FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v CAK16 [2019] FCA 322

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The appellant, the Minister for Home Affairs (the Minister) appeals from a judgment of the Federal Circuit Court of Australia delivered on 19 September 2018.

2    The Administrative Appeals Tribunal (the Tribunal) had affirmed a decision of a delegate of the Minister refusing the first respondent (the respondent) a Protection (Class XA) Visa. The primary judge quashed the Tribunal’s decision and ordered that the matter be remitted to the Tribunal for rehearing.

3    There were two issues before the primary judge. The first was the respondent’s contention that the Tribunal’s decision was affected by a fraud on the Tribunal by a third party. The second was an issue raised by the primary judge concerning the adequacy of the interpretation of the respondent’s evidence before the Tribunal.

4    The primary judge quashed the Tribunal’s decision on the basis that defects and irregularities in interpretation meant that the Tribunal had not provided the respondent with a fair hearing. In view of that conclusion, his Honour did not find it necessary to decide the fraud ground.

5    The Minister’s notice of appeal asserts that the primary judge erred in finding that there was jurisdictional error. The respondent has filed a notice of contention asserting that his Honour erred by failing to consider the fraud ground.

The hearing before the Tribunal

6    The respondent is a citizen of Bangladesh who arrived in Australia on 20 March 2013. On 6 June 2013, he applied for a Protection (Class XA) Visa. The Minister’s delegate refused the application on 5 September 2014.

7    The respondent applied to the Tribunal for review of the delegate’s decision. The respondent claimed that his family had been involved in a land dispute in Bangladesh with a Mr B. Mr B was a powerful member of the Awami League (AL) political party. He claimed that Mr B had demanded the family’s land and that he and his family had been threatened and assaulted by Mr B and his supporters. He claimed to fear harm on the basis of actual or imputed political opinion and membership of particular social groups consisting of parties to land disputes and witnesses to AL political corruption.

8    The hearing before the Tribunal commenced on 21 October 2015 and continued on 4 November 2015. The respondent’s native language is Bengali and he required the assistance of an interpreter to give his evidence.

9    The Tribunal raised a discrepancy between the respondent’s statutory declaration accompanying his protection visa application, in which the respondent claimed that his father purchased land from Mr B, and his statement in an interview before the Minister’s delegate that his father and Mr B had both bought the land from another man and that the land was registered in both their names. The Tribunal was also concerned about a discrepancy as to whether Mr B was related to the respondent’s father. The respondent’s migration agent submitted that interpreting errors had led to incorrect statements in the statutory declaration.

10    The Tribunal gave its decision on 28 June 2016. According to the Tribunal’s decision record, the Tribunal had pointed out that there was a statement signed by an interpreter on the respondent’s statutory declaration saying, “I have faithfully interpreted the contents of this statutory declaration from the English language to the Bengali language to the above named to the best of my skill and ability”. The respondent claimed that he had simply been given a document to sign, and he signed it.

11    The decision record states that the respondent then changed his allegation. He stated that in the presence of his then lawyer, and with the assistance of a telephone interpreter, he had read over a draft of the statutory declaration and pointed out errors, including errors regarding Mr B selling land to his father and Mr B being a relative. Later, he returned to sign the statement in the presence of his then lawyer, but the statement was not interpreted to him at that time. The respondent’s allegations seemed to be that the errors he had pointed to had not been corrected when he signed it; that the interpreter had wrongly claimed, by signing the statutory declaration, that it had been interpreted to the applicant when that did not happen; and that the lawyer was complicit in the misleading statement of the interpreter.

12    The Tribunal found that the respondent was not a credible witness. Critical to that finding was that the Tribunal considered the respondent had provided inconsistent evidence regarding the relationship between his father and Mr B and how the land dispute arose, and had then variously alleged misconduct by his lawyer (which he later resiled from) and by the interpreter. The Tribunal also found that there were other inconsistencies and implausibilities in the respondent’s evidence.

