DIU19 v Minister for Immigration and Citizenship

On 23 August 2019, the Tribunal by its reasons (TR) affirmed the delegate’s decision. The Tribunal found that Italy was the appropriate country of reference for assessing the protection claims and concluded that the first appellant did not satisfy the refugee criteria under s 36(2)(a) or the complementary protection criteria under s 36(2)(aa) of the Migration Act 1958 (Cth). As a consequence, the remaining appellants did not satisfy the ‘family unit’ criteria under s 36(2)(b) or (c).

The appellants sought judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia (Division 2) on the ground that that there had been such serious interpretation errors made by the interpreter throughout the hearing before the Tribunal that there was a miscarriage of justice.

On 18 July 2023, the primary judge dismissed that application: DIU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 613 (J). The appellants now appeal from that decision on the ground that the primary judge erred in failing to find that the interpretation errors gave rise to jurisdictional error on the part of the Tribunal.

It is for the reasons which follow that the appeal is dismissed.

The application before the Tribunal concerned whether the appellants should be granted protection visas. That inquiry turned upon whether the appellants satisfied any of the alternative criteria for the granting of a protection visa under ss 36(2)(a), (aa), (b) or (c). That is, whether the appellants satisfied the ‘refugee’ criterion, the ‘complementary protection’ criterion or the ‘family unit’ criteria. The Tribunal ultimately found that they did not.

Under the heading ‘Summary of substantive claims’: TR [19]-[34], the Tribunal set out the first appellant’s claims for protection upon which his family members’ applications also relied. The claims as set out by the Tribunal were derived from the first appellant’s statement of claim, his written submissions, his protection interview and, significantly, what he said to the Tribunal at the hearing. In summary, it was said that the first appellant alleged that:

Under the heading ‘Tribunal hearing’, the Tribunal described what was said at the hearing and the questions that were put to the first appellant throughout. In summary:

Under the heading ‘Findings’, the Tribunal made a number of factual findings:

At TR [57] the Tribunal found:

The Tribunal affirmed the decision not to grant the appellants the protection visas, concluding that:

By an amended application dated 22 January 2023, the appellants sought judicial review of the Tribunal’s decision on the following grounds:

A transcript of the Tribunal hearing prepared by Ms Betty Churchill, a qualified Albanian interpreter of 29 years, was placed before the primary judge by way of her affidavit affirmed on 9 January 2023 (Churchill Affidavit). The transcript was prepared based on a recording of the hearing.

Citing instances from the transcript in the Churchill Affidavit, the first appellant, by his affidavit affirmed on 30 January 2023, elaborated on the issues with the interpretation at the hearing. In summary:

The first appellant contended before the primary judge, that had he been aware of the interpretation errors at the time, he would have requested an adjournment and the appointment of a different interpreter.

The crux of the appellants’ submissions before the primary judge was that the volume and nature of the interpretation errors rendered the Tribunal hearing procedurally unfair.

The Minister, whilst conceding before the primary judge that there may have been examples of misunderstanding, non sequiturs and other infelicities in the interpretation provided at the Tribunal hearing, submitted that none of them taken either separately or together were of such a moment that they could have resulted in the Tribunal reaching a different outcome had they not occurred.

The primary judge began by explaining that the Court’s task was to examine the effect of any interpretation errors on the procedural fairness of the Tribunal hearing. The central question identified by the primary judge was whether any of the interpretation errors under review were material to the outcome of the Tribunal’s decision to affirm the delegate’s decision: J [84].

Accordingly, the primary judge embarked on an examination of the transcript in the Churchill Affidavit: J [91]. The primary judge began by noting the inherent limitations of the transcript, the main limitation being that it does not capture the body language of the first appellant at the Tribunal hearing nor any potential signs of tacit understanding, making it impossible for the Court on review to know precisely what was and was not understood by the appellants from the transcript alone: J [95]-[96]. The primary judge also noted that Ms Churchill worked retrospectively from an audio recording and had advantages in preparing her transcript that were not available to the Tribunal interpreter since this interpreter worked in real time whereas Ms Churchill had the benefit of a recording: J [96].

