BBX21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 2124

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. Mr BBX21 and his wife, Ms BBW21, have applied for protection visas so they can stay in Australia. A delegate of the minister (the first respondent in these proceedings) denied both their applications. Each of them thereafter appealed to the Administrative Appeals Tribunal. There was a joint hearing in which both claims were discussed. The Tribunal subsequently wrote separate decisions affirming each of the delegate's decisions.
2. On appeal to this Court, both applicants argue the interpreter at the Tribunal's hearing failed to adequately translate what was said. They argue the translation problems prevented them each from properly participating in the hearing, which amounted to a denial of procedural fairness. They also argue the mistranslations misled the Tribunal about their respective cases. They argue that confusion led the Tribunal to make erroneous and unreasonable findings.
3. At the hearing before me, the applicants led uncontradicted evidence from an experienced and credentialled interpreter who had listened to a recording of the Tribunal's hearing. The witness prepared an analysis of the translation of the exchanges between the applicants and the Tribunal. In her oral evidence, she summarised that analysis and opined the interpreter's translations at the hearing were "extremely wrong". The applicants argue the communication difficulties were such that the Tribunal's decisions to affirm the delegate's refusal of a protection visa in each case were affected by material jurisdictional error. The minister argues the difficulties were not significant enough to derail the hearing or contaminate the findings.
4. While the Tribunal made separate decisions in respect of each applicant, the reasons provided in each case were essentially the same. The two applications for judicial review were heard together and the parties filed joint submissions. The reasons that follow focus on the case of Mr BBX21, but I necessarily refer to evidence provided by Ms BBW21 which the Tribunal considered. There is an inevitable overlap between the two cases in circumstances where the errors of translation alleged by the parties were cumulative and impacted both cases in a way that is difficult to isolate. The judgments should be read together.
5. I am satisfied both decisions were affected by material jurisdictional error. I explain my reasons for that conclusion in relation to Mr BBX21 below.

1. Mr BBX21 and Ms BBW21 are both citizens of Jordan. Ms BBW21 was born in that country and worked as a teacher. Mr BBX21 is of Palestinian ethnicity although he was born in Jordan and lived there for many years. The delegate found the couple have been married since 2007 although the Tribunal says they married in 2008. (Nothing turns on that discrepancy for present purposes.) Mr BBX21 entered Australia on a visitor's visa in December 2015 and applied for a Protection (Class XA) (Subclass 866) visa on 18 July 2016. In his visa application, he nominated his wife as a member of the same family unit. Ms BBW21 entered Australia on a visitor's visa in June 2016. She subsequently applied for a protection visa in her own right in September 2016. She nominated Mr BBX21 as a member of the same family unit.

1. Mr BBX21's visa application is reproduced in the BBX21 court book at pp 1-56. A statement outlining the factual basis for his claim is reproduced at pp 57ff. In that statement, Mr BBX21 explained his wife was previously married to her cousin. The statement said the cousin beat and abused Ms BBW21 while she was married to him. After Ms BBW21 and her cousin divorced, the applicants met and commenced a relationship. They married in January 2007. It appears they lived together as a couple after their marriage. Mr BBX21 says their essentially happy lives were disrupted when the divorced cousin re-appeared and began to harass them. Mr BBX21 said he was seriously injured in a motor vehicle accident that was intentionally caused by the cousin. Mr BBX21 said his wife approached her family for help while Mr BBX21 was in hospital, but they effectively kidnapped her. Mr BBX21 recalled his wife's father demanding the couple get a divorce because their relationship had caused trouble for the family. The father-in-law said the applicants could expect further trouble from the vengeful cousin. Mr BBX21 said the police refused to help: Mr BBX21 recalled being told Ms BBW21's family were prominent local citizens, whereas he was a Palestinian. Mr BBX21 said Palestinians were the subject of discrimination. On that basis, he appears to have believed he could not expect police protection.
2. Ms BBW21 managed to escape from her family's custody after Mr BBX21's accident. The pair then decamped to another location in Jordan. They remained there for six years until the vengeful cousin found them. Mr BBX21 claimed the cousin fired shots at them on one occasion during this period.
3. Mr BBX21 and his wife then escaped to a refugee camp. Mr BBX21 was able to organise travel to Australia with the assistance of his daughter who already lived in this country. After Mr BBX21 arrived in Australia, he said he arranged for his wife to join him. Once she was safely in Australia, they each applied for protection visas.
4. The delegate's decision refusing Mr BBX21's visa is reproduced in the BBX21 court book at pp 91ff. In the decision record, the delegate referred at length to perceived inconsistencies and gaps in Mr BBX21's account. The delegate found aspects of the account had been fabricated. The delegate observed (at p 98):

