Federal Court of Australia

Enkhbat v Minister for Immigration and Citizenship [2026] FCA 1534

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the costs of the first respondent, to be agreed or taxed.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The first appellant, Munkhzaya Enkhbat, is a citizen of Mongolia. The second appellant, Bayarmunkh Delgermaa, is her husband. They both appeal against a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA): Enkhbat v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 308. The primary judge dismissed the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal): Enkhbat (Migration) [2020] AATA 5004. The Tribunal had affirmed a decision of the delegate of the predecessor of the first respondent, the Minister for Immigration and Citizenship (Minister), refusing to grant the appellants Student (Class TU) (Subclass 500) visas (student visas) pursuant to s 65 of the Migration Act 1958 (Cth).

2    The basis on which the delegate and the Tribunal refused to grant the appellants’ application for student visas was that Ms Enkhbat did not satisfy the genuine temporary entrant criterion, found in cl 500.212(a) of Sch 2 to the Migration Regulations 1994 (Cth). That criterion (as in force at the time of the Tribunal’s decision) was expressed as follows:

The applicant is a genuine applicant for entry and stay as a student because:

(a)    the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)    the applicant’s circumstances; and

(ii)    the applicant’s immigration history; and

(iii)    if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

(iv)    any other relevant matter; …

3    The delegate also found that Mr Delgermaa, as a secondary applicant and member of the same family unit as Ms Enkhbat, did not satisfy the criterion in cl 500.311 of Sch 2 of the Migration Regulations, because Ms Enkhbat had not satisfied the genuine temporary entrant criterion.

4    On the appeal, the appellants contend that the primary judge erred by not adjourning the hearing of the application for judicial review so as to enable the appellants to obtain and file further evidence relevant to interpretation issues that arose in the hearing before the Tribunal. For the reasons that follow, the appellants have not established relevant error in the primary judge’s decision. It follows that the appeal must be dismissed with costs.

Background

5    Ms Enkhbat first arrived in Australia in July 2018 as the holder of a student visa. She was accompanied by her husband. Their son, who had been born in January 2017, continued to live in Mongolia with his grandparents.

6    In 2014, prior to entering Australia, Ms Enkhbat had completed a Bachelor of Business Administration, majoring in accounting. After completing her bachelor’s degree, she commenced working at Sibkabel Energy LLC (Sibkabel), a Mongolian company of which she is also a shareholder. Since arriving in Australia, Ms Enkhbat has enrolled in, and completed, a General English language course, an IELTS preparation course, and a Certificate IV in Business.

7    On 10 May 2019, the appellants applied for further student visas, with Ms Enkhbat as the primary applicant. At that time, Ms Enkhbat was enrolled in, and was studying, a Diploma of Leadership and Management which she was scheduled to complete in September 2022, and she had a future enrolment in an Advanced Diploma of Leadership and Management which she was scheduled to complete in May 2023. On 3 July 2019, the Minister’s delegate made a decision to refuse to grant student visas to the appellants, as he was not satisfied that Ms Enkhbat satisfied the genuine temporary entrant criterion.

The hearing and the decision of the Tribunal

8    On 4 July 2019, the appellants applied to the Tribunal for merits review of the delegate’s decision. On 24 November 2020, the Tribunal conducted a hearing by telephone. Ms Enkhbat participated in the hearing, as did an interpreter in the Mongolian language. The appellants’ migration representative, who could also speak Mongolian, was also present with Ms Enkhbat and participated in the hearing. On the same date, the Tribunal affirmed the decision under review and delivered written reasons for its decision.

9    The Tribunal first set out the procedural history of the matter before turning to consider whether Ms Enkhbat satisfied the genuine temporary entrant criterion, noting that it was required to have regard to Ministerial Direction No 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

10    The first consideration concerned Ms Enkhbat’s circumstances in her home country of Mongolia. The Tribunal did not accept Ms Enkhbat’s assertion that there were no short courses relating to business practices available in Mongolia. The Tribunal noted that no supporting evidence had been provided. It found that Ms Enkhbat had not established the benefits to be gained from studying the proposed courses in Australia, as opposed to studying in her home country, particularly having regard to the cost and disruption associated with studying in Australia. The Tribunal further considered that Ms Enkhbat did not have strong familial, economic or financial ties that would constitute an incentive to return to her home country. In support of this finding, the Tribunal noted that Ms Enkhbat had stated that she intended to remain in Australia until 2023 without her son and that she received substantial dividend income each year from Sibkabel.

