BLW19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1433

1. The Tribunal summarised the background to the proceeding ([1-2] of the TD) and the evidence before it ([4-41] of the TD).
2. The Tribunal set out the relevant legal and policy framework ([42-47] and [48] of the TD).

1. The Tribunal recorded that the applicant claimed that she and her family had practiced Catholicism in China. She claimed that her parents had been arrested by authorities in China for practising Catholicism and that she had been ridiculed and abused by her neighbours and fellow students for her family's religious beliefs ([4] of the TD). The applicant claimed that her parents were arrested twice in 2006, for about two to three months each time, once for holding an illegal gathering and once for handing out pamphlets ([22] of the TD).
2. The Tribunal recorded that the applicant claimed that her father had been persecuted because he was a preacher ([5] of the TD). She feared that she would face similar treatment as her parents and that she would be harmed, mistreated and lose her freedom of religion if she returned to China ([4] of the TD).
3. The Tribunal noted the applicant's concerns that her parents had been arrested in China 'due to family planning' because as Catholics they did not support contraception. She claimed that her mother had been forcibly sterilised after her arrest ([5] of the TD).
4. The Tribunal noted that the applicant claimed that her younger brother had been arrested during a protest about the demolition of a church in China and was detained and released after one month ([15] of the TD).
5. The Tribunal recorded the applicant's claims that she did not want to return to China because she would lose her religious freedom ([15] of the TD).

Considerations of Claims and Evidence by the Tribunal

1. The Tribunal recorded that it had considered the Department of Foreign Affairs and Trade Country Information Report China December 2017 (DFAT Report) and quoted two extracts from this report at [50] and [52] of its Decision.

1. The Tribunal was not satisfied that the applicant would suffer any harm in China because her family had come to the attention of authorities 'due to family planning' or because her mother had been forcibly sterilised ([55] of the TD).
2. The Tribunal recorded serious concerns about the applicant's credibility and the reliability of her evidence ([57] of the TD) for a number of reasons.
3. The Tribunal was not satisfied that the applicant had attended underground Catholic gatherings or Mass in China or that she was a genuine practising Catholic in China as she spent most of her time playing with her siblings and could not provide an estimate of the size of the congregation she attended ([58] of the TD).
4. In considering her claims that her father was harmed because he was a preacher at the church, the Tribunal noted that when the applicant was asked at the hearing about her parents' 'religious activities' she did not mention that he was a preacher until the Tribunal raised her omission. The Tribunal found that this demonstrated her willingness to change her evidence when shortcomings were drawn to her attention ([59] of the TD).
5. The Tribunal was not satisfied that the applicant's parents were arrested and detained in 2008 because the applicant was unable to provide sufficient details of these events at the hearing, despite claiming she was 16 years old at the time these events occurred ([60] of the TD).
6. The Tribunal recorded that the applicant's reasons for her delay in applying for a protection visa suggested that she was not genuinely fearful of returning to China and had been merely avoiding contact with the Australian authorities because she wished to remain in Australia ([61] of the TD).
7. The Tribunal formed the view that the applicant had not been committed to Catholicism in Australia. Further, the Tribunal formed the view that the applicant's delay in her own baptism indicated that she was not genuinely involved and committed to Catholicism prior to April 2014 ([62] of the TD).
8. The Tribunal found that the applicant's delay in taking steps to marry her de facto partner before 2018, despite giving evidence about the importance of the sacrament of marriage in the Catholic faith, cast serious doubt on her claim to be a committed Catholic. The Tribunal considered the letter from Father McGee and formed the view that he had merely relied on the applicant's account that she had been attending St Dominic's since October 2008. The Tribunal accepted that the applicant's other evidence demonstrated she had been attending St Dominic's, however it formed the view that her attendance, baptism and marriage was solely for the purpose of strengthening her protection claims ([62] of the TD). Similarly, the Tribunal formed the view that the applicant had her children baptised for the purpose of strengthening her claims that she is a Catholic and did not accept that she genuinely intended to raise them as Catholics ([63] of the TD).
9. The Tribunal did not accept that the applicant would practise any religion if she returned to China and therefore was not satisfied that the applicant genuinely feared harm in China because of her religion ([64] of the TD).
10. The Tribunal did not accept the applicant's claim that her brother had been arrested and detained for protesting against the demolition of a church in China. The Tribunal formed the view that the applicant had fabricated responses to overcome issues raised by the Tribunal about this claim at the hearing. It also noted that the 'Certificate of Release' provided by the applicant, said to be for her brother, had only referred to an alleged crime of participating in group fighting ([65] of the TD).
11. The Tribunal found that there was no medical evidence before it which substantiated her claims that she had suffered psychological harm from being verbally and physically abused by her neighbours in relation to her religious beliefs. The Tribunal was not satisfied that the applicant would suffer such harm if she returned to China ([66] of the TD).
12. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution if she returned to China. Accordingly, the Tribunal was not satisfied that the applicants were owed protection obligations under s36(2)(a) of the Act ([69-70] of the TD).

1. The Tribunal considered whether the applicants were owed complementary protection pursuant to s 36(2)(aa) of the Act ([71-74] of the TD).
2. The Tribunal, having not accepted the applicant's claims in relation to her adherence to the Catholic faith, her experiences of harm in China as a result of her religious practice and her likeliness of securing employment in China, was not satisfied that there was a real risk that the applicant or her children would suffer significant harm if herself or her child were removed from Australia to China ([72] of the TD).
3. The Tribunal was not satisfied that the applicants met the complementary protection criteria pursuant to s 36(2)(aa) of the Act ([72] of the TD).
4. The Tribunal affirmed the decision of the Department dated 18 April 2016 ([75] of the TD).

