FEDERAL COURT OF AUSTRALIA

DEF17 v Minister for Immigration and Border Protection [2019] FCA 1923

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and third appellants are to pay the first respondent's costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court of Australia (the FCC) dismissing an application for judicial review of a decision of made by the Administrative Appeals Tribunal (the AAT) on 20 June 2017. By that decision, the AAT affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the appellants protection (Class XA) visas (the protection visas).

2    The appellants are unrepresented, as they were also in the FCC. While the appellants did not file submissions in advance of the appeal, the particulars on the notice of appeal are in the nature of submissions and I have considered them in that light. The first appellant also made oral submissions on behalf of all of the appellants with the assistance of an interpreter in Mandarin and English. Written submissions were filed by the Minister pursuant to orders made by a Registrar of the Court on 5 February 2019.

3    The notice of appeal raises issues concerning the quality of interpreting at the AAT hearing on 27 April 2017. It became apparent at the hearing of the appeal that the AAT's record of that hearing, on which the qualifications of the interpreter present would normally be recorded, was not included in the appeal book (AB). I therefore made orders granting leave to the Minister to file and serve a copy of the relevant hearing record produced by the AAT, and permitting the hearing record to be received into evidence under s 27 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). I also granted the parties liberty to apply before 4 June 2019, limited to setting a timetable for the making of any further submissions arising from the hearing record. The hearing record was filed by the Minister on 9 May 2019. The parties did not exercise their liberty to apply.

4    For the reasons set out below, the appeal must be dismissed.

2.    BACKGROUND

5    The first and third appellants are citizens of China and are in a de facto relationship. They are the mother and father respectively of the second appellant, who is a minor and also a citizen of China. The first appellant arrived in Australia on a student visa in late 2007.

6    On 21 December 2012, the first appellant applied for a protection visa. The third appellant claimed protection as a member of the first appellant's family. Subsequently, following the birth of the second appellant, an application for a protection visa was made on the infant's behalf also on the ground that she was a member of the first appellant's family (AB56).

7    On 25 July 2013, the delegate refused to grant protection visas to the appellants. They sought review of that decision by the then Refugee Review Tribunal, which on 26 September 2014 affirmed the delegate's decision. On 22 December 2016, the FCC remitted the delegate's decision to the AAT to be determined according to law (AB95-96). On 20 June 2017, the AAT affirmed the decision of the delegate.

2.1    The appellants' claim for protection

8    The first appellant claimed relevantly to fear harm if she and her family returned to China on a number of bases which may be summarised as follows:

(1)    the first appellant's family were local church practitioners in China, she and her partner had been briefly detained after a raid on a local church gathering, and her father had been arrested and detained in China, and faced sentencing because of recent activities by him as a member of the local church; and

(2)    she was particularly at risk because of her local church activities in Australia including by reason of her involvement in corresponding with, and passing information to her father from, a Christian rights group overseas and the Chinese authorities had become aware of her activities in this regard.

9    The appellants also claimed that the second appellant would be considered a "black child" in China because her parents were not married and they would be required to pay a social compensation fee in order to obtain household registration.

2.2    The AAT's decision

10    The appellants appeared before the AAT on 27 April 2017 to give evidence and present submissions. The first appellant also appeared at the resumed hearing before the AAT on 13 June 2017.

11    The AAT rejected each of the appellants' claims. As only the first of these claims is relevant to the ground of appeal raised by the appellants, my summary of the AAT's reasons set out below focuses upon this claim.

12    First, the AAT accepted that country information indicated that the local church is regarded as a cult organisation in China and that, as such, practitioners can attract harassment, detention and imprisonment by authorities (AAT reasons at [84]). The AAT also accepted several aspects of the first appellant's local church claims, including that:

(1)    the first appellant's family was involved with the local church in China;

(2)    the first appellant was baptised into the church in China and attended local church gatherings;

(3)    the third appellant was also baptised into the local church;

(4)    the first appellant's father and uncle were arrested at some stage because of their involvement with the church;

(5)    the first appellant while of school age was at a church gathering in China which was interrupted by police and was briefly detained and suspended from school because of that incident; and

(6)    the first appellant's father had recently been detained in China because of his activities with the local church, and in particular had been charged with organising an illegal gathering in relation to which he had been granted bail.

(AAT reasons at [77]-[78] and [81].)

