FEDERAL COURT OF AUSTRALIA

SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Order 3 made on 17 November 2016 by the Federal Circuit Court of Australia is set aside and, in lieu thereof, there be an order in the nature of certiorari to quash the decision of the second respondent made on 22 April 2014 in case number 1319808.

3.    A writ of mandamus be issued, directed to the second respondent, requiring that it hear and determine according to law, the application of the appellant for review of the decision of a delegate of the first respondent made on 13 March 2013 to refuse to grant the appellant a Protection (Class XA) visa.

4.    The first respondent pay the appellant’s costs of the appeal, and of the proceeding in the Federal Circuit Court.

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

REASONS FOR JUDGMENT

LEE J:

INTRODUCTION

1    The issue in this appeal from a judgment of the Federal Circuit Court is relatively narrow.

2    The appellant alleges the primary judge should have found that the second respondent (Tribunal) engaged in a jurisdictional error, which is said to have arisen following a maladroit translation of an important answer given by the interpreter at the hearing before the Tribunal.

3    To provide some context, it is convenient briefly to have regard to the nature of the appellant’s claims and it is then necessary, in some detail, to examine the decision of the Tribunal affirming a decision of the delegate (Delegate) of the first respondent (Minister) to refuse to grant the appellant a Protection (Class XA) visa.

The appellant’s claims

4    The appellant is a citizen of Afghanistan who claimed a fear of persecution on the basis of ethnicity (Hazara), his religion (Shia Muslim), an imputed political opinion (anti-Taliban) and his membership of a social group (being a failed asylum seeker or being a person likely to be perceived by Afghans as an alcoholic).

The proceedings before the tribunal and the alleged mistranslation

5    As is evident from what I have already said about the nature of the appeal, the appellant was assisted by an interpreter at the hearing before the Tribunal on 3 February 2014 (Tribunal Hearing). The Tribunal member provided his statement of decision and reasons on 22 April 2014 (Tribunal Decision).

6    The transcript of the Tribunal Hearing records (after dealing with a number of matters that do not call for comment) that the Tribunal member referred to the appellant’s allegation that in the summer before he left Afghanistan, six policemen were beheaded by the Taliban in a town called Qarabagh (Beheading Incident). The transcript reveals that the Tribunal member had been unable to find any reports of the Beheading Incident and, as a consequence, expressed some scepticism as to its veracity.

7    The member then turned to the contention of the appellant that he drank alcohol at some time around the religious festival of Eid E Qurban. Again the Tribunal member expressed scepticism as to why the appellant would suddenly decide to start drinking at the age of 32 and found it difficult to accept that the appellant, for no particular reason, would have made what the appellant regarded as the mistake of drinking alcohol (Alcohol Incident).

8    After dealing with matters that again are not presently relevant, there was then the important exchange between the Tribunal member and the appellant, which gives rise to the central issue in this appeal. This exchange was regarding a hospital in Jaghori (Hospital Evidence) and (recording both what was said by the appellant in his native tongue and what was translated) was as follows:

MEMBER: Um, the, the information available to me indicates that the Hazara community in Jaghori enjoys better educational and health services than in the neighbouring provinces.

INTERPRETER: I don’t know about it.

MEMBER: Well you’ve lived there for a long time Mr, um, uh, [the appellant], you have children, you have a family, um, you must know about the education and health services.

APPELLANT (IN HAZARAGI):

Jaghori, for example, if there is a minor illness, or for example if a women [sic] is pregnant, or for example, if it gets close to the delivery time, or she experiences too much pain, you need to load her into a vehicle and drive her to Ghazni, or drive her to Kabul, if there is a good hospital there [in Jaghori] and for example if there is a proper hospital where an operation can be performed or treatment can be done, then there is no need to take her to Kabul.

INTERPRETER (IN ENGLISH):

In Jaghori, for some minor disease or sickness, sickness, for example if a lady is pregnant, and near to the delivery time, uh, she must go to Kabul, to Kabul or Ghazni. If there was a hospital in Jaghori, an operation could be carried out in Jaghori, so there’s no need to travel to Kabul for treatment, or for medical attention.

MEMBER: [The appellant], you must be aware there’s a very good hospital in Jaghori, in Sangi Masha.