13    The Tribunal rejected the respondent’s evidence that his family had a land dispute with Mr B, and that they had been threatened and attacked. The Tribunal was not satisfied that there was a real chance of serious harm from Mr B or supporters of AL, or that there was a real chance that the respondent would suffer significant harm in Bangladesh. The Tribunal was not satisfied that the respondent met the criteria in s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act). It affirmed the delegate’s decision not to grant the respondent a protection visa.

The judgment of the Federal Circuit Court

14    In his amended application to the Federal Circuit Court, the respondent alleged that the Tribunal’s decision was impacted by the fraudulent conduct of the respondent’s former lawyer and the interpreter in respect of the statutory declaration. The respondent alleged that even though an interpreter had signed a notation on the statutory declaration to the effect that it had been interpreted to the respondent, the declaration had not been interpreted to him. The application alleged that the former solicitor knew that the statutory declaration had not been interpreted, and provided misleading information in support of the application for the visa, which led to the Tribunal being misled as to the nature and content of the statutory declaration and the circumstances in which it was taken.

15    The solicitors engaged by the respondent for the Federal Circuit Court proceeding prepared a transcript of the hearing before the Tribunal from CDs containing audio recordings of that hearing. A solicitor filed an affidavit annexing the transcript and deposing that she had compared the audio recordings with the transcript to confirm the accuracy of the transcripts. She deposed that the transcripts were true and correct “to the best of my ability”, by which she appears to have meant “to the best of my knowledge and belief”. The CDs were not in evidence before the primary judge. The solicitor’s affidavit was read without objection (although that was at a time before the adequacy of the interpretation before the Tribunal was in issue).

16    The transcript recorded the statements made and questions asked by the Tribunal member and the responses and answers given by the interpreter in English. The transcript did not record the communications in Bengali between the interpreter and the respondent.

17    During the hearing, the primary judge commented that the transcript recorded the interpreter as having provided responses to questions put by the member “on the basis not of what the applicant said but what the interpreter said was the effect of what the applicant had said”. His Honour was concerned that the conduct of the proceedings may have been unfair in these circumstances and sought submissions from counsel.

18    The primary judge, having received submissions, decided that the Tribunal’s decision should be quashed. The substantive part of his Honour’s reasons commenced by quoting from the judgment of the Full Court in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [9]–[11]. That case dealt with the whether the standard of interpreting was so inadequate as to make a hearing before an Independent Merits Reviewer procedurally unfair.

19    The primary judge went onto say, in a passage criticised by the Minister:

13.     It is trite that a court of review must have a high degree of confidence in the accuracy of the record of proceedings of the Tribunal whose decision is being reviewed. That is particularly so in circumstances where adverse credibility findings have been made against an applicant whose evidence at the hearings before the Tribunal was received through an interpreter and recorded.

20    His Honour then set out a number of extracts from the transcript of the respondent’s evidence before the Tribunal. The transcript describes some of the words said by the interpreter as “indecipherable”. It also shows that when interpreting many of the respondent’s answers, the interpreter commenced with the words, “He is saying…”; rather than merely repeating, in English, the answers.

21    The primary judge stated:

19.    …[S]erious questions arise as to why some answers were given in the first person, but otherwise mostly were given in the third person.

20.    Was the interpreter consistently putting his own gloss upon what the applicant had said to him when providing an answer to the Tribunal member? Was the interpreter providing a fair summary of what the applicant’s answer really was? Or was the interpreter answering questions from his own perspective, based upon what the interpreter believed to be what the applicant really intended to convey, and if so, were such answers an unacceptable embellishment or otherwise inaccurate on important questions going to issues of credibility which may have influenced the Tribunal member in making the adverse credibility findings he did [?]. There is no way of knowing.

22    The primary judge noted that the Tribunal member “continually sought clarification as to whether the giving of unresponsive answers was intended to be the evidence of the applicant or not.”

23    His Honour then set out a table showing the numbers and percentages of answers recorded as “indecipherable” and given in the third person. His Honour concluded that on the first day of the hearing at least 69% of the answers were not recorded as having been given in the first person, and on the second day, at least 75% of the answers were not recorded as having been given in the first person.

