Federal Court of Australia

ETI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 819

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The first and second appellants are, respectively, the father and mother of the third, fourth and fifth appellants. They are all Malaysian nationals. Collectively, they applied in May 2015 for protection visas under the Migration Act 1958 (Cth) (the “Act”). On 28 October 2015, their applications (hereafter and collectively, the “Visa Application”) was rejected by a delegate of the first respondent (the “Minister”). Thereafter, they sought to have that decision reviewed by the second respondent (the “Tribunal”). That application (the “Review Application”) was the subject of a decision made on 13 October 2017 (the “Tribunal’s Decision”), by which the initial rejection of their Visa Application was affirmed.

2    On 25 October 2017, the appellants applied to what was then known as the Federal Circuit Court of Australia for judicial review of the Tribunal’s Decision (the “Judicial Review Application”). By judgment dated 17 February 2023, that court—by then known as the Federal Circuit and Family Court of Australia (Division 2) (hereafter, the “FCFCOA”)—dismissed their Judicial Review Application: ETI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 115 (the “Primary Judgment”; Judge Taglieri).

3    By notice dated 17 March 2023, the appellants now seek to appeal from the Primary Judgment. For the reasons that follow, the appeal should be dismissed with the usual order as to costs.

The Visa Application and the Tribunal’s Decision

4    The learned primary judge summarised the bases upon which the appellants’ Visa Application was pressed: Primary Judgment, [5]. Thereafter, her Honour proceeded to record why it was that the Tribunal was minded not to accept that it should succeed: Primary Judgment, [6]-[10]. For present purposes, those summations are not controversial and I needn’t replicate them.

The Judicial Review Application

5    The appellants’ Judicial Review Application appears to have been prepared by the first appellant himself. It charged the Tribunal—somewhat summarily, it is fair to observe—with having “…failed to properly consider all of [his] claims”. At the hearing before her, the primary judge (quite properly, if I might say so with respect) made an attempt to particularise that bald assertion, at the conclusion of which it became apparent that the appellants sought to press a number of complaints related to the manner in which the Tribunal determined their Visa Application.

6    Of relevance presently was their complaint (as her Honour articulated it) that the “…interpretation at the Tribunal hearing was incorrect as the interpreter did not speak the correct language, meaning [the appellants] were not afforded a fair hearing”.

7    On that score, the primary judge made the following observations by way of summary of the contentions that the appellants advanced (Primary Judgment, [21]-[24]):

21     In relation to Ground 1, the [first appellant] submitted that the interpreter provided for the purposes of the Tribunal hearing spoke Malayalam whereas the [appellants] speak Tamil, and as such the [first and second appellants] could not fully understand questions put and they were concerned their evidence was not accurately conveyed.

22     I referred the [second appellant] to page 289 of the Court Book, which is the Tribunal’s record for the hearing on 8 September 2018 and includes the names of two interpreters, one for Tamil and the other for Malayalam. The name of the Malayalam interpreter had been struck through by hand; I put to the [second appellant] this suggested that the Tamil interpreter was the one present at the hearing. She maintained that the interpreter at the Tribunal hearing spoke Malayalam.

23     On this point, I requested on 15 November 2022 that counsel for the [Minister] make enquiries with the Tribunal as to which interpreter was paid for the hearing. Counsel for the [Minister] indicated that he would make the enquiries, but suspected that the information would not be available given the passage of time since the Tribunal hearing.

24     When the review hearing resumed on 25 November 2022, the [second appellant] further submitted that [the audio recording of the Tribunal hearing] evidences that the interpreter:

(a)     Was confused during the proceedings and at one point told the member such, although the [second appellant] could not pinpoint when in the recording this occurred other than it was in the “initial phase”; and

(b)     Could not have fully interpreted the proceedings as they only spoke in short sentences whereas the Tribunal member spoke in lengthy sentences, so the interpreter must have omitted some of what was said.

8    After considering those submissions, her Honour was moved to conclude as follows (Primary Judgment, [39]-[44]; reference omitted):

39     The [first and second appellants] pressed the ground in respect of the accuracy of interpretation at the Tribunal proceedings at the resumed hearing on 25 November 2022. At this point the [Minister] had received the audio recording of the Tribunal proceedings.

40     The [appellants] allege that, as evidenced by [the audio recording of the Tribunal hearing], the interpreter spoke Malayalam rather than Tamil, must have missed sections of what was said as the interpreter only spoke in short sections, and admitted to the member during the Tribunal hearing that they were confused. However, they could not, when asked, provide exact time stamps in the two and half hour recording at which this is evident. As such they have not properly particularised this ground, even after having had opportunity during the adjournment of the hearing to identify when the problematic interpretation is alleged to have occurred.

41     When taken specifically to the Tribunal hearing record in the Court Book at page 289, at which the entry for the Malayalam interpreter has been struck out by hand, leaving a Tamil interpreter’s name in place, the [first and second appellants] asserted that the record is incorrect and did not direct the Court to any evidence in support of this assertion.

42     I accept the submission of the [Minister] that the onus was on the [appellants] to establish the deficiency in the adequacy of translation during the Tribunal hearing, and that they have failed to do so. Ground 1 does not establish the high level of specifics required in respect of the jurisdictional error asserted.

43     Furthermore, it seems more probable that the documentary record maintained by the Tribunal about which interpreter assisted during the hearing is correct.

44     For the foregoing reasons, this aspect of asserted jurisdictional error on the application for review is not established.

9    After addressing a number of other grounds upon which the appellants sought to impugn the Tribunal’s Decision as a product of jurisdictional error, her Honour was moved to dismiss the Judicial Review Application with costs.