INTERPRETER (IN ENGLISH):

Actually, yes, there’s a, Shuhada, the hospital called Shuhada hospital, and the, the appearance, it is good, and uh, construction, it is, uh, made from stones. Compared to the surrounding building, it is beautiful, yeah good, but, uh, people take their major, you know, sickness, uh, major... uh sick people to Kabul, to Pakistan, even to India for treatment.

9    It common ground that the difference between what the appellant conveyed in Hazaragi and what was interpreted in English (both highlighted in bold above) is the alleged mistranslation. The “if” underlined in the English version is accepted by both parties as being what was conveyed by the interpreter to the Tribunal member.

10    The appellant contends that when one has regard to what was said in Hazaragi, the appellant in his Hospital Evidence did not tell the Tribunal member there was no hospital in Jaghori; the appellant was conveying that there was no “good” or “proper” hospital, but he did not deny its existence.

11    The position of the Minister was to accept that there was a disparity between what was interpreted at the hearing and what was sought to be conveyed by the appellant but that there was no material difference between the two versions.

12    I will return to these competing characterisations of the Hospital Evidence below, but before doing so I turn to how the relevant evidence was used by the Tribunal member and its connexion to the assessment of the creditworthiness of the appellant.

The TRIBUNAL DECSION AND critical credit findings

13    In the Tribunal Decision, after dealing with:

(a)    the history of the appellant’s application for a protection visa (an earlier decision of the Tribunal, differently constituted, had affirmed an earlier decision by a delegate of the Minister which was set aside, by consent, by the Federal Circuit Court);

(b)    the appellant’s contentions in relation to the question of whether the appellant had a well-founded fear of being persecuted for a relevant reason; and

(c)    the appellant’s contentions in relation to the question of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Afghanistan, there is a real risk he will suffer significant harm,

the Tribunal, at [54], turned to an assessment of the appellant’s credibility. The Tribunal noted that it had taken into account the appellant’s oral and written submissions but continued:

(h)owever I consider that [the appellant] is not a witness of truth and that he is prepared to make false statements if he believes that it will be to his advantage. By way of example he said at the hearing before me that even for minor things like delivering children the residents of the Jaghori district had to go to Ghazni or Kabul. He said that if there were a hospital in Jaghori these operations could be carried out in Jaghori. As I put to him, I consider that he must be aware there is in fact a very good hospital in Jaghori. [The appellant] then claimed that despite the fact that there was the Shuhada Hospital in Jaghori people travelled to Kabul and even to Pakistan and India for treatment. I consider that [the appellant] deliberately lied about whether there was a hospital in Jaghori because he believed that this would be to his advantage.

14    After making this finding, the Tribunal member (at [57]) then turned to the Beheading Incident. After the Tribunal member expressed the view that if six Hazara policemen had been beheaded by the Taliban in 2001 (as the appellant had claimed), the incident would have been reported, the Tribunal member found “I consider that [the appellant] has invented this incident because he believes that it will be to his advantage”.

15    The Tribunal member (at [58] – [59]) then turned to the Alcohol Incident. For a variety of reasons, including the fact that the Tribunal member did not consider it believable that the appellant “would suddenly have decided to drink alcohol just for fun”, the Tribunal member concluded: “I consider once again that he has invented this incident because he believes that it will be to his advantage”.

16    The question of the hospital was again returned to by the Tribunal member at [62] where the Tribunal member dealt with the issue as to whether there was a real chance that the appellant would be discriminated against by reason of his race or religion if he went back to his home in the Jaghori District. The Tribunal member found that the Hazara community in Jaghori enjoyed better educational and health service than in neighbouring provinces. In this context, the Tribunal member noted, once again, that the appellant:

… attempted to claim that there was no hospital in Jaghori but, after I put to him that there was a very good hospital in Jaghori, he conceded that there was the Shuhada Hospital in Jaghori although he claimed that people travelled to Kabul and even to Pakistan and India for medical treatment.

17    This finding was immediately followed by the Tribunal member noting:

I do not accept on the evidence before me that there is a real chance that [the appellant] will be discriminated against in such a way or to such an extent as to amount to persecution involving ‘serious harm’…

18    Finally, the Tribunal member (at [70] and [72]) again referred to his view that the appellant was not telling the truth about the Alcohol Incident in rejecting the contention that the appellant and his family had suffered humiliation after it had been discovered that the appellant had consumed alcohol.