24    The primary judge concluded:

25.    When misinterpretation is a live issue in a matter, great care ought to be exercised by a decision maker to ensure that the receipt of evidence through an interpreter unquestionably reflects the actual evidence given, and in this case, given by the applicant.

26.    Because of the magnitude of the departure from the usual practice of evidence being received in the first person, this court is unable to have confidence that the applicant’s evidence as recorded in the transcript is a proper reflection of the evidence which the applicant actually intended to give at the hearings before the AAT. Nor is the court confident that the Tribunal member was not influenced in his decision making process by inaccurate evidence, the product of that flawed hearing process.

27.     In the light of the above, it cannot be found that the provision of answers largely in the third person might not have led the Tribunal member to fall into error when making an adverse credibility finding against the applicant, so leading to the affirmation of the decision of the delegate. Nor could it be found that the non-recording of answers otherwise described as “Indecipherable” might not have so led the Tribunal member to fall into error.

28.     The applicant had no command of the English language. He asserted that he had been disadvantaged because of that language problem by having incorrect information recorded in his application for a protection visa. Should uncertainties associated with the recording of his answers before the Tribunal be overlooked [?]. In all of the circumstances, and in the interests of fairness, they should not.

29.     Having complained about misinterpretation at the earliest stage of his application for a protection visa, and having squarely put that issue before the AAT, the applicant was entitled to a fair hearing before the Tribunal in all respects. That included the proper recording and consideration of answers to questions put to him. The court has no confidence that that has been done.

25    The primary judge held that the Tribunal had fallen into “error” and that its decision should be quashed. The parties’ submissions proceed on the basis that his Honour found there was jurisdictional error.

The submissions in the appeal

26    The Minister’s notice of appeal contains two relevant grounds (no submissions addressing the third ground were developed). They may be summarised as follows:

(1)    The primary judge misapplied the onus of establishing jurisdictional error, failed to understand that the standard of proof was on the balance of probabilities, misconstrued the Tribunal’s obligations under s 425 of the Act and misunderstood the role of the Federal Circuit Court in an application for review for jurisdictional error.

(2)    His Honour erred in the analysis of, and reliance upon, the transcript in circumstances where his Honour did not, and could not, find that there was misinterpretation, and where his Honour’s criticism of the answers recorded as “indecipherable” was unjustified as the transcript had been prepared by the respondent’s solicitors.

27    The Minister submits that the primary judge erred in finding that there was jurisdictional error on the part of the Tribunal. The Minister submits that his Honour’s error arose as a result of three subsidiary errors. The first is that his Honour misapplied the onus of the establishing jurisdictional error, and failed to understand that the standard of proof was on the balance of probabilities. The second is that his Honour misunderstood the Tribunal’s obligation under s 425 of the Act. The third is that his Honour conflated the Federal Circuit’s Court’s role in the review with the question of jurisdictional error in the Tribunal’s decision.

28    The Minister submits that the respondent bore the onus of establishing jurisdictional error by the Tribunal on the balance of probabilities. If there was inadequate evidence as to whether the Tribunal conducted the hearing according to law, his Honour should have held that the respondent failed to discharge his onus. The Minister submits that the reasons demonstrate that his Honour could not decide whether or not there had been jurisdictional error, but wrongly found that there was jurisdictional error because his Honour had “no confidence” that the respondent had received a fair hearing. The Minister submits, alternatively, that it was not open to the primary judge to be positively satisfied that there had been jurisdictional error.

29    The Minister submits that his Honour incorrectly considered that procedural fairness required an elevated standard of interpretation at Tribunal hearings, reflected in para [25] of the reasons. The Minister submits that the authorities establish that the standard of interpretation must be adequate, and need not be of the very highest standard. The Minister submits that the primary judge did not analyse this principle and did not refer to s 425 of the Act. Instead, his Honour considered the Tribunal was required “to ensure” that the interpretation “unquestionably” reflected the actual evidence of the respondent, thereby requiring a perfect standard of interpretation.