1. The applicant applied to this Court for judicial review pursuant to s 476 of the Act on 8 April 2019.
2. The applicant filed an affidavit in support of her application for judicial review on 8 April 2019. The affidavit attached the Tribunal Decision. The affidavit also attached a translated extract of the Tribunal hearing dated 5 March 2019. The translation was conducted by Stephen Chan, a NAATI Level 3 Certified and Accredited Translator and Interpreter, Mandarin and Cantonese.
3. On 2 May 2019, Registrar Cho of this Court made procedural orders. These included an order for the applicant to file an amended application giving complete particulars and any affidavit containing additional evidence to be relied upon by 11 July 2019. Pursuant to Division 11.2 of the then Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Former GFL Rules), an order was made appointing the first applicant as the litigation guardian of the applicant's minor child.
4. The applicant filed an amended application on 10 March 2021. In her amended application, she advanced two grounds of review, which are set out in full in the findings in this judgment.
5. On 6 March 2025, Registrar Munro of this Court made orders that the applicant file and serve any amended application, written submissions and additional evidence at least 28 days before the hearing. An order was made removing the applicant's minor child as a party to the proceedings.
6. On 6 June 2025, I made orders in Chambers that the applicant file and serve any amended application, affidavit evidence and a written outline of submissions by 4.00pm on 21 July 2025.
7. No further documents or materials were filed by the applicant.
8. On 20 August 2025, the applicant appeared before this Court as a litigant in person. She was assisted by a Mandarin interpreter. She confirmed that she could understand the interpreter and that she had received copies of the Court Book and the Minister's written submissions. Ms Pieri from MinterEllison Lawyers appeared for the first respondent.
9. The following documents were before this Court - the amended application for judicial review filed on 10 March 2021 and the supporting affidavit of the applicant filed on 8 April 2019 (read at the hearing), a Court Book (numbering 340 pages and marked as Exhibit 1R) filed 6 June 2019, written submissions of the Minister filed on 4 August 2025 and a list of authorities. At the hearing before me, the first respondent made an application for leave to file further submissions. This application was granted and an order made for the first respondent to file further submissions by 22 August 2025. Further submissions were filed and served on that date and judgment was then reserved upon receipt of the further written submissions.
10. A court has a duty to assist unrepresented litigants: Hamod v New South Wales [2011] NSWCA 375 per Beazley JA, Giles JA and Whealy JA (Hamod). The court in Hamod confirmed that the touchstone remains that of fairness, and that a trial judge should take steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court to ensure a fair trial: per Whealy JA at [311] - [313].
11. At the hearing, for the benefit of the applicant, I outlined the role and processes of the Court and explained that jurisdictional error must be demonstrated if she were to succeed in her application. I explained that jurisdictional error is a kind of serious legal error and outlined some common categories, noting that these categories were not exhaustive. I also noted the well-established principle referred to by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272 - that a court cannot engage in reviewing the merits of the decision. I explained that the hearing was a final hearing of the Court. The applicant was asked if she understood and she said that she did.

CONSIDERATION OF CLAIMED GROUNDS OF JURISDICTIONAL ERROR

1. I have considered the law that applied to the Tribunal, as well as the legal principles relevant to this Court, and all material before the Court. I am satisfied that the Tribunal breached its procedural fairness obligations due to serious and material interpreter error. Jurisdictional error is established.

1. The Tribunal was required to consider whether the applicant met the legislative criteria for a Protection (Class XA) (subclass 866) visa.  
2. Section 29(1) of the Act gives the Minister for Immigration and Citizenship, or its delegate, power to grant a non-citizen a visa. The Regulations prescribe the criteria for classes of visas: s 31(1) and (3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act. 
3. The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a)(ii) of the Act. 
4. The Tribunal conducts a merits review and applies the same criteria.  
5. The criteria for a protection visa are set out in subsections 36(2)(a) and 36(2)(aa) of the Act. An applicant must be:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or 

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

1. Section 5H(1)(a) of the Act provides that a person is a refugee if they are unable or unwilling to avail themselves of the protection of a country owing to a well-founded fear of persecution. Section 5J sets out what it means to have a well-founded fear of persecution.
2. Section 425 of the Act at the relevant time provided that:

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

1. The function of this Court is to determine if the Tribunal Decision fell into jurisdictional error.
2. Section 476 of the Act provides that this Court has the same original jurisdiction as the High Court. The High Court, under s 75(v) of the Constitution, has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
3. A privative clause as defined at s 474 of the Act is final and not amenable to judicial review. The Court can grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476.
4. The role of judicial review was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) per Allsop J, Besanko and O'Callaghan JJ at [17] as follows:

...an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision.

1. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT), the plurality of the High Court commented on some of the forms of jurisdictional error. The Court stated that jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of authority [2-3] (footnotes omitted):

Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. Categories of error are not clearly defined (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421) and may overlap (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]).
2. The Court must review the lawfulness or legality of the Tribunal decision by reference to the applicant's complaints about the decision: Djokovic at [17], or where error is self-evident. Her Honour Justice Mortimer said in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (MZAIB) at [100] that a judge should be astute and alert to the possibility of legal error in the tribunal's decision when considering the material before the court, and to be prepared to raise such possibilities with the Minister. She said that the court was informed by the approach taken by Smith J in Panagopoulos v Southern Healthcare Network (unreported, Sup Ct, Vic, 15 September 1997):

..the need to preserve the appearance of neutrality should be seen as marking the boundary for judicial intervention. It is a boundary that is flexible and its location will be affected by the circumstances of the case. It will be affected by the extent to which a judge needs, and may properly be seen to need, to intervene to ensure a fair and just trial.

1. The decision of a Tribunal should be read as a whole, noting the High Court guidance in Wu Shan Liang at 272 that:

... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed

....

1. It is settled law that the Court cannot review the merits of the Tribunal decision: Wu Shan Liang at 272.

Consideration of the grounds of jurisdictional error alleged by the applicant

1. The applicant advanced two grounds of jurisdictional error in her application and raised other grounds when she appeared before the Court.
2. I have identified jurisdictional error, for the reasons set out below.

1. The applicant contended in her application that the first ground of jurisdictional error was that (reproduced below without alteration):

The Applicants were not afforded procedural fairness and/or there was a breach of s.425(1) of the Migration Act 1958 (Cth) arising from non-translations and mistranslations by the interpreter assisting the Applicants before the Tribunal.

1. The particulars provided by the applicant were as follows:

(a) At paragraph [21] of the Decision, the Tribunal said that 'It asked why she had not mentioned her father's preaching in her evidence to the Tribunal about her parents' religious practice.'

(b) At [59] of the Decision, the Tribunal said that 'The Tribunal considered the applicant's claims that her father was harmed because he was a preacher in the church. However it notes that when it asked the applicant at the hearing about her parents' religious activities she did not mention in her oral evidence that her father was a preacher until the Tribunal raised her omission. The Tribunal considers her explanation, that her father was a preacher and was passing out pamphlets while he was preacher, demonstrates her willingness to change her evidence when its shortcomings are drawn to her attention.'

(c) During the hearing, the First Applicant did, in fact, state her father was also a preacher, but that this was not translated by the interpreter (T 17:07).

(d) The non-translation clearly affected the Tribunal's assessment of the First Applicant's credibility.

(e) The interpreter also repeatedly mistranslated the First Applicant's distinction between Catholicism and Protestant Christianity, by describing both concepts as 'Christianity' in her translation from Mandarin to English.

(f) As a result of the non-translations and mistranslations, the First Applicant was not afforded a real and fair opportunity to be heard.

1. At the hearing before me, the applicant reiterated her submissions that the misinterpretation caused the Tribunal to make a mistake in [21] and [59] of the Tribunal Decision and that the Tribunal fell into jurisdictional error.