13    The AAT also accepted that the first appellant's father's business suffered setbacks and eventually closed, but was unable to determine whether this was caused by government harassment as a result of his involvement with the local church, as the first appellant claimed (AAT reasons at [78]).

14    However, the Tribunal did not consider the first appellant to be a credible witness in relation to certain other aspects of her claims having regard to the totality of her evidence. In this regard, the AAT noted that, while the first appellant came to Australia in 2007 and lodged her protection visa application in December 2012, she claimed to have become involved with a local church in Australia only in October 2012 (AAT reasons at [79]). The AAT also referred to the first appellant's contradictory evidence about her claimed attendance at a local church in Australia, her claimed overall involvement with the local church in Sydney, and her explanation for the delay in applying for a protection visa.

15    Secondly, the AAT found that the first appellant became involved in the local church in Australia "for the sole purpose of strengthening her protection Visa application" (AAT reasons at [71]; see also at [75]). The AAT therefore applied s 91R(3) of the Migration Act 1958 (Cth) (the Act) to disregard the appellant's conduct in this respect (AAT reasons at [71]).

16    Thirdly, the AAT found that the first appellant ceased to have an interest in the local church in China when she came to Australia in 2007 and was no longer subject to her father's influence. In reaching this view, the AAT took into account among other things:

(1)    the very general answers which the first appellant gave in response to questions by the AAT about the history and core beliefs and practices of the local church (at [73]);

(2)    the first appellant's evidence that she relied upon her father's knowledge of the local church and that, while she had some general knowledge about the local church, this had been given to her by her father and was not knowledge which she had gathered through wider participation in the local church or her independent research or interest in the local church (at [73]);

(3)    her evidence at the hearing before the AAT on 13 June 2017 that she had seldom attended the local church in Australia (at [73]);

(4)    the fact that an elder of the local church in Australia had declined to give her a letter of support on the basis that her attendance at the church had been "too low" (at [74]); and

(5)    inconsistencies in her evidence about attendance at the local church by her and the third appellant (at [74] and [80]).

17    As to the first and second of these matters, the AAT had summarised the first appellant's evidence on this issue earlier in its reasons as follows:

49. The Tribunal asked the applicant a number of questions about local church history and local church beliefs (see background paper: the local church in China, January 2013, a paper available to the Refugee Review Tribunal). She told the Tribunal that the Bible was from God and referred very generally to the concept of the holy Trinity in terms of local church beliefs. She said that Jesus was the son of Mary and he had come into the world to save people from their sins and that Jesus died on the cross and rose from the dead after three days. She said at the end of the world Jesus would come back and "give Justice". The Tribunal asked the applicant about the significance of Jesus in terms of local church beliefs and asked why Jesus was important to the local church. The Tribunal noted that the applicant initially had difficulties in responding to the question but then responded by saying words to the effect "Jesus Christ is important to everyone".

50. The Tribunal asked her about how the local church was founded or established and about the role of Watchman Nee in the establishment of the church. She said that Watchman Nee was important in terms of the "recovered" Bible. She did not expand on his role in establishing the church and she also did not appear to know about the role of Li … (described as a close friend of watchman knee [sic]) in terms of him founding the local church in the United States. The applicant said in answering questions about the history and background of the church that she had just followed her father. The Tribunal asked the applicant about the concept of "God's economy" or "economy of God" in terms of local church beliefs. She was asked what the concept meant to local church practitioners. She said words to the effect it "puts Trinity into our hearts and produces the fruit and use it as a support for life". She did not display any developed knowledge about the history and background of the Local Church. The Tribunal's overall assessment of the applicant's evidence of her knowledge about local church beliefs was that she provided a very general response in addressing questions rather than providing any significant detail that would indicate she had any in-depth knowledge about the history and development of local church beliefs. Her response to a Tribunal question that she followed her father in relation to church issues/beliefs indicated to the Tribunal that she in essence relied on her father in relation to practising in the local church and on her father about her knowledge of the local church more generally …

(emphasis added)

18    Fourthly, the AAT did not accept the first appellant's claim that she had difficulty in locating a local church in Australia in the period between late 2007 when she arrived and October 2012. Rather, the AAT found that her involvement in the local church in China was due to the influence of her father and that, when she was physically removed from her father's influence, she had not maintained an involvement or interest in the local church (AAT reasons at [80]; see also at [73]).