...as the applicant has not provided a reasonably consistent and detailed account of the threats and attacks by [Ms BBW21's ex-husband] or his in-laws, which he claims has led to a continuous fear for his life and safety after 2007 and precipitated his flight from Jordan in 2015, I am not satisfied that his asylum claims are genuine.

1. The delegate went on to formally conclude Mr BBX21 was unable to satisfy the criteria applicable to protection visas in s 36(2) of the Migration Act 1958 (Cth).
2. I note the same delegate decided to refuse the application of Ms BBW21 after she attended a hearing on the same day as Mr BBX21. In the decision record (reproduced in the BBW21 court book at pp 98ff) the delegate expressed essentially the same concerns about Ms BBW21's account that featured in the BBX21 decision. The delegate concluded (at p 102 of the BBW21 court book):

...as the applicant has not provided a reasonably consistent and detailed account of the threats and attacks by [her ex-husband] or her family members, which she claims has led to a continuous fear for her life and safety after 2007 and precipitated her leaving Jordan in 2016, I am not satisfied that her asylum claims are genuine.

1. The Tribunal's joint hearing for the applicants was held in person on 26 March 2021. The parties both asked for assistance from an interpreter speaking Arabic. The Tribunal's hearing record confirms the interpreter was 'NAATI [National Accreditation Authority for Translators and Interpreters] Level 3'. The hearing record confirms the applicants' representative, a migration agent, accompanied them to the hearing. A transcript of the hearing was exhibited to the affidavit of Mr William Jean Berthelot filed 19 March 2025. (That affidavit also annexes an annotated transcript which highlights revisions made by the applicants' expert interpreter. I will discuss the annotated transcript below.)
2. It appears from the transcript of the hearing that the Tribunal did not take evidence from the two applicants separately and consecutively - and both spoke through the same interpreter. It is necessary to have careful regard to the text of the transcript to divine who was answering each of the Tribunal's questions because of the way the hearing was conducted.
3. The Tribunal acknowledged in its reasons for decision that there were some issues with the quality of the translation during the hearing. In the BBX21 reasons (reproduced at pp 187ff of the BBX21 court book), the Tribunal remarked at [12]-[13]:

12. The Tribunal is aware it is required to provide applicants with a meaningful opportunity to put evidence and submissions, including at hearing. At the end of the hearing, the agent said there had been some misinterpretations by the interpreter but after the Tribunal noted it believed the applicant had been able to provide meaningful responses to material questions, he conceded the errors were minor.

13. That being said, and after having discussed the claims at hearing, the Tribunal is satisfied the applicant was given an appropriate opportunity to put his case.

1. I note the Tribunal made observations to the same effect at [12] of the BBW21 reasons for decision (reproduced at pp 175ff of the BBW21 court book). There is evidence before me to the effect that the interpreter made repeated errors. I will discuss this evidence below.

The Tribunal's decision in relation to Mr BBX21

1. The Tribunal accepted aspects of the evidence given by Mr BBX21 and Ms BBW21, but it doubted the plausibility of some of their claims. In particular, the Tribunal was suspicious of the claim about the shooting incident involving Ms BBW21's ex-husband. The Tribunal said if such a serious incident had occurred, it would have been reported to the police: at [43] of the BBX21 reasons. The Tribunal doubted the applicants' account of their living circumstances in Jordan in the six-year period following Ms BBW21's escape from confinement at the family home: at [30]-[34] of the BBX21 reasons. The Tribunal was also sceptical of Mr BBX21's explanation of his overseas travels before coming to Australia: at [35]-[37] of the BBX21 reasons. Those travels included a period of work in the United Arab Emirates. The Tribunal reasoned Mr BBX21's behaviour (and his travel history in particular) was not consistent with what would be expected of someone worried about the risk of harm in Jordan. After expressing its dissatisfaction with aspects of Mr BBX21's evidence, the Tribunal concluded (at [69] of the BBX21 reasons):

...even considering the accepted claims cumulatively, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Jordan.

