FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 1428

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    On 19 June 2017, the Federal Circuit Court (the FCC) dismissed the Appellant’s application made under s 476 of the Migration Act 1958 (Cth) (the Act) for review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 9 August 2016: Singh v Minister for Immigration [2017] FCCA 1336. The Appellant now appeals against the FCC judgment.

Background

2    The Appellant is a national of India. He came to Australia on 19 September 2008 on a Student (Subclass 572) visa. That visa expired on 15 March 2011 but was later extended to 27 June 2012.

3    The Appellant has applied for other visas. On 26 May 2012, he applied for a Temporary Skilled Subclass 485 visa but this was refused on 26 November 2012. His application to the former Migration Review Tribunal (the MRT) for review of that refusal was unsuccessful.

4    The Appellant’s applications for a Protection visa on 4 April 2013 and 5 July 2013 were also unsuccessful.

5    On 8 April 2014, the Appellant applied for a Partner (Temporary) (Class UK) Subclass 820 visa. By a decision made on 8 March 2015, a delegate of the Minister refused that application. The Appellant’s application for review of that decision was unsuccessful, with the Tribunal publishing its decision on 7 October 2015.

6    The Appellant’s application under s 476 of the Act for judicial review of the Tribunal’s decision was conceded by the Minister and the matter was remitted to the Tribunal. The statement accompanying the consent orders of the FCC on 6 April 2016 indicated the basis upon which the Minister had conceded the application:

The First Respondent concedes that the Second Respondent fell into jurisdictional error for the reasons identified in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, in construing clause 820.211(2)(b)(ii) of Schedule 2 to the Migration Regulations 1994 as confining the decision-maker’s satisfaction of whether there are compelling reasons for not applying Schedule 3 Criteria 3001, 3003 and 3004 to circumstances which only exist as at the time of application.

(Emphasis in the original)

Second AAT decision

7    In a decision of 9 August 2016, the Tribunal again affirmed the delegate’s decision. The Tribunal member noted that the criteria for the grant of the Subclass 820 Partner (Temporary) visa are set out in Pt 820 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 820.211 required, amongst other things, that an applicant satisfy each of Criteria 3001, 3003 and 3004 in Sch 3 unless the Minister is satisfied that there were “compelling reasons” for not applying those criteria.

8    Criterion 3001 required that the application for the Partner visa be made (relevantly) within 28 days of the last day on which the applicant had held a substantive visa. In the Appellant’s case that was 27 June 2012 when his Student Subclass 572 visa expired. Given that the Appellant had not lodged his application for a Partner visa until 8 April 2014, he could not satisfy that criterion.

9    The Tribunal member then considered whether there were “compelling reasons” for not applying that criterion and concluded that there were not. It was not suggested that the member had misapplied any legal principle relating to the concept of “compelling reasons”.

10    The matters on which the Appellant relied to establish “compelling reasons” were:

    the closeness of the relationship which he had with his wife;

    their fear that the Appellant’s wife, being Muslim, would come under significant emotional pressure from her own family to divorce the Appellant (who is not Muslim) once he had left Australia so that she could marry a Muslim; and

    the financial hardship which his wife would experience while he was absent from Australia making an application for a further visa.

11    In relation to those matters, the Tribunal member had regard to the evidence provided by the Appellant and his partner (who became his wife on 5 September 2015).

12    The Tribunal member identified a number of inconsistencies between the evidence of the Appellant and his wife at the first and second Tribunal hearings. He considered neither to be a credible witness and said that he did not have confidence in their evidence. That led the Tribunal member to have “serious concerns” as to the underlying factual premise for each of the matters upon which the Appellant relied for the “compelling reasons” which he advanced. He was not satisfied that there were compelling reasons for not applying the relevant criteria. Hence, the second application to the Tribunal failed.

Second FCC decision

13    The Appellant represented himself in the FCC as he did on the present appeal. The grounds of his application to the FCC did not identify any jurisdictional error but seemed to assert that the Tribunal should have found the existence of “compelling circumstances”.

14    The FCC Judge reasoned as follows:

[41]    The application in question has not isolated any matters said to constitute a jurisdictional error. Rather, Mr Singh has reiterated the procedural history of his case and asked the court to reconsider his case. In my view, this is tantamount to a request for merits review, which is not open to this court.