19    In the fifth place, the AAT found that the first appellant's knowledge of the local church and involvement with it was because of the influence of her father and wider family (at [78]). The AAT also noted that the incident in which the first appellant was briefly detained occurred while she was still at school, that she had struggled to recall when this had occurred, and that she had been able to leave China on a passport and come to Australia to study in 2007 without facing any apparent difficulties from the Chinese authorities (at [81]). The AAT found that this suggested that she had no ongoing difficulties with Chinese authorities arising out of the local church incident in which she was briefly detained (ibid).

20    Finally, the AAT found at [81] that:

… The applicant claimed she only became concerned about the fear of harm in returning to China as a result of her activities (at her father's behest) in providing information to her father about a [foreign-based organisation] who she said she had contacted in an effort to assist in getting the local church in China being accepted legally in China. …

21    The AAT, however, did not accept these claims to be credible, finding among other things that the first appellant struggled to explain why she would be contacting the foreign organisation for this purpose and that her evidence regarding her contact and involvement with the organisation had been "very vague and confusing" (AAT reasons at [82]).

22    Based on its assessment of the totality of the evidence and the first appellant's credibility, the AAT therefore concluded that it did not accept that the first appellant would be involved with the local church if she returned to China either now or in the reasonably foreseeable future (AAT reasons at [83]). Nor did the AAT accept that the first appellant would be at risk of serious harm because her father had been detained by Chinese authorities, or that other members of the first appellant's immediate family had been detained in China because of the detention of her father (AAT reasons at [84]).

23    The Tribunal therefore found that the appellants were not persons in respect of whom Australia has protection obligations, and did not satisfy the Refugees Convention criterion in s 36(2)(a) of the Act, or the complementary protection criterion in s 36(2)(aa) of the Act, for a protection visa.

2.3    The application for judicial review in the FCC

24    Before the FCC, the appellants raised two grounds of review (FCC reasons at [16]-[17]), namely:

(1)    the AAT failed to comply with the requirements of s 424AA(1)(b)(i)-(iv) of the Act in failing to inform the first appellant that she could seek additional time to comment on or respond to the AAT's concerns with respect to a range of matters including her delay in lodging a protection application, inconsistencies in her evidence, and her general knowledge of the local church; and

(2)    there were significant errors in interpreting, such that the Tribunal failed to act in a way that was fair and just under s 422B(3) of the Act.

25    With respect to ground 1 of the application for judicial review, the FCC found that while the AAT raised its concerns orally with the first appellant, it was not required to do so under s 424A(1) of the Migration Act; nor was it required to comply with the requirements of s 424AA(1)(b) of the Act in relation to these concerns (FCC reasons at [23]). The FCC found that the AAT's "concerns", namely its "thought processes", its consideration of the appellants' claims, and its assessment of the appellants' evidence, did not constitute "adverse information" within the meaning of ss 424A(1) and 424AA(1) and therefore there was no obligation upon the AAT to put these to the appellants.

26    Equally, the FCC held that the AAT was not required to put to the first appellant for comment the inconsistencies between her evidence and that of her partner. The FCC found that her partner's evidence was supportive of the first appellant's claims for protection and not contradictory, and therefore did not enliven the obligations under s 424A(1) of the Act (FCC reasons at [24]-[25]). The FCC found at [26] of its reasons that in any event, no inference could be drawn that the AAT considered that the third appellant's evidence would be the reason or part of the reason for affirming the decision under review. The FCC therefore dismissed ground 1 (FCC reasons at [27]).

27    The notice of appeal does not challenge these findings and in any event, no error is apparent in the FCC's reasons for dismissing this ground.

28    With respect to ground 2, the FCC noted that the state of the evidence on the question of the alleged interpretation problems was such that it was very difficult to draw firm conclusions. While the first appellant submitted that the name "Watchman Nee" and the expression "God's economy" were not properly interpreted, the FCC found on the basis of the three affidavits read by the appellants, that it was impossible for the Court to conclude whether the alleged interpretation problems identified by the appellants were "real or imagined" (FCC reasons at [29]-[30]).