19    A fair reading of the reasons of the Tribunal member makes it evident that the member considered the appellant as someone who was willing to fashion his evidence to suit the perceived exigencies of his case for protection. The Tribunal member set out three reasoned instances upon which he formed an adverse view of the appellant’s credibility: being the appellant’s evidence as to first, the Hospital Evidence, secondly, the Beheading Incident and thirdly, the Alcohol Incident. It is noteworthy, in this regard, that despite the order in which the topics were discussed (see [6 – [8] above), the first example to which the Tribunal member referred in expressing adverse views as to credit was the Hospital Evidence and the finding in relation to this matter (that the appellant “deliberately lied”) was expressed in particularly emphatic terms.

The federal circuit court decision

20    The appellant filed an application seeking an extension of time to bring judicial review proceedings against the decision of the Tribunal. The primary judge granted an extension of time pursuant to s 477 of the Migration Act 1958 (Cth) (Act).

21    There were originally five grounds advanced before the primary judge although, at the hearing, the appellant only relied on three grounds. It was Ground 5 (before the Tribunal) which is the focus of the present appeal. Ground 5 was extracted in the judgment below at [32] and was that the “Tribunal engaged in jurisdictional error when it found that the [appellant] had deliberately lied about whether there was a hospital in Jaghori”. The primary judge rejected this ground for the reasons set out at [51] – [69].

22    The first step taken by the primary judge was to direct himself to answering the question as to whether there was, in fact, a mistranslation. His Honour found (and there was no dispute below) that in the relevant exchange there was a difference between the English translation of the words spoken in Hazaragi by the appellant and the English words actually used by the interpreter.

23    The primary judge recognised that emphasis was placed on the non-translation of the words “good” and “proper” and was alive to the submission made by the appellant that the use of those words conveyed the meaning that there was a hospital in Jaghori but the hospital was not a good or proper hospital. The primary judge then turned to the question of whether, by reference to the broader context of the questions asked by the Tribunal, and the answers given by the appellant, the appellant impliedly asserted that there was no hospital in Jaghori. His Honour noted at [67]:

In my opinion, on a fair reading of these passages, which includes the [version actually spoken by the appellant], the [appellant] impliedly asserted there was no hospital in Jaghori. It cannot reasonably be read as the [appellant] “criticising the quality of the hospital” at Jaghori. First, in response to the Tribunal’s question that the Hazara community in Jaghori enjoys better educational and health services than in the neighbouring provinces, the [appellant] said he did not know about it. Second, when pressed that he must know something about the educational and health services in Jaghori, the [appellant] said that persons who have minor illnesses, and women who are ready to give birth, have to travel to Ghazni or Kabul. That impliedly coveys a representation to the effect there is no hospital in Jaghori; for why would people with minor illnesses and women who are about to give birth need to travel to Ghazni or Kabul if there was a hospital in Jaghori? Third, in response to the Tribunal’s question that the [appellant] must be aware there was a good hospital in Jaghori, the [appellant] agreed; he did not say the hospital was not good or proper. If, as the [appellant] appears to submit, the true effect of the [appellant’s] evidence was there was a hospital in Jaghori, but not a good or proper hospital, he had the opportunity to say so in response to the Tribunal’s putting to him that he must be aware there was a good hospital. Instead of asserting there was a hospital in Jaghori, but it was not a good or proper hospital, the [appellant] said the hospital was beautiful; and he also said that people with major sicknesses go to Kabul, Pakistan, and even India.

24    As can be seen, the primary judge concluded that not only did the appellant impliedly convey that there was no hospital in Jaghori (because the appellant said that people with even minor illnesses need to go elsewhere), but the appellant’s response to the Tribunal’s remark that the appellant must have known there was a very good hospital in Jaghori was to agree. It followed that the primary judge considered that if, in truth, the appellant’s evidence was that there was a hospital in Jaghori, he had every opportunity to say this, in terms, to the Tribunal.

25    It followed from this reasoning that the primary judge determined that there was no mistranslation in a material sense in that the interpreter’s translation of the appellant’s evidence was effectively the same as the version actually spoken by the appellant, and that this was sufficient in order to reject Ground 5.

26    Having determined that there was no material mistranslation, his Honour then proceeded to make a further finding which the Minister contends is in the nature of a finding as to the utility of the grant of relief: see W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788 at [35].

