BBW21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 2125

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. These reasons for decision relate to an application for judicial review brought by Ms BBW21, a citizen of Jordan. Ms BBW21 says a decision made by the Administrative Appeals Tribunal dated 8 April 2021 is affected by jurisdictional error. The Tribunal had decided to affirm a decision of a delegate of the minister (the first respondent in these proceedings) to refuse the grant of a Protection (Class XA) (Subclass 866) visa.
2. Ms BBW21 had applied for the protection visa in her own right. Her husband, Mr BBX21, applied for the same class of protection visa around the same time on the strength of essentially the same claims. Their claims were considered by the Tribunal at the same hearing where they each gave evidence in the case of the other. The Tribunal subsequently issued separate but almost identical decisions where it discussed the evidence the couple had given and applied the same criteria to similar effect. The couple lodged separate applications for judicial review that were heard together. The applicants and the minister provided joint submissions that addressed the common grounds of review.
3. Ground six in each application contended the Tribunal failed to appreciate the applicants were claiming protection on the basis they were each a member of the same family unit. That error assumes significance in circumstances where I have found there was a jurisdictional error in the Tribunal's decision in relation to Mr BBX21. The reasons in relation to that decision need to be read in conjunction with these reasons because the error I identified in Mr BBX21's case also appears to be present in the decision in relation to Ms BBW21 - as I will briefly explain in due course. But given I am satisfied there was an error in the decision in relation to Mr BBX21 and the Tribunal failed to consider any entitlement Ms BBW21 would have as a member of her husband's family unit, the minister acknowledges it would be appropriate to issue writs in relation to this decision so that the Tribunal can reconsider both cases according to law.

1. I discussed the background to this case in the reasons for decision that related to Mr BBX21. It is enough for present purposes to note the married couple left Jordan and sought protection visas in Australia because they feared they were at risk of harm if they remained in Jordan. The principal risk they described was that posed by Ms BBW21's former husband, who also happened to be her cousin. The ex-husband was said to be violent and vindictive. He - and for that matter, Ms BBW21's family - did not approve of the marriage of Ms BBW21 to Mr BBX21. The family appeared to be unhappy with the marriage because of Mr BBX21's Palestinian ethnicity. The couple said Ms BBW21's ex-husband had harassed them and made at least one attempt on their lives, and he was also involved in a car accident that injured Mr BBX21. Mr BBX21 said the authorities were disinclined to assist him should he complain because of his ethnicity and because Ms BBW21's family were prominent local citizens who were hostile to him.
2. A delegate of the minister refused the applications of each applicant. They both applied to the Tribunal. They appeared together at the Tribunal's hearing where they gave evidence concurrently. They were represented by a migration agent although it appears from the transcript the agent did not play an active role. The Tribunal conducted the hearing with the assistance of an appropriately qualified interpreter. As I explained in the reasons relating to Mr BBX21, there were problems with the quality of the translation provided by that interpreter at the hearing. The applicants' migration agent raised his concerns about the quality of the translation towards the end of the hearing, but he was unable to be specific about errors that were made and the Tribunal waved him away. The complaints about the quality of the translation at the hearing are central to grounds one and two in the applications for judicial review.
3. The Tribunal issued separate decisions in relation to each applicant on 8 April 2021. The Tribunal affirmed the delegate's decision in each case to refuse the applications for protection visas. The reasons for decision in each case are not identical, but they are substantially the same.

1. Each of the applicants filed a separate application for review. Those applications were heard together and the applicants made joint submissions in relation to functionally identical grounds.
2. In my judgment in relation to Mr BBX21, I focused on grounds one and two. Those grounds contended there was jurisdictional error arising out of the quality of the translation provided by the interpreter at the Tribunal's hearing of the two applications. I heard evidence from an appropriately credentialled expert witness called by the applicants who analysed the recording and transcript of the Tribunal's hearing. The expert prepared a schedule which identified many discrepancies in the translation of questions and answers at the hearing. In her oral evidence, the witness opined that the interpreter's translation at the hearing was "extremely wrong". That evidence was not contradicted and the expert witness did not resile from her position on cross-examination. I accept the evidence contained in the schedule which was also incorporated into an annotated transcript. I have no reason to dispute her characterisation of the quality of the translation. The applicants argued the errors in translation were so extensive that the applicants were effectively denied a hearing and that findings made on the strength of the oral evidence were unreasonable.
3. The minister's representative did not dispute that errors - indeed, extensive errors - were made in the course of the translation. But the minister argued the errors were harmless or were subsequently clarified. I was invited to examine each of the errors and conclude none of the important findings were a clear product of mistranslation.
4. In my judgment in relation to Mr BBX21, I examined several of the more egregious errors in translation and found they were problematic. I referred to the reasons of Allsop CJ in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 and Edelman J in BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 when I concluded the errors in translation were so extensive that they denied the applicants a proper hearing even if it was difficult to precisely identify causal relationships between particular mistranslations and particular findings. I found the Tribunal's decision was unreasonable as a consequence. While the Tribunal was not aware of the extent of the mistranslations, it was on notice there may have been problems because the applicants' representative had said as much at the conclusion of the hearing. The representative did not press the concern at the time, and the Tribunal took comfort - perhaps too much comfort - from the representative's apparent inability to articulate examples of mistranslations. But it is clear (even if only in hindsight) that the errors in translation were present at the time the decision was made. At a minimum, those errors may have contaminated the impression the Tribunal formed of the evidence that was given by the parties.
5. The same reasoning is applicable in the current proceedings given both parties gave evidence concurrently in the Tribunal. I therefore repeat and adopt here the findings of fact, reasoning and conclusions in relation to Mr BBX21 on the first two grounds of appeal. That means the decision in relation to Ms BBW21 is also affected by jurisdictional error on grounds one and two.
6. I dealt briefly with the other grounds of review in my judgment in relation to Mr BBX21. I found there was no substance to grounds 3, 4 or 5. The same reasoning and conclusions apply in these proceedings. But I found there was substance to ground six. Ground six in both applications for review refers to the fact the Tribunal failed to appreciate the applicants were also claiming protection on the basis they were members of the same family unit. The minister argued that mistake was not material if I accepted each applicant was unsuccessful in the claims that each of them made in their own right. The mistake assumes greater significance in circumstances where I have concluded Mr BBX21 succeeded in relation to grounds one and two. That conclusion would be enough on its own to transform the failure to consider Ms BBW21's claims as a member of the family unit into a material jurisdictional error. Given the logic of the concessions made by the minister, Ms BBW21 must succeed on ground six in addition to grounds one and two.

1. In these short reasons, which must be read in conjunction with the findings and reasoning in the decision in relation to Mr BBX21, I have explained why Ms BBW21 is entitled to succeed on grounds one, two and six of her application for judicial review. There is no doubt the errors which have been identified are material jurisdictional errors. I therefore order that (a) a writ of certiorari be issued quashing the Tribunal's decision and (b) a writ of mandamus be issued directed to the Administrative Review Tribunal (the successor body to the Tribunal) requiring that it reconsider the decision according to law.
2. I will hear from the parties as to costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.