29    Further and in any event, the FCC found that even if the issues with the interpreting alleged by the appellants were real, on a fair reading of the AAT's decision those issues did not impact upon the outcome of the review by the AAT (FCC reasons at [30]). The FCC noted that it was apparent from the AAT's reasons at [50] that the AAT did not use against the first appellant any perceived ignorance of the identity of Watchman Nee. Further, while the AAT identified concerns about the first appellant's understanding of "God's economy", the AAT ultimately concluded (at [73] of its reasons) that her knowledge was likely to have been gained from her father. In the primary judge's view, the AAT did not make any finding that the applicant was in critical respects ignorant about the local church (FCC reasons at [30]). In those circumstances, the FCC was not persuaded that any particular interpretation problems during the course of the hearing before the AAT gave rise to procedural unfairness (FCC reasons at [31]).

30    In this regard, the FCC held that:

33. To demonstrate that an error in interpretation reflects jurisdictional error, it must be shown that the misinterpretation or non-interpretation was such that the Tribunal hearing was no longer "fair" and the parties were denied a real opportunity to put their case [citing BZAID v Minister for Immigration [2016] FCA 508; (2016) 242 FCR 310, 318-320 and SZRMQ v Minister for Immigration [2013] FCAFC 142; (2013) 219 FCR 212]. The applicants are required to demonstrate that an error in interpretation related to a matter of significance to their claims and that there was a sufficient connection between the inadequate translation and the Tribunal's decision.

34. It is not apparent by reference to the transcript of the hearings before the Tribunal that the matters set out at paragraphs (a) and (b) under Ground 2 were inadequately interpreted. In the exchange between the applicant and the Tribunal relating to Watchman Nee and the book entitled the "Economy of God" it is not apparent that the applicant misunderstood or could not respond to the questions and comments of the Tribunal. Rather, the Transcript suggests that the interpretation was adequate to convey what was said such that the hearing was real and fair. Further, and as pointed out above, the matters referred to under Ground 2 were not matters of significance to the applicant's religious claims. They were one of many instances where the Tribunal raised concerns with the applicant as to her knowledge of the local church in China.

31    The FCC therefore concluded that ground 2 was not made out.

3.    RESOLUTION OF THE APPEAL

3.1    The issue raised on the appeal

32    The notice of appeal pleads the following ground of appeal:

I stated in the Ground 2 of my judicial review application to the Federal Circuit Court, that I believe the Tribunal erred in applying s 422B(3) of the Act by having failed to arrange a competent interpret who has, in the least, the general knowledge about the Local Church and general phrases that our local church use. The errors or mistranslation I pointed out were "Watchman Nee" and the name of the important book written by Witness Li.

(notice of appeal at p. 2; quoted without alteration)

33    I note that while the notice of appeal (at p. 4) stated that a transcript of the interpreting was included as Annexure 3, there was no Annexure 3 to the notice of appeal. The only document annexed to the notice of appeal was Annexure 1, being a copy of the primary judgment. However, the transcript of the Tribunal hearing was included in the appeal book at AB144-204.

34    Under the heading "Issue", the notice of appeal identifies the question of "[w]hether such mistranslation or interpreting errors were significantly enough to affect the Tribunal's decision and denied me a real opportunity to put my case." The Minister accepted that this was the issue in dispute (Minister's written submissions at [25]). As such and subject to considering certain additional issues raised at the hearing, the only issue on appeal is whether the alleged errors in interpreting were sufficiently significant to affect the AAT's decision and deny the appellants a real opportunity to put their case, resulting in a breach of ss 425(1) and 427(1) of the Act.

3.2    Relevant principles

35    Section 422B(3) of the Act provides that in applying Division 4 (which includes ss 425 and 427), "the Tribunal must act in a way that is fair and just". Having regard among other things to that legislative direction, it been held that the invitation which the Tribunal must give under s 425(1) to the review applicant to appear to give evidence and present arguments is to a "real and meaningful" hearing: SZUYU v Minister for Immigration and Border Protection [2018] FCA 786 (SZUYU) at [73] (Wigney J) and the authorities there cited. Consistently with this, s 427(7) of the Act provides that "[i]f 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".

36    In a helpful consideration of the authorities as to the circumstances in which deficiencies in interpreting may lead to jurisdictional error, Wigney J in SZUYU recently explained that:

75    A failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground for review within s 476 of the Act, because it would involve a failure by the Tribunal to comply with ss 425(1) and 427(7): Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [17] and [20]. The same applies where an interpreter is provided, but the quality of the interpretation or translation was so poor or incompetent that it can be concluded that the Tribunal did not give the review applicant an effective opportunity to give evidence about important matters or matters of significance: Perera at [38]-[41]; SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 at [22].