27    In essence, it is said that the primary judge concluded that even if the mistranslation had occurred, that the Tribunal would, in any event, have made the same decision. For this reason, the Minister submits, the primary judge found that there was no utility in granting relief. The appellants contends it is not a “utility” finding but rather represents the primary judge asking the wrong question and amounts to an error of law. I return to this issue at [49] – [50] below.

Grounds of appeal

28    In the appellant’s notice of appeal, two grounds are raised in this Court, each of which takes issue with the primary judge’s conclusions in respect of Ground 5. In summary, by the first ground of appeal, the appellant asserts that the primary judge erred in failing to find that the Tribunal’s findings in relation to the appellant having “deliberately lied” about the hospital in Jaghori was a finding made in the absence of evidence because of the mistranslation. The second ground of appeal is that the primary judge erred in failing to find the Tribunal had not enabled the appellant to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act.

Characterisation of the alleged mistranslation

29    I noted in [10] – [11] the competing intentions of the parties as to whether or not there had been a material mistranslation.

30    Counsel for the Minister, Mr Johnson, in the course of his comprehensive and helpful submissions, noted that great weight has been placed by the appellant on the notion that the use of the words “good” and “proper” conveyed the meaning that there was a hospital in Jaghori, but that the hospital was not a good or proper hospital. The Minister submitted that the primary judge was correct in determining that whether there was a mistranslation (as that expression is properly used) is by reference to the broader context of the questions asked and answered. It is only though this contextual analysis, the argument went, that one can ascertain whether the appellant impliedly asserted that there was no hospital in Jaghori. Allied to this was the Minister’s submission that the primary judge was correct to find that the true effect of the appellant’s evidence was substantially the same as what he intended to convey and, that if the appellant was truly stating that there was a hospital in Jaghori, he had every opportunity to say this to the Tribunal but did not do so.

31    Although I agree that the primary judge was, with respect, correct to adopt a contextual (rather than a merely textual) analysis of what was conveyed, I consider there was, in substance, a material mistranslation. A statement that there was (or is) a hospital but that it is not “good” or “proper” carries with it the unstated but undeniable premise that there was (or is) a hospital. It is hardly surprising, given what was translated, that the Tribunal member was labouring under a misapprehension that what had been conveyed to him was an unqualified statement that no hospital existed (which was then the subject of what was perceived to be unmeritorious ‘backtracking’ when the Tribunal member referred to the fact that he knew a very good hospital existed in Jaghori). Having regard to all the circumstances, I do not believe that the interpreter expressed in English as accurately as the circumstances permitted, the idea or concept that had been expressed by the appellant in his native tongue (being the Hospital Evidence).

32    Having found there was a mistranslation, the question becomes: what flows from the fact of mistranslation of one aspect of the appellant’s evidence?

The relevant principles

33    There was no dispute between the parties as to the relevant principles where there is a problematic translation. As Kenny J noted in Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 at [24], it is the “…function of an interpreter in the tribunal … to place the non-English speaker as nearly as possible in the same position as an English speaker”, and that the interpreter “provides the means for communication between the applicant, the tribunal and other participants in the tribunal hearing, in cases where the applicant’s own linguistic capacities are not, on their own, sufficient to that end”.

34    As the primary judge observed at [59] (by reference to the decision of Kenny J in Perera), it is not every departure from the standard of interpretation that prevents an applicant for refugee status from properly giving evidence before the Tribunal and error will only be established if the departure relates to a matter of significance for the applicant’s claims or the Tribunal’s decision.

35    The primary judge then correctly noted that the Full Court considered these questions in some detail in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 and although (as Griffiths J noted in SZSEI v Minister for Immigration and Border Protection [2014] FCA 465) SZRMQ was concerned with the application of common law procedural fairness requirements, there was an overlap between the relevant principles as they applied in a statutory and non-statutory context. It is unnecessary for the disposition of this appeal to identify the precise metes and bounds of this overlap, as was the case in SZSEI.

36    This discussion in SZRMQ is of importance and was extracted at paragraphs [61] – [63] of the reasons of the primary judge as follows:

61.    In SZRMQ Alssop CJ [sic] said:

[5] Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.

…

[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.

[10] How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair.

