AFP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

THAWLEY J: 1 The only issue in this appeal from a decision of what was then the Federal Circuit Court of Australia is whether an error in interpretation, which occurred during the appellant's merits review hearing before the Administrative Appeals Tribunal, had the result that the appellant was denied the hearing required by s 425 of the Migration Act 1958 (Cth). The primary judge considered it did not: AFP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3207 (hereafter "J"). The appellant contends the primary judge erred in reaching this conclusion. 2 The question whether a mistranslation or misinterpretation has resulted in the appellant being denied the review contemplated by s 425 has been examined in a number of cases, including: SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 (Griffiths J); SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (Allsop CJ, Flick and Robertson JJ); SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 (Lee J); Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 (Kenny J); DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 (Beach J). 3 For present purposes, it is sufficient to note that the appellant has demonstrated that: (1) an error in interpretation occurred during the Tribunal hearing; (2) the Tribunal proceeded on an incorrect understanding of the appellant's evidence as a result of the interpretation error; (3) the Tribunal's misunderstanding led to a material finding or conclusion adverse to the appellant and, absent the misunderstanding, the outcome might have been different. 4 In these circumstances, the primary judge erred in failing to conclude that the appellant had discharged his onus of establishing jurisdictional error on the part of the Tribunal because: (a) the decision on review exceeded the decision-making authority conferred on the Tribunal because the review was procedurally unfair in a way not authorised by Div 4 of Pt 7 of the Migration Act; and (b) the appellant did not receive the "review" contemplated by Div 4 of Pt 7 with the result that the jurisdiction remains constructively unexercised: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 at [52]. 5 Put at its simplest, the hearing was not fair: SZRMQ at [5], [9] and [10] per Allsop CJ. SZFDE was concerned with the consequences of the anterior fraud of a purported migration agent on the discharge of the statutory function of review. The present case is concerned with the consequences of an innocent error in interpretation on the discharge of the statutory function of review. The ultimate issue is the effect of the interpretation error upon the Tribunal's decision-making process: SZFDE at [47]. 6 It is unnecessary to recount the background facts in detail. It is sufficient to state that, in his protection visa application, the appellant claimed that he feared harm in Pakistan because he had been childhood friends with a person named X whom he later witnessed take part in a violent attack on a mosque on 15 November 2013. He said he reported X's involvement to another friend (Y) who was a police officer. The appellant stated that he then assisted the police in locating X and arresting him. This allegedly caused X and his supporters to threaten the appellant and ultimately to attack him physically, forcing him to give up his business and flee to Australia. 7 One of the documents that the appellant provided in support of his application for a protection visa was a First Informative Report (FIR) from the local police, along with a list of suspects. These were just two of several documents given to corroborate his claims. 8 The error in interpretation was a simple omission. The appellant was asked by the Tribunal how he obtained the FIR and list of suspects. The appellant said that he was given a copy of the FIR because he had helped the police and that he had asked the police for evidence in support of his protection visa application. The Tribunal then asked "How did you ask them [the police for the FIR and list of suspects]? By what means of communication?" The appellant answered in Urdu as follows (emphasis added): I have a friend, whom as I have mentioned is in the police force. I had helped because of him. I asked him over the phone. 9 The interpreter interpreted that answer into English as follows: I got a friend in police, because of whom I helped them. And I asked him for all this information. 10 The appellant's reference to having asked Y "over the phone" was omitted from the interpretation of his answer. This mistake had significant consequences. The appellant evidently did not realise that his full answer had not been given to the Tribunal. The Tribunal evidently did not think its question had been answered. The Tribunal and the appellant were at cross-purposes during significant aspects of the exchanges which then ensued. 11 Immediately after receiving the response which was only partly interpreted, the Tribunal again asked the appellant what the means of communication was by which the appellant had requested the documents from Y. The appellant, evidently assuming that he was being asked how he received the documents, because he had already answered how he had requested them, answered: "through email … my elder brother sent me the email". The appellant then showed the Tribunal the email by which Y had sent the documents to the appellant's brother, being the email the appellant had then received from his brother. 12 After seeing the email, the Tribunal stated that it had asked for a copy of the appellant's email to the police asking for the documents and the appellant repeated his earlier (non-interpreted) answer that he had talked to Y on the phone. The Tribunal put to the appellant that he had said that he spoke to Y by email and the appellant replied, correctly: "I said the phone" (interpreted to the Tribunal in English as "I said about the phone"). Because his first answer had not been interpreted and the appellant had answered "by email" the second time, the Tribunal formed the view that the second answer, "I said about the phone", was improvised. 13 When the Tribunal came to write its reasons, the Tribunal stated that the appellant had been "improvising", that is, being untruthful. This is the view it formed during the hearing as a consequence of the incomplete interpretation. 