1. The reference in [69] to a process of cumulative evaluation of the claims makes clear the Tribunal was simply unpersuaded given anomalies and gaps it identified in the evidence when considered as a whole. On that basis, the Tribunal determined it was not satisfied Mr BBX21 was owed protection obligations under ss 36(2)(a) or (aa) of the Act.

1. The amended application for judicial review identified six grounds. I note the grounds of review in relation to Ms BBW21 are functionally the same as those considered below.
2. The first ground says the Tribunal's hearing was procedurally unfair because the interpreter failed to accurately interpret questions and answers. The applicants say they were not afforded an opportunity to give evidence and present arguments in accordance with ss 422B and 425 of the Act. The second ground says the Tribunal's findings were illogical, based on unwarranted assumptions, and/or legally unreasonable because some findings were made on the basis of misinterpreted evidence. The applicants refer to a number of those errors but add the Tribunal's assessment of the applicants may have been distorted and prejudiced by unwarranted findings on individual matters that might not have been determinative if viewed in isolation.
3. I will focus on the first and second grounds because they are dispositive. To that end, I will briefly outline the expert evidence led by the applicants before discussing the relevant law. I will then explain why I have concluded the mistranslations in this case resulted in jurisdictional error.

1. The Tribunal depends on an interpreter's expertise at many hearings. While it will sometimes be obvious during the hearing that the translation is deficient in some respect, the Tribunal may not be able to tell if there are problems. The fact an applicant or their representative disputes the accuracy of the translation provided is not necessarily a reliable indicator of problems with the interpreter's performance: the Tribunal is likely to be wary of what might ultimately be self-serving claims about the adequacy of the translation.
2. I note the applicants' representative did raise concerns at the conclusion of the Tribunal's hearing, but the Tribunal gave those concerns short shrift in the brief discussion I have quoted above at [12]-[13] of the BBX21 reasons. From an assessment of the transcript of the Tribunal's hearing at pp 46ff, it seems the Tribunal put the representative on the spot by asking him to provide details of the supposed shortcomings in the translation. When the representative did not press the issue or point to specific examples of problematic translations, the Tribunal decided it was satisfied with the adequacy of the translation without making any further enquiries. In written submissions in these proceedings, the minister says it was "[o]f real significance" that the representative accepted the applicants gave meaningful responses to questions, and agreed the misinterpretations were minor.
3. I do not attach much weight to the apparent concessions of the representative. A perusal of the transcript tends to confirm the representative was largely passive in the hearing.
4. In the application for judicial review, the applicants were able to provide more concrete evidence about the quality of the translation relied on by the Tribunal. Ms Pamela Chaybane was engaged to prepare an expert report. Ms Chaybane is a qualified interpreter and certified translator in the Arabic and English languages. In her affidavit filed 19 March 2025, she noted Arabic was her first language. She has been a translator for 17 years. In addition to her NAATI certification, she holds a Master of Interpreting and Translation conferred by Western Sydney University. There was no challenge to her expertise.
5. A copy of Ms Chaybane's report was annexed to her affidavit. She explained she prepared the report after listening to a recording of the hearing and then reviewing the transcript. Her report is set out in the form of a schedule. The first two columns in the schedule identify the time at which a particular statement was made during the hearing, and the line of the transcript where that statement is transcribed. The third column sets out what was actually said by the Tribunal member (in English) or the applicant (in Arabic). The fourth column sets out how the interpreter at the hearing translated the statement. The fifth column contains Ms Chaybane's interpretation of the same statement, and the sixth column includes a brief comment on what was wrong with the interpretation that had been provided at the hearing.
6. Ms Chaybane gave evidence at the hearing before me. She acknowledged every translation involved the exercise of the interpreter's judgment. She also acknowledged competent, well-credentialled interpreters might offer subtly different translations of the same speech or text. But she said the translation in this case fell outside the parameters of what was acceptable. I have already quoted her assessment of the interpretation provided at the Tribunal's hearing: she said it was "extremely wrong".
7. Ms Chaybane is an appropriately credentialled expert who undertook an obviously thorough review. Her evidence was not contradicted by any other opinion evidence provided at the hearing before me, nor was her opinion successfully challenged or disputed in cross-examination. I note the minister's submissions suggested some weight should be given to the fact the applicants' representative at the Tribunal's hearing was unable to identify issues with the translation when pressed to do so, but the evidence of the expert witness conducted after a careful review is to be preferred.
8. Legal Aid NSW, the applicants' solicitor, used Ms Chaybane's report to prepare an annotated version of the transcript that incorporates the corrected translation of the exchanges which occurred at the hearing. A copy of the annotated transcript was annexed to the affidavit of Mr Berthelot. I understand there was no challenge to the annotated transcript and I rely upon it as the authoritative record of what was said at the hearing for the purposes of these reasons.