The interpretation errors - the preacher error and the denomination errors

1. There were two primary interpretation errors during the Tribunal hearing identified by the applicant and conceded by the first respondent.
2. The first interpretation error was that the interpreter at the Tribunal hearing failed to interpret the applicant's statement that her father was a preacher. This error is referred to in this judgment as the 'preacher error'.
3. The preacher error occurred as follows (references are to the transcript annexed to the applicant's affidavit filed on 8 April 2019, which has not been challenged by the first respondent):
   • At 15:20 the Tribunal Member (DC) asked what the applicant's parents did for a living.
   • From 15:24 to 17:01 there are questions and answers about the mother's job and then the father's job in construction.
   • At 17:07 the applicant states 'He is also a preacher'. This statement is not interpreted.
4. The second interpretation error during the Tribunal hearing was the interpreter continuously confusing the words 'Christian', 'Protestant' and 'Catholic'. At different times, the interpreter incorrectly used the word 'Christianity' when the applicant had said 'Protestant'. On another occasion when the Tribunal Member (DC) asked, '... , are Catholic Christians?', the interpreter interpreted this as 'the question I asked you was if Catholic Christians are Protestant Christians'. The interpreter on one occasion interpreted 'Christian' as 'Protestant Catholic'. This set of interpretation errors is referred to in this judgment as the 'denomination' errors.
5. The set of denomination errors arose as follows:
   • At 17:36 DC asked what religion the applicant's sister had.
   • At 17: 38 the applicant responded "After she was married to her husband, she believed in Protestant Christianity".
   • The interpreter misinterpreted this as "After she is married to her husband she is Christian now" (at 17.40).
   • At 17:45 DC asked "what kind of Christian?"
   • At 17:51 the applicant responded "what kind of? She only told me that she goes to church, Protestant Christian".
   • The interpreter misinterpreted this as "she just told me that she belongs to Christianity, she goes to church" (at 17:56).
   • At 18:01 DC asked if she was a Catholic.
   • At 18:07 the applicant said "No it is because she, in the past, at our home, when our mum was taking care of us, we were Catholics. And then, she moved to her husband's home, she followed what her husband believed."
   • At 18.19 this was misinterpreted as "Um, we, under the care with my mother, um, our mother, she was a Catholic. But after she married with the man, then she got to her husband's house, um she is converted to be a Christian."
   • At 18:35 DC asked "I asked you. The question I asked you , are Catholic Christians?"
   • This was misinterpreted as "The question I asked you was if Catholic Christians are Protestant Christians?"
   • At 18:49 DC asked "her sister was always a Christian if she was a Catholic?"
   • This was misinterpreted at 18:52 as "If she was always, eh, if she was in the past a Catholic is it not the case that she was not always been a Protestant Christian?"
   • At 19:00 the applicant said "She is a Protestant Christian. It is because I did not hear the question clearly just now, I apologise".
   • At 19:01 this was misinterpreted as "She is a Christian. I did not actually get to your question sorry about that.".
   • At 19:08 DC said "Well you said after she married, she became a Christian."
   • This was misinterpreted at 19:10 as "You said after she was married, she changed to become a Protestant Christian."
   • At 19:25 DC said 'That suggesting that Catholics aren't Christians."
   • This was misinterpreted at 19:30 as "Hm, so it really hinted to me that Catholic Christian religion is not Protestant Christian religion."
   • At 19:33 the applicant said "No, no, no sorry. Mistake sorry. This is a mistake. It's because what I meant was to say Catholic Christian faith is the same as Protestant Christian faith we are the same Jesus followers..."
   • This was misinterpreted at 19:52 as "Oh no that is wrong. And, eh I think the Catholics are the same, was the Christian, and they all belong to Christianity..."
   • At 20:17 DC asked "What, when you talked about Catholic and Christian, what is the difference."
   • This was misinterpreted at 20:21 as "When you talk about Catholic Christian faith and Protestant Christian faith, what is the difference?"
   • At 20:29, the applicant said, "My definition is Catholic Christian faith is Catholic Christian faith, Protestant Christian faith is Protestant Christian faith...".
   • This was misinterpreted as "My definition is Catholicism is Catholicism, Christianity is Christianity..."

Section 425(1) of the Act/failure to afford procedural fairness

1. The applicant claimed that the interpretation errors resulted in failure to afford procedural fairness and/or a breach of s.425(1) of the Act.
2. Section 425(1) of the Act at the relevant time provided that:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

1. Where a claimed jurisdictional error relies on the Tribunal's failure to meet its statutory duty pursuant to s 425 of the Act, an applicant must demonstrate an absence of a meaningful invitation to appear before the Tribunal, in the sense of not being afforded a real chance to present the case: Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (Li) at [61].
2. Circumstances where obligations under s 425 of the Act have been breached were discussed in Minister for Immigration and Multicultural Affairs and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37]:

It is also clear that s 425 of the Act imposes an objective requirement on the tribunal. The statutory obligation upon the tribunal to provide a "real and meaningful" invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140; BC200300681. They also include circumstances where the statements made by the tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804; BC200203400. They also include circumstances where the fact or event resulting in unfairness was not realised by the tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; BC200204868 ; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.

1. His Honour Justice Goldberg said in Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 (Mazhar) at [31]:

The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s 425(1).

1. Edelman J in BZAID v Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310 (BZAID), at [50] to [54], set out the principles in cases where there is a claim that interpretation mistakes have resulted in jurisdictional error:

[50] In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [29], Kenny J said of an earlier version of s 425 that:

Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.

[51] That statement has been described as the "seminal" statement in this area and has been applied to s 425 in its current form: SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [29] (Jacobson J).

[52] The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, "Working with Interpreters: Judicial Perspectives" (2015) 24 JJA 207. The relevant principles are summarised below:

(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.

[53] The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (at [9]):

The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

[54] In some circumstances it might be the case that a process is procedurally unfair even if a conclusion cannot be reached that the irregularity might reasonably have led to an adverse finding. One reason for this is that the reviewing body, and the appellate court, does not have the benefit of all of the advantages of the Tribunal which sees and hears the witnesses and considers that evidence in the context of the whole record, usually with less time constraints. Those disadvantages of the review or appellate court could require a finding of procedural unfairness in some circumstances even if the reviewing or appellate court is unable to conclude that the irregularity might reasonably have led to an adverse finding. It is not necessary to consider that issue further in this case because, as I explain below, I consider that the irregularities in this case, when viewed as a whole, might reasonably have led to an adverse finding.

1. In BBB16 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1288 (BBB16) the applicants claimed jurisdictional error based on misunderstanding and confusion during interpretation of the applicant's evidence on the first day of hearing, which was used by the Tribunal to rely on inconsistencies. On the second day of hearing, a different interpreter was used. The Court found that the interpreter on the first day had been defective and incompetent such that the applicant was impeded from giving evidence (Judge Taglieri at [49]).