30    The Minister submits that the primary judge incorrectly held that procedural fairness required the Tribunal to accurately record the respondent’s answers at the hearing. The Minister submits that his Honour erred in this respect because the Tribunal’s obligation was to provide the first respondent with a fair hearing, but not to keep an accurate record of his answers.

31    The Minister submits that the primary judge’s statement at para [13] that the Court had to have a “high degree of confidence in the accuracy of the record of proceedings of the Tribunal” meant that his Honour found error merely because of a lack of confidence as to the fairness of the hearing. The Minister submits that his Honour erred because the issue before the Court was whether the Tribunal’s decision was infected by jurisdictional error, rather than the primary judge’s ability to conduct a review and the adequacy of the evidence before the Court.

32    As to the Minister’s second ground, the Minister submits that his Honour’s analysis and reliance on the transcript was in error. The Minister submits that his Honour made no finding that the use of the third person resulted in errors of interpretation and, to the contrary, his Honour stated that there was “no way of knowing”. The Minister submits that the recording of answers as “indecipherable” does not reflect any error in interpretation. The Minister submits that it appears that his Honour was of the view that the transcript was before the Tribunal when it made its decision, even though it was prepared by the respondent’s solicitors after the Tribunal’s decision. His Honour’s criticisms stemmed from the lack of quality of transcript, but it was a matter for the respondent to adduce adequate evidence.

33    The Minister has not submitted that the Court should simply reach a different conclusion to the primary judge on the question of whether there was jurisdictional error.

34    The Minister submits that the appropriate remedy on appeal is to dismiss the application for judicial review. He submits that while the primary judge did not decide the issue of fraud on the Tribunal, that ground was incapable of succeeding. He submits that in order to succeed, the respondent needed to show that there was fraud and that the decision must have been actually induced or affected by the fraud, in the sense that it had a material effect on the ultimate decision. The Minister submits that the alleged fraud was not causative of any stultification or frustration of the legislative scheme governing the Tribunal’s procedures because, inter alia, the respondent had ample opportunity to appear and present his case, including explaining the alleged fraud, and that there were unrelated reasons for the Tribunal’s finding that the respondent’s evidence was not credible.

35    The respondent submits that there was no error on the part of the primary judge. He submits that if that submission is rejected, then, having regard to the fact that his Honour did not make findings concerning the respondent’s fraud case, the appropriate order would be to remit the proceeding to the primary judge to be determined according to law.

36    The respondent submits that frequent and continuous errors in interpretation before the Tribunal are apparent on the face of the transcript. The interpreter frequently paraphrased answers provided by the respondent and there were instances of lack of clarity in relation to the answers. The respondent submits that the Tribunal’s decision was, in large part, based upon adverse credit findings and those findings were affected by the inaccuracies in interpretation.

37    The respondent accepts that the primary judgment does not address, in terms, the issue of where the onus of proof lay, but argues that it must be inferred that his Honour accepted that the onus was on the respondent. The respondent submits, however, that it was not necessary to establish a precise causal link between the irregularity in interpretation and the adverse result. He submits that it is sufficient for a proceeding to exhibit procedural unfairness if the irregularity might reasonably have led to an adverse finding because of its materiality, or repetition or context, relying on BZAID v Minister for Immigration and Board Protection (2016) 242 FCR 310 at 319–320.

38    The respondent submits that his Honour found that it was not possible to establish a causal link between any particular error and the adverse outcome, but that the extent, repetition and context of the errors were such that procedural unfairness was made out.

39    The respondent submits that his Honour did not consider that procedural fairness required an elevated standard of interpretation by the Tribunal. Read in context, para [25] of the primary judgment does not impose some greater requirement of procedural fairness, but was a recognition that, in the context where the issue of interpretation of the statutory declaration was a live issue, the interpretation of the respondent’s evidence before the Tribunal took on more significance than might otherwise have been the case. Further, para [25] was not a statement requiring perfection of interpretation.

40    The respondent submits that the Minister did not dispute the accuracy of the transcript, so the only evidence before the judge was that some of the interpreter’s answers could not be understood.