The principles to be applied in relation to claims of mistranslation

1. Both parties drew my attention to the decision of the Full Federal Court in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142. That case addressed the central issue before me in these proceedings. In SZRMQ, Allsop CJ explained that when questions over the adequacy of translation arise, the real issue is one of fairness and whether the applicant had a proper opportunity to be heard: at [24]-[25].
2. In BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508, Edelman J helpfully summarised and analysed the relevant authorities (including SZRMQ) and academic writing before setting out the relevant principles (at [52]).
3. These authorities make clear that translation (like all forms of communication) is something of an art rather than a science. Competent and efficient interpreters might legitimately arrive at slightly different translations of the same evidence. It is usually enough if the interpreter can communicate what reasonable experts would agree is the substance of the exchange between the examiner and the witness. But there are limits to that professional deference. Obvious mistranslation can contaminate the evidence and the decision which results.
4. In many cases where the quality of translation is an issue, it will be possible to draw a direct connection between the interpreter's error and a particular adverse finding in the decision. In such a case, the problem with the decision will be manifest. Yet it will not always be possible to establish such a link, particularly where the assessment of credit is central to the decision-maker's task. A decision-maker might form a negative impression of a witness on the basis of an erroneously translated answer. The decision-maker may also form an unfavourable impression of a witness from their demeanour during questioning when the witness is flummoxed, nonplussed, misled or put off by the questions which have been inadequately translated. The witness might struggle to give straight or intelligible answers to garbled or misunderstood questions. The errors in translation might cause them to appear to be dissembling or uncooperative. The witness might also feel inhibited by what they take to be the strangeness of the decision-maker's line of questioning, or they might bristle or become argumentative at the unexpected focus of (misunderstood) questions.
5. At some point, the overall quality of the translation may be sufficiently poor that a reliable assessment of the witness's account and credit becomes impossible. That is because it is not the witness's evidence (or the witness's demeanour) that is being considered. The decision-maker is really dealing with an imperfect facsimile - a simulacrum - of the witness created by the interpreter. It is pointless in such a case to focus on individual mistranslations because it becomes too difficult to isolate the link between a particular translation error and a factual finding. It also becomes too difficult to determine the impact of any one error on the decision-maker's overall impression of the witness's credit. The only answer in such a case is for the decision-maker to start again. The risk of contamination is particularly great where decision-makers have regard to the evidence cumulatively, as indeed they should. An erroneous finding on one matter as a result of a mistranslation might infect the decision-maker's perspective on other evidence. That is a particular risk where the mistranslation leads to an adverse credit finding which might have a cascading effect on the rest of the fact-finding process. If that credit finding causes the decision-maker even subconsciously to sour on the rest of the evidence provided by that witness or party, the mistranslation creates a very real risk of the review miscarrying.