11    The Tribunal then considered Ms Enkhbat’s potential circumstances in Australia. The Tribunal (at [23] of its reasons) gave “significant weight to the fact that [Mr Delgermaa] was with [Ms Enkhbat] in Australia”. The Tribunal also considered that Ms Enkhbat’s current enrolments were not directed towards an educational outcome or career progression, given her previous enrolments and the income she was already receiving from Sibkabel. Accordingly, the Tribunal concluded at [24] of its reasons “that the enrolments are for the primary purpose of extending stay in Australia”.

12    The Tribunal further considered the value of the courses to Ms Enkhbat’s future and her goals. Ms Enkhbat had stated that, upon returning to Mongolia, she would look after Sibkabel’s foreign correspondence and broaden the business with foreign investments. The Tribunal took into account Ms Enkhbat’s position within Sibkabel, its turnover, and her consequent stronger financial position, finding that the then-current enrolment was not consistent with pursuing those goals. The Tribunal distinguished Ms Enkhbat’s earlier English language studies, which it found were related to such goals. The Tribunal concluded (at [27]) that the current course of study would not lead to “enhanced career or remuneration outcomes for [Ms Enkhbat] such that they outweigh the time and money commitment for overseas study”.

13    The Tribunal ultimately concluded that Ms Enkhbat had failed to establish that she genuinely intended to remain in Australia temporarily as a student and therefore did not satisfy the genuine temporary entrant criterion. As Ms Enkhbat was found not to satisfy the genuine temporary entrant criterion, it followed that Mr Delgermaa did not satisfy cl 500.311, as a member of her family unit. Accordingly, the Tribunal affirmed the decision of the delegate.

The decision of the primary judge

14    On 10 December 2020, the appellants applied to the FCFCOA for judicial review of the Tribunal’s decision. The application for judicial review was filed by Ms Enkhbat personally. The appellants were later represented by a solicitor, but he ceased to act for them on 10 January 2025, just over a month before the hearing in the FCFCOA. On 18 February 2025, Ms Enkhbat appeared in person at the hearing before the primary judge. Her amended application for review, which was filed when she had legal representation, contained two grounds. The first ground concerned alleged errors in the decision of the delegate rather than the Tribunal. The primary judge explained, correctly, that it was not the role of the FCFCOA to review the delegate’s decision.

15    The second ground of review contained a range of complaints relating to the hearing and decision of the Tribunal. It was asserted that the Tribunal had failed to consider relevant information, “including that she has who is offshore” (apparently a reference to the existence of her son, advanced as an incentive for Ms Enkhbat to return to Mongolia). A complaint was made about the Tribunal’s incorrect reference to Ms Enkhbat as a national of Nepal, rather than Mongolia. Most relevant to the present appeal, the ground also contained a complaint about the Tribunal “failing to provide another interpreter when [Ms Enkhbat] had clearly voiced that she could not understand or communicate with the interpreter”.

16    The issue concerning alleged difficulties with the interpretation at the hearing before the Tribunal was primarily addressed by the primary judge at [29]-[34] of his Honour’s reasons. The complaints raised by Ms Enkhbat in her submissions before the primary judge were summarised at [13], as follows:

Ms Enkhbat told me the Tribunal hearing did not go well. She said the telephone connection was poor and the interpreter – who was part of a three-way conversation between Ms Enkhbat and the Tribunal – had difficulty translating her evidence. (Ms Enkhbat confirmed the agent was present throughout the hearing but the hearing attendant’s notes do not record the agent being on the call: court book at p 160. Ms Enkhbat said her agent sat beside her as she participated in the call.) Ms Enkhbat recalled the interpreter struggling; the interpreter suggested Ms Enkhbat might prefer to answer the Tribunal’s questions herself if she felt comfortable doing so. Ms Enkhbat said the agent intervened at one point with the permission of the member to supplement the translation being provided by the interpreter. Ms Enkhbat said in her submissions before me that she thought the interpreter might not have translated the entirety of her answers. If the interpreter had interpreted her evidence accurately, Ms Enkhbat says she could have made a more persuasive case.