41    The respondent submits that, on the face of the transcript, the interpreter was not simply translating the answers of the respondent, but was, at best, paraphrasing his responses. That ought to have been immediately apparent to the Tribunal member. The issue of proper interpretation was highly significant given the credit issues in the case and errors in interpretation were pervasive.

42    The respondent submits that where answers from the interpreter were indecipherable, the respondent was deprived of the right to have the Tribunal consider his responses. Given the extent of the problem and the context in which they occurred, there was a sufficient basis for the primary judge to conclude that the respondent was deprived of a fair hearing.

Consideration

43    In an application to the Federal Circuit Court under s 476 of the Act for review of a migration decision of the Tribunal, it is necessary for the applicant to demonstrate jurisdictional error: see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [76].

44    The applicant bears the onus of establishing jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [41]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67]; SZJBD v Minister for Immigration (2009) 179 FCR 109 at [73]. The applicant must demonstrate jurisdictional error on the balance of probabilities: see s 140 of the Evidence Act 1995 (Cth).

45    Section 425 of the Act provides, relevantly:

(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.

46    Section 427 of the Act provides, relevantly:

(7)    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.

47    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the High Court was concerned with s 360(1) of the Act, a provision nearly identical to s 425(1). The plurality said:

60    …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, citations omitted.)

48    In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, the Full Court observed at [51] that what is a meaningful opportunity, or a real chance, to appear and present evidence and argument will be fact dependent in each case.

49    Where an applicant is not competent in English, an inadequate standard of interpretation may deny the visa applicant the real chance that is required. In BZAID, Edelman J observed :

52    The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established…The relevant principles are summarised below:

(1)     interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;

(2)     whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;

(3)     in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;

(4)     where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;

(5)     where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;

(6)     where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;

(7)     if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;

(8)     however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.

50    In SZRMQ, Allsop CJ (with whom Robertson J agreed) considered what an applicant is required to establish for there to be a finding of denial of procedural fairness on the basis of inadequate interpretation under the general law:

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. Such may be expressed as requiring the appearance of a fair hearing. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?

(Underlining added, citations omitted).

51    In SZSEI v Minister for Immigration and Border Protection [2014] FCA 465, Griffiths J also emphasised the centrality of a fair hearing process. His Honour said at [74]:

74    Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her 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. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ). To similar effect, in SZRMQ at [68] Robertson J emphasised that “the process is central”. His Honour reinforced the point at [85] when he posed the relevant question as whether a mistranslation “affected or could have affected the quality of the hearing or the findings and reasons”. The Minister did not contest the correctness of those observations, nor their application to a s 425 case.

52    In BZAID, Edelman J, referring to SZRMQ, added:

54    In some circumstances it might be the case that a process is procedurally unfair even if a conclusion cannot be reached that the irregularity might reasonably have led to an adverse finding. One reason for this is that the reviewing body, and the appellate court, does not have the benefit of all of the advantages of the Tribunal which sees and hears the witnesses and considers that evidence in the context of the whole record, usually with less time constraints. Those disadvantages of the review or appellate court could require a finding of procedural unfairness in some circumstances even if the reviewing or appellate court is unable to conclude that the irregularity might reasonably have led to an adverse finding…

53    The adequacy of interpretation of the respondent’s evidence was raised by the primary judge, not the respondent. Nevertheless, the question for the primary judge was whether the respondent had proved that the Tribunal had made a jurisdictional error, namely failing to comply with its statutory duty under s 425 of the Act to provide a real chance for the respondent to give evidence and present arguments. This required the respondent to demonstrate that he was denied such a chance as a result of misinterpretations, omissions or other irregularities in the interpretation of his evidence (which will be referred to compendiously as irregularities). The respondent was required to establish, firstly, that there were such irregularities and, secondly, that they might reasonably have led to an adverse finding, or that they otherwise led to the hearing being procedurally unfair. The issue was whether the respondent had been denied a fair hearing by irregularities in the interpretation of his evidence.