Particular examples of problems evident in the transcript in this case

1. The applicants relied on the annotated transcript and Ms Chaybane's evidence to argue there were frequent errors in the translation. The applicants say one of the most important mistranslations can be found at p 4 of the uncorrected transcript where the Tribunal invited the applicants at the start of the hearing to speak up and indicate disagreement with propositions that were being put. The uncorrected transcript records the Tribunal as saying:

1. The corrections made by Ms Chaybane that were highlighted in the annotated transcript at p 4 confirm the interpreter said the following:

1. The applicants say the failure to accurately translate the sentence "It is completely okay to tell the tribunal that it is wrong" was a crucial error that may have inhibited them in their evidence because they may have been unclear of what was expected of them. The minister pointed out the Tribunal subsequently repeated the invitation to the applicants to explain where it was going wrong when it asked questions (see, for example, at p 18 of the annotated transcript), but the applicants argue the damage may have been done by the initial mistranslation.
2. The applicants also pointed to the interpreter's failure to accurately translate the Tribunal's explanation of what it proposed to do with the material covered by the non-disclosure certificate issued under s 438 of the Act that it was required to put to the applicants for comment. The uncorrected transcript records the Tribunal saying at p 4:

1. Page 4 of the annotated transcript that was corrected with the benefit of Ms Chaybane's report reads as follows:

1. A comparison of the two translations suggests the interpreter at the hearing failed to make clear the provenance of the material - namely, that it was the product of a "dob-in" report. In doing so, the mistranslated question might have disguised the clear implication that the applicants' credit was being tested. That may have left them at a disadvantage as they provided their evidence.
2. The applicants also point to a concern surrounding the translation of the Tribunal's explanation of why it was putting the material covered by the non-disclosure certificate to the applicants. To be fair, the question was convoluted and difficult to follow before it was translated. In any event, the relevant passage at pp 4-5 of the annotated transcript reads as follows, together with the revealing reply:

1. I note the Tribunal explained in its BBW21 reasons (at [15]) that it did not place any weight on that material, nor did it rely on the material to make any adverse findings. The applicants nonetheless argue the mistranslation of the explanation of why it was putting the material to the applicants might have foreclosed an opportunity to provide more fulsome and compelling responses.
2. Other difficulties with the translation were said to include:

(a) Failing to accurately translate the Tribunal's question about the applicants' living arrangements in Irbid between 1998 and 2015. The interpreter translated the question into an enquiry about where they lived in 1998: annotated transcript at p 16. The applicants point out there is a good deal of back and forth between the Tribunal and the applicants in the discussion that followed which suggests the potential for confusion on an important issue - the issue being whether the applicants' residential arrangements were consistent with their claims. The minister argues the Tribunal subsequently explored the dates more fully at p 19 of the annotated transcript. The applicants say the confusion over the date range being discussed just compounded and flustered them. They point out the interpreter failed to interpret their emphatic insistence that they were moving from place to place during this period out of fear: annotated transcript at p 19 lines 1-10. The answer that was translated for the benefit of the member offered only a limp pushback to his question whereas the answer actually given was clearer and more detailed about their movements than the mistranslated version;

(b) Failing to correctly interpret the Tribunal putting to the applicants that it might not accept they were in hiding. That mistranslation is apparent from the annotated transcript at p 18 which records the following exchange with a potentially crucial error that might have misled the applicants:

(c) Failing to correctly interpret the Tribunal's questions regarding Mr BBX21's Palestinian ethnicity at pp 20-22 of the annotated transcript. The applicants say the translation might have left the impression the Tribunal agreed with or accepted the applicants' claims whereas the import of the questioning was quite different. In particular, the interpreter's garbled take on the Tribunal's comments that were being put to Mr BBX21 at p 20 lines 34-45 of the annotated transcript reads:

The applicants say they were denied an opportunity to address the Tribunal's concerns because the translation of the questions did not properly reveal that they were in fact important concerns.