Notwithstanding the primary judge’s acceptance that aspects of the Tribunal’s introductory explanations were imprecisely translated, the primary judge was satisfied that the appellants understood the essential framework of the Tribunal hearing and the issues before it, namely the purpose of a refugee visa, that the place to which they did not want to be returned is Italy, and that each of the appellants hold Italian passports: J [99]-[104].

As to the first appellant’s evidence of his circumstances in Albania, the primary judge considered that the first appellant was able to convey that he is a member of the DPA, that he had hosted a meeting of DPA members at his business premises in April 2015, and thereafter received adverse attention from the SPA and Albanian authorities, including instances of police harassment, a police assault and a shooting at his residence: J [108]-[119].

The primary judge reproduced lines 703-706 of the transcript in the Churchill Affidavit and concluded that the Tribunal, in its reasons, had understood the ‘gist’ of the first appellant’s central claim that he had left Albania out of fear that he would be targeted by the Albanian authorities on account of his association with the DPA: J [112]-[113].

The primary judge continued in relation to the first appellant’s evidence that he had been shot and that he was taken to a doctor in Shkoder, noting that the interpreter had correctly interpreted that evidence but that the account was not particularly coherent. The primary judge observed that the account is not particularly coherent but that the Tribunal Member attempted to clarify the claim of assault for a politically motivated reason and ascertain why it was that the assault was not reported to the authorities: J [117]-[120].

Next, the primary judge considered the interpretation of why the first appellant had left Albania, finding that it conveyed the gravamen of the first appellant’s claim: J [121]. The primary judge continued that the Tribunal had understood the ‘gist’ of the first appellant’s claim and noted it was important that any errors in interpretation had no material consequences for the outcome of the first appellant’s claim for protection, which was determined as the basis of the non-acceptance of the first appellant’s claims to be at risk in Italy and more broadly in Europe because of his political association.

The primary judge then turned to the passage of the transcript where the Tribunal interrogated the first appellant’s migration narrative, and in particular the apparent inconsistency between his evidence given at the Tribunal hearing that he owned property in Albania only, and information recorded in an earlier MRT decision that he owned property in both Albania and Italy: J [124]-[126].

The appellants submitted before the primary judge that the interpreter failed to convey the Tribunal’s offer to adjourn the hearing to provide additional time to the first appellant to respond to the apparent inconsistencies in his evidence, as the Tribunal was allegedly required to do under the former s 424AA(1)(b)(iii).

After reciting the relevant passage from the transcript of the Churchill Affidavit at J [131], his Honour observed that the phrase “you can ask for an adjournment” was not translated to the first appellant within the context of an offer to comment on the inconsistent information, although later it was correctly interpreted that he could have time to respond to that same information. The first appellant vehemently asserted that he did not require such time: J [132].

The primary judge concluded that, in any event, it was clear that the Tribunal recorded the first appellant’s evidence about the property he owned correctly and that the Tribunal accepted that the first appellant owned property in Albania only.

Further, the issue at the heart of the exchange was not material to the Tribunal’s assessment of the first appellant’s claims for protection.

Still further, the procedure envisaged by the former s 424AA(1)(b)(iii) had been sufficiently engaged with by the Tribunal when it conveyed its offer to the first appellant for more time to respond. As such, the interpreter’s failure to translate the earlier offer of an adjournment did not cause any procedural unfairness sufficient to vitiate the Tribunal’s decision: J [136]-[137].

The primary judge then turned to the interpretation of the exchanges relating to the central issue of whether the first appellant would face harm if he returned to Italy. The primary judge found that the first appellant was able to convey this aspect of his case to the Tribunal by indicating his belief that he would be “eliminated” in Italy because of his knowledge of corrupt politicians in Albania, including the former Minister for Internal Affairs: J [139]. The primary judge also highlighted the Tribunal’s requests for more specific information about what would happen to him if he were to return to Italy, which were correctly interpreted: J [140].

It was apparent to the primary judge that the first appellant was able to take part in this aspect of the hearing and provide any evidence that he wished to put before the Tribunal about his fears of returning to Italy: J [140]-[146].