1. The question for the Court is whether the interpretation was so incompetent that the applicant was effectively prevented from giving her evidence: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 (Perera) per Kenny J at [39], or as said in Mazhar at [31] the interpretation is such that the applicant is unable adequately to give evidence and present arguments to the tribunal. The first respondent submitted that although there were errors, the errors did not meet this threshold.
2. In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 (SZRMQ) at [5], Allsop CJ said that whether inadequate translation is unfair depends ultimately on the particular circumstances. His Honour commented at [7] that 'fairness is normative, evaluative, context specific and relative. As such its assessment is sometimes imprecise in articulation and open to debate'. Allsop CJ observed at [9] that it will be a matter of evaluation as to whether a hearing is fair, by reference to the issues, the nature of the evidence, the character and frequency of proven errors and other factors relevant to the communication. His Honour accepted the statement of principle of Lee J in Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555 at [26] that the interpretation be of a sufficient standard to ensure that justice is done.
3. I have considered whether the interpretation was so incompetent that the applicant was effectively prevented from giving her evidence and whether the interpretation led to unfairness in the manner described in SZRMQ, with reference to the general principles for assessing whether the error led to unfairness in BZAID at [50] to [53].
4. Firstly, reference is made at BZAID [50] to [51] to the seminal statement in Perera that interpretation need not be 'first-flight'. The applicant raised concerns about the interpreter at the Tribunal hearing (51:36 and 51: 58 of the transcript). The Tribunal Member appeared to be satisfied with the standard of interpretation (52:51 and 53:01 of the transcript) so it is important for this Court not to be over zealous. In assessing the errors I have been alert to not over-scrutinise the interpretation, but rather, as stated in Perera, to evaluate whether the interpretation expresses in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language, rather than a perfect interpretation (BZAID at [50]-[52] citing Perera at [29]).
5. The Perera principle is more suitable to inaccurate interpretation, rather than where an interpreter has omitted to interpret evidence, as in this case. The omission effectively prevented the applicant from giving evidence about the content of that statement - that her father was a preacher. In respect of the set of denomination errors, which resulted from inaccurate interpretation, the errors had a cumulative effect of portraying the applicant as confused about the differences between Christian denominations. I am satisfied that the interpretation did not express accurately in one language the ideas and concepts expressed by the applicant.
6. Secondly, whether the hearing was fair is an evaluative exercise dependent on all the circumstances (BZAID at [52]). The Tribunal Member was unaware of the preacher error and the denomination errors and made findings based on evidence which did not reflect what the applicant had said about some key issues. A reading of the transcript indicates that the applicant was unable to present her evidence adequately. By reason of the poor interpretation, the applicant was prevented from telling the Tribunal about her father being a preacher which was a key aspect of her evidence, and she was prevented from clearly recounting evidence about her sister's denomination and showing the Tribunal that she knew the differences in denominations of Christianity. The interpreter did not adequately convey 'the substance of what is said' or 'the essential elements that were being conveyed by the appellant' (BZAID at [52]).
7. Thirdly, at BZAID at [52] the court suggested that where there are frequent or continuous errors, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness. In this case, I have not had the benefit of viewing a translation of the full transcript. The transcript provided was of extracts only so there is no evidence before the Court of a pattern of errors or even intermittent errors throughout the Tribunal hearing. In this case, there was the category of error discussed at BZAID [51] and (SZRMQ at [10]), where the error leads to an adverse finding, such that the lack of fairness is self-evident. The preacher error impacted negatively on the Tribunal's findings in that the Tribunal found that the applicant changed evidence about her father being a preacher (which was not true). The denomination errors had some negative effect on the Tribunal findings, although not of as significant importance as the preacher error, in that the Tribunal made findings about the applicant's views on Christianity which did not reflect what the applicant said and may have infected the Tribunal's findings about her credibility generally. The impact of the errors is discussed later in this judgment.
8. Fourthly, at BZAID [50] to [54], reference was made to the principle that it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation 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 (at BZAID [52]). In this case, there is a causal link between the omission of evidence about the preacher and the adverse finding that the applicant was prepared to change evidence when its shortcomings were drawn to her attention. It was submitted by the solicitor for the first respondent at the hearing before me that the statement by the Tribunal about changing evidence referred to the omission of evidence about the preacher only (Tp 11.38-39). I do not accept this. The Tribunal referred to the omission of evidence about the preacher as an example of a concern about her evidence. The Tribunal said, 'demonstrates a willingness to change her evidence when its shortcomings are drawn to her attention', inferring generality ([59] of the TD). The Tribunal again referred to changing evidence at [65] of the Tribunal Decision, indicating that the Tribunal was of the view that the applicant changed evidence generally.
9. I have considered the submissions of the solicitors for the first respondent in post-hearing submissions that the statement at [59] was 'correct' in that when asked about religious activities (emphasis added) of her parents, the applicant did not mention that her father was a preacher: '..when it asked the applicant at the hearing about her parents' religious activities she did not mention in her oral evidence that her father was a preacher until the Tribunal raised her omission' (TD at [59]). The first respondent is implying that the fact that the applicant spoke about her father as a preacher earlier in the evidence, rather than when asked about her parents' religious activities, was irrelevant to the Tribunal's finding at [59] of the Tribunal Decision as the Tribunal was referring to the question about religious activities only.
10. The first respondent's submissions on this point have little force. The questions and answers about the applicant's parents' employment were at 15:20 to 17:16 of the transcript. The applicant mentions that her father was a preacher at 17:07, which is early on in the Tribunal hearing. I do not have the full transcript before me to be able to see what questions were asked about the parents' religious practice, but I accept that the applicant may not have mentioned that her father was a preacher when asked how her parents practised their religion. However, what is of significance here is that if the Tribunal Member knew that the applicant had already said that her father was a preacher at the point in time when she started questioning the applicant about her parents' religious activities, the Tribunal Member may have framed the questions in a different way, for example, 'you said that your father was a preacher, what did that entail?' The Tribunal Member asked questions after 17:07 on a false premise, believing that until that point, the applicant had not mentioned that her father was a preacher. If the Tribunal had already heard shortly before questioning the applicant about her parents' religious activities that her father was a preacher, it would have made no sense for the Tribunal to say at [59] that the applicant had not mentioned in her oral evidence when asked about religious activities that her father was a preacher. Furthermore, it would not have been reasonable to conclude that the omission about the evidence of him being a preacher demonstrated her willingness to change her evidence when its shortcomings were drawn to her attention. It is of no significance to the issues in this case, that technically it was correct for the Tribunal to state that when questioned about her parents' religious activities, the applicant did not mention that her father was a preacher. A Tribunal Decision must be evaluated in totality.
11. In summary, the preacher error meant that the interpreter did not express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language. The applicant was effectively prevented from giving her evidence. (Perera at [29] and [39]).
12. The denomination errors occurred because the interpreter continuously confused the words 'Christian', 'Protestant' and 'Catholic'. As extracted earlier in this judgment, at various times the interpreter incorrectly interpreted 'Christianity' when the applicant had said 'Protestant'. On another occasion when the Tribunal Member asked, '... , are Catholic Christians?', the interpreter interpreted this as 'the question I asked you was if Catholic Christians are Protestant Christians'. The interpreter on another occasion interpreted 'Christian' as 'Protestant Catholic'.
13. These continual and repetitive misinterpretations led to confusion to both the applicant and the Tribunal Member. There are two and a half pages of transcript (17:38 to 21:23) where the Tribunal Member asks about the applicant's sister's religion and appears to be confused by the applicant's answers (which have been interpreted incorrectly). This starts from the first question and answer on this issue, at 17:36:

At 17:36 DC asked what religion her sister had.

At 17: 38 the applicant responded "After she was married to her husband, she believed in Protestant Christianity".

The interpreter misinterpreted this as "After she is married to her husband she is Christian now" (at 17.40).