1. Mr Young, who appeared for the minister, invited me to go through a line-by-line analysis of the defects in translation that Ms Chaybane had identified. The minister's joint written submissions observed the errors related to:

(a) The non-disclosure certificate that was discussed at the hearing. I have already noted there were errors in the translation of the Tribunal's explanation of a non-disclosure certificate and the material it covered: annotated transcript at pp 4-5 (reproduced above). The minister argued any alleged errors had no material impact on the conduct of the hearing given the Tribunal did not place any weight on the confidential material and did not draw any express adverse inference against the applicants. The minister went on to argue the Tribunal returned to this issue later in the hearing in any event. In doing so, the Tribunal was said to have cured the defect when it provided a proper (and correctly translated) explanation of the material covered by the non-disclosure certificate at p 36 of the annotated transcript. The applicants argue in written submissions in reply that the discussion at p 36 of the annotated transcript expressly refers back to the earlier discussion that was incorrectly translated. They argue the subsequent discussion cannot effectively cure the gap created in the applicants' understanding of what they needed to address when the subsequent explanation referred back to the earlier discussion which was mistranslated;

(b) The circumstances of Ms BBW21's first marriage, the abuse she suffered at the hands of her family and whether her family helped her obtain a divorce from her first husband. The minister argued it was clear from the transcript that the applicants were able to communicate the essence of the evidence about Ms BBW21's marriage and the treatment she received from her family. The submissions noted the Tribunal generally accepted Ms BBW21's evidence about those matters, so it was argued the interpretation errors did not prejudice her;

(c) Errors made in relation to the Tribunal's questions about Mr BBX21's citizenship or being stateless. The minister's written submissions pointed out the Tribunal noted Mr BBX21's evidence that his wife's family was concerned she would be "marrying an effectively stateless man, and having effectively stateless children": at [19] of the Tribunal's BBX21 reasons. The Tribunal concluded the applicant was not stateless. That conclusion was apparently reached on the basis of country information reports but also on the contents of an exchange at the hearing recorded in the annotated transcript at pp 20-23. The minister acknowledged there may have been errors in the detail of that translation but said it was clear even so that Mr BBX21 had the opportunity to present his case in relation to citizenship issues but also in relation to his service in the Jordanian army and his eligibility for a service pension;

(d) The distance between one city and another where the applicants had fled, and the claims regarding the amount of time the applicants spent 'on the run' and where they lived. The exchanges between Mr BBX21 and the Tribunal in relation to these matters are reproduced in the annotated transcript at pp 16-19 although Ms BBW21 also answered some of the questions. The minister's submissions assert any errors in the translation were immaterial because the applicants had the opportunity to comment on what happened. The minister's submissions also note the Tribunal asked the applicant about the circumstances under which they resided in Irbid over several years. In a lengthy passage at p 19 of the annotated transcript, the Tribunal asked Ms BBW21 about whether the applicants' continued presence in Irbid suggested they were no longer of interest to anyone, most obviously her ex-husband. The minister says the applicants were able to respond (although the response addressed only part of the question before the Tribunal pivoted to focus on Ms BBW21's history of transfers between different schools);

(e) The shooting incident in December 2014. The minister noted Mr BBX21 was able to speak to the shooting incident in the course of his evidence (annotated transcript at pp 26-28);

(f) Mixed marriages between Palestinians and Jordanians; and

(g) Mr BBX21's lack of a pension and whether that might be regarded as 'serious harm' for the purposes of the Act.

1. The applicants point out the minister's preference for a line-by-line analysis of the transcript is contrary to the approach suggested by BZAID and SZRMQ. I agree.
2. This is a case where it is difficult to be sure what role the frequent mistranslations played in the ultimate outcome. It is certainly possible they had no material effect on the outcome. But the uncontradicted evidence of Ms Chaybane suggests the interpreter at the Tribunal's hearing failed at their job. The examples provided by the applicants that I have cited above support that conclusion even as I acknowledge it is possible to question the connections between particular findings and particular mistranslations as the minister urged me to do. While the Tribunal was not aware of the extent of the problems with the translation at the hearing and when it deliberated and prepared reasons for its decision, it is impossible to isolate what impact the mistranslations had on its thinking processes. The problems with the interpreter's work are such that it would be unreasonable to rely on the translation.
3. The applicants have not been afforded the hearing required under the Act if the proceedings at the hearing were translated in a way that expert evidence declares was "extremely wrong". To find otherwise in the face of that uncontradicted characterisation of the translation would undermine confidence in the migration decision-making and review process. It follows I am satisfied the first ground of review has been made out. I am also satisfied the Tribunal's decision was unreasonable. No reasonable decision-maker who was made aware of the extent of the mistranslations would have persisted with the hearing or relied on what was said for the purposes of making a decision. While I accept the Tribunal was not aware of the extent of the problem at the time, the applicants' representative had put the Tribunal on notice that there were issues, even if the representative's efforts were ineffectual. The Court has the benefit of the uncontradicted expert evidence about what went wrong. That expert evidence suggests the Tribunal's factual conclusions which relied on oral testimony did not have a reliable basis. It follows I am satisfied the second ground of review has also been made out.