[42]    In my view, the Tribunal properly exercised the jurisdiction conferred upon it. It reached the conclusion that there were no compelling reasons not to apply the Schedule 3 criteria, so far as Mr Singh was concerned. In my view, the Tribunal properly considered the applicable legal and regulatory matters applicable to this issue and reached a decision, within the jurisdiction conferred upon it.

…

[48]    In all these circumstances, I have reached the conclusion that there is no discernible legal error arising in the decision of the Tribunal under review. Accordingly, the application must be dismissed. …

Present application

15    The Appellant’s Notice of Appeal to this Court raises, in effect, a single ground, namely, a complaint about the quality of the translation provided by the interpreter assisting his wife in the Tribunal:

1.    I appeal the decision to affirm the refusal of Partner visa on grounds that the interpreter used during [the] Tribunal’s hearing was not appropriately qualified. This lead to the misinterpretation of what my wife Ms Akram said during the hearing.

2.    I highlighted this issue during my hearing at Federal Circuit Court. The Honourable Judge said that [he] would look into it but [it] was not considered in the judgement. I now have a proof that interpreter was not qualified.

16    In a supporting affidavit, the Appellant provided some evidence that the interpreter had been Punjabi whereas the native language of his wife is Urdu. He then deposed:

[5]    The led to the misinterpretation of my wife’s oral statements given in the Tribunal’s hearing.

[6]    I raised this during the Federal Circuit Court hearing but [it] was not considered.

…

[8]    The Tribunal’s decision … was derived from the wrong interpretation of my wife.

[9]    I request the Court to direct the Tribunal to hear our case with appropriate interpreters who are qualified to interpret for languages we speak.

17    The Tribunal hearing to which the Appellant referred was the second hearing, although some of his concerns seem directed to the first hearing also.

18    An immediate difficulty for the Appellant is that he had not raised any issue about the quality of the interpretation as one of his grounds for judicial review in the FCC. The circumstances in which an appellant can, without leave, advance a point on appeal which was not taken at first instance are limited: Coulton v Holcombe (1986) 162 CLR 1 at 7-8; Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Water Board v Moustakas (1988) 180 CLR 491 at 497; Branir Pty Ltd v Owston Nominees (No 2) [2001] FCA 1833, (2001) 117 FCR 424 at [33]-[39]. Leave will not be granted to an appellant to raise a new matter on appeal if evidence could have been given in the court below which may have prevented the point from succeeding: Coulton v Holcombe at 7-8.

19    Although the Appellant had not made the quality of the translation a ground of his application for review in the FCC, he did allude to the topic in his oral submissions in that Court:

His Honour:    The Tribunal said that they didn’t think some of your evidence and the evidence of your sponsor was credible and believable.

Mr Singh:    Because when they [were] talking to her – she is my sponsor, my wife, and when they [were] talking to her it was – like, when they interpret her she was saying something else and she was listening something else. Maybe they had a little bit trouble with the words what she was saying and what she told them. So it was little bit confusing things around them. So that’s why it happened.

20    Contrary to the contention made in [2] of the grounds of appeal, the transcript of the hearing in the FCC does not record the Judge saying anything to the effect that “he would look into it”. It was not suggested that there was any inaccuracy in the transcript.

21    In my view, the Appellant’s submission in the FCC fell short of a complaint that jurisdictional error had occurred by reason of some shortcoming in the quality of the translation. Hence, the Appellant requires leave to raise this complaint. Leave should not be granted as it is plain that the Minister could have answered it with evidence in the FCC. Nevertheless, I am willing to proceed, in the Appellant’s favour, on the basis that, contrary to my view, the matter had been agitated in the FCC or at least to consider the position as though leave had been granted. For the reasons which follow, I consider that, even on that basis, the appeal to this Court must fail.

22    Section 427(7) of the Act provides:

If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.

23    In many cases, the provision to applicants of an effective opportunity to give evidence and to make submissions will require that they and their witnesses are able to do so with the assistance of an interpreter: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 (Kenny J). The absence of a competent interpreter may give rise to a failure by the Tribunal to observe the procedures required by the Act in connection with the decision or to a denial of procedural fairness. Usually, however, jurisdictional error will be found only when applicants establish that errors in interpretation have deprived them of a real opportunity to give evidence and to make submissions.

24    As to the standard of interpretation, Kenny J said in Perera at [29]:

Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.

