ELB18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1351

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. By an application brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act), the applicants seek judicial review of a decision of the second respondent (Tribunal) dated 17 August 2018 affirming a decision of the first respondent to not grant the applicants a Protection (Class XA) (Subclass 866) visa (visa).

1. The applicants are siblings and citizens of Malaysia. They arrived in Australia on 5 August 2016 as the holders of an Electronic Travel Authority (Class UD) (Subclass 601) visa (Court Book (CB) 94). On 26 October 2017, the applicants applied for the visa and, in so doing, made individual claims for protection (CB 1 to 70).
2. On 2 May 2017, a delegate of the Minister (delegate) refused to grant the applicants the visa (CB 93 to 105).
3. On 10 May 2017, the applicants applied to the Tribunal for review of the delegate's decision (CB 106 to 107). On 26 October 2017, the applicants were invited to attend a hearing scheduled for 16 November 2017 (CB 111 to 113), which they attended and gave evidence with the assistance of an interpreter in the Malay language (CB 118 to 120).
4. On 21 August 2018, the Tribunal notified the applicants of its decision, made on 17 August 2018, affirming the delegate's decision not to grant them the visa (CB 129 to 144).

1. The first applicant's claims for protection are set out in Part C to her visa application (CB 33 to 35) and can be summarised as follows:

(a) she was chased and blackmailed by an "uncle", being a person who is not her blood relative;

(b) the uncle was bad and cruel. He molested her whilst she was sleeping. He also beat the first applicant and her brother with a belt. The uncle made the applicant and her brother give him their salaries so that he could buy alcohol and gamble. The uncle forced the applicant's brother to quit his studies;

(c) no one could stop the uncle in this conduct, including his own wife;

(d) the uncle told the first applicant that he would kill the applicants if they told anyone; and

(e) the first applicant ran away and hid. However, after a few weeks, the uncle found her. The uncle had friends in the police force.

1. At the Tribunal hearing held on 16 November 2017, the first applicant additionally claimed that she had last seen her mother in mid-2015, at which time the mother then disappeared. The applicant claimed that for the 12 years prior to coming to Australia, she had lived at the uncle's house (in a particular place[1]).
2. The second applicant's claims for protection are set in Part C to his visa application (CB 65 to 67) and were that:

(a) he and his sister had been chased by their "mother friend husband" (understood to be a reference to the aforementioned "uncle"). The uncle was cruel and beat he and his sister. The uncle left him "inside the room without medicine";

(b) the applicants' mother went missing. The second applicant does not know her whereabouts;

(c) following the disappearance of their mother, the second applicant was forced to stop studying in order to work for the uncle. He gave the uncle money, which the uncle used to buy alcohol and to gamble;

(d) they ran away, but the uncle found them because the uncle had a friend working for the police; and

(e) the uncle was blackmailing the applicants. He told them he would kill them if he caught them running away again. If they returned to Malaysia, the uncle would beat them to death.

1. The Tribunal set out the evidence before it, including the applicants' claims for protection (CB 130 to 133 at [4] to [7], [12], [14] to [18]).
2. The Tribunal expressed its concerns as to the veracity of the applicants' claims based on the material before it, including about their claimed fear of return to Malaysia. It had regard to inconsistencies in the applicants' evidence which it put to them for comment, pursuant to s 424AA of the Act (CB 133 at [18] and [24]).
3. The Tribunal recorded that the applicants had given differing evidence as to where they lived in Malaysia, which it considered to be relevant in circumstances where they each claimed to have lived with the abusive "uncle" (uncle). The Tribunal recorded the first applicant's evidence was that they had lived at the uncle's house for 12 years, whereas the second applicant's evidence was that they had only lived at the uncle's house for 6 months. Addressing this discrepancy, it recorded the first applicant's response to be that "her brother does not have a good concept of time and he only knows his date of birth" and the second applicant's response to be that he was "g_iving rough estimations of time_". The Tribunal found these responses unpersuasive and considered them to undermine the applicants' claims