1. At [17] of the Tribunal Decision, the Tribunal stated that the applicant said that her sister was a Catholic, until she married and then became a Christian. This is factually incorrect. The applicant did not say this, she said that her sister was a Catholic until she married and then became a Protestant (17:38 of the transcript). A further error is at 17:40 of the transcript, when the interpreter interpreted the applicant's evidence as 'after she is married to her husband she is Christian now'. This was not what the applicant said. Further, at 17:49 when the Tribunal asked her what kind of Christian, the applicant answered that her sister went to a Protestant Church but the interpreter answered, 'she belongs to Christianity, she goes to church'. Clearly, the Tribunal believed that the applicant did not understand the differences between Catholicism and Protestantism, because of these kinds of errors. These errors may have led the Tribunal to say at [17] of the Tribunal Decision, that 'she appeared to have some difficulty explaining the difference'.
2. The Tribunal Member also fell victim to incorrect interpreting. When the Member asked, 'her sister was always a Christian if she was in past a Catholic?' (18:49), the interpreter interpreted this as 'if she was always eh, if she was in the past a Catholic, is it not the case that she was not always been a Protestant Christian'. And so it continued. At 20:17, the Tribunal Member asked, 'when you talked about Catholic and Christian, what is the difference?' The interpreter at 20:21 interpreted this as 'when you talk about Catholic Christian faith and Protestant Christian faith what is the difference?' It is no wonder that the Tribunal Member at [17] said, referring to the applicant, that 'she appeared to have some difficulty explaining the difference' between Protestantism and Catholicism. The answers given by the applicant were not the answers the Tribunal Member heard. The questions asked were not the questions asked by the Tribunal Member.
3. In respect of the denomination errors, the first respondent submitted that that there was no error as a result of issues with translation of 'Protestant' and 'Christian' as revealed in the transcript as the Tribunal made no adverse findings in relation to the applicant as a result of this, nor is there any indication from the Tribunal's reasons that it informed the Tribunal's adverse credibility findings ([10] of the first respondent's post hearing submissions). The first respondent submitted in relation to the denomination error that ([10] of the first respondent's post hearing submissions):

A submission was also made orally by the Minister on 20 August 2025 that the transcript of the Tribunal hearing on 8 April 2019 found at annexure C of the affidavit of the applicant affirmed on 5 March 2019, at 20:58 was not recorded correctly as it was recorded differently in the Tribunal decision at [17]. The line at 20:58 in the transcript was '[s]he's Catholic and now she is Christian. That is what she says. What is the difference?'. At [17] of the Tribunal decision, the Tribunal recorded that it had asked the applicant about the difference between Catholics and Protestant Christians (as opposed to Catholics and Christians) and the applicant appeared to have some difficulty explaining the difference. The Minister withdraws that submission and accepts that what was recorded in the transcript at 20:58 was an accurate transcription of the question asked by the Member. However, as submitted at the hearing, the Minister submits that there is no error as a result of issues with translation of 'Protestant' and 'Christian' as revealed in the transcript as the Tribunal made no adverse findings in relation to the applicant as a result of this, nor is there any indication from the Tribunal's reasons that it informed the Tribunal's adverse credibility findings.

1. At [50] to [54] of BZAID reference was made by the Court to the principle that 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 (at [52] of BZAID). In this case, the repeated errors might reasonably have led to an adverse credibility finding in relation to her understanding of Christianity, which was an issue central to the applicant's claims. The errors directly led to the applicant appearing to not have an understanding the differences between Catholicism and Protestantism and generally confusing the notions of Christianity, Catholicism and Protestantism. There is no doubt that this could have impacted on the Tribunal finding that she was not a genuine adherent of the Christian faith. This is illustrated by the fact that the Tribunal commented on the fact that she had difficulty understanding the differences (at [17] of the TD).
2. Considering the factors outlined above, the Court is satisfied that the interpretation was so incompetent that the applicant was effectively prevented from giving her evidence.

The materiality of the incompetent interpretation.

1. For the Tribunal to have fallen into jurisdictional error through use of the incompetent interpretation, the misinterpretation must be material, in the sense that it contaminated or infected the conclusion: DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 (DTN16) at [60]. If the errors did so contaminate, then the question is whether the decision that was in fact made could realistically have been different had the errors not been made: LPDT at [7] and [14]. A realistic possibility of a different outcome is one that is not fanciful or improbable: LPDT [14].
2. The threshold for materiality is not demanding or onerous: LPDT at [14].
3. The first respondent submitted that the omission in interpretation of the statement that the applicant's father was a priest could not have made any difference to the Tribunal Decision. The basis for this submission was that the Tribunal held concerns about the applicant's credibility for 'separate and independent' reasons ([5] - [7] of the first respondent's post hearing submissions). It was contended that the Tribunal did not dispute the applicant's religion ([58] of the Tribunal Decision). However, the Tribunal rejected the applicant's claim to be a practising Catholic and had serious concerns regarding the applicant's evidence based on lack of detail ([58], [60], [65], [66] and inconsistencies ([59], [61], [62] and [64]). The particular 'independent and separate' reasons specified by the first respondent were as follows ([7] of the first respondent's post hearing submissions):

(a) the applicant's oral evidence on her Catholic practice in China suggested that she was not a genuine practising Catholic in China and her inability to give to the Tribunal an estimate of the size of the congregation casted doubt on her involvement in China in any underground Catholic gatherings or Mass (at [58]);

(b) the applicant's evidence regarding her parents' arrests and detention was lacking persuasive detail. Further, the applicant had variously claimed that the first arrest was for going to an illegal gathering and holding an illegal gathering which casted doubt on her claim that her parents were arrested and detained in 2006 (at [60]);

(c) the applicant had been in Australia since May 2008 and did not apply for protection until June 2015, over 8 years after first arriving. Further, the applicant was in Australia unlawfully for four years before applying for a protection visa and admitted that she was worried she would not meet the requirements for the grant of the visa. This indicated that she was not genuinely fearful of returning to China and she was merely avoiding contact with Australia authorities because she wished to remain here (at [61]);

(d) the Tribunal was of the view that the applicant had been attending St Dominic's and was baptised and married in the Catholic faith solely for the purpose of strengthening her claims and was not satisfied that the applicant was a genuine adherent of the Catholic faith (at [62]); and

(e) the Tribunal formed the view that the applicant fabricated a response in relation to a question regarding her brother being arrested and detained and this, coupled with other instances where the Tribunal found that the applicant had fabricated responses to overcome problems with her evidence meant that the Tribunal could not rely on the applicant's evidence on the issue, and it did not accept that the applicant's brother was arrested and detained for protesting against the demolition of the church (at [65]).