14 The primary judge accepted that an interpretation error had occurred. However, the primary judge did not accept that the error was material: J[54]-[61]. His Honour gave three main reasons for this conclusion: (1) First, the primary judge did not accept "that the interpretation error contributed to the Tribunal's adverse credibility findings or to the ultimate exercise of power": J[54]. The primary judge did not accept that the Tribunal made any adverse credibility finding in relation to the appellant's method of communication with the police officer, but found that the Tribunal's adverse credibility finding related instead to the "provenance" of the documents he claimed to have requested: J[40]- [41] and J[56]-[58]. (2) Secondly, the primary judge found that the question of the documents' provenance was put to the appellant, and that the appellant had corrected the evidence that he had given: J[56]-[58]. (3) Thirdly, the primary judge noted that the appellant had the "ability to speak English": J[56]. 15 The primary judge's first reason for concluding that the interpretation error was immaterial is incorrect. The Tribunal summarised the exchanges that were affected by the interpretation error as it understood them. In its Statement of Decision and Reasons (hereafter "T") the Tribunal stated at T[54]: I asked [AFP20] about the provenance of the "First Information Report" and its associated list of [the terrorist attack] suspects, the original of the latter not present in evidence, its existence only implied by the presence of a purported English translation. I asked [AFP20] how the report and list had come into his hands and he said that after he came to Australia he asked his friend in the police for it. I asked him how he and his friend in the police (presumably [Y]) had communicated with each other in regard to these documents and he said they had communicated by email. I asked him if he had retained any of the emails or copies thereof and he said he had them in his mobile telephone, but when I asked him if he could show me, all he could present was a copy of the purported "First Information Report" in Urdu as found at f.50 of his Department file. He then said that his elder brother had sent the "First Information Report" and suspect list to him. I reminded him that I had been asking if he could show me evidence of the email communications he had had directly with the police officer, and he said that he then appeared to change his evidence about his communications with the police in Pakistan: he said he used to talk to his friend in the police force over the telephone. I reminded [AFP20] that he had just told me that he and the police officer used to communicate by email after he arrived in Australia and, in reply, he said he had actually been talking about the telephone. I reminded Mr Shahzad that he had just told me that he and the police officer used to communicate by email after he arrived in Australia and, in reply, he said he had actually been talking about the telephone. I reviewed what he had said earlier and put to him that he had explicitly said he and his friend the police officer communicated with each other between Australia and Pakistan by email. In reply, he said he had made a mistake. He then said his friend in the police had made it clear to him that he was not even able to talk to him directly at all, even on the telephone. He said that he called his friend three times and that only on the third call did his friend suggest proceeding indirectly through his ([AFP20]'s) elder brother. He said his friend in the police told him never to mention his name in connection with what he would pass on through the brother. He confirmed that the friend he was talking about was the abovenamed [Y]. I asked him why, in the circumstances, the [local] police … would only have given him these documents under strict conditions of anonymity and non-attribution and he said that the Pakistani government does not like giving information, which did not strike me as a plausible response in the claimed circumstances: the report, on a fair reading, has the attributes of a alerting the public about persons suspected of involvement in the riot and it is evidently signed by an individual police officer. Ultimately, [AFP20] provided me with what I consider to have been inconsistent and seemingly improvised evidence about how he obtained the "First Information Report" (by definition not an internal police minute but a report for external and informative use) and the purported "suspect list". 16 In this passage at T[54]: The Tribunal stated: "I asked [the appellant] how he and his friend in the police ([Y]) had communicated with each other in regard to these documents and he said they had communicated by email". This finding would not have been made if the appellant's initial answer - that he asked for the documents by phone - had been interpreted. The Tribunal observed that the appellant "then appeared to change his evidence about his communications with the police: "he said he used to talk to his friend in the police force over the telephone". This was not a "change" to the appellant's evidence. The interpretation error caused the Tribunal to conclude mistakenly that the appellant's evidence about how he asked for the documents had changed. The Tribunal concluded that the appellant "provided me with what I consider to have been inconsistent and seemingly improvised evidence about how he obtained the 'First Information Report' … and the purported 'suspect list'". This was an adverse credibility finding. It was an adverse credibility finding which was caused by the interpretation error. 17 Later in its reasons, the Tribunal described the appellant's evidence as to the "special and individually sensitive circumstances under which he obtained" these documents as "inconsistent and unreliable": at T[68]. The Tribunal's findings that the appellant had given "inconsistent", "seemingly improvised" and "unreliable" evidence about how he obtained these documents arose by reason of the interpretation error. 