17    The primary judge noted at [31] that there was “no mention in the reasons for decision [of the Tribunal] of any difficulties with an interpreter or any degrading or interruption of the telephone conversation”.

18    The primary judge observed that no transcript or affidavit evidence had been provided to substantiate the alleged difficulties. Although Ms Enkhbat had informed the primary judge that she possessed a recording of the hearing, his Honour considered it unlikely that the recording would reliably demonstrate any interpretation or connectivity problems. The primary judge also said that he had considered adjourning the proceeding to allow Ms Enkhbat an opportunity to file an affidavit annexing a certified transcript, but ultimately declined to do so on the basis that the appellants had been given “ample opportunity to prepare their case”. His Honour further noted that the complaints regarding audio quality had only recently been raised, and that Ms Enkhbat was unable to identify any specific information that the Tribunal had misunderstood or failed to consider. The primary judge concluded that it had not been established that any interpretation issues during the Tribunal hearing had resulted in a denial of procedural fairness to the appellants. Accordingly, the primary judge found that the Tribunal had properly discharged its statutory function and dismissed this ground of review and the application.

The grounds of appeal

19    On 28 March 2025, the appellants appealed to this Court. The original notice of appeal, which was apparently prepared by Ms Enkhbat, contained three grounds of appeal, including a contention that:

there were “gaps” in the interpretation of the testimony of Ms Enkhbat from Mongolian to English during the hearing of the Tribunal, which led the Tribunal to misapprehend the evidence that was given by Ms Enkhbat …

20    After obtaining legal representation, on 15 September 2026, the appellants filed an amended notice of appeal, which contains two grounds of appeal, expressed as follows:

1.    [The primary judge] erred by failing to grant the appellant an adjournment to obtain evidence about translation issues before the AAT, where the Court was aware the appellants had agitated the issue of the inadequacy of translation of the AAT hearing from the time of Application to the Court; and

2.    [The primary judge] erred in exercising his discretion by having regard to or giving excessive weight to:

(a)    the recent complaint regarding the quality of the audio;

(b)    his Honour’s assumption that the issue in relation to the translation was that the Tribunal had missed information; and

(c)    that the appellants had been represented for a period, but no regard was had to the quality of that representation or the fact that the solicitor had ceased to act the month before the hearing.

21    The appellants do not press any of the grounds in their original notice of appeal. The two grounds in the amended notice of appeal challenge the primary judge’s refusal to adjourn the hearing in order to allow the appellants to obtain a transcript of the Tribunal hearing as evidence of the alleged interpretation issues. The appellants do not directly challenge the primary judge’s decision that the decision of the Tribunal was not shown to be affected by jurisdictional error, including because of the problems that arose in relation to interpretation.

22    The decision not to grant an adjournment was a discretionary one. In order to succeed on an appeal against the primary judge’s exercise of discretion, it is necessary for the appellants to establish error of the kind described in House v The King (1936) 55 CLR 499 (House v The King) at 504-5, in the following passage:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Evidence relied on by the appellants

23    The appellants rely on three affidavits in support of their appeal – two made by Ms Enkhbat and one made by the representative who assisted Ms Enkhbat in the hearing before the Tribunal. The affidavit of Ms Enkhbat’s representative establishes that, in addition to being a registered migration agent, she is fluent in both Mongolian and English and is an accredited translator. She states that she was “therefore able to understand the questions asked by the [Tribunal member] in English, the interpretation provided in Mongolian, [Ms Enkhbat’s] answers in Mongolian, and the interpretation of those answers into English”.