1. The first respondent also contended that the Tribunal noted at [64] that the applicant claimed that she feared returning to China because she would not be able to preach the gospel and practice her religion however, the Tribunal did not accept that she was a genuine adherent and that she would preach the gospel. The Minister submitted that the impugned findings at [59] were not critical to the decision ([8] of the first respondent's post hearing submissions). The first respondent submitted that 'even if an aspect of reasoning or a particular factual finding is shown to be irrational or illogical, jurisdictional error will not be established if that reasoning or finding of fact was immaterial or not critical to the ultimate conclusion or end result' ([2] of the first respondent's post hearing submissions)
2. The first respondent submitted that considerable caution must be exercised before readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (SZUXN) per Wigney J at [56].
3. The first respondent's submissions are considered below. In sum, I reject the submissions for the following reasons. First, the misinterpretation was critical to the findings. Second, the misinterpretation infected the findings of credibility. The Court is persuaded that the decision that was in fact made could realistically have been different had the error not been made: LPDT [7] and [14].
4. The first respondent referred to SZUXN per Wigney J at [55] as authority for the proposition that where the impugned finding is but one of a number of findings that may have independently led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out. In SZUXN, the Court found that the trial judge erred in finding that a decision of the Refugee Review Tribunal was vitiated by jurisdictional error by reasons of its findings concerning a biodata interview (SZUXN at [72]). The Court found that the Tribunal's findings were based on inconsistencies not related to the biodata interview and failure to refer to significant aspects of his claims at the earliest opportunity (SZUXN at [66]). The Court found that the other five findings did not hinge on the findings concerning the biodata interview and were not critical to the Tribunal's findings (SZUXN at [71]).
5. Wigney J in SZUXN in turn cited SZRLQ v Minister for Immigration and Citizenship (2013) FCA 566 (SZRLQ) at [66]. In SZRLQ, at [66] Yates J found that the Tribunal statement that the applicant should have considered the link between poverty and family size, was 'but one matter, amongst a number of other matters, that led the second respondent to question generally the completeness and reliability of the appellant's evidence.'
6. In CRU18 v Minister for Home Affairs [2020] FCAFC 129; (2020) 277 FCR 493 at [35] - [36] per Wigney, Jackson and Snaden JJ, the Court referred to observations which had been the subject of 'full court endorsement', including that where the impugned finding is but one of a number of findings that independently have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out. The Court found that an error of fact (that the applicant first raised an issue about his father's involvement with Kurdish freedom fighters when in fact he had raised it earlier) did not factor into the Tribunal's conclusion that the applicant did not have a political profile sufficient to place him at risk of persecution. This was because the Tribunal in fact accepted that his father was associated with Kurdish fighters.
7. I acknowledge on the basis of these authorities that where a number of findings on credit have been separately expressed and explained, as has been done in the Tribunal Decision, it may be possible to find that a finding based on misinterpretation could be excised from other findings. In SZRLQ, findings of credit were made by the Tribunal Member on the basis of insufficient evidence such that it was clear that the finding about the consideration of poverty and family size did not compromise the other findings. In SZUXN there were five other separate findings, and the biodata finding was not critical (SZUXN at [71]). In CRU18, the findings were not impacted by an error of fact. However, the situation is different in the matter before the Court where the errors are critical to the findings and the errors led to the credit being impugned such that it would infect all other findings.
8. In BAU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1169 at [22], Bromberg J said

Where numerous findings about credit are made, it is possible that an erroneous finding going to credit will not compromise other findings as to a person's credit made independently thereof: AIC15 v Minister for Immigration and Border Protection [2018] FCA 774 at [9] - [13]. However, the findings here in question were credit findings made in the context of the error made by the IAA in the first sentence of [17] which led to the appellant's credit being wrongly impugned and the possibility of their contamination is not able to be excluded by circumstances which would support their separation from and independence of the impugned credit finding. If these findings are contaminated by the error made in the first sentence of [17] they cannot be regarded as providing an independent and unrelated basis for the IAA's ultimate conclusion about the appellant's credit. In my view, the real possibility that these later findings were not contaminated by the earlier expressed adverse concern about the appellant's credit cannot be excluded and the error in question was not immaterial to the outcome of the review.

1. In CBL19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 112 Judge Papadopoulos at [61] found that the interpreter error was critical to the findings. The interpreter in that case did not adequately interpret the applicant's oral evidence at the Tribunal hearing regarding the identity of persons who took photographs at a satellite centre. Judge Papadopoulos found at [63]:

In the circumstances of this case, this error in interpretation was critical. The error derailed the Tribunal's understanding of the applicant's evidence in relation to the identity of who had taken the sensitive photographs which, when disseminated, gave rise to the manner in which the applicant and his family were targeted by the authorities and subjected to the claimed forms of persecution. In my view, the error related to a matter of significance to the applicant's claims and there was a sufficient connection between the inadequate translation and the Tribunal's decision (citations omitted).

1. Similarly, in this case, I am satisfied that the interpreter errors were critical to the Tribunal findings. The structure of the Tribunal Decision is important, because the preacher issue is dealt with early in the decision and clearly impacts significantly on the assessment of credibility. The relevant paragraphs of the Tribunal Decision in respect of the preacher error and reasons for the finding that the errors were critical are referred to below:
   • At [4] - [13] of the Tribunal Decision, the Tribunal referred to the applicant's evidence to the Department. At [4] of the Tribunal Decision, the Tribunal referred to the applicant's evidence in her application to the Department that she left China because her parents were caught and arrested by the Chinese authorities and she was ridiculed, verbally and physically abused by her neighbours and fellow students. The Tribunal also recorded that she had said that her parents had tried unsuccessfully to relocate.
   • At [5] of the Tribunal Decision, the Tribunal referred to the applicant's written statement to the Department, in which she said that her parents were arrested due to family planning as they were Catholics and did not 'promote' contraception. The Tribunal recorded that she said in the statement that her father was persecuted because he was a preacher. She said in the statement that when she was young her parents were arrested for distributing pamphlets to spread the good news. She again claimed that she was discriminated against, ridiculed, and abused because of her family's religion. She said her parents moved a few times but it was 'useless'.
   • At [9] of the Tribunal Decision, reference is made to the applicant's interview with a delegate of the Department in which the applicant said that her parents went to the Catholic Church, which they called the 'love church'. It was recorded that she spoke of their arrest twice in 2006, once for handing out pamphlets.
   • At [10] of the Tribunal Decision, the Tribunal recorded that the applicant told the Department that her father was occasionally arrested and was persecuted from time to time because he was a preacher.
   • At [14] - [41] of the Tribunal Decision, the Tribunal referred to evidence before the Tribunal.
   • At [17] of the Tribunal Decision, the Tribunal refers to the applicant's evidence at the Tribunal hearing about her family. The Tribunal records information she provided about their residence and her siblings' job and location. The Tribunal records 'her father works on a construction site. She does not know what he does on the construction site. Her mother has not worked for a long time.' When the applicant was asked about her father's job by the Tribunal at hearing, she also mentioned that he was a preacher (17:07 of the transcript). This evidence was not recorded.
   • At [20] of the Tribunal Decision, the Tribunal recorded that the applicant was asked to describe her parents' religious practice. It recorded that she said that her parents had been practising Catholics since she could remember and that they attended Mass and gatherings weekly. She again said that her parents had been arrested twice in 2006.
   • At [21] of the Tribunal Decision the Tribunal said:

The Tribunal noted that in the applicant's claims to the Department she indicated that her parents had been harmed at other times and that her father was persecuted because he was a preacher in the church. It asked her why she had not mentioned her father's preaching in her evidence to the Tribunal about her father's religious practice. She indicated she thought the Tribunal was asking about her religious activities. The Tribunal asked her why she had not mentioned her father's activity of preaching. She indicated that her father was a preacher and was passing out pamphlets while he was preaching...