76    In Perera, Kenny J said (at [29]), in relation to the required standard of interpretation, that while there is "rarely an exact lexical correspondence" between different languages, 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". As for the question how bad must an interpretation be to render reliance on it a reviewable error, her Honour said (at [41]):

What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter: cf Gonzales v Zurbrick at 936-937; United States v Urena (10th Cir 1994) 27 F 3d 1487 at 1492; Acewicz v Immigration and Naturalization Service at 1062.

77    It will generally be easier to conclude that the hearing process miscarried where there were frequent or continuous mistranslations or non-translations: SZRMQ at [70]-[71] (per Robertson J). Where the errors are intermittent, the errors must be considered in the context of the overall hearing: SZRMQ at [72] (per Robertson J).

78    In Perera, Kenny J noted (at [45]) that not every departure from the standard of interpretation will effectively prevent an applicant for refugee status from giving evidence before the Tribunal; "the departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision". It does not necessarily follow, however, that it is necessary to demonstrate a direct causal effect; it may be sufficient to show that "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": SZRMQ at [10] (per Allsop CJ, with whom Robertson J agreed at [67]). It may be enough to show that "a mistranslation or non-translation could have affected the outcome" SZRMQ at [69] (per Robertson J); see also SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [75]-[77]; BZAID at [52].

79    In relation to the potential impact of deficient or defective translation on the Tribunal's findings concerning the credit or credibility of the review applicant, Kenny J said in Perera (at [49]):

A witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation. In the present case, the incompetence of the interpretation cannot have assisted the Tribunal in making a reliable finding about Mr Perera's credit. It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness: cf Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and Warren v Coombes (1979) 142 CLR 531 at 537 and 552-553.

80    It may be of considerable significance that initial errors in translation were either corrected by subsequent questioning and answers, or were otherwise detected in the course of the hearing. In SZRMQ, Flick J said (at [46]):

… Initial errors in translation may be corrected by subsequent questioning and answers. A danger necessarily lurks in errors that may go undetected at a hearing and which only emerge after a hearing has concluded. But whether the error emerges during the administrative hearing itself, or subsequently, the fact that an error in translation may have occurred may assume no ultimate significance if the true meaning and content of that which is sought to be expressed ultimately emerges.

81    Flick J was in dissent in SZRMQ, though this statement was referred to with approval by Griffiths and Moshinsky JJ in Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309; [2017] FCAFC 51 at [87].

82    The focus, ultimately, is 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": SZSEI at [74]; SZRMQ at [8] and [17]. The question whether the process was sufficient in that regard, or miscarried, 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": SZRMQ at [9] (per Allsop CJ).

(emphasis added)

(See also AWN17 v Minister for Immigration and Border Protection [2019] FCA 440 at [16]-[27] (Derrington J) and BZAID v Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310 (BZAID) at 319-320 [52] (Edelman J).)

3.3    Consideration

37    The particulars to the appellants' ground of appeal refer to the decisions in Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; (1999) 59 ALD 773 at 782 [26], W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788 (W284) at [35], and WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131 (WALN) at [29] (citing a number of other authorities) as setting out the relevant principles. These passages are consistent with the principles set out above.

38    As earlier explained, the appellants identified two alleged interpreting errors: "Watchman Nee" and "the name of the important book written by Witness Li". Consistently with this, the appellants confirmed at the hearing that the only mistakes that they relied upon were those identified in the affidavit at AB208-210 (T5.5). I note in this regard that an excerpt from a transcript of the audio recording of the AAT hearing was initially annexed to an affidavit of the first appellant made on 11 September 2018. The excerpt purported to show the words spoken by the AAT member in English, the interpretation of the AAT member's questions and the first appellant's answers by the "translator", and to express an opinion as to how the first appellant's answers should have been interpreted. However, as that affidavit did not provide evidence from a person proficient in the Mandarin and English languages concerning the quality of interpretation, the primary judge gave the appellants a further opportunity to make good that deficiency (FCC reasons at [18]). In response to those orders, the first appellant made a further affidavit on 29 October 2018 annexing an affidavit by Ana Zhao, a NAATI accredited professional level Mandarin interpreter and Chinese translator, who deposes to having interpreted the portion of the transcript annexed to the first affidavit by listening to the sound recording and expressing the opinion that the interpreter at the AAT hearing "misinterpreted some words in some of the questions and answers" (AB214). I note that no point was apparently taken below that Ms Zhao's affidavit was annexed to an affidavit of the first appellant. Nor was Ms Zhao cross-examined.

