FEDERAL COURT OF AUSTRALIA

MZAMP v Minister for Immigration & Border Protection [2016] FCA 804

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court are set aside.

3.    The decision of the Refugee Review Tribunal made on 18 September 2014 is quashed.

4.    The second respondent decide the appellants’ application for review of the decision of the first respondent’s delegate made on 18 June 2014 according to law.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 8 October 2015. The Federal Circuit Court dismissed the appellants’ application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”). The Tribunal’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”), to refuse to grant the appellants Protection (Class XA) visas.

2    The appellants are self-represented. They made oral submissions with the assistance of an interpreter and provided written submissions after the hearing. I understand their primary ground of appeal to be that the Federal Circuit Court erred by failing to uphold their grounds before that Court, namely that:

(a)    the Tribunal denied the appellants procedural fairness by not giving them the opportunity to respond to country information relating to police treatment of persons with gang tattoos in Malaysia;

(b)    the Tribunal denied the appellants procedural fairness by failing to give them an adequate opportunity to provide information about gang tattoos in Malaysia after the hearing (the Minister accepts that this ground may also be seen as an allegation of unreasonableness);

(c)    the Tribunal denied the appellants procedural fairness by failing to give them an adequate opportunity to provide medical evidence, relating to injuries allegedly suffered by the first appellant, after the hearing;

(d)    the Tribunal erred by failing to make enquiries as to whether the first appellant’s tattoo resembled a Malaysian gang tattoo;

(e)    the Tribunal’s reasoning for failing to accept that the first appellant’s tattoo was a gang tattoo, or would be perceived as such by the Malaysian police, was illogical.

3    The appellants raised a further ground of appeal to the effect that they were denied procedural fairness in the hearing before the Federal Circuit Court because the standard of interpreting before that Court was inadequate.

4    The Minister concedes that the Federal Circuit Court erred by:

(a)    failing to consider the first appellant’s evidence about his discussion with a Tribunal case officer about providing the Tribunal with information about Malaysian gang tattoos;

(b)    incorrectly conflating the question of whether any failure by the Tribunal to give the appellants an adequate opportunity to provide medical evidence was a denial of procedural fairness with the question of whether the outcome would have been the same in any event;

(c)    failing to decide whether there was a denial of procedural fairness in the hearing before the Federal Circuit Court because of inadequacy of the standard of interpreting.

5    Despite conceding these errors, the Minister submits that the appeal should be dismissed either because this Court should decide for itself the issues that the Federal Circuit Court failed to decide, or because any error has been “cured” by the hearing in this Court, or because the error did not affect the outcome of the application to the Federal Circuit Court.

The appellants’ claims for protection

6    The first and second appellants are husband and wife respectively. They are citizens of Malaysia. On 26 May 2014, they applied for protection visas, but on 18 June 2014 the Minister’s delegate decided to refuse the grant of those visas. The appellants then applied to the Tribunal for review of the delegate’s decision.

7    The first appellant’s claims for protection are based on his Tamil ethnicity, Hindu religion and membership of and activities with a political group called Hindraf, a Tamil-Hindu organisation in Malaysia. He claims to have been arrested, detained and tortured following a demonstration in Kuala Lumpur in 2007 or 2009. The first appellant also claims to fear persecution by Malaysian police because he has a tattoo of a spider web on his neck which resembles a tattoo worn by members of a Malaysian criminal gang called “08”. He claims that he will be persecuted by police as a person suspected of involvement with that gang.

8    The second appellant also claims to fear harm because she is Tamil and Hindu. She makes a further claim that she fears harm at the hands of a man who has harassed her in the past.

The Tribunal

9    The Tribunal found that the first appellant’s evidence concerning his alleged involvement with Hindraf and his alleged arrest and detention was not credible. It found that he had not been involved in any political demonstrations in Malaysia.

10    The Tribunal accepted that the appellants face discrimination in Malaysia as a result of their Tamil ethnicity, but decided that such discrimination is not “serious harm” within s 91R(1)(b) of the Migration Act 1958 (Cth). The Tribunal also found that Hindus in Malaysia do not face a real chance of serious harm because of their religion.

11    The Tribunal found that the second appellant had been harassed by a man some eleven years ago, causing her to terminate her college studies at that time. However, it decided that as such harassment had not continued and as there is no real chance that she will be targeted by that man in the future, she faces no real chance of serious harm on that basis.

12    The present appeal is concerned principally with the first appellant’s claim that he will be persecuted by the Malaysian police as a suspected member of a criminal gang. The first appellant has a tattoo of a spider web on his neck. The Tribunal recorded the first appellant’s claims about the consequences of his tattoo as follows:

36.    The Tribunal observed at (sic) hearing that the applicant husband has a visible spider web tattoo on his neck. The applicant husband claims he fears serious harm in Malaysia because of this tattoo, telling the Tribunal that in 2013 Malaysia passed a law stating that persons with tattoos would be identified as members of gangs and that he had read about the new law on the internet. Independent sources located by the Tribunal indicate that Malaysian police have planted officers in tattoo parlours and skin clinics to identify gang members as part of a police operation Op Cantas Khas leading to the arrest of persons with body tattoos resembling gang tattoos. This police operation has reportedly resulted in many people sporting gang tattoos seeking help to cover up or change the designs to avoid attracting police attention. The Tribunal accepts that police are using gang tattoos to identity and target suspected gang members in Malaysia.