Next, the primary judge referred to the Tribunal’s exchange with the appellants’ migration advisor at the end of the hearing which the primary judge set out at J [147].

The first appellant’s grievance with this exchange was that the Tribunal’s question to the migration advisor as to whether they had everything they needed was not interpreted, and had it been the first appellant would have questioned the documentation and ensured the Tribunal had everything that he had relied upon.

The primary judge rejected that contention because, among other things, the first appellant did not specify what documents, if any, were left out by the migration advisor and therefore the degree, if any, of unfairness caused by the failure to interpret the Tribunal’s question: J [153]-[154].

After evaluating the alleged interpretation errors, the primary judge concluded that whilst the hearing before the Tribunal was imperfect, it was not procedurally unfair with the consequence that the Tribunal’s decision was not attended by jurisdictional error.

In dismissing the application, the primary judge made the following concluding remarks: J [160]:

The appellants appeal from the decision of the primary judge on the basis that the primary judge erred in failing to find that errors in interpretation before the Tribunal resulted in jurisdictional error and that in consequence the Court below erred in failing to set aside the Tribunal’s decision.

The assessment of interpretation quality in administrative tribunal proceedings is central to ensuring procedural fairness. However, not every deviation from ideal interpretation standards constitutes jurisdictional error.

The parties do not dispute the applicable legal principles.

In BZAID v Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310 at [52], Edelman J summarised the legal principles concerning whether a defective interpretation has denied procedural fairness under s 425:

In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 at [9], Allsop CJ emphasised the focus on process:

Some interpretation will be better than others and a particular interpretation may be less than perfect, yet be acceptable for the Tribunal’s purpose: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [26] (Kenny J). The question as to whether an interpretation is so lacking as to cause procedural unfairness sufficient to amount to jurisdictional error, is an evaluation exercise and is answered by whether in all the circumstances:

Once identified, the error must be material. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [12]-[14], the High Court made it clear that where the jurisdictional error alleged is one concerned with the process of decision making, what the applicant must establish will depend on the precise error alleged viewed in context of the particular statutory scheme. If the applicant establishes on the balance of probabilities that the error, in fact, occurred, the question becomes one of materiality (save for some types of error such as apprehended bias). In that case, the question is whether the decision made could, not would, realistically have been different had no error occurred. The reference to ‘realistic’ is to distinguish the possibility from the fanciful.

The threshold of materiality to be met by the appellants is not a high one. As Gageler J observed in Nathanson v Minister for Home Affairs [2022] HCA 26 at [45]-[47]:

The appellants advance a single ground of appeal:

The ground is very wide, asserting as it does, that the errors in the interpretation at large gave rise to jurisdictional error.

The appellants also identify specific interpretation errors.

One such error is the failure by the interpreter to translate the offer of the adjournment, which the appellants submit could have affected the outcome of the Tribunal’s decision. This is because the first appellant could have accepted the offer of the adjournment and resumed the matter with a competent interpreter. The appellants submit had that been the case, his evidence overall might have appeared more credible and therefore the Tribunal might not have made credit findings against him.

Nonetheless, the appellants concede that the principal issue the subject of the exchange within which the adjournment was offered was resolved and, in the end, bore little to no weight on the decision made by the Tribunal to affirm the delegate’s decision. However, the appellants contend that taken as a whole, it could have done. I understand that submission to be that the adjournment issue by itself is not material, but that when taken as part of the overall interpretation, it could have resulted in a different decision.

Against that background, and bearing in mind that the Tribunal also had before it written material and submissions provided by the appellants, the Minister submits that the first appellant was able to convey the substance of his claims before the Tribunal to an acceptable standard notwithstanding the interpretation errors identified by the appellants.

I accept that submission.

The Minister submits further that it would be inappropriate for this Court to accept that the first appellant’s failure to accept the offer for an adjournment was material for reasons unrelated to the issue which the Tribunal was seeking to resolve by offering the adjournment. The offer of an adjournment was made to allow the first appellant time to consider the issue of the apparently contradictory evidence by the first appellant as to whether he owned properties in Italy and Albania, or Albania only.