The present appeal

10    By notice dated 17 March 2023, the appellants seek to appeal from the Primary Judgment on a single ground, namely (errors and emphasis original):

Jurisdictional Error – The honourable Court below failed to consider that the Tribunal fell into jurisdictional error by relying upon erroneous interpretation which led the tribunal to misconstrued the evidence before it and made inaccurate factual statements.

Particulars:

a)     The applicant is from Malaysia with Tamil decent and speaks Tamil as first language.

b)     The interpreter who engaged in interpretation was a Malayalam individual with knowledge over Tamil language.

11    As with many other proceedings like it, the appeal’s allocation was delayed by reason of a backlog that accumulated during the time of the covid-19 pandemic. It made its way into my docket in February 2025 and, in April, the parties were notified that it would be heard on 2 July 2025.

12    On 27 May 2025, the second appellant wrote to my chambers requesting that the hearing be adjourned on the grounds that she is presently located in Malaysia with the fourth respondent, and that her absence from Australia prejudices her ability to present her case on appeal. The parties were informed that the adjournment application would be considered at the commencement of the hearing on 2 July 2025.

13    The second and fourth appellants did not attend the hearing of the appeal (in person or remotely). In light of that, the first, third and fifth appellants (who did attend) pressed for the matter to be adjourned. The Minister opposed that course. After hearing from the parties (both from the third appellant, who addressed the court in English, and the first appellant, who, although able to follow in English, spoke through a Tamil interpreter), I declined the appellants’ request for an adjournment and gave brief reasons for doing so. I thereafter entertained submissions on the substantive appeal.

14    In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, Kenny J observed (at 18 [24]):

“The right to a hearing is a vain thing if [an applicant] is not understood.”: Gonzales v Zurbrick (6th Cir 1930) 45 F 2d 934 at 937. In this country, the function of an interpreter in courts and tribunals is to convey in English what has been said in another language (and vice versa). The function of an interpreter in the Tribunal (as in a court) is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication: see Gradidge v Grace Bros Pty Ltd [(1988) 93 FLR 414] at 425 per Samuels JA. An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant’s own linguistic capacities are not, on their own, sufficient to that end.

15    Not every departure from the standard of interpretation that is necessary to afford a visa applicant a proper opportunity to give evidence or make submissions will be sufficient to establish jurisdictional error: SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562, [34] (Lee J). In CPN16 v Minister for Home Affairs [2018] FCA 872, [79], Kerr J stated:

…for a decision to be set aside because of an error or errors in interpretation, that error or those errors must be shown to have been material. It or they must go to an important point of the reasoning of a decision maker. Jurisdictional error is not established in the absence of such materiality.

16    In SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (Allsop CJ, Flick and Robertson JJ), Allsop CJ observed in obiter (at 215-6 [9]-[11]):

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.

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?

That rhetorical question should not be taken as intended to encapsulate any complete evaluative principle. Fairness of the process will fall to be judged by reference to the particular circumstances. In some circumstances, the interpretation may be so inadequate as to deny the fact of any hearing. In such circumstances, it may not even be necessary to show that the errors may well have affected the decision in a real way, because there has been no hearing, to which the person was entitled.

17    Presently—and as before the primary judge—the appellants were unable to identify any examples of exchanges that took place before the Tribunal that the court might now be concerned were, for want of appropriate interpretation, not properly understood. Instead, their contention did not graduate beyond a general complaint that they had difficulties communicating with the interpreter that assisted them at the hearing before the Tribunal.

18    The court was told that the hearing before the Tribunal took place by remote means. Given that it transpired in September 2017, that would be surprising. The Minister theorised that the appellants were mistaking the hearing before the Tribunal for the hearing that took place before the primary judge, which did involve remote means.

19    The primary judge received into evidence a two-hour-and-thirty-nine-minute audio recording of the hearing before the Tribunal. That record makes clear that the hearing transpired in person, and that the appellants were assisted by an interpreter with and through whom they were able to communicate at least well enough to voice any concerns about things that they had difficulty understanding. The first appellant demonstrated at least some English competency, responding directly to some questions in English (although principally via the Tamil interpreter, with whom he did not appear to have any difficulty interacting). From my own review of that audio, it is apparent that there were unremarkable occasions on which the interpreter expressed some confusion about what she was being told (although, I stress, not confusion that appeared to arise from language or dialect); but on those occasions she was able to clarify what was sought to be advanced.

20    Even accepting that some difficulties arose, they are not a sufficient basis upon which to accept that the Tribunal’s Decision was unfair to a point that might bespeak jurisdictional error. Absent some suggestion that there was something specific about the manner in which the proceeding before the Tribunal was interpreted that should incline the court toward accepting that the resultant decision is unsound, the highest that the contention rises is to suggest that the interpretation was not of the highest possible standard. The obligation under which the Tribunal laboured, however, was not one of perfection; it was to ensure that the matter before it proceeded fairly. In circumstances where no issue about the standard of interpretation was raised during the hearing before the Tribunal, where none was made apparent upon review of the audio from that hearing and where the appellants themselves have not particularised any specific concerns, the court on appeal has no reason to consider that the hearing proceeded otherwise than in the manner that the Act contemplates.

21    So much were the conclusions of the learned primary judge. With respect, her Honour did not err in drawing them. The appeal should be dismissed and the appellants should pay the Minister’s costs. There will be orders to those effects.

Associate:

Dated:    21 July 2025

SCHEDULE OF PARTIES