(Citations omitted.)

13    The Tribunal continued:

37.     However the Tribunal does not accept that the applicant’s tattoo is a gang tattoo, nor that it would be perceived as such by the Malaysian authorities. In making this assessment the Tribunal notes that the applicant husband gave evidence at the Tribunal hearing that he received the tattoo in about 2005 because he liked the spider web and that he did not believe it to be a gang tattoo at that time, telling the Tribunal that he was not a member of any gang and had no connection to any gang. The applicant gave evidence that since being in detention he had researched gang tattoos on the internet and now believed it was a gang tattoo associated with the 08 gang. The Tribunal does not accept this to be the case, noting that the applicant husband has not provided to the Tribunal the information be says he has located that would support this claim. The Tribunal’s concerns about the applicant husband’s credibility, taken together with his evidence that he is not a member of the 08 gang or any other gang and has no association with any gang in Malaysia, cause it not to accept that the applicant’s tattoo is a gang tattoo, nor that it would be perceived as such by the Malaysian authorities.

(Underlining added.)

14    The sole reason given by the Tribunal for rejecting this aspect of the first appellant’s claim was that it did not accept his tattoo was a gang tattoo or would be perceived as such by the Malaysian authorities.

15    The Tribunal was not satisfied that the appellants face a real chance of persecution amounting to serious harm for a Convention reason if they return to Malaysia. It also rejected their claims for complementary protection on the same basis.

The Federal Circuit Court

16    Before the Federal Circuit Court, the first appellant filed an affidavit in which he set out his complaints about the decision of the Tribunal. The primary judge identified the appellants’ grounds of appeal as those I have set out at [2] of these reasons.

17    After the hearing, but before the judgment had been delivered, the first appellant filed a second affidavit in the Federal Circuit Court in which he said:

I believe I was denied natural justice and procedural fairness in the hearing due to the inability of the Tamil interpreter to perform his duties. His failure to perform his duties meant that I could not understand what was happening in the court and therefore I was not able to present my case.

18    The first appellant deposed that there were occasions where English words were not interpreted into Tamil, and times when the interpreter did not interpret what was said at all.

19    The primary judge’s reasons for judgment note that the appellants had complained about the standard of interpreting in the Federal Circuit Court and asserted that they were denied procedural fairness. However, the reasons contain no further reference to that issue, and her Honour did not rule upon it.

20    The appellants’ first ground of review alleged that the Tribunal ought to have given them an opportunity to comment on country information concerning gang tattoos in Malaysia. The primary judge held that s 424(3)(a) of the Migration Act meant that the Tribunal was not required to give them such an opportunity.

21    The appellants’ second ground alleged that the Tribunal failed to provide them with an adequate opportunity to obtain evidence after the hearing concerning gang tattoos. The primary judge recorded the argument as follows:

    The Tribunal had asked the first appellant to provide evidence about gang tattoos.

    The first appellant had telephoned the Tribunal to advise that he had not been able to obtain the information because he was in immigration detention and the relevant websites were blocked.

    The Tribunal said that it would call him, but did not call before the decision was made.

    The Tribunal did not give him sufficient time to obtain the evidence.

22    The particular significance of the argument is that one of the reasons why the Tribunal rejected the first appellant’s claims that his tattoo was or resembled a Malaysian gang tattoo was that he had not produced the information supporting his claim which he said he had located.

23    The primary judge said that there was nothing on the face of the decision record to suggest that the first appellant was asked by the Tribunal to provide any evidence regarding gang tattoos. Nor was there any record that the first appellant asked the Tribunal for the opportunity to provide such information. The primary judge noted that the Tribunal’s reasons for decision record that the first appellant said he would obtain medical records, relating to injuries he had received during his detention in Malaysia, following the hearing, but made no such comment about gang tattoos. Her Honour said that the appellants’ allegation was also inconsistent with the Tribunal’s reasons which state that the first appellant gave evidence that he had researched gang tattoos on the internet while he was in detention.

24    The primary judge also considered that a Case Note of a communication between the first appellant and a Tribunal case officer on 3 September 2014 supported an inference that he was concerned only to provide medical records, not information about tattoos. That Case Note reads as follows:

The applicant contacted the tribunal to advise that the member requested the applicant to provide a medical certificate the applicant advised that he cannot provide the medical certificate. I advised the applicant if he could put that in writing. The applicant advised that the systems at the detention centre are down and he cannot do that and that is why he has called. I advised the applicant that I will advise the member and if the tribunal requires anything further, a case officer will be in contact. The applicant thanked me and the call ended.

25    The primary judge noted that the appellants had been given seven days to provide further evidence after the hearing before the Tribunal and had provided various documents after the hearing including online information. That online information included articles apparently sourced on the internet concerning Hindraf and the treatment of Hindus in Malaysia. The relevance of this is that it suggests that the appellants could also have accessed online information about gang tattoos.

26    In summary, the primary judge rejected the second ground by finding that the Tribunal had not asked the first appellant to provide evidence about gang tattoos, and that the first appellant had not asked for the opportunity to provide evidence about gang tattoos.