39    The appellants submitted that the errors in interpreting identified by Ms Zhao led the AAT "to have made wrong findings, believing that [the first appellant], as a local church member, lack … basic understanding and knowledge of [her] Christian Faith and in turn, make the Tribunal cast doubt about [her] credibility and grounds for seeking protection. These errors … caused adverse … implications on [her] entire claim" (notice of appeal at p. 3). The appellants further submitted, referring to W284, that if these errors in interpretation had not been made, it was possible that the AAT might have come to a different decision. The appellants submitted that the two "major interpretation errors" established a sufficient connection between the "inadequate translation" and the AAT's decision, citing WALN at [29].

40    Consistently with this, at the hearing of the appeal, the appellants submitted that because the interpreter was unable to interpret basic concepts such as names and the name of the book used by the local church, it was possible that the AAT thought that the first appellant did not know those concepts (T4.40-44).

41    I have carefully considered the appellants' submissions and the evidence but do not consider that the appellants have established any error in the decision of the primary judge rejecting this ground of review.

42    First, I note that the AAT's record of hearing on 27 April 2017 establishes that the interpreter in Mandarin and English who attended the hearing was NAATI Level 3, or "NAATI Professional", accredited. While a level of NAATI accreditation (or a lack of NAATI accreditation) is not determinative, it can be relevant to the Court's ability to draw inferences about the adequacy of interpretation: CPN16 v Minister for Home Affairs [2018] FCA 872 at [65]-[67] (Kerr J) and SZSUT v Minister for Immigration and Border Protection [2015] FCA 190 at [48] (Katzmann J). NAATI Level 3 or NAATI Professional was the highest accreditation offered by the National Accreditation Authority for Translators and Interpreters (NAATI) at the relevant time and is recommended by the Recommended National Standards for Working with Interpreters in Courts and Tribunals published by the Judicial Council on Cultural Diversity in 2017 (JCCD Recommended National Standards) where interpreters at this level are reasonably available (see Standard 11 and the accompanying commentary at pp. 41-43). As such, the level of accreditation of the interpreter who interpreted at the AAT hearing on 27 April 2017 does not of itself raise concerns about the quality of interpreting.

43    Secondly, the mere absence of particular knowledge by the interpreter about the local church in China (assuming that to have been the case) is insufficient without more to demonstrate that the hearing before the AAT was conducted unfairly or was not a real hearing in line with the principles to which I have referred.

44    Thirdly, as the authorities referred to earlier explained, word-perfect or literal interpretation is not required. Rather, as Edelman J held in BZAID at [52](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". Similarly the JCCD Recommended National Standards explain at p. 81 that "[a] common misconception is that accurate interpreting equates to literal, word for word translation. Due to differences across languages, including grammatical, pragmatic and cultural, literal translations are rarely possible."

45    It may be accepted that there were errors made by the interpreter at the AAT hearing in interpreting the first appellant's evidence as set out in the transcript at AB208-210 in the respects identified by the appellants and Ms Zhao (who also held NAATI Professional accreditation in Mandarin, Chinese and English), including in misinterpreting "Watchman Nee" as "Watcher's need". Nonetheless, such errors are not sufficient to establish a level of interpreting before the AAT which was so deficient as to result in a breach of ss 425(1) and 427(7) of the Act. First, as the primary judge held at [34], a consideration of the transcript of the hearing and, in particular, the exchange relating to Watchman Nee and the book entitled Economy of God, does not suggest that the first appellant misunderstood the AAT's questions or could not respond to them. In particular, when asked about the background of the local Church and how it was founded, the first appellant said:

I just followed my father when I was a child, so I am not very clear about it. I attended with them when I was very young. I didn't quite understand what they were doing at the church. When I saw people were praying there, I would ape what they were doing but didn't know why they did that.