24    The affidavits relevantly identify interpretation issues that are said to have arisen in the Tribunal hearing. Ms Enkhbat’s first affidavit annexes a transcript of the hearing before the Tribunal, in a form which records what was said in both English and Mongolian during the hearing, as well as an English translation of what was said in Mongolian. This enables a comparison to be made between what was said in English and (via a further translation into English) what was communicated to Ms Enkhbat in Mongolian. Similarly, it allows a comparison to be made between what Ms Enkhbat said in Mongolian (via a translation) and what was communicated to the Tribunal in English. No issue was taken with the accuracy of the further translation from Mongolian into English.

25    Section 27 of the Federal Court of Australia Act 1976 (Cth) empowers the Court to receive further evidence on appeal. At the hearing, I admitted the affidavit evidence, over the objection of the Minister, because it was capable of bearing on the issue of the materiality of any alleged error affecting the exercise of the primary judge’s discretion.

26    Ordinarily, the Court would not allow an appeal on the basis of an error in the exercise of a procedural discretion unless satisfied that the error “affected the result” or was productive of “substantial injustice”: cf, Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at 483 [6]-[7] (Gaudron, McHugh and Hayne JJ); Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at 449 [78] (Gummow A-CJ, Hayne, Crennan and Bell JJ); Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1; [2016] HCA 41 at 9 [26]; Papas v Westpac Banking Corporation [2014] FCA 290 at [75]. The appellants bear the onus of establishing not just that the primary judge erred but that the alleged error was material in that sense.

27    Although the evidence filed on the appeal would also have been relevant to one of the grounds of judicial review that was relied on before the primary judge, its relevance on the appeal is to the question of whether the appeal should be allowed by reason of an error in the exercise of a procedural discretion, which the primary judge is alleged to have made in the course of determining the application for judicial review. It was not possible for the appellants to pre-empt that alleged error at the time of the proceeding before the primary judge. They could not then have filed the evidence for the purpose for which it is now relied on. In my view, it is appropriate in all the circumstances that the evidence should be admitted on the appeal: see generally, eg, Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] (Griffiths and White JJ).

Alleged errors in the primary judge’s exercise of discretion

28    The appellants challenge the primary judge’s decision not to adjourn the hearing for the appellants to obtain a transcript of the Tribunal hearing as evidence of the alleged interpretation issues. It is not clear whether the appellants sought an adjournment of the hearing, but it is apparent from the primary judge’s reasons that his Honour gave active consideration to the question of whether the hearing should be adjourned, and made a decision not to adjourn it. In those circumstances, I proceed on the basis that the primary judge made a discretionary decision that is capable of being challenged by way of appeal.

29    The reasons the primary judge gave for his decision not to adjourn the hearing are set out at [32]-[33] of his Honour’s reasons, as follows:

I was not provided with a transcript of the hearing. A transcript might have showed [sic] Ms Enkhbat or her representative remarking on the problems, and it might have confirmed Ms Enkhbat’s claim that the Tribunal itself expressed frustration in the face of the interpreter’s performance or connection issues. At a minimum, I would have expected some affidavit evidence from the representative which pointed to the problems with the translation and the connection issues.

Ms Enkhbat said she had a recording of the Tribunal’s hearing in her possession but I was not satisfied it would be helpful or appropriate to simply play that tape at the hearing before me. A recording would not necessarily capture any confusion over the interpreter’s translation, and connection issues might be difficult to detect on a recording. I considered adjourning the hearing to provide Ms Enkhbat with an opportunity to provide a certified transcript of the hearing with an affidavit that revealed the problems. I have decided against that course. First, I am satisfied the applicants have had ample opportunity to prepare their case, even allowing for the fact they are now unrepresented. Second, the complaint about the quality of the audio connection in particular is of comparatively recent origin. While the application for review includes reference to issues with the interpreter, the questions about the quality of the audio connection were not raised until Ms Enkhbat addressed the hearing before me. Third, Ms Enkhbat was unable to clearly identify by reference to the Tribunal’s reasons for decision what information the Tribunal supposedly missed because of translation or connection issues.