1. I will briefly address the applicants' other grounds of review for the sake of completeness.
2. The applicants contend in the third ground of review that the Tribunal failed to give proper and genuine consideration to material provided in support of their claims. The material in question was comprised of translated versions of voice messages and a statutory declaration which were said to support the applicants' claims they had been subject to harassment from Ms BBW21's ex-husband and family, had been in hiding, and were subjected to threats of violence. The minister points out the Tribunal mentioned that material at [48] and [49] of the BBX21 reasons for decision. That material was discussed after the Tribunal made a finding at [47] that it was not satisfied that (a) the applicants were in hiding or on the run after 2008 or (b) the applicants faced a risk of serious or significant harm if they returned to Jordan. Those findings were made following a discussion of other evidence, including country information. After referring to the material at [48] and [49], the Tribunal concluded at [50] of the BBX21 reasons:

The wife did say that her family are very angry at her for joining the applicant in Australia (even though they had resided together for almost 8 years in Jordan). The applicant said he feared the wife's family and [Ms BBW21's ex-husband] in Jordan. Be that as it may, and for the reasons set out above, the Tribunal remains satisfied the applicant does not have a real chance of suffering serious (or significant) harm in Jordan, for any reason discussed above.

1. In written submissions, the applicants argue the Tribunal did not make a formal finding about the contents of the statutory declaration and it did not attempt to reconcile the contents of that document or the voice messages with other material or explain why it preferred the material it relied on to make the finding recorded at [47] of the BBX21 reasons.
2. While the discussion of all the evidence does not unfold in an entirely linear way, one is reminded of the cautionary note in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 322 at [22] per Neaves, French and Cooper JJ cited with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 where the Court warned against reading the Tribunal's decision record "minutely and finely with an eye attuned to the perception of error": at p 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; see also DVO18 v Minister for Home Affairs [2020] FCA 989 at [32] per O'Bryan J. I must have regard to the Tribunal's reasons as a whole and consider what to make of the Tribunal's decision and decision-making process without straying into merits review. In this case, it is tolerably clear that the Tribunal did consider the material - it certainly mentioned it - and decided it was not satisfied about the relevant claims having regard to the rest of the evidence. While it would have been better if it had made clearer express findings about the additional material, it would be unsafe to conclude the Tribunal did not consider and weigh the material. In those circumstances, I am not satisfied the third ground is made out.
3. The applicants contend in the fourth ground of review that the Tribunal's scepticism of their claims regarding a shooting incident was based on speculation and unwarranted assumptions, or illogical, or unavailable on the evidence. The Tribunal's finding in relation to the shooting incident is found at [42]-[43] of the BBX21 reasons where it said:

42. Be that as it may, when then asked if this incident had been reported to the police, the applicant said he did not report the matter to the police as he had not been successful on the first occasion (in early 2008). However, the Tribunal noted the alleged attack had taken place in a Palestinian dominated area (village), where it may be presumed that the incident would have been witnessed by other residents of the village, that the firing of a gun into the house was a serious incident and would presumably require 'substantial wasta' to evade any consequences (none claimed and [Ms BBW21's ex-husband] apparently still resides in Jordan), and it also did not appear plausible that the wife's family would tolerate her life being put at risk like this.

