprets and participates in the hearing as the case law suggests, I do not think that it is correct to say that such a person could not in the circumstances have been appointed an interpreter under s 366C.  Having read the transcript, where no suggestion of difficulty of communication at all arose, and in circumstances where the applicants have never suggested that the applicants’ daughter was other than a competent translator, in my view, the ground of review is not made out.

19                  I should say that were I of the view that the Tribunal had indeed failed to comply with its obligation under section 366C, I think the circumstances of the present case would be such that, as a matter of discretion, I would not set aside the Tribunal's decision.  Firstly, the present is not a case where it is suggested that there has been any miscarriage of justice in the way the Tribunal proceeding was conducted having regard to the daughter undertaking the task of translation.  Secondly, it is difficult to see how anything Mr Ahmed may have said in evidence could have been useful to throw light on the question upon which the case ultimately turned, namely, the question whether the nominator could reasonably obtain assistance elsewhere and particularly from welfare, hospital, nursing or community services.  As it happens, the Tribunal found adversely to the applicants on this point.  The nominator would more likely have been able to give evidence than the applicants on this matter.

20                  It seems to me not to be really in the interests of justice to set aside a decision on the basis of a failure to provide an interpreter in circumstances where an interpreter acceptable to the applicant did in fact translate and where the communication that is required to take place between the Tribunal and an applicant or witness appears in no way to have been impeded.  In the circumstances, I would dismiss the application.

21                  I think in the circumstances costs should follow the event and I order the applicants to pay the respondent's costs.

Associate:

Dated:              10 August 2001