30    In my view, on a fair reading of the primary judge’s reasons, his Honour considered whether to adjourn the hearing on the basis that Ms Enkhbat had raised two distinct complaints, either or both of which might provide a reason for an adjournment. The first complaint related to alleged errors in interpretation, and the second related to “connection issues” – that is, problems with the audio connection. Of the three reasons given by the primary judge for deciding not to adjourn the hearing, the first was relevant to both the interpretation issue and the connection issue, the second was relevant only to the issue regarding the quality of the audio connection, and the third was relevant to both issues. The primary judge’s reasons did not purport to ascribe particular weight to the three matters he referred to as relevant to the exercise of his discretion.

31    The appellants rely on several particulars which they contend demonstrate an error of the kind referred to in House v The King in the primary judge’s exercise of the discretion. The question of whether the exercise of the discretion was affected by such error must be assessed on the basis of what was known to the primary judge at the time.

32    The first argument advanced by the appellants is that it was an error for the primary judge to have regard to, or give significant weight to, the fact that the “complaint about the quality of the audio connection … [was] of comparatively recent origin”. The appellants point out that, even if the issue of the alleged poor audio connection was ignored completely, the interpretation issue remained. The argument appears to assume that the primary judge’s statement that “the complaint about the quality of the audio connection in particular is of comparatively recent origin” was relied on by him as a reason not to grant an adjournment to allow the appellants to file evidence about the interpretation issue. Given that his Honour was considering an adjournment that would allow the appellants to file evidence about both the interpretation issue and the audio connection issue, it was not unreasonable for his Honour to take into account the fact that the audio issue was not raised as a ground in the originating application for judicial review or the amended originating application, and had only been referred to by Ms Enkhbat on the day of the hearing. That matter was rationally capable of bearing on his Honour’s assessment of (a) the likely merit of that point, and (b) the question of whether the appellants should be given a further opportunity to file evidence in support of it. In having regard to that matter, the primary judge did not take into account an extraneous consideration.

33    Secondly, the appellants contend that the primary judge erred by having regard to, or giving excessive weight to, the fact that “Ms Enkhbat was unable to clearly identify by reference to the Tribunal’s reasons for decision what information the Tribunal supposedly missed because of translation or connection issues”.

34    As I understand the appellants’ submissions on this point, one aspect is that the exercise of the primary judge’s discretion is said to have miscarried because his Honour unjustifiably assumed that the only potential adverse effect of the interpretation issues before the Tribunal was that the Tribunal may have missed information communicated by Ms Enkhbat. The appellants submit that interpretation errors could also have affected Ms Enkhbat’s understanding of what the Tribunal was saying to her, or could have involved the misinterpretation, rather than just the omission, of what was said. While that is of course true generally, the primary judge’s reference to “information the Tribunal supposedly missed” appears to me to be a reference back to the way Ms Enkhbat herself had described the effect of the interpretation problems to the primary judge. As recorded in the primary judge’s reasons at [13], “she thought the interpreter might not have translated the entirety of her answers”.

35    The primary judge’s assessment of the likely strength of the interpretation issue was a matter that rationally and appropriately bore on the exercise of discretion to adjourn to allow the appellants a further opportunity to file evidence. It was not unreasonable for the primary judge to probe the extent to which Ms Enkhbat was able to identify any specific information in her answers that she thought had not been communicated to the Tribunal, and it was not an error in the exercise of the discretion for his Honour to give weight to her apparent inability to identify specific matters of substance that she claimed were omitted in translation.

36    Thirdly, the appellants contend that the primary judge erred by having regard to their previous legal representation, without considering the alleged inadequacy of it, or the fact the appellants had been unrepresented since January 2025. The primary judge stated that he considered that the appellants had had “ample opportunity to prepare their case, even allowing for the fact they [were] now unrepresented”. The appellants submit that this conclusion failed to account for what they called “the plain inadequacy of the previous representation” and the fact that they had only come to be unrepresented recently. The matter identified by the appellants as supporting the conclusion that their former representation was inadequate was the nature and expression of the grounds in the amended application for judicial review, particularly the first ground which complained of errors in the decision of the delegate, which had been superseded by the decision of the Tribunal.