62.    It will be seen from the last two sentences of this passage that his Honour did not consider that, at least in the case of procedural fairness at common law, it was necessary to show a causal connection between the mistranslation and the decision-maker’s actual reasoning for a mistranslation to render the procedure unfair. His Honour repeated this point with greater emphasis in the following passage:

Even if it be the case that it cannot be demonstrated that there has been an error in the reasoning process materially caused by the misinterpretation, the misinterpretation may be such as to have prevented material and substantive information being communicated to the decision-maker in a way that leads to the conclusion that the hearing was not fair.

In those circumstances, while it can be put that administrative justice must be seen to be done, the preferable way of expressing the matter is that, irrespective of the lack of proved causal connection between the misinterpretation and the reasons, the misinterpretation may be of such character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard.

63.    Similar views were expressed by Robertson J:

Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated.

The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.

If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness.

37    There are many decisions of the Court dealing with mistranslation and the adequacy of interpretation. For present purposes, it is sufficient to emphasise three principles which emerge from the cases to which I was taken including the most recent discussion of the relevant principles in the context of s 425 of the Act, by Griffiths J in SZSEI v Minister of Immigration and Border Protection [2014] FCA 465 at [71] – [81].

38    First, when dealing with mistranslation in the context of common law procedural requirements or in the analysis of the process to be afforded by an applicant to enable evidence and arguments to be presented as required by s 425(1) of the Act, the qualitative assessment that must be made is one which must have regard to all the circumstances; the focus is on the process afforded to give evidence and present arguments relating to the issues arising in relation to the decision under review: see SZRMQ at [17] and SZSEI at [74].

39    Secondly, and related to the first point, is that there is undesirability in overly defining the relevant tests relating to errors in translation in a s 425 context. Identifying a particular test can distract from what is involved, that is, consideration of a “more easily expressed and broader requirement: a fair hearing”: see SZRMQ at [22] – [23] and SZSEI at [73].

40    Thirdly, what the court should consider is whether the mistranslation had or could have had significance if the applicant’s words had not been mistranslated: see SZRMQ at [67] and SZSEI at [76].

The significance of the mistranslation to the credit findings of the tribunal member

41    As can be seen, the question of whether or not the translation was material is an analysis that requires consideration of all the circumstances. It must be said that there is some force in the contention that if one has regard to the whole of the exchange in the Hospital Evidence there is a shift in position by the appellant as to whether or not the hospital was one that was capable of treating minor illnesses. In this regard, the appellant initially seemed to suggest that the hospital could not, for example, treat women close to confinement or patients in pain. But, after being confronted with the fact the Tribunal member knew there was a “very good” hospital in Jaghori, the appellant indicated that it was good (in the sense that it was made from good building materials) but that if you have a “major” sickness, it is necessary to travel elsewhere. It is quite possible that this shift in position may have been perceived as reflecting poorly in assessing the credibility of the appellant, but the difficulty is that the mistranslation caused the Tribunal member to form the view that the appellant had deliberately deceived him by stating that a hospital did not exist at all.

42    I have set out above at [13] – [19] the three matters relied upon by the Tribunal member in forming an adverse view as to the appellant’s credit.

43    Despite the careful reasoning of the primary judge and the Minister’s submissions on the appeal, I consider there is a good deal of artificiality in speculating that because of the adverse view taken by the Tribunal member as to the Beheading Incident and the Alcohol Incident, that the adverse view reached as to the lack of credit of the appellant was inevitable, irrespective of any faulty translation of the Hospital Evidence.

44    It is not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] “an assessment of credibility is not necessarily linear”. Put another way, although it is not accurate to say that the Hospital Evidence was minor, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” The finding that the appellant had been deceitful about the hospital was plainly not an issue the Tribunal member had considered to be peripheral to assessing his creditworthiness.

45    To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]:

…decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.

46    Moreover, there is some reason to think that a credit finding in respect of the Hospital Evidence could have been individually more significant than the adverse findings made in relation to both the Beheading Incident and the Alcohol Incident. Apart from the way in which the finding was trenchantly expressed, whether the hospital existed was a matter of demonstrable, objective fact. The Tribunal member being told that no hospital existed was entitled to be sanguine as to his ability to put this down to deliberate deceit on the part of the appellant. The question of whether to disbelieve the Beheading Incident and the Alcohol Incident involved a more nuanced approach to fact finding, including a process of reasoning based upon the absence of material (reports of the beheading) and ordinary experience of human behaviour (the fact that it was unlikely that a person in the circumstances of the appellant would suddenly decide to consume alcohol). It is not surprising that, in these circumstances, the Hospital Evidence could have played a quite significant role in forming an overall adverse assessment of credit.