27    The appellants’ third ground was that the Tribunal had not allowed them adequate time to provide a medical report concerning injuries that the first appellant allegedly sustained when he was arrested by police in Malaysia. The appellants relied upon the Case Note of 3 September 2014. They had not been contacted by the Tribunal to request the medical information before the decision was made.

28    The primary judge noted that the first appellant had informed the Court that the Malaysian hospital no longer had the records in question. Her Honour said, “In these circumstances, it can hardly be said that the Tribunal did not comply with its procedural fairness obligation under Division 4, Part 7 of the Act”.

29    Her Honour dealt with the fourth ground by finding that the Tribunal was not obliged to make enquiries as to whether the first appellant’s tattoo was a gang tattoo.

30    The fifth ground of review was that the reasoning of the Tribunal that the first appellant was not at risk of persecution by reason of having a tattoo resembling a gang tattoo was illogical. Her Honour noted that the Tribunal did not accept that the first appellant’s tattoo was a gang tattoo, nor that it would be perceived as such by the police. That was because of the first appellant’s evidence that he was not a member of a gang, because he had not provided copies of the information he said that he had researched on the internet and because the Tribunal had concerns about his credibility. Her Honour was satisfied that the Tribunal’s ultimate finding was a logical one based on the evidence the first appellant had provided, the first appellant’s failure to produce information and the Tribunal’s concerns about his credibility.

31    The primary judge, having found that there was no jurisdictional error, dismissed the appellants’ application with costs.

The appeal

32    I have described the appellants’ grounds of appeal at [2] and [3] above. Those grounds are essentially that the primary judge erred in failing to rule in the appellants’ favour upon the grounds raised before the Federal Circuit Court, with one additional ground, namely that the primary judge failed to rule upon their contention that they were denied procedural fairness by reason of inadequacy of the interpreting in the hearing before the Federal Circuit Court.

The first ground of appeal

33    The first ground of appeal is that the primary judge erred by failing to give the appellants the opportunity to comment on country information concerning Malaysian gang tattoos. That country information was the information referred to at [36] of the Tribunal’s reasons, set out at [12] of these reasons.

34    Section 424A of the Migration Act provides:

(1)    Subject to subsections (2A) 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 it being relied on in affirming the decision that is under review; and

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

…

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member…

35    The country information was information that was not specifically about the appellant or another person. It was about a class of persons of which the first appellant claimed to be a member: that is, persons with tattoos that resemble Malaysian gang tattoos. Section 424A(3)(a) of the Migration Act makes it clear that the Tribunal was not required to invite the appellants to comment upon or respond to such information. In any event, s 424A(1)(a) does not apply because the country information supported the first appellants’ claims – the information was not a reason for affirming the decision under review.

36    The primary judge was correct to hold that the Tribunal was not required to invite the appellants to comment on or respond to the country information.

The second ground of appeal

37    The second ground of appeal is that the appellants were denied procedural fairness by not being given an adequate opportunity to provide information to the Tribunal concerning gang tattoos in Malaysia after the hearing.

38    The primary judge understood the appellants to be claiming that the Tribunal had requested that the first appellant provide the information he had located concerning the tattoos of criminal gangs in Malaysia. Her Honour also considered whether the first appellant had requested the opportunity to place information about tattoos before the Tribunal. Her Honour rejected those claims. Her Honour found that, accordingly, the Tribunal was not required to give the appellants notice that it intended to make its decision before it was made.

39    At [37] of its reasons, the Tribunal said that it did not accept that the first appellant’s tattoo was a gang tattoo, nor that it would be perceived as such by the Malaysian authorities. In reaching that conclusion, the Tribunal said:

The applicant gave evidence that since being in detention he had researched gang tattoos on the internet and now believed it was a gang tattoo associated with the 08 gang. The Tribunal does not accept this to be the case, noting that the applicant husband has not provided to the Tribunal the information he says he has located that would support this claim.

40    In his first affidavit before the Federal Circuit Court, the first appellant said:

15.     The RRT Member notes that I did not provide to the RRT the information I have to support my claim. I was in immigration detention at the time and it is very difficult to access the internet there and to print off documents. Many websites are blocked.

16.    I called the RRT on 3 September 2014 and told them I could not access the supporting documents I needed. I told them I could not obtain medical records and I also told them I could not access some websites in relation to criminal gangs and tattoos.

17.     The RRT Case Note on p.240 of the Court Book does not reflect the full content of the conversation. When I contacted the RRT I told them I could not locate the medical reports and that I had some further information which was difficult to provide due to the lack of resources at the detention centre. The RRT File Note only refers to the medical documents.

18.     In the RRT Case Note it states that I was advised that ‘if the tribunal requires anything further a case officer will be in contact.’ I assumed this meant that I would be given a chance to provide information in relation to my claims. I did not hear anything from the RRT until I received the decision.

41    In his first affidavit, the first appellant also indicated that he wanted more time to obtain a transcript of the hearing before the Tribunal. The first appellant decided not to apply for an adjournment of the hearing when the primary judge advised that he may have to pay the costs of the adjournment. In the absence of the transcript, her Honour was required to decide whether the Tribunal had asked the appellants to provide information about tattoos, and whether the first appellant had requested an opportunity to place such material before the Tribunal, by reference to the evidence available to the Court. The relevant evidence consisted of paras [15]-[18] of the first appellant’s affidavit, the Tribunal’s reasons for decision, the Case Note of 3 September 2014 and the Tribunal’s “Hearing Record” which indicated that the Tribunal had allowed the appellants seven days after the hearing to provide further information in writing. Her Honour’s reasons refer to the Tribunal’s reasons, the Case Note and the Hearing Record, but not to paras [15]-[18] of the first appellant’s affidavit. Her Honour refers to other parts of that affidavit elsewhere in the reasons. The Minister accepts that her Honour overlooked at least paras [16] and [17].