37    While it might have been open to the primary judge to draw an inference about the adequacy of the appellants’ former representation, that was not a matter about which he was required to make findings; nor was it a matter to which he was bound to have regard in the exercise of the discretion to adjourn the hearing. There is nothing in the reasons of the primary judge or the material before this Court to suggest that the appellants raised or relied on any deficiency in their former legal representation as relevant to a possible adjournment. The essence of the first consideration to which the primary judge referred was the extent of the opportunity that the appellants had already had to advance their case, including by filing any evidence in support of their grounds. That was a matter to which the primary judge could properly have regard. It was relevant that the appellants had been represented for a time, and that they had known for more than a month before the hearing that they were no longer represented.

38    Insofar as the appellants submit that the primary judge’s discretion miscarried because the result was unreasonable or plainly unjust, I do not accept that submission. The reasonableness of the exercise of the discretion must be assessed based on what was known to the primary judge at the time, rather than with the benefit of the evidence now before the Court of what occurred at the Tribunal hearing (ie, the transcript and its translation). The primary judge was right to hold that the appellants had had ample opportunity to provide evidence regarding the interpretation issue. The audio recording on which the appellants sought to rely could have demonstrated that there had been some dissatisfaction with the interpreter, but was never itself likely to demonstrate any particular omission or mistranslation capable of demonstrating that the Tribunal had been disabled from conducting a review. Similarly, the audio recording may have provided evidence of difficulties with the audio connection, but, without a translation, was unlikely to show whether a consequence of any such difficulties was that what Ms Enkhbat said to the Tribunal in Mongolian was not effectively communicated in English, or vice versa. In considering an adjournment, the primary judge no doubt also had in mind general considerations such as the need to deal with the business of the Court efficiently, the additional cost to the Minister of adjourning the proceeding, and the effect on other cases before the Court. While it would have been open to the primary judge to adjourn the proceeding, the decision not to do so was also within the range of decisional freedom afforded to him.

39    Finally, the appellants submitted that the primary judge made a factual error in stating (at [21]) that the appellants were represented when they filed their originating application. I accept that that was factually incorrect: the appellants were initially unrepresented but obtained legal representation before the filing of their amended originating application for judicial review. It does not appear that the primary judge took this into account in deciding whether to adjourn the hearing, and it has no obvious relevance to that decision. I do not accept that the adjournment decision was affected by this misstatement of a background fact by the primary judge.

40    I note that the appellants did not submit that the decision of the primary judge not to adjourn the proceeding amounted to a denial of procedural fairness. It would have been difficult to maintain such an argument in circumstances where the appellants’ judicial review proceeding had been on foot for some years; they had been given an opportunity to file any evidence on which they sought to rely; they had been legally represented for a substantial portion of that time (irrespective of the standard of the conduct of the case by their legal representative); and they had also known in advance of the hearing that they were to be without legal representation.

The evidence of what occurred at the Tribunal hearing does not support a finding of jurisdictional error in any event

41    Given that the only grounds pressed relate to alleged errors in the primary judge’s decision not to adjourn the application for judicial review, the conclusions set out above are sufficient to dispose of the appeal. However, I would add that, having now had regard to the evidence advanced by the appellants on the appeal, I do not consider that it establishes that the Tribunal’s decision was affected by jurisdictional error because of the interpretation issues that arose during the hearing before the Tribunal.

42    In BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 at 319-20 [52], Edelman J summarised the principles applicable in cases where it is alleged that errors in interpretation have resulted in jurisdictional error, as follows:

(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.

43    It is clear from the transcript of the Tribunal hearing that some audio-related issues were experienced during the hearing. These included instances where the interpreter pointed out that Ms Enkhbat’s voice was dropping and asked her to speak up, where the interpreter stated that there was an echo and asked Ms Enkhbat to repeat herself, and where the interpreter and the Tribunal member asked Ms Enkhbat to delay her answers to avoid her speaking over the top of the interpreter. These issues were of a kind that is commonly encountered in hearings conducted by audio link, especially when an interpreter is appearing remotely. The transcript indicates that the Tribunal member was alert to these issues during the hearing and that they were adequately addressed at the time – for example, by having Ms Enkhbat repeat answers or break them down into shorter parts, which were then interpreted.