• From [55]-[74] of the Tribunal Decision, the Tribunal considered the evidence under a heading, 'Do the applicants have a well-founded fear of persecution?'. This was the part of the Tribunal Decision where substantive findings were made.
• At [55] of the Tribunal Decision, the Tribunal noted that the applicant did not claim that she would be harmed because of her parents' arrest due to family planning issues. The Tribunal found that the applicant would not suffer harm for this reason.
• At [56] of the Tribunal Decision, the Tribunal summarised the applicant's claims and evidence about Catholicism, including that her parents came to the attention of the authorities because of their Catholic religion. The Tribunal states 'she claims her father was persecuted because he was a preacher in the church'. The Tribunal refers to the claims of arrest and detention in 2006.
• In the paragraph following this discussion of the claims, the Tribunal states (at [57] of the Tribunal Decision):

For the following reasons, the Tribunal has serious concerns about the applicant's credibility and the reliability of her evidence.

• As [57] immediately follows [56] of the Tribunal Decision, where the Tribunal outlines the applicant's evidence about her family and other matters, it can be taken that the Tribunal has serious concerns about the reliability of the evidence mentioned in [56].
• In [58] of the Tribunal Decision, the Tribunal refers to the applicant's evidence that she spent most of the time playing with her siblings when her parents were practising and did not know the size of the congregation. The Tribunal concluded that this suggested she was not a practising Catholic.
• At [59] of its Decision the Tribunal states:

The Tribunal has considered the applicant's claims that her father was harmed because he was a preacher in the church. However it notes that when it asked the applicant at the hearing about her parents' religious activities she did not mention in her oral evidence that her father was a preacher until the Tribunal raised her omission. The Tribunal considers her explanation, that her father was a preacher and was passing out pamphlets while he was preaching, demonstrates her willingness to change her evidence when its shortcomings are drawn to her attention.

• This paragraph must be read in the context of the heading under which it appeared 'Do the applicants have a well-founded fear of persecution?' and [57] where the Tribunal states 'for the following reasons the Tribunal has serious concerns about the applicant's credibility and the reliability of her evidence'. Clearly it was at the forefront of the Tribunal's mind that the applicant was not credible and her evidence was unreliable, as she was willing to change evidence, and the reason for this was that she had not mentioned spontaneously that her father was a preacher when asked about religious activities, but only mentioned it when shortcomings in her evidence were raised with her. The Tribunal's finding, unbeknownst to the Tribunal, was wrong. She did not change evidence, rather the interpreter had failed to interpret her evidence. This important finding about her credibility, that she was willing to change her evidence when its shortcomings were drawn to her attention, was based on a false premise.
• I have found earlier in this judgment that it is immaterial that the Tribunal stated that she did not mention that her father was a preacher when asked about her parents' religious activities. As discussed earlier, if the Tribunal had known that earlier in her evidence she had stated that her father was a preacher, then it would not have been of interest to the Tribunal that she had not mentioned this in the context of her parents' religious activities.
• At [65] of its Decision the Tribunal said:

..taking into account other instances where the Tribunal has found the applicant has fabricated responses to overcome problems with her evidence the Tribunal has serious concerns as to whether the applicant is a witness of truth ...

....

• The comments at [65] of the Tribunal Decision, clearly demonstrate that the preacher error infected the mind of the Tribunal Member. As she believed that the applicant had fabricated evidence on that occasion to overcome 'shortcoming', this caused the Tribunal to reflect that the applicant fabricated responses to 'overcome problems' in her evidence generally.
• At [68] of the Tribunal Decision, the Tribunal concluded that it was not satisfied that the applicant's family suffered harm in China or that she would participate in religious activity in China.

1. In short, due to interpreter error, the Tribunal Member did not know that the applicant had said at the Tribunal hearing that her father was a preacher. This led to a Tribunal finding that the applicant was willing to change her evidence when its shortcomings were drawn to her attention, a finding that was key to finding that her evidence was unreliable and she was not a credible witness. The error was critical to the Tribunal's findings.
2. I have considered the arguments of the first respondent that the Tribunal's findings on credibility were made for 'separate and independent' reasons and therefore the error made no difference to the Tribunal findings.
3. The first respondent argued that one of these 'separate and independent' reasons was the applicant's oral evidence about her practice in China (the Tribunal did not accept that she was a genuine practising Catholic as she was a child playing and could not recall the size of the congregation). Another reason for the Tribunal finding that she was not a genuine adherent, was that the evidence about her parents' arrest lacked persuasive detail and there was an inconsistency between evidence that they held or went to an illegal gathering. A third reason was the delay in applying for protection. A fourth was a finding that she attended church in Australia to bolster her refugee claim. Finally, there was a finding that she fabricated evidence in relation to her brother's arrest ([7] of the first respondent's post hearing submissions).
4. I am satisfied that the preacher error was serious, that the Tribunal made credibility findings based on this error, and that the credibility finding based on the interpreter errors were connected to the other findings. This is explained below.
5. At [59] of the Tribunal Decision, the Tribunal found that the applicant had a willingness to change evidence when its shortcomings were drawn to her attention. The Tribunal provided one example, that when asked at the hearing about her parents' religious activities, the applicant did not say that her father was a preacher but when asked by the Tribunal about this omission later, she said that he was a preacher and passed out pamphlets.
6. If the preacher error had not been made, it can be surmised that the Tribunal would not have believed that the applicant changed her evidence in the way described, as the preacher example was the only example provided in that paragraph, early in the Tribunal Decision to demonstrate the applicant's willingness to change evidence. It follows that the Tribunal would not have made the findings in [59] that the omission of evidence about the preacher demonstrated her willingness to change her evidence when its shortcomings were drawn to her attention, or in [65] that she fabricated evidence when 'problems' were demonstrated.
7. Kirby J observed in NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at [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.