42    The effect of paras [15] and [16] of the first appellant’s affidavit was that he notified the Tribunal’s case officer that he wished to provide information about criminal gangs and tattoos to the Tribunal, but that he was having difficulty accessing the relevant websites while he was in immigration detention because many websites were blocked. In para [17] the first appellant deposed that the Case Note of 3 September 2014 does not reflect the full content of his conversation with the case officer because it omits the discussion about the provision of information about criminal gangs and tattoos. Paragraph [18] indicates that the case officer told him that if the Tribunal required anything further a case officer would be in contact, and this led him to think that he would be given a chance to provide the information. However, the Tribunal decided the application without giving him that opportunity.

43    The first appellant’s affidavit evidence does not bear upon the question of whether the Tribunal had asked him to provide information about gang tattoos. However, it is centrally relevant to the question of whether he notified the Tribunal that he wanted an opportunity to provide such information to the Tribunal. There is a constructive failure of a Court to exercise jurisdiction where the Court fails to address a material issue or overlooks material evidence: Waterways Authority v Fitzgibbon [2005] HCA 57 at [129]-[130] (Hayne J); Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9] (Basten JA, Beazley JA agreeing). The primary judge erred by failing to consider the evidence in paras [15]-[18] of the affidavit. However, there are two issues affecting the question of whether any relief, and if so what relief, should be granted.

44    Firstly, in Stokes v R (1960) 105 CLR 279 Dixon CJ, Fullagar and Kitto JJ said at 284-5:

In the end we think the decision of the application must depend upon the general rule that if an error of law or a misdirection or the like occurring at the trial is of such a nature that it could not reasonably be supposed to have influenced a result, a new trial need not be ordered.

See also Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 463 (McTiernan, Kitto, Menzies, Windeyer and Owen JJ).

45    The Tribunal did not accept that the first appellant’s tattoo resembled a gang tattoo associated with the “08” gang. One of the specific reasons given by the Tribunal for that conclusion was that the first appellant had not provided the Tribunal with the information he said that he had located. In the appeal, the appellants tendered two online newspaper articles which support his claim that members of the “08” gang wear a spider web tattoo. If the first appellant had been able to provide that evidence to the Tribunal, it might have accepted that he was at risk of being detained because he had a tattoo resembling a gang tattoo. Assuming that the appellants were denied procedural fairness, that denial could have made a difference to the outcome of the application.

46    Secondly, the Minister submits that this Court should proceed to decide for itself whether the Tribunal fell into jurisdictional error by not providing the appellants with an adequate opportunity to provide information about gang tattoos. Section 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) provides that the Court may, in the exercise of its appellate jurisdiction, give such judgment, or make such order, as, in all the circumstances, it thinks fit. The Court has the power to give the judgment it considers the Federal Circuit Court should have given: SZOCK v Minister for Immigration and Citizenship [2010] FCA 719 at [31] (Katzmann J).

47    The Minister submits that this Court is as well placed as the Federal Circuit Court to decide whether the appellants were denied procedural fairness since no oral evidence was given on the issue and all the material that was available to the primary judge is available to this Court. I accept that submission.

48    It is necessary to consider whether the evidence in paras [15]-[18] of the first appellant’s first affidavit should be accepted. The Minister did not object to the first appellant’s affidavit at the hearing before the Federal Circuit Court. The first appellant was not cross-examined upon that affidavit. His evidence was contradicted by the Case Note, but the first appellant’s affidavit explained that the Case Note did not contain a complete record of his conversation with the case officer, and that explanation was not challenged or contradicted.

49    In contrast to the application before the Tribunal, the proceeding before the Federal Circuit Court was an adversarial proceeding. The rule in Browne v Dunn (1893) 6 R 67 applied. The rule requires a party to direct an opposing witness’ attention in cross-examination to the nature of the case, which it proposes to rely on in contradiction of the witness’ evidence. A failure to comply with the rule does not mean that the Court is bound to accept the witness’ evidence, although such failure may provide a good reason for accepting the evidence: Bulstrode v Trimble [1970] VR 840 at 849 (Newton J); Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 561 (Kirby P), 586-588 (Samuels JA).

50    The first appellant’s evidence was not inherently improbable. It is true that after the hearing the first appellant was able to produce other information accessed from the internet, but his affidavit indicates that many websites were blocked at the detention centre, not all. It is also true that he claimed to have accessed the information at the detention centre at an earlier time, but the absence of cross-examination means that he was not given an opportunity to explain this apparent discrepancy. It is not improbable, given the first appellant’s difficulty with English, that the case officer might have missed or misunderstood part of what he was telling her. In these circumstances, particularly having regard to the lack of cross-examination, his evidence should be accepted.

