AFT18 v Minister for Home Affairs

1. The appeal is dismissed.
2. The appellants pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The appellants appeal against a judgment of the Federal Circuit Court of Australia delivered on 3 August 2018 dismissing their application for judicial review of a decision of the second respondent (the Tribunal). The Tribunal affirmed a decision of the first respondent's delegate refusing to grant the appellants Protection Visas. 2 The first and second appellants are husband and wife respectively. The third respondent is their child. The first appellant claims to fear persecution in Vietnam on the basis of his political opinion. The second and third respondents' claims for Protection Visas are based on their membership of the first appellant's family unit. 3 The first and second appellants arrived in Australia on 26 June 2008 under a Student Visa held by the first appellant. In September 2014, they applied for Protection Visas. The delegate refused their application on 23 February 2015 and the decision was affirmed by the Tribunal. However, the Tribunal's decision was set aside by the Federal Circuit Court. On 3 January 2018, the Tribunal, differently constituted, made a further decision affirming the delegate's decision. That decision was the subject of the application for review to the Federal Circuit Court dismissed on 3 August 2018. 4 Before the Tribunal, the appellant claimed to have held strong political views against the communist government in Vietnam since he was 14 years old. He claimed that he first publically expressed those views by leaving his military service in 2002. He knew this would offend the government, so he left for Japan and Cambodia. He claimed that he was then struck off the household register and that police visited his family home looking for him. The first appellant claimed that after he arrived in Australia he either joined or was associated with the Việt Tân Party, which had been outlawed in Vietnam as a terrorist organisation, including by posting about issues on social media and participating in an anti-China protest in May 2014. 5 The first appellant claimed that in September 2014, as he was preparing to return to Vietnam, his family contacted him urging him not to return because the authorities were looking for him and that he was about to be charged with an offence. He feared that he would be arrested, interrogated, tortured and imprisoned if he returned to Vietnam. 6 The Tribunal found the first appellant's claims to lack credibility. It did not accept that he had long-held anti-government views. It did not accept that he had been involved in any online anti-government activity. It did not accept that he was a member of the Việt Tân Party or that he had been involved with that party. It did not accept that he attended any protest in May 2014. The Tribunal was not satisfied that the first appellant faced a real chance of serious harm or a real risk of significant harm if he returned to Vietnam. Accordingly, the Tribunal rejected the first appellant's claim for protection and rejected the claims of the second and third appellants as members of the first appellant's family unit. 7 The appellants then applied for review of the Tribunal's decision to the Federal Circuit Court. 8 The primary judge rejected the appellants' ground that the Tribunal did not consider the first appellant's claim that his association with the Việt Tân Party and his online activities created an adverse risk profile for him with the Vietnamese government. His Honour held that the Tribunal did consider this claim, but had rejected it. 9 As to the appellants' second ground, the primary judge held: The second ground relied upon by the applicant in these proceedings is that the Tribunal denied the applicants procedural fairness because of non-translations and misinterpretations. These allegations form part of the argument in ground 1 as well, but they cannot be made out. They cannot be made out because there is no evidence before the Court of any non-translation or misinterpretations. There is no transcript, no other evidence, which would suggest that there has been, in fact, a non-translation or a misinterpretation. 10 The primary judge rejected the appellants' argument that the Tribunal had misunderstood the first appellant's evidence as to whether he was a member of or whether he was associated with the Việt Tân Party and that this had come about because of a mistranslation or misinterpretation of his evidence. His Honour held that the Tribunal clearly understood the difference between membership and association, but had found against the first appellant on both bases. 11 In this Court, the notice of appeal relies upon the following ground: 1. His Honour did not consider the possibility of mistranslations and/ or misinterpretations during the hearing conducted by the Second Respondent. Particulars a. At paragraph 7 of his judgement, his Honour states that there is a 'discourse between the applicant and the Tribunal member at the Tribunal hearing. To the extent that the applicant suggests that the Tribunal did not fully understand his claims. To the extent that the applicant suggests that the Tribunal did not fully understand his claims - and I am not sure that that is what he is suggesting, but there is a hint of it in his written submissions ...' b. At paragraph 11 of his judgement, his Honour accepts that the second ground in which the Second Respondent 'denied' the Appellants 'procedural fairness because of non-translations and misinterpretations' as '[t]hey cannot be made out because there is no evidence before the Court of any non-translation or misinterpretations.' c. It appears that the discourse, mistranslations and/ or misinterpretations have resulted in a miscarriage of justice. 12 The appellants were initially self-represented in the appeal. They sought and were granted several adjournments so that they could obtain legal representation. Ultimately, they were able to obtain legal representation and the matter was listed for hearing on 4 June 2019. 13 At the hearing, the appellants' solicitor indicated that the appellants had no further material to rely upon. The only material that they filed is the notice of appeal and an affidavit of the first appellant annexing the decisions of the Tribunal and the Federal Circuit Court. No written submissions have been filed. The solicitor has indicated that he has no oral submissions to make. 14 In these circumstances, the appeal can only be determined by reference to the ground set out in the notice of appeal. Contrary to the assertion in that ground, the primary judge did consider the possibility of mistranslations or misinterpretations during the hearing conducted by the Tribunal. However, in the absence of any transcript, or other evidence, his Honour was not prepared to accept that there were any misinterpretations or mistranslations. 15 The onus of demonstrating the asserted jurisdictional error, lay on the appellants: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [41]; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [67]. It was not enough for them to merely assert some misinterpretation or mistranslation: cf Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18]. I can see no error in the judgment of the primary judge. 16 The appeal must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.