54    The respondent conceded at the outset of his submissions in the appeal that the reasons of the primary judge “suffer from some lack of clarity”. The respondent accepted that it would have been preferable for his Honour to express his findings directly, rather than by the use of double negatives and through the posing of rhetorical questions. However, the respondent submits that, read in context, his Honour adopted the correct approach “albeit that there might be some expressive aspects which are unfortunate”. For the reasons that follow, I accept the respondent’s submission, although, it must be said, not without some diffidence.

55    I do not accept the Minister’s submission that the primary judge erred by finding that there were irregularities in interpretation when the reasons demonstrate that his Honour was unable to do more than speculate about whether there were irregularities. The Minister points to paras [20], [26] and [27] of the reasons. The Minister’s submission tends to conflate the two issues that his Honour was required to decide, namely whether there were irregularities and whether they resulted in an unfair hearing. That is understandable because, as the respondent conceded, the issues tended to be conflated in the reasons, and findings upon each issue were not clearly made. However, when the primary judge made statements that, for example, “there is no way of knowing” at para [20], his Honour was referring to the issue of whether the irregularities affected the outcome, not whether there were irregularities. I think it sufficiently appears from paras [22]–[27] that his Honour found that there were irregularities in interpretation.

56    The respondent adduced evidence, in the form of the transcript, which supported what his Honour found to be irregularities in interpretation of the respondent’s evidence before the Tribunal. There is nothing to suggest that his Honour failed to understand that the onus of proof was on the respondent, or that his Honour applied any standard other than the balance of probabilities when finding that such irregularities existed.

57    The primary judge found that there were two types of irregularities in interpretation. The first was that instead of directly interpreting the evidence of the appellant, the interpreter gave answers in the third person. Although his Honour did not say so directly, I think the respondent is right to submit that the irregularity perceived by his Honour was that the interpreter was paraphrasing the respondent’s evidence, rather than interpreting that evidence. This is illustrated by His Honour referring at para [21] to the Tribunal member querying whether the giving of unresponsive answers was intended to be the evidence of the respondent or not.

58    As the Minister points out, the primary judge did not find that such paraphrasing involved misinterpretation of the respondent’s evidence. In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, the Full Court at [18] referred to the need for the applicant to place evidence before the Court that “material errors occurred in the interpreting of the [applicant’s] statements.” It is also true that the parties have not identified any comparable case where an applicant has succeeded without having demonstrated misinterpretations or omissions. However, it was not essential for his Honour to find that there was misinterpretation in order to find that the hearing there was not a meaningful opportunity, or a real chance, for the respondent to present his case. It was a matter of evaluation of all of the circumstances. Any form of irregularity of sufficient gravity might, depending on the circumstances, be enough to allow a conclusion that the hearing was procedurally unfair. In my opinion, in SZRMQ, the word “irregularity” was deliberately used to demonstrate that something less than proven errors in interpretation may suffice to demonstrate procedural unfairness.

59    The second irregularity in interpretation identified by his Honour was that some of the interpreter’s words were indecipherable. The Minister submits that simply because certain answers in the transcript prepared by the respondent’s solicitor were described as “indecipherable” in the transcript, it does not mean that those words were in fact indecipherable in the hearing. However, the affidavit of the respondent’s solicitor annexing the transcript was admitted into evidence without objection. The solicitor deposed that she had listened to the audio recording of the hearing, and had compared it to the transcript, and was satisfied that the transcript was accurate. The inference to be drawn from that evidence is that the relevant words were also indecipherable to the Tribunal member. The CDs containing audio recordings of the hearing before the Tribunal were not placed into evidence, and there was nothing to contradict what was shown in the transcript.

60    In oral submissions, the Minister complained that the transcript had already been admitted into evidence at a time before the primary judge raised the issue of the adequacy of interpretation before the Tribunal, and that he did not have an opportunity to challenge the transcript. However, the notice of appeal does not rely upon any ground of procedural unfairness, and no application was made to amend the grounds of appeal. The transcript was admitted into evidence and could be given such weight as his Honour considered appropriate.

61    It is apparent from the reasons that his Honour’s view was that he could not find that the defects or irregularities had resulted in or caused the adverse findings by the Tribunal. The respondent submits that, while his Honour at para [20] and [26]–[27] poses a number of rhetorical questions which are suggestive of speculation, when these passages are read in the context of the reasons as a whole, it is tolerably clear that the issue his Honour was addressing was whether the irregularities in interpretation might reasonably have led to an adverse outcome.