51    I accept that the first appellant made it known to the Tribunal’s case officer that he wished to provide the Tribunal with information about criminal gangs and tattoos. I accept that the first appellant was led to think that the Tribunal would contact him if it required information about criminal gangs or tattoos and would give him an opportunity to provide that information. The Tribunal did require that information, but contrary to that representation, he was not contacted and was not given that opportunity. The Tribunal is taken to have had constructive knowledge of the representation made by its case officer: Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273 at 285 (Moore J).

52    The decision of the Minister’s delegate to refuse the appellants’ protection visas was a “Part 7 – reviewable decision” within s 411(1)(c) of the Migration Act. Division 4, Pt 7 of the Migration Act deals with the conduct of reviews by the Tribunal of “Part 7 – reviewable decisions”. Section 422B provides:

422B    Exhaustive statement of natural justice hearing rule

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

…

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

53    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”), the High Court was concerned with Div 5, Pt 5 of the Migration Act, which is materially indistinguishable from Div 4, Pt 7. French CJ said that, for the purposes of s 357A(1) (the equivalent of s 422B(1)), it is necessary to identify whether the matter under consideration is a matter which Div 5 “deals with”; and if Div 5 does not “deal with” the matter, then the common law hearing rule of procedural fairness applies to the Tribunal’s process. However, Hayne, Kiefel and Bell JJ rejected such a construction in their joint judgment. Their Honours said at [55]:

The terms of s 357A(1) would appear to leave no room for the implication of the requirements of procedural fairness beyond what is already provided in Div 5.

Their Honours accepted at [56] that “s 357A(3) cannot be taken as intended to qualify or cut down the express statement in s 357A(1)”. Their Honours did not conclusively determine the meaning of s 357A(3) (the equivalent of s 422B(3)), or what the consequences of a breach of that provision may be. Their Honours decided the case on the basis that the Tribunal’s power to grant or refuse an adjournment of a hearing was not exercised reasonably.

54    Although the statutory standard under subsection (3) was not conclusively determined in Li, the Federal Court has since held that Tribunals have a duty to act fairly and justly in the application of the statutory procedures in the relevant Division. Further, a failure to do so may constitute jurisdictional error. In Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 Allsop CJ, Murphy and Pagone JJ stated:

[22]     …His Honour concluded that the Tribunal had not given Mr Dhillon the fair hearing required by s 360 of the Migration Act 1958 (Cth) because he had not been given access to the redacted material. The purpose of s 360(1) is to ensure that an applicant, such as Mr Dhillon, is given a proper opportunity to present his or her case...

[25]     [T]he Tribunal also had obligations under s 357A(3) to act in a way that is fair and just, and under s 360(1) to provide Mr Dhillon with a real chance to present his case. The Tribunal’s decision not to give Mr Dhillon access to the redacted material (by wrongly deciding not to provide access under s 362A(1)) meant that the Tribunal decided the Public Interest Criterion without the fair hearing to which Mr Dhillon was entitled under s 360 of the Migration Act 1958 (Cth).

(Underlining added.)

55    In SZTQD v Minister for Immigration and Border Protection [2016] FCA 339, Rares J held:

[53]     I am of opinion that the Tribunal’s conduct of the review in arriving at its finding that the wife fabricated and concocted her account in the circumstances was both unfair and unjust, contrary to the Tribunal’s obligation under s 422B(3). It was not a discharge of the Tribunal’s function to review the delegate’s erroneous decision that had also failed to deal with her clearly articulated independent claim to a protection visa. The Tribunal constructively failed to exercise its jurisdiction to review the delegate’s decision. It did not deal with her independent claim to a protection visa.

…

[60]     This was not a case, as his Honour characterised it, of the wife complaining that she should have had an opportunity “to retell her account”. The Tribunal had a duty to conduct the review of her independent claim for a protection visa under s 425 and to do so in a way that was fair and just in accordance with s 422B(3).

(Underlining added.)

56    It must be accepted from the judgment of the plurality in Li that there is no room for the implication of procedural fairness requirements beyond what is already provided for in Div 4, Pt 7. It must also be accepted that s 422B(3) does not create or impose a free-standing obligation on the Tribunal in the exercise of its functions. However, if the Tribunal does not act in a way that is fair and just, it may amount to a breach of the substantive obligations imposed on the Tribunal under Div 4, Pt 7. In Li, the plurality said:

59    A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.

57    In this case, the error alleged to have been made by the Tribunal was a failure to honour the representation made through the case officer that if the Tribunal required anything further, the first appellant would be contacted. That representation was made in response to the first appellant’s indication that he wished to provide information about Malaysian criminal gangs and tattoos. The reason why the Tribunal did not honour that representation is apparent. Through some misunderstanding, the case officer did not record in her file note that the appellant wished to provide information about criminal gangs and tattoos. The Tribunal evidently acted on the basis of the file note which merely recorded that the appellant was unable to provide medical evidence.

58    It cannot be said that the Tribunal’s decision to proceed to make its decision without contacting the first appellant was unreasonable, in the sense of lacking an evident and intelligible justification: cf Li at [68]. It proceeded on the basis of a misunderstanding of what the first appellant said. That misunderstanding was an error of fact, and not a jurisdictional error. Neither did that misunderstanding amount to overlooking a critical piece of evidence centrally relevant to the claim such as would result in jurisdictional error: cf Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [50] (Katzmann, Griffiths and Wigney JJ); Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[112] (Robertson J).