18 The primary judge considered that the Tribunal's adverse credibility finding was not influenced by the Tribunal's conclusions at T[54]. The primary judge first stated that one should not read the Tribunal's reasons "with a keen eye for error" and then concluded that the Tribunal's reference to "inconsistent" and "improvised" evidence was a reference to the "provenance" of the FIR and suspect list. The primary judge did not explain how this conclusion leads to the result that the appellant's "inconsistent" evidence did not influence the Tribunal's adverse credibility findings. The primary judge stated at J[40]: [40] The Tribunal referred to the applicant having provided what the Tribunal considered to have been inconsistent and seemingly improvised evidence about how he first obtained the First Information Report (by definition not being an internal police minute but a report for external and informative use) and the purported suspect list. The Tribunal's reasons are not to be read with a keen eye for error. The reference to the inconsistent and seemingly improvised evidence is clearly a reference to the provenance of the First Information Report and suspect list upon a fair reading of the transcript as a whole and a fair reading of the Tribunal's reasons. The primary judge then stated at J[57] to [58]: [57] The applicant's submissions in respect of the alleged interpretation error failed to take into account the clear identification by the Tribunal as to the real issue being the provenance of the First Information Report and the list of suspects and it is clear that that provenance issue was fairly raised by the Tribunal member in the conduct of the hearing. Further, it is apparent that the Tribunal was aware of the applicant's contention of the error in relation to the reference to the phone communication, as is identified in the Tribunal's reasons. [58] Applying the test in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507, the Court is satisfied that the mistranslation did not have a significance in respect of the review by the Tribunal given that the issue being focused upon was the provenance of the First Information Report and the list of suspects. The applicant's words, if they had not been mistranslated, is not one which had or could have had significance in respect of the provenance of the First Information Report and the list of suspects. 19 The primary judge's references to the "provenance" of the documents being an issue is a reference to the Tribunal's statement at T[73]: Given [AFP20]'s poor performance as a witness in this matter I give no weight to the purported "suspect list" naming [X]. For similar reasons, and also bearing in mind, one, that forged documents are easily obtained in Pakistan and, two, that [AFP20] has given unreliable evidence as to the provenance of documents submitted in this case, I give no weight to any of the purported communications with or by police, including the letter requesting police protection. 20 This statement shows that the Tribunal was influenced by the appellant's evidence about how he obtained the documents. According to the Tribunal, the appellant had performed poorly as a witness and "ha[d] given unreliable evidence as to the provenance of documents submitted in this case". This is a reference to the Tribunal's conclusions at T[54] that the appellant had been untruthful. 21 Contrary to the primary judge's conclusion at J[40], the Tribunal's reference to the appellant's "inconsistent and seemingly improvised evidence" was a reference to the Tribunal's conclusion that the appellant had given untruthful evidence, namely evidence which was "improvised". 22 The Minister's submissions to the effect that the interpretation error was immaterial to the outcome were in substantial part based on the structure and order of the Tribunal's reasons. It was submitted that the adverse findings made at T[54] were made only after an analysis in the reasons for decision of other evidence which the Tribunal had considered contained inconsistencies. After considering these other inconsistencies, the Tribunal had stated at T[53] (emphasis added): There thus appear to be multiple discrepancies regarding [AFP20's] role in implicating [X] and aiding in his location and arrest, having the potential, at least cumulatively, to undermine his reliability as a witness in this matter. 23 There are two difficulties with this submission. First, an analysis of the structure and order of reasons can distract attention from the critical inquiry which is how the interpretation error affected the course of the hearing. The reasons were written after hearing all of the evidence. "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others": Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [14] (Gleeson CJ). Once a view is taken that a witness has been untruthful in one respect, it can and often does affect, consciously or subconsciously, the assessment of the witness's remaining evidence, whether that other evidence was given before or after the supposedly untruthful evidence. In SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [45], Lee J observed: To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]: …decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light. 24 Secondly, the Minister's submission that the earlier inconsistencies were predominant, and the conclusions at T[54] immaterial, is not borne out by what the Tribunal stated. After setting out the earlier inconsistencies, the Tribunal concluded at T[53] that these inconsistencies had the "potential, at least cumulatively, to undermine [the appellant's] reliability as a witness". The Tribunal then immediately proceeded to deal with the evidence about how the appellant obtained the FIR and suspect list and concluded at T[54] that the appellant gave the Tribunal untruthful evidence. It is by no means apparent that the earlier inconsistencies which cumulatively had the "potential" to undermine reliability as a witness were more significant than the conclusion that the appellant had given untruthful evidence. 