(AB209)

46    Furthermore, although the AAT member's question, "Did you know anything about Watchman Nee?" was interpreted as "Did you know anything about Watcher's Need?", the first appellant responded "I just know Brother Li … [who the AAT had earlier explained was "a friend to Watcher"] who helped to translate the Recovery Version of the Bible and gave notes in it." Furthermore, while the interpreter then misinterpreted the first appellant's reference to the "Recovery Version of the Bible. That's how we call it" as a reference to "a revised Bible" (emphasis added), the interpreter then clarified with the AAT member that the first appellant had actually used the word "Recovery" (ibid) and thereby corrected any concern that the first appellant's evidence had been inconsistent in this respect (see SZUYU at [80]). Finally the first appellant gave clear and responsive answers at AB210 to questions from the AAT member about the meaning of "God's Economy or the Economy of God" in the local church.

47    Further and in any event, I agree with the primary judge that it has not been established that the errors in interpretation had any impact upon the AAT's decision and could have affected the outcome (see SZUYU at [78] and the authorities there cited). As the Minister submitted, these were not significant to the AAT's ultimate conclusions about the first appellant's knowledge about the local church (T12.5-9). Rather, the AAT accepted certain aspects of the appellants' claims (as set out at [12] above) and accepted the first appellant's evidence that her knowledge of the local church was general in nature because she relied upon her father's knowledge. However, it did not accept her claims to fear harm on the basis of adverse credibility findings having regard to a range of factors including that she had not maintained an involvement or interest in the local church in Australia until shortly before applying for the protection visa, inconsistencies in her evidence, and the fact that she had been able to leave China on a passport without difficulty. It follows that this is not a case where it can be concluded that the AAT failed to give the appellants "an effective opportunity to give evidence about important matters or matters of significance", as Wigney J said in SZUYU at [75].

48    It follows for these reasons that the ground identified in the notice of appeal must be dismissed.

3.4    Additional matters raised by the appellants at the hearing

49    At the hearing of the appeal, the appellants raised two additional issues.

50    First, the appellants submitted that the first appellant had not raised her concerns with the AAT that the interpreter was unable to interpret basic concepts in her religion because she was "greatly affected emotionally" and was in a "very confusing state" (T3.24 and T3.31) during the hearing. The appellants submitted that the first appellant answered the AAT's questions in a confusing manner because of her concern that the interpreter would make further mistakes (T3.26-31).

51    The Minister objected to the first appellant raising these factual allegations on the appeal for the first time. The appellants accepted that these allegations were not raised before the AAT or the FCC, and that evidence about them was not led before the primary judge (T3.24 and T3.33-41).

52    In Sobey v Nicol [2007] FCAFC 136; (2007) 245 ALR 389, the Full Court (Branson, Lindgren and Besanko JJ) explained at [71] that the discretion of the Federal Court to receive further evidence on appeal under s 27 of the FCA Act must be exercised consistently with proper judicial process and in the interests of justice, and not so as to undermine the distinction between original and appellate jurisdiction. I do not consider that it would be in the interests of justice to permit the appellants to lead evidence as to the first appellant's alleged confusion at the AAT hearing on the appeal. As the Minister submitted, despite having several opportunities to lead evidence before the FCC and in fact doing so (as the primary judge noted at FCC reasons at [17]-[19]), no evidence was led on these further issues in the Court below. Indeed, it would have been open to the first appellant to give evidence about these matters before the AAT at its resumed hearing on 13 June 2017, particularly given that the line of questioning about Watchman Nee and the "Recovery" version of the Bible had been pursued at the first AAT hearing on 27 April 2017. Yet no reason was given for the first appellant's failure to lead evidence on the new issues in the AAT or before the FCC. Furthermore, the fact that the appellant did not raise her concerns about the interpreter because she was confused would not take the appeal any further. Ultimately the question remains as to whether the alleged errors in interpreting rendered the hearing procedurally unfair. For the reasons earlier given, that question must be answered in the negative.

53    Secondly, while accepting that the issue had not been raised before the FCC, the appellants also submitted that the AAT had acted unfairly by alleging that material provided to it by the appellants at AB117 ff was false or fabricated (T5.32-36). That contention has no reasonable prospects of success. As the Minister submitted, it is apparent from the transcript of the AAT hearing on 13 June 2017 that the AAT referred only in a general way at the hearing to country information that the Department of Foreign Affairs and Trade was aware of fraudulent documents being used in support of visa applications (see AB154-5; T9.33 and T9.44-47). More importantly, the AAT did not ultimately find against the appellants that they had provided any fabricated documents.

4.    CONCLUSION

54    For the reasons set out above, the appeal must be dismissed. The first and third appellants are to pay the Minister's costs of the appeal as agreed or assessed.

Associate:

Dated:    22 November 2019