I also accept that submission. The failure to accept the offer must have been material to the Tribunal’s findings in relation to the evidence concerning his property holdings and not coincidentally material to some other issue unrelated to the offer for an adjournment.

Quite apart from the discrete issue of the adjournment offer the appellants, relying on SZRMQ at [25], submit that the interpretation errors were so frequent and continuous as to amount to procedural unfairness capable of giving rise to jurisdictional error.

In oral submissions, counsel for the appellants took the Court to passages of the transcript from the Churchill Affidavit where interpretation errors had been identified. The purpose of this, as explained by counsel, was not to identify errors that were in themselves capable of causing any material effect on the Tribunal’s decision, save however for the effect of an adjournment, but rather to illustrate the degree of confusion experienced by the first appellant throughout the Tribunal hearing because of the frequent and continuous interpretation errors. The submission is that as a consequence of his confusion, the first appellant lost the opportunity to give instructions, seek advice and clarify his thoughts.

That submission, being the appellants’ sole ground, is extremely wide and calls for a complete evaluation of the transcript before the Tribunal as against the competing transcript prepared by Ms Churchill.

The primary judge dealt with that submission at length, concluding that the first appellant was able to put his case before the Tribunal and it was the role of the Tribunal to assess his credibility.

I have considered the interpretations said to be erroneous, including of course, the specific interpretations referred to by counsel for the appellants on appeal.

The primary judge’s conclusion on the inconsistencies and the Tribunal’s consideration of the evidence was open on the material before him.

As to the submission that the first appellant’s confusion had a considerable impact on his evidence relating to some of the matters which were material to the case, as I have noted, the primary judge was satisfied that even in these situations, where there were errors in interpretation, nonetheless the Tribunal was able to ascertain the ‘gist’ of the first appellant’s case.

The Minister submits that the test is not whether a different interpreter might have performed their task to a higher standard. Rather, the test is whether the interpretation is adequate to convey the substance or the essential elements of the case, meaning that an interpretation may be less than perfect and yet acceptable for the purposes of administrative tribunal proceedings: Perera at [26].

The Minister submits further that it could not be said that the first appellant was confused by any misinterpretation because where there was evident confusion, it was dealt with by the Tribunal and clarified.

I accept those submissions.

On the latter point, the primary judge observed: J [148] that the appellants’ migration advisor was present during the hearing which took place over a period of about three hours and with two adjournments. His Honour considered that as significant in respect of the Court’s assessment of the procedural fairness of the process, particularly the degree to which the first appellant was able to participate in it.

The primary judge concluded that a reading of the whole transcript indicated that the Tribunal wanted to ensure that each appellant had the opportunity to put whatever issue they wished to and that each of the appellants was given the opportunity, in advance of the hearing, to provide written submissions in support of their respective claims for protection. His Honour observed that each of the appellants had recourse to their migration advisor throughout the process who did not seek to intervene during, or at the end of the process, to indicate she had held any concerns about its fairness: J [149]-[150].

It is clear that the primary judge considered the interpretation was not without inconsistencies and flaws but did not consider that those inconsistencies or flaws deprived the appellants of the opportunity to present their cases as entailed in an invitation issued pursuant to the former s 425 of the Act. The primary judge was particular that each of the appellants was given the opportunity to present their respective cases orally and that the Tribunal had accepted the first appellant’s evidence as to what had occurred to him in Albania: J [151]-[160].

The primary judge was correct to find that although the interpretation was not flawless and had some inconsistencies, the appellants had been given the opportunity to present their cases such that there was no denial of procedural fairness.

Further, to the extent there were errors in interpretation, taken together, they were not material within the meaning of LPDT as the Tribunal’s decision could not realistically have been different had those errors not occurred.

Accordingly, the appellants have not demonstrated that the primary judge erred in failing to hold that the errors in interpretation in the hearing before the Tribunal, were such as to give rise to jurisdictional error on the part of the Tribunal.

The appeal must be dismissed.

There is no reason why the appellants should not pay the first respondent’s costs which I fix in the amount of $6,000. That is the sum sought by the Minister and it is reasonable in all the circumstances, as well as being below the short form bill amount fixed in the Federal Court Rules 2011 (Cth).