25 The Tribunal stated at T[66] to [68]: [66] Having considered all of the evidence in its entirety, I find that [AFP20] is not a reliable witness in the present matter. [67] My findings are cumulative. In particular, [AFP20's] claims over time about how he assisted the police in locating his purported friend [X] are not consistent with each other, and whereas time came have an effect on a person's capacity to recall events accurately, [AFP20's] evidence at the Tribunal hearing was, as shown above, inconsistent with his earlier evidence in multiple ways. I consider the account he gave at the hearing to have been the product of improvisation. I do not accept that he would have entered into a secret relationship with the police and then put the police case to [X's] mother as a way of engaging her trust to tell him where to find [X]. I do not accept that [AFP20] led the police to [X] and this being the case, I find it hard to accept that [X] attempted or ever intended to retaliate with threats and/or acts of violence against him. [68] I find that [AFP20] gave inconsistent and unreliable evidence as to the special and individually sensitive circumstances under which he obtained the purported "First Information Report". I have given this deficiency in his evidence some weight in this matter. 26 This reasoning makes clear that the findings made at T[54] influenced the adverse view taken of the appellant's credibility. 27 The Tribunal repeatedly referred to the appellant's "poor performance as a witness" as a reason for disbelieving him: T[73], [74], [75]. This must be taken as including, if not focussing upon, the appellant's "performance" as explained at T[54]. If the conclusions at T[54] did not predominate in the Tribunal reasoning to an adverse credibility finding, those conclusions were at least weighty considerations in the Tribunal disbelieving the appellant: compare the language of T[53] with the final sentence of T[68]. 28 The primary judge's second and third reasons for considering that the interpretation error was immaterial to the adverse credibility finding was that the question of the documents' provenance was put to the appellant, and that the appellant had corrected the evidence that he had given and that he could speak some English and had on occasion corrected the interpreter. The primary judge stated at [56]: Further, taking into account the applicant's ability to speak English and the correction by the applicant of the interpreter during the hearing and the actual correction by the applicant in respect of the evidence he gave concerning the first communication with the police officer on the third attempt being by telephone, the alleged interpretation error was of no materiality or significance in the conduct of the review. 29 The primary judge's reasoning at J[56] implies that the Tribunal accepted the appellant's correction of the interpretation error. This implication is directly inconsistent with the Tribunal's reasoning. The Tribunal did not accept the attempted correction. It used the correction to impugn the appellant's credit by finding that he improvised, that is, that he was being untruthful: T[54]. 30 The fact that the appellant had some ability to communicate in English has no real significance in the present case. The appellant had stated in his visa application that he required the assistance of an interpreter. He had requested one at the interview with the delegate. The appellant wanted, and had, the assistance of an interpreter at the hearing. Despite being able to speak English, the appellant evidently did not notice the interpretation error at the time. The appellant had just said how he asked for the documents from the police, stating he had requested them by phone. The Tribunal did not realise that its question had been answered. The appellant's answer to the question when repeated by the Tribunal was plainly directed to how he received the documents, not how he had requested the documents. He stated that the email came from his brother and showed it to the Tribunal. The appellant's ability to speak English did not remedy the unfairness which resulted as a consequence of the interpretation error. 31 There may well be cases in which an adverse credibility finding is supported by alternative findings each independently capable of supporting the adverse finding, or in which strands of reasoning can be shown to be independent of, and untainted by, reasoning affected by error: AXR16 v Minister for Immigration and Border Protection [2019] FCA 42; 163 ALD 296 at [42] (Thawley J). In DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [46] and [47], Beach J stated: [46] If a Tribunal purports to make its decision on the combination of facts A, B and C, and fact C is shown to be incorrect, prima facie, materiality of the error on the face of the reasons would seem to be clear. By prima facie I mean that although that may be the starting position for a consideration of materiality, it may not be the end point for such a determination. [47] Contrastingly, if a Tribunal purports to make its decision on the disjunction of facts A, B or C, and fact C is shown to be incorrect, prima facie there may be no materiality of the error on the face of the reasons. 32 The Minister submitted that this was a case in which the Tribunal would have found against the appellant even if it had not taken an adverse view of his credibility. This conclusion cannot be reached with any confidence. The Tribunal considered a number of identified inconsistencies which, taken together, had the "potential" to affect the appellant's reliability as a witness: T[53]. This is not, at least in express terms, an adverse credibility finding. The Tribunal then proceeded to conclude at T[54] that the appellant had improvised his evidence at the hearing, that is, the Tribunal concluded that the appellant had been untruthful. This was an adverse credibility finding - see also: T[68]. The Tribunal did not treat the inconsistencies identified before T[53] as a reason of itself to reject the appellant's claims. 33 Further, the possibility cannot be excluded that the Tribunal's assessment of the perceived inconsistencies addressed before T[53], or the significance of those perceived inconsistencies, was affected by the Tribunal's views as expressed at T[54]. 34 If the interpretation error had not been made, the outcome might have been different. 35 For these reasons, the appeal should be allowed. The orders of the primary judge should be set aside. Writs of certiorari and mandamus should issue. The appellant should be awarded the costs of the appeal and of the proceedings before the FCCA. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.

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