Merits of the proposed appeal
27 Again intending no disrespect, the proposed grounds of appeal (above, [11]) are difficult to comprehend. That difficulty largely survived the oral submissions that the applicant advanced at the hearing.
28 It is convenient to focus first on the first of the two proposed appeal grounds. Despite the court's invitation, the applicant was not able to identify any particular relevant consideration of which he felt that the FCCA had failed to take account. Instead, he sought to rely on what he described as a psychologist's report that he had recently secured. When asked to identify what it was that the court should make of that report, he indicated two things. First, he said that, because of his detention, he had not been able to secure the report prior to the hearing before the FCCA. Second, he indicated that he did not want to make any substantive submissions about the report in a public forum. Although invited to reconsider that position (and despite being told that it might be possible, later, to suppress the details of any such submission), the applicant opted not to elaborate. Instead, he maintained that it should be apparent to the court, upon reviewing the report, that the FCCA had erred in concluding, as it did, that his Judicial Review Application failed to raise an arguable case for the relief that was claimed.
29 Having undertaken to do so, I have read what the applicant provided. Although he described having produced a "psychologist's report", in truth what he produced was (or appeared to be) a series of typed clinical notes relating to consultations that he had with a psychologist and a mental health nurse over the period December 2020 to March 2021. Those notes record representations apparently made by the applicant, including (to a limited extent) about his past and about why it is that he maintains that it is not safe for him to return to India. Broadly, those representations accord with the narrative that he recounted to the AAT and, prior to that, to the Minister's delegate.
30 With due respect to him, that material does not presently assist. There are at least two reasons for saying so. First, all of it post-dates the hearings that took place before the FCCA and the AAT. Neither of those institutions can be thought to have overlooked material that, at the time, did not exist. Second, the material that the applicant produced does not engage with the question presently relevant: namely, whether the FCCA might have erred by concluding that the applicant's Judicial Review Application was nothing more than an invitation to review the Tribunal Decision on its merits and, therefore, failed to raise an arguable case. If anything, the applicant's reliance upon the clinical notes tends to suggest that the FCCA's stated concern was well-founded.
31 Insofar as concerned the second of his two proposed grounds, the applicant referred to the interpretation service that he was afforded during the hearing that took place before the FCCA. He explained that that hearing - which, it might be remembered, was an interlocutory hearing to consider whether his Judicial Review Application should be summarily dismissed for want of an arguable case - was conducted by telephone. A Punjabi interpreter was present on the call but, so the applicant maintained, laboured under some difficulty recounting in English the submissions that he advanced in Punjabi.
32 In its written reasons for dismissing the Judicial Review Application (which, I pause to note, appear on their face to reflect oral reasons that were given ex tempore), the FCCA made the following observations relevant to the standard of interpretation:
8. The Applicant is in detention at the Yongah Hill Detention Centre and has been in detention for over two years. He is appearing by phone, and this hearing is being conducted by Global Team Meets, which is a phone application that has been used since March for all migration matters in my Court. The Applicant has been assisted by an interpreter, notwithstanding that he has a fairly good command of oral English.
9. There had been problems in that he is in a confined space at Yongah Hill, and that he spoke somewhat loudly and excitedly at times. This caused an echo which sometimes hampered the interpreter in understanding what the Applicant had said, and there were a number of occasions where the interpreter had to clarify what it was that the Applicant was conveying to the Court.
10. He told me that he needed a lawyer and that he feared that this application would not go well for him because he was speaking on the phone and he did not have a lawyer. I explained that I was listening to his matter, and that anything he said, I would be taking into consideration. He said to me on two occasions that, as he was making submissions, that he cannot explain on the phone. When I asked him why he could not explain on the phone, he simply replied, because he did not have a lawyer.
11. I made special effort to monitor the situation at all times to ensure that the Court was treating the Applicant fairly. I explained to the Applicant that there is no right to a lawyer, and that if a law firm did not want to represent him, then that was nothing that the Court could do. I should say that apart from the bald assertions made in the emails that the Applicant sent, there was no other material before the Court, such as emails from these firms, explaining why it was that they could not assist him, but that is a peripheral matter.
12. I went ahead with the matter because of the history of it, and the fact that the Applicant is in detention, and the matter simply needs to be heard now. The Applicant was able to give full submissions, and quite forcefully make his point as to why he believes that the AAT was in error.
33 There is no evidence before the court presently that might contextualise the submission that the applicant advanced. Invited to identify any submission that he had made to the FCCA that he was concerned might not have been properly interpreted, the applicant was unable to nominate anything. There might be obvious explanations for that but, regardless, it is very difficult - indeed, impossible - to make any judgment about the standard of interpretation that was provided before the FCCA, or about whether there might be any reason to doubt what the FCCA itself said about it.
34 In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, Kenny J observed (at 18 [24]):
"The right to a hearing is a vain thing if the [applicant for refugee status] is not understood.": Gonzales v Zurbrick (6th Cir 1930) 45 F 2d 934 at 937. In this country, the function of an interpreter in courts and tribunals is to convey in English what has been said in another language (and vice versa). The function of an interpreter in the Tribunal (as in a court) is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication: see Gradidge v Grace Bros Pty Ltd at 425 per Samuels JA. An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end.
35 In SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (Allsop CJ, Flick and Robertson JJ), Allsop CJ observed in obiter (at 215-216 [9]-[10]):
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.
How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant's burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing...It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person's version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?
36 In the absence of some evidence about the degree to which the standard of interpretation before the FCCA might be thought to have been found wanting, the court is unable to make any assessment that that hearing was relevantly unfair or otherwise proceeded in a way that should attract some remedy on appeal.
37 That being so, attention must turn to the applicant's other submissions (that is, the submissions that he made otherwise than about the standard of the interpretation service). The FCCA's power to dismiss the applicant's judicial review application was conditioned upon its satisfaction that the applicant lacked an arguable case for the relief that he claimed. Its decision was discretionary. In order that he might establish that the exercise of that discretion was attended by appellable error, the applicant would need to demonstrate that that exercise miscarried in any one or more of the ways famously essayed by the High Court in House v R (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
38 The applicant did not assert that the FCCA Judgment was founded upon any error of the sort to which the High Court referred. With due respect to him, his proposed appeal grounds are without merit.