59    In Li, the plurality, after noting that an unfair action may be connected with a substantive obligation on the part of the Tribunal, continued:

60    The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example. Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal’s duty therefore extends further than merely issuing an invitation to an applicant to appear.

61    Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.

(Underlining added and citations omitted.)

60    Section 425 is the Div 4, Pt 7 equivalent of s 360. It provides, relevantly:

425    Tribunal must invite applicant to appear

(1)    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.

61    The Tribunal invited the appellants to appear before the Tribunal to give evidence and present arguments. The appellants appeared for that purpose. The requirement on the Tribunal to invite an applicant to give evidence and present arguments is not necessarily at an end when the applicant has appeared before the Tribunal. It may continue in circumstances where, for example, the applicant is granted an adjournment under s 424AA(1)(iv), or if the Tribunal invites the applicant to provide further evidence, or if the applicant requests that he or she be permitted to provide further evidence. The hearing itself is neither the beginning nor the end of the making of the correct or preferable decision: MZZMG v Minister for Immigration and Border Protection (2015) 234 FCR 180 at [43] (Tracey, Murphy and Mortimer JJ). Division 4 does not prevent an applicant from submitting further evidence to the Tribunal after the applicant has appeared before the Tribunal. In this case the appellants were allowed seven days after the hearing to provide further evidence, and the first appellant made it known to the Tribunal’s case officer (although after the seven days) that he wished to provide information about criminal gangs and tattoos. However, the Tribunal made its decision before such information was able to be provided. At that point, the Tribunal had not completed its hearing function.

62    To adopt the words of the plurality in Li at [61], s 425(1) of the Migration Act “requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case”: see also Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [51]-[52] (Allsop CJ, Robertson and Mortimer JJ). In circumstances where the first appellant, through the misunderstanding of the Tribunal’s case officer, was unfairly denied an opportunity to present further evidence, he was denied a real chance to be heard: cf Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [45]-[48] (Kiefel, Bell and Keane JJ). The Tribunal failed to comply with its statutory obligation. This was a jurisdictional error: see WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [58] (French CJ).

63    In these circumstances, the appeal will be allowed and the judgment of the Federal Circuit Court will be set aside. It will be ordered that the Tribunal’s decision be quashed and that the Tribunal consider the appellants’ application according to law.

64    Some of the difficulties raised in the application to the Federal Circuit Court and the appeal to this Court may well have been avoided if the Tribunal’s decision had been more complete. The first appellant’s claim before the Tribunal was to the effect that police were targeting criminal gangs under a new Malaysian law, and that he was concerned that he may be arrested and detained because, by reason of his tattoo, he would be suspected of being a member of a criminal gang. There were obvious questions which the Tribunal should have addressed. These questions include whether such a criminal gang, or a group of persons suspected of being members of such a criminal gang by reason of their tattoos, is a “particular social group” within Article 1A of the Refugee Convention: see Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36] (Gleeson CJ, Gummow and Kirby JJ), STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 61 at [35] (Gleeson CJ, Gummow, Callinan and Heydon JJ). A further question was whether arrest by police of members of criminal gangs, or persons suspected of being members of criminal gangs, under a Malaysian law would amount to persecution under the Convention: see s 91R(1)(c) of the Migration Act (now s 5J(4)(c)); Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258-259 (McHugh J). Unfortunately, the Tribunal failed to undertake an examination of these matters, relying only on the lack of objective evidence that the first appellant’s tattoo resembled a gang tattoo.

The third ground of appeal

65    The third ground of appeal is that the Federal Circuit Court erred by failing to find that the Tribunal denied the appellants procedural fairness by not giving them an adequate opportunity to provide medical evidence. The first appellant alleged that he participated in a protest led by Hindraf in 2007 or 2009 and was arrested, detained and tortured for 20 days. He provided photographs allegedly showing injuries he had sustained. The Tribunal found that two of the four photographs were of someone other than the first appellant and that his evidence about the protest, his detention and torture was inconsistent.

66    In its reasons the Tribunal said:

26.    At hearing the applicant husband gave evidence that he would try to obtain medical records after the hearing relating to the treatment of the injuries he received during his period of detention. On 3 September 2014 the applicant husband contacted the Tribunal and advised that he was unable to provide those medical records. The very serious concerns the Tribunal holds about the applicant’s credibility cause it not to accept that he suffered those injuries at the Hindraf protest in November 2007 nor in any subsequent period of detention related to that protest or his activities with Hindraf. It follows that the Tribunal does not accept there to be a real chance that the applicant will sustain injuries of the sort shown in the photographs if he returns to Malaysia now or in the foreseeable future for any reason relating to his political activities.

67    After noting that the first appellant had informed the Court that “the Malaysian hospital no longer had the records in question”, the primary judge said, “In these circumstances, it can hardly be said that the Tribunal did not comply with its procedural fairness obligation under Division 4, Part 7 of the Act”. The respondent accepted that her Honour conflated the Tribunal’s obligation to provide procedural fairness with the fact, later established, that even if the appellant had been given a full opportunity to provide the medical evidence, he could not have done so. Such an approach was rejected by Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, where their Honours said at [58]-[59]:

58    It is one thing to refuse relief on the ground of utility because, as Lord Wilberforce put it, “[t]he court does not act in vain”. …

59    However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for “trivial” breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v).