1. The Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [79] that 'an assessment of credibility is not necessarily linear'. Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [4], 'Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.'
2. It is a significant adverse finding that a person changes evidence when shortcomings in that evidence are drawn to an applicant's attention. It suggests that the Tribunal Member believed that the applicant's evidence was opportunistic, rather than truthful. I am satisfied that it is likely that such a significant adverse conclusion infected the Tribunal's approach to the applicant's evidence generally. The Tribunal's view that the applicant was not a credible witness may have infected the Tribunal findings about how she practised in China, her parents' arrest, her practice in Australia and the reasons given for the delay in applying for protection. In respect of the findings in relation to her parents and practice in China, as well as her practice in Australia, the preacher error may have had serious impact. If the Tribunal knew that the applicant had referred to her father being a preacher early in the hearing as in fact was the case, the course of the Tribunal hearing may have been very different as the Tribunal may have questioned the applicant about his activities and about how this impacted on their practice in China and the harm suffered by them. The state of disbelief which resulted from the preacher error would not have arisen such that the Tribunal may well have reached different conclusions about their practice in China and the applicant's practice in Australia.
3. I am satisfied that even though the Tribunal articulated each reason for doubting the applicant's credibility separately, the reasons themselves were not independent and separate as the interpretation errors cross-contaminated the findings in the manner discussed in DTN16 at [56]. Similarly, in BBB16 at [64], the Court noted that 'it is plain from the totality of the Tribunal's reasons that it had serious doubts about the veracity of the first applicant's claims relating to political activity/beliefs before and after he left Fiji because of statements he made previously to the delegate and the MRD, it still relied in part on what it described as inconsistencies, confusion and incoherence in evidence given on the first and second day of hearing to reach its ultimate conclusion that the first applicant was not credible about his political claims and only had a low political profile.'
4. There were also specific examples of how the contaminated finding impacted on other findings. At [65] of the Tribunal Decision, the Tribunal said 'taking into account other instances where the Tribunal has found the applicant has fabricated answers to overcome problems with her evidence, the Tribunal has serious concerns as to whether the applicant is a witness of truth'.
5. I am satisfied that the denomination errors compounded the way in which the preacher error infected the findings. I am satisfied that the evidence of the applicant about Christian denominations which appeared confused based on incorrect interpretation, alongside the omission of the evidence of the preacher which led to a finding that the applicant was changing her evidence opportunistically, could reasonably be assumed to have infected the findings on credibility.
6. The Tribunal concluded that the applicant was not a genuine adherent of Christianity and that her evidence was not reliable. It found that she had practised in Australia for reasons of bolstering her refugee claim. On this basis the Tribunal was not satisfied that the applicant had a well-founded fear of persecution if she were to return to China or that she met the complementary protection criterion. There exists a realistic possibility that the outcome of the decision could have been different had the interpreter errors not been made and different credibility findings were made: LPDT at [16]. The Tribunal's jurisdictional error was material because the adverse credibility finding contaminated or infected the conclusion. DTN16 and BAU18 at [22].
7. The applicant has demonstrated an absence of a meaningful invitation to appear before the Tribunal, in the sense of not being afforded a real chance to present her case: Li at [61]. As a consequence of the interpreter errors, the Tribunal breached its obligations pursuant to s 425 of the Act. Accordingly jurisdictional error is established.

1. As the applicant succeeds on Ground 1 of the application, that relieves the Court of the need to address the other grounds. However, as it was raised by the applicant at hearing, I address it as follows.
2. The second ground in the application was:

The Applicants were not afforded procedural fairness and/or there was a breach of s.425(1) of the Migration Act 1958 (Cth) arising from comments made by the interpreter assisting the Applicants before the Tribunal.

Particulars

(a) During the hearing, the First Applicant queried the interpreter's translation (T 51:58). The interpreter said, in English, 'Because she said, very in rude way' (T 52:12), implying that the First Applicant had been rude to the interpreter. The Tribunal member then said 'Just tell me what she said ...' (T 52:15). The interpreter responded 'You interpreter, there is a difference between "over two months" and "more than two months". But in my interpretation, I clearly remembered firstly I said "almost two months", and then changed to "more than two months". This is not the first time she changed...' (T 52:18).

(b) At [59] of the Decision, the Tribunal found that the Applicant exhibited a '... willingness to change her evidence when its shortcomings are drawn to her attention.'

(c) The comments made by the interpreter either did affect, or could have affected, the quality of the hearing or the Tribunal's findings and reasons.

1. At the hearing before me, the applicant submitted that the interpreter had made subjective comments at the Tribunal hearing including that the applicant had changed her evidence and that the applicant was rude. She contended that this was the interpreter's own judgment and could have affected the Tribunal Member's attitude towards the applicant. She contended that at [59] of the Tribunal Decision when the Tribunal found that the applicant was willing to change evidence, the interpreter's comment had 'greatly affected' the Tribunal's judgment (Tp 6.36-47).
2. The applicant referred to 52:18 of the transcript where it is said by the interpreter to the Tribunal Member:

There's a difference between 'over two months' and 'more than two months' but in my interpretation, I clearly remembered, firstly, I said 'almost two months' and then she changed to 'more than two months'. This is not the first time she changed.

1. The applicant contended that this statement was not interpreted to her so she was not given an opportunity to comment on it, and it could have affected the Tribunal's view on her credibility (Tp 8.29-32).
2. The first respondent responded that the Tribunal did not make any adverse finding based on the interpreter's comments as illustrated by the Tribunal Member telling the interpreter that she 'just needed to interpret'. It was submitted that the Tribunal did not engage with the interpreter's comments, as is clear from the comments at 52:33 of the transcript (Tp 11.16-21).
3. Another issue raised at the hearing by the applicant was that she was not provided with an opportunity to comment on statements made by the Tribunal Member at hearing as they were not interpreted. She said that at transcript 52: 51; 53:1 and 53: 15 the Tribunal clearly indicated that the interpreter was a qualified interpreter and had been doing her job for many years. She said that this was not interpreted for her which was not procedurally fair as she could not comment (Tp 8.29-35).
4. The first respondent submitted that the interpreter's comments were not taken into account (52] and [53]. The first respondent submitted that at 53:15 of the transcript the interpreter did interpret the fact that the applicant was qualified (Tp 13.19-23) She submitted that the Tribunal was attempting to address concerns that the applicant had about the interpreter and that there was nothing to indicate bias (Tp 13.38-41).
5. I have not had the benefit of having before me a transcript of the Tribunal hearing in its entirety, but a reading of the extract indicates that the interpreter did make comments which were not appropriate, including 'because she, very in rude way' (at 52:12). However, I accept the submissions of the first respondent that this comment, while not professional, did not influence the Tribunal Member who told the interpreter (at 52:15) 'just tell me what she said'.
6. I also considered that at 52:18 the interpreter commented to the Tribunal Member 'this is not the first time she changed'. While this was a gratuitous comment, I accept the argument of the first respondent that the Tribunal Member did not engage with this comment and in fact remonstrated with the interpreter, saying 'okay you just tell me what she said. That is all you got to do' (52:33 of the transcript). I am not satisfied that this comment had any influence on the Tribunal Member.
7. I have also considered whether jurisdictional error arose through a breach of procedural fairness as the applicant was not provided with an opportunity to respond when the Tribunal Member said 'this interpreter is a qualified interpreter. I know she has been doing this work for years' (at 52:51). The applicant was not provided with an opportunity to comment as there was no interpretation of this statement. I am satisfied that while the statement should have been interpreted, it was not material to any issue, and in any event a version of this statement was interpreted to her (at 53:15).
8. No jurisdictional error arises from Ground Two or the additional matters raised.

1. For the reasons set out above, Ground One establishes jurisdictional error.
2. The application before this court succeeds.
3. I will hear the parties in relation to costs.

I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.