62    I accept this submission. His Honour referred to the principles expressed by Allsop CJ in SZRMQ at [8]–[9], and the reasons should be read from a starting point that those principles were applied. The respondent was not required to establish a causal link between defective interpretation and the outcome. In some circumstances, it is enough that the irregularities in interpretation might reasonably have led to an adverse outcome. His Honour identified the extent of the irregularities and discussed their relevance in the context of the proceeding. I consider that his Honour correctly approached the case on the basis of considering whether the irregularities in interpretation might reasonably have led to an adverse outcome.

63    His Honour ultimately concluded at [29] that:

[T]he applicant was entitled to a fair hearing before the Tribunal in all respects. That included the proper recording and consideration of answers to questions put to him. The court has no confidence that that has been done.

64    The first sentence of that paragraph is unobjectionable. However, the Minister submits that the Tribunal was under no obligation to make a “proper recording” of respondent’s answers. The Minister also submits that in this passage the primary judge found that that the Court had “no confidence” that the respondent had received a fair hearing, whereas such a finding was required to be made on the balance of probabilities.

65    To take the second of these submissions first, I understand his Honour’s conclusion to be that the Court had no confidence that the Tribunal was able to properly consider the answers given by the respondent because of the irregularities in their interpretation; and that this had led to a failure to provide the respondent with a fair hearing. Such a conclusion is consistent with his Honour finding that there were irregularities that might reasonably have led to an adverse outcome and, as a result, the Tribunal failed to provide the respondent with a fair hearing. I do not consider that any misunderstanding of the onus or standard of proof has been demonstrated.

66    The Minister submits that there was a material error in the primary judge’s statement that the Federal Circuit Court had to have a “high degree of confidence in the accuracy of the record of proceedings of the Tribunal whose decision was being reviewed”. He submits that this error is reflected at para [29] where his Honour found that a fair hearing required “the proper recording” of the respondent’s answers. He submits that there is no requirement in the Act that the Tribunal keep proper records.

67    It is unclear what his Honour meant when referring to the accuracy of the records of the Tribunal and the proper recording of answers. The respondent’s answers were audio-recorded and the recordings were stored on CDs. There was no issue about the accuracy of the recordings. Whatever his Honour meant, those statements do not appear to have materially influenced the outcome. The outcome depended upon his Honour’s conclusion that the hearing was unfair because of irregularities in the interpretation of the respondent’s evidence.

68    It must be emphasised that the outcome of the hearing before the primary judge turned very much on its own facts. An applicant will not succeed merely because there has been some paraphrasing of evidence by an interpreter or some indecipherable words. In SZSEI, Griffiths J observed at [79] that interpreting is “not a perfect science and, having regard to the difficulties which are inherent in the process, perfection cannot reasonably be expected”. In SZRMQ it was emphasised at [9] that whether the hearing was fair will be a matter of evaluation in all the circumstances. In this case, the primary judge reached a particular conclusion because of the nature, frequency, pattern and extent of the irregularities, and their importance in the context of the issues before the Tribunal, which themselves involved questions of interpretation of the respondent’s statutory declaration. Further, it should be borne in mind that an applicant must adduce evidence demonstrating irregularities in interpretation, rather than merely asserting that there were irregularities. In this case, a transcript was produced and his Honour considered that the irregularities were apparent on the face of the transcript.

69    The outcome has been contributed to by a singular confluence of circumstances, including that the relevant ground was raised by the primary judge, not the respondent; that the transcript had earlier been admitted without objection before its particular significance was apparent; that consideration does not appear to then have been given to adducing further evidence concerning the transcript and interpretation; and that the grounds of appeal did not raise any issue of procedural fairness or adequacy of the reasons.

70    In my opinion, the Minister has not demonstrated material error on the part of the primary judge. The appeal must be dismissed with costs.

Associate:    

Dated:    8 March 2019