(Footnotes omitted.)

68    The correct approach would have been to consider whether there was a denial of procedural fairness, and then consider whether the Court’s discretion should be exercised in favour of granting relief. However, the error makes no difference to the outcome of the appeal. The Tribunal’s statement that the first appellant had contacted the Tribunal on 3 September 2014 and advised that he was unable to provide the medical records is consistent with the Case Note. As the primary judge recognised, any denial of procedural fairness made no difference to the outcome of the application to the Tribunal, since the first appellant would not have been able to produce the medical report even if given more time to do so. This aspect of the appeal should be rejected on discretionary grounds.

The fourth ground of appeal

69    The appellants’ fourth ground of appeal is that the Federal Circuit Court erred by failing to find that the Tribunal committed jurisdictional error by failing to make enquiries as to whether the first appellant’s tattoo resembled a Malaysian gang tattoo.

70    The Tribunal did not accept that the first appellant’s tattoo resembled a gang tattoo. It rejected the first appellant’s evidence that he had researched gang tattoos on the internet and now believed that his tattoo resembles a gang tattoo associated with the “08” gang. The Tribunal rejected that evidence partly because he had not provided to the Tribunal the information he said he located.

71    The appellants argue that the Tribunal was obliged to conduct its own research and that if it had done so it would have found the material that they tendered during the appeal. That material demonstrates that members of the “08” gang wear a spider web tattoo.

72    The Tribunal is ordinarily under no obligation to conduct its own enquiries and is entitled to decide the case on the basis of the material produced to the Tribunal by the appellant: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”) at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [23] (French CJ and Kiefel J). There is an exception set out in SZIAI at [25] that:

[A] failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.

However, that exception does not apply to the present case.

The fifth ground of appeal

73    The appellants’ fifth ground of appeal is that the Federal Circuit Court erred by failing to find that the Tribunal’s reasoning for failing to accept that the first appellant’s tattoo is not a gang tattoo, or would not be perceived as such by the Malaysian police, was illogical.

74    A ground of “illogicality” or “irrationality” sufficient to give rise to jurisdictional error is only capable of being made out if the decision is one at which no rational or logical decision-maker could arrive at on the same evidence: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131] (Crennan and Bell JJ).

75    There are two aspects to this argument. The first aspect is that it was illogical for the Tribunal to fail to accept that the first appellant’s tattoo was not a gang tattoo. The first appellant told the Tribunal that he was not a member of any gang and had no connection to any gang and that he obtained the tattoo because he liked the spider web design. The Tribunal accepted this part of the first appellant’s evidence. In the absence of an independent source of evidence, it was open to the Tribunal to find that the tattoo was not a gang tattoo.

76    The second aspect is that it was illogical for the Tribunal to fail to accept that the first appellant’s tattoo would be perceived as a gang tattoo by the Malaysian police. The Tribunal reached its conclusion on the basis that there was a lack of independent evidence before it that the tattoo resembled a gang tattoo, and it had doubts about the first appellant’s credibility. That conclusion was open and was not illogical on the evidence before the Tribunal.

The sixth ground of appeal

77    The appellants’ final ground of appeal is that they were denied procedural fairness before the Federal Circuit Court because the standard of interpreting was inadequate. The first appellant deposed in his second affidavit, given to the Federal Circuit Court prior to its judgment, that the interpreting was so poor that he could not understand what was happening in the Court and was not able to properly present his case. He deposed that the interpreter made many errors and that on a number of occasions the interpreter did not interpret the English word because he did not know the equivalent Tamil word. He said that on other occasions the interpreter did not interpret what was said at all. He also complained specifically of the interpreter’s failure to translate the words “transcript” and “illogical”.

78    The primary judge recognised the first appellant’s complaint about the standard of interpreting in the reasons for judgment. Her Honour said at [39]:

The Applicant filed an Affidavit after the date on which his written submission was due. I have read his Affidavit filed 13 August 2015. It does not address the issue of illogicality. Rather the Applicant complains about the standard of interpretation at the judicial review hearing and the manner in which I conducted the hearing with the consequence it is asserted he was denied natural justice and procedural fairness.

79    There was no further reference to the appellants’ argument that they were denied procedural fairness in the hearing before the Federal Circuit Court. Her Honour, while recognising the argument, did not deal with it. The Minister accepts that the primary judge erred by failing to deal with the argument.

80    During the hearing, the primary judge had indicated that she would receive submissions on the issue of illogicality, and said that she would only take into account submissions made on that issue and nothing else. The first appellant’s affidavit filed after the hearing did not address the question of illogicality, but did address the standard of interpreting. It may be that her Honour, rather than overlooking the complaint about the standard of interpreting, deliberately decided to not deal with it. Such an approach might have been appropriate if the appellants were legally represented, or had made a late decision to dispense with legal representation: Eastman v Director of Public Prosecutions (DPP) (ACT) (2003) 214 CLR 318 at [28]-[31] (McHugh J); Bale v Mills (2011) 81 NSWLR 498 at [57]-[61] (Allsop P, Giles JA and Tobias AJA). However, a trial judge has an obligation to take appropriate steps to ensure that a self-represented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable, for the purpose of ensuring a fair trial: Hamod v State of New South Wales [2011] NSWCA 375 at [311] (Beazley JA); SZRUR v Minister for Immigration and Border Protection 216 FCR 445 at [39]-[40] (Robertson J), [53] (Allsop CJ), [60] (Mortimer J). If the primary judge decided that she was unwilling to take into account the first appellant’s affidavit, procedural fairness required that the appellants be informed that the appropriate procedure was to make a formal application for leave to file their submissions.