44    In the Tribunal hearing, Ms Enkhbat made clear that she was not satisfied that the independent interpreter had fully communicated the effect of all her answers to the Tribunal. The interpreter’s spoken English was not always entirely grammatical. This would have been apparent to the Tribunal, and in most cases, the intended meaning of Ms Enkhbat’s answers would also have been apparent. Ms Enkhbat was evidently able to understand what was being said in English well enough to appreciate that, on some occasions, some of the nuance of her answer had not been communicated clearly by the interpreter. The transcript, including the further translation, demonstrates that Ms Enkhbat’s concerns in this regard were not baseless.

45    The appellants’ then-representative explained to the Tribunal that the interpretation was “not incorrect” but that it was “not describing everything in details and describing it in few words”. Once this issue was raised, the appellants’ representative stated that she was able to understand and explain what Ms Enkhbat was saying. It is to be recalled that, fortuitously, the representative herself was also an accredited translator. The Tribunal invited Ms Enkhbat to make further submissions, inviting her to identify any matters that had been missed, and engaged in a fairly lengthy course of further questioning on the topic of the value of the management course to Ms Enkhbat’s future, including improving her employment or pay. The transcript indicates that the appellants’ representative was able to interpret the questions and answers adequately. The Tribunal member was evidently aware of, and sympathetic to, the possibility of nuance being lost in the interpretation of Ms Enkhbat’s answers, and asked further questions to gain a more complete understanding of what she was saying.

46    I accept that the circumstance that Ms Enkhbat’s representative was effectively forced to perform the dual roles of a migration representative and a Mongolian interpreter means that the hearing before the Tribunal was less than ideal. It is understandable that Ms Enkhbat may not have felt satisfied with the hearing. However, having regard to the transcript as a whole, I do not accept that the hearing was unfair to Ms Enkhbat or that the Tribunal was left in a position where it was unable to understand and evaluate her evidence.

47    The appellants point to a number of instances in which specific questions and answers were said to have been inadequately interpreted. In some cases, these criticisms were, in my view, unfounded. For example, one such criticism related to the interpretation of the question, “Who are they? Is that a family member?” as “What is the person’s name — are they a member of your family?” In other cases, the criticised interpretation could have had no effect on the hearing. For example, what appears to have been an error in the interpretation of “13 July” as “30 July” (which might have been due to mishearing by the interpreter rather than misinterpretation) was immediately effectively remedied by Ms Enkhbat’s own answer, identifying the correct date.

48    In a few cases, the appellants’ criticisms of the interpretation have more substance. Most notably, it is possible a reference by Ms Enkhbat to “mid-level management” would not have been understood by the Tribunal, having regard to the way that part of her evidence was interpreted. However, having regard to the whole of the transcript, including the involvement of the appellants’ representative, I would not conclude that the Tribunal was left with an incomplete or inaccurate understanding of what Ms Enkhbat was trying to say about the relevance of her study. It is also clear that Ms Enkhbat understood, and gave answers that were responsive to, the questions of the Tribunal. To the extent that aspects of the substance of what Ms Enkhbat was saying had not been communicated through the interpreter, they were generally later appropriately conveyed when the same topics were revisited with the assistance of interpretation by her representative. At the conclusion of the Tribunal hearing, Ms Enkhbat also confirmed that she had been able to understand what her representative had said in English, and confirmed that she agreed with the answers as her representative had translated them.

49    The question for determination by the primary judge was whether the Tribunal’s decision was affected by jurisdictional error. That is “a question in respect of which our constitutional system demands of the judicial branch of government the ability to give a unique answer”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at 565 [54]. In those circumstances, it would seem inappropriate to allow an appeal on the basis that the primary judge’s discretion to adjourn the hearing miscarried if, even having regard to the additional material and submissions which the appellants might have advanced (and would in the future advance if the appeal were allowed and the matter remitted to the FCFCOA), the correct conclusion is that jurisdictional error in the decision of the Tribunal is not established. This is a further reason supporting the dismissal of the appeal.

Conclusion

50    For the reasons explained above, the appellants have not established any relevant error on the part of the primary judge. It follows that the appeal must be dismissed with costs.

Associate:

Dated:    16 October 2026