47    The question of whether the mistranslation would have made a difference to the findings made in relation to the two other incidents cannot be answered confidently; what can be said, in my view, is that the mistranslation could have made a difference to the overall assessment of the appellant’s credibility.

48    Although far from determinative, as a “reality check”, it is worth noting that the Delegate had, in the Protection (Class XA) Visa Decision Record at pages 13 – 15 (AB166 – 168), formed the view that the appellant’s assertions that he had witnessed atrocities was “generally credible” and the Delegate accepted that the appellant recalled events, including a beheading, “from his personal experience”. Similarly, the Delegate found that he was “satisfied the applicants [sic] account is plausible and accept that he had a drink and faced the social isolation he described”. Although the second of these findings is later somewhat qualified, the Delegate’s findings do tend to suggest that the adverse credit findings on these topics (in the absence of any mistranslation of the Hospital Evidence), were not inevitable in the sense that anyone hearing the appellant would inevitably dismiss his accounts as fantastic or inherently incredible.

THE “UTILITY” FINDING

49    As noted above, the approach of the primary judge was to note that even if there was a mistranslation in a substantive sense (a notion the primary judge rejected), that, in any event, the Tribunal would have made the same decision. There is a dispute between the parties as to whether or not his Honour’s findings at [68] regarding whether the Tribunal would have made the same decision constituted an error of law (in asking an incorrect question) or whether his Honour was simply addressing the question of utility as an alternative finding.

50    I consider the Minister’s submissions that his Honour was making a finding as to utility are correct. This makes perfect sense when one bears in mind that the primary judge did not consider there had been a mistranslation and hence he was not required to address the separate question as to whether or not the mistranslation had or could have had significance: see SZRMQ at [67]. My view in this regard is fortified by the fact that his Honour had, in this part of his reasons, specifically set out the relevant passages from SZRMQ. Indeed, his Honour also, with respect correctly, directed himself that that the observations in SZRMQ apply equally to hearings conducted under s 425 of the Act by referring to what Griffiths J noted in SZSEI: see [64].

CONSIDERATION OF THE GROUNDS OF APPEAL

51    It follows that, having differed from the primary judge as to whether there had been a material mistranslation, and having found that the mistranslation could have made a difference to the overall assessment of the appellant’s credibility, I need to consider the grounds of appeal relied upon by the appellant.

52    It was contended below (Ground 5(a)) that the Tribunal's finding that the appellant had attempted to claim that there was no hospital in Jaghori was a finding made in the “absence of evidence”, because the appellant never in fact denied that there was a hospital.

53    I do not think it is correct to suggest that the finding was made in the absence of evidence, because in order to succeed on this ground the appellant would need to establish that there was no evidence at all for such a finding (even if the finding had been reached by illogical reasoning): see Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at 235 [31]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. There plainly was some material, although I consider it to be insufficient, to form the view that the appellant was impliedly making a representation of the type that the primary judge considered he had made.

54    Despite this, the mistranslation provides an answer to what Robertson J observed in SZRMQ at [74] as the “blunter question” of whether the Tribunal, by reason of a mistranslation, gave the appellant an opportunity to appear before it and give evidence and present arguments relating to the relevant issues, as required by s 425 of the Act. This is not a case, like SZRMQ, where the interpretation generally fell well short of the required standard but each case necessarily has to be looked at in the context of its own facts and circumstances, and the mistranslation was critical to a matter specifically relied upon to make an important finding adverse to the credit of the appellant. The mistranslation could have made a difference. As a consequence, the process was not fair and did not meet the requirements of s 425 of the Act.

Order

55    Accordingly, it follows that the appeal should be allowed, the only relevant order made below should be set aside and the first respondent ordered to pay the applicant’s costs of the appeal and in the proceeding below. The Tribunal Decision should be set aside and an order in the nature of mandamus should issue requiring the Tribunal to determine, according to law, the appellant’s application for review of the Delegate’s decision.

Associate:

Dated:    23 May 2017