81    However, the Minister submits that if the primary judge had ruled upon the argument, it would have been rejected, and that this Court should consider the argument and reject it.

82    A number of decisions of this Court have held that poor or incorrect interpreting in a hearing before the Tribunal can amount to a denial of procedural fairness: see BZAID v Minister for Immigration and Border Protection [2016] FCA 508 (Edelman J); MZZTD v Minister for Immigration and Border Protection [2015] FCA 948 (Mortimer J); Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 (Kenny J); Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 (Goldberg J); Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 (Mansfield, Emmett and Selway JJ).

83    The hearing in question in this case was the hearing before the Federal Circuit Court, not the Tribunal. The issues are whether there was defective interpreting at the hearing before the Federal Circuit Court, and whether that amounted to a denial of procedural fairness.

84    There is no general entitlement of a litigant in civil proceedings to an interpreter: Adamopolous v Olympic Airways SA (1991) 25 NSWLR 75 at 77-78 (Kirby P), 80-81 (Mahoney JA) and 84 (Handley JA); Dairy Farmers Co-Operative Milk Co Ltd v Acquilina at 464. However, the Federal Court implements a policy that interpreters are provided for litigants who are unable to meet the costs of interpreter services themselves. Under administrative arrangements with the Federal Circuit Court, the Federal Court provides interpreters for the Federal Circuit Court. Such interpreters will naturally be relied on by such litigants as being competent. It follows that the interpreters must have an adequate standard of competence and interpret the proceedings to an adequate standard if the hearing is to be fair.

85    There may be a denial of procedural fairness in a proceeding before the Federal Circuit Court where the standard of interpreting has been inadequate. As to what standard is required, in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212, the Court was concerned with the standard of interpreting in a hearing before an Independent Merits Reviewer where the requirements of procedural fairness are informed by the general law. Allsop CJ said:

[9]    The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

86    In BZAID v Minister for Immigration and Border Protection at [52], Edelman J summarised the principles derived from the authorities concerning whether defective interpreting in a hearing before the Tribunal has caused a denial of procedural fairness. I accept that those principles are also relevant to a hearing before a Court.

87    In VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 at [10], Finkelstein J said: “To determine how accurate an interpretation is, there must be something against which a comparison can be made.” His Honour continued at [25]:

[T]here is a real danger of error when a judge is required to reach a conclusion on a matter such as this based only on the transcript and a tape recording of the hearing, but without the benefit of the correct translation…

88    The Minister submits that the absence of evidence comparing the allegedly incorrect interpreting at the hearing with the correct translation is fatal. The Minister submits that as the transcript of the hearing before the Federal Circuit Court is available, this Court is in as good a position as the primary judge to decide for itself whether the appellants have demonstrated that the standard of interpreting was so inadequate that the hearing was unfair. However, the premise of this submission is incorrect. What this Court lacks is the advantage that the primary judge had of hearing and observing the interpreter. This is particularly relevant because the first appellant claims that the interpreter did not interpret some English words into Tamil and did not interpret parts of the proceedings at all. These matters cannot be decided from the transcript. The case is quite different to one where the appellant alleges before a Court that the standard of interpreting before the Tribunal was inadequate.

89    I am left with the appellant’s evidence before the Federal Circuit Court that “I left the court without an understanding of what went on or what I was meant to do”, which is unchallenged by cross-examination. There is a question as to the weight to be ascribed to that statement, and that is not a task that can be adequately undertaken by this Court. In these circumstances, her Honour’s failure to rule upon the appellants’ argument makes it appropriate to set aside the judgment of the Federal Circuit Court. It would have been appropriate to remit the matter to the Federal Circuit Court to be heard again if not for my conclusion, on different grounds, that the Tribunal’s decision should be quashed.

90    The Minister also submits that any unfairness in the hearing before the Federal Circuit Court as a result of the primary judge’s failure to deal with the appellants’ argument has been “cured” by the hearing before this Court. The cases cited by the Minister in support of this argument, including Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 (Mason J), The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 at 484 (Mason J) and Knauder v Moore (2002) 127 FCR 327 at [55], [58] (Allsop J), deal with the question of whether a denial of procedural fairness in one hearing can be “cured” by having a second hearing in an appellate or review proceeding. The argument seems to be that the appellants had the opportunity to seek the leave of this Court to adduce evidence concerning the standard of interpreting, but failed to do so. It is unnecessary to rule upon the Minister’s argument in view of the conclusion that I have already reached, but, in any event, it seems doubtful that any such principle could extend to the present situation where the failure of the primary judge to deal with an argument is said to be “cured” by the appellant having the opportunity to apply for leave to lead potentially controversial evidence concerning the conduct of the trial, and where a grant of leave to adduce evidence in the appeal is exceptional.

91    For the reasons that I have given, the appeal must be allowed. The judgment of the Federal Circuit Court will be set aside. Orders will be made that the Tribunal’s decision be quashed and that the Tribunal decide the appellants’ application according to law.

Associate:

Dated:    15 July 2016