43. That being said, and after having considered the evidence, the Tribunal is not satisfied the alleged shooting would not have been reported to the police, if it had occurred. The Tribunal understands that some convictions may be avoided in Jordan but that Jordan is not a lawless State and the alleged incident constitutes a serious crime. The Tribunal therefore does not accept the incident occurred as claimed or at all. If it had, the Tribunal is satisfied it would have been reported to the police by the applicant, his wife, or a witness (or the owner of the property where they were staying). If it had occurred, the Tribunal is also not satisfied the applicant and his wife would have (fairly) immediately returned to the claimed safety of their usual home in Irbid.

1. The Tribunal's explanation for its findings is not irrational, and its conclusions came after a discussion of evidence which included country information. This ground invites a review of the Tribunal's conclusions on the merits, which is not permissible. This ground is not made out.
2. The fifth ground of review contends the Tribunal should not have made a "definitive judgment" about whether the applicants faced a real chance of serious or significant harm if they returned to Jordan without considering the consequences if it were wrong. In the alternative, the Tribunal was said to have misapplied the 'real chance' test in ss 36(2)(a) and (aa) of the Act. In particulars to this ground, the applicants point out the Tribunal appeared to accept Ms BBW21's ex-husband had targeted the couple in some respects, but the Tribunal also found the couple would be unlikely to be of interest to the ex-husband or Ms BBW21's family in the future if the couple returned to Jordan.
3. The Tribunal's conclusion is set out at [50] of the BBX21 reasons where it says:

The wife did say that her family are very angry at her for joining the applicant in Australia (even though they had resided together for almost 8 years in Jordan). The applicant said he feared the wife's family and [her ex-husband] in Jordan. Be that as it may, and for the reasons set out above, the Tribunal remains satisfied the applicant does not have a real chance of suffering serious (or significant) harm in Jordan, for any reason discussed above.

1. The minister's submissions point out the Tribunal was only required to address the 'what if I am wrong?' test - which involved considering a counter-factual - if the Tribunal harboured any real doubts about its factual findings. The minister relied on the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 where Sackville J (with whom North J agreed) observed (at [67]):

In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. ... Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

1. The minister says this was not a case where the Tribunal admitted any doubt. The minister points out the Tribunal acknowledged some factual claims for the purposes of the argument, but it thereafter reached a firm conclusion even after it allowed for those possibilities. In the circumstances, I am constrained to agree with that analysis of the reasons when they are read as a whole: the Tribunal does not appear to exhibit any doubts about its conclusions having regard to the evidence which it discussed. Those findings were open to it in the circumstances. There is no basis for finding it misunderstood its obligations as it applied the test in s 36(2) of the Act.
2. That brings us to the sixth ground of review. The applicants contend the Tribunal failed to make an assessment of each applicant's case on the basis they were members of the same family unit. At [10] of both the BBX21 and BBW21 reasons, the Tribunal notes each applicant lodged their own claim for protection but incorrectly observes they were not also claiming to be members of each other's family group. The minister acknowledges that error but says it is not material since the Tribunal assessed each individual claim and reached the same conclusion in relation to both. As a practical matter, the failure to consider the claim as members of a family unit would only be consequential if the Tribunal were to conclude that one of the applicants succeeded and the other failed.
3. As it happens, I have already decided (for reasons that I explained) there was a jurisdictional error in the Tribunal's decision with respect to Mr BBX21 arising out of the problems with the interpreter. I am satisfied the same error affected the decision in relation to Ms BBW21. Both parties would therefore be entitled to have their decisions remitted for reconsideration as a consequence of the same jurisdictional error.

1. I have identified jurisdictional error in the Tribunal's decision in relation to Mr BBX21. (The same flaw is present in the decision in relation to Ms BBW21. I will issue a brief set of reasons in relation to Ms BBW21 which refer to the reasoning in this judgment.) I am satisfied the error is material in the sense discussed by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12. It is therefore appropriate to issue (a) a writ of certiorari quashing the Tribunal's decision and (b) a writ of mandamus directed to the Administrative Review Tribunal (the successor body to the second respondent) requiring it to determine the applicant's application for review according to law.
2. I will hear from the parties as to costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.