Later, at [31], Kenny J said:

… An interpretation is competent if it is adequate or satisfactory when judged against the relevant standard. An interpreter is competent if he or she can provide a competent interpretation. To speak of the competence of an interpretation invites reference back to some of the criteria that have already been mentioned, such as accuracy, as well as to other criteria, some of which are mentioned below. To speak of the competence of the interpreter invites reference to the competence of the interpretation that that interpreter may be reasonably expected to provide. In assessing whether an interpreter is likely to be competent, courts and tribunals ordinarily have regard to various factors, including the interpreter's qualifications, accreditation or experience. It remains possible, however, that an interpreter, who satisfies a court or tribunal that, by reason of qualifications and experience, he or she would be likely to provide a competent interpretation, may nonetheless provide an incompetent one. Conversely, though lacking in qualifications and experience indicative of a capacity to interpret competently, an interpreter may turn out to provide a competent interpretation. The fact remains, however, that a challenge to the quality of an interpretation may fail when evidence that the interpreter was appropriately qualified is to be weighed in the balance.

25    In a similar vein, the Full Court in Singh v Minister for Immigration [2001] FCA 1376; (2001) 115 FCR 1 said at [23]:

The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a hearing before a court or tribunal. Thus, an applicant for refugee status may be able to use English for some purposes, even professional purposes, but may be insufficiently proficient to give evidence and make submissions before the Tribunal in support of an application vital to his or her future prospects. The fact that an applicant has sufficient knowledge of English for some purposes does not mean that the applicant will be so proficient that he could cope adequately with the giving of evidence and the making of submissions before the Tribunal.

(Citations omitted)

See also Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17]; Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168 at [15]; and SZQUH v Minister for Immigration and Citizenship [2012] FCA 1265 at [19].

26    It is for an applicant asserting jurisdictional error arising from an inadequate translation to establish by evidence the matters giving rise to the error.

27    In the present case, I consider that the Appellant has not made out shortcomings of the kind discussed in the authorities. He did not provide a transcript of the proceedings before the Tribunal, nor identify any particular matter in the Tribunal’s reasons said to reflect an inaccurate translation, nor establish his wife’s level of competence in English. Even now, the Appellant has not adduced evidence from his wife of any matter upon which she was misunderstood by the Tribunal member.

28    The Appellant contended that he had raised an issue at the Tribunal about the quality of the translation. The Tribunal member does not seem, however, to have had any concerns in that respect. At the commencement of his reasons, he recounted:

[9]    At the hearing, the Applicant and sponsor gave evidence. Although both initially requested that the hearing be conducted in English I had the assistance of an interpreter in Punjabi, Hindi and English.

29    The Tribunal member also recorded that he put to the Appellant some inconsistencies between his wife’s evidence to the Tribunal on 6 October 2015 and at the hearing before him. The member continued:

[22]    The Applicant elected to comment or respond to the matters I had raised immediately. The Applicant said that at the last hearing in October 2015 there were misunderstandings through the interpreter and asked me to review the recording of the previous proceedings.

Later, the Tribunal member said:

[33]    The Applicant has submitted in response to my concern that there was a misunderstanding due to interpreting difficulties. I do not accept that explanation having regard to the decision record of the Tribunal as previously constituted and am satisfied as to its accuracy in light of the evidence of the sponsor to me.

30    Thus, it seems that the Tribunal member was alert to the possibility that translation difficulties may account for some of the matters giving rise to his concerns, but rejected that as a possibility. In this respect, I note that it was the same interpreter who assisted the Appellant’s wife at each of the Tribunal hearings. That suggests that a consistency in approach was likely.

31    The Appellant explained on the appeal that there are some differences between Punjabi, on the one hand, and Urdu, on the other. However, his explanation of the differences seemed to involve acceptance that a Punjabi interpreter could provide an adequate translation for an Urdu speaker.

32    I note, in addition, that the Appellant had expected that his wife would be able to give her evidence in English and would not require an interpreter at all as, in his response to the Tribunal’s hearing invitation, he answered in the negative the Tribunal’s question “Do you or any other person attending the hearing need an interpreter?”

33    In short, the Appellant has not established shortcomings in the translation provided in the Tribunal. Accordingly, I am not satisfied that, even if leave was granted to the Appellant to argue a new point on appeal, he could thereby establish jurisdictional error in the Tribunal decision.

34    For these reasons, the appeal is dismissed.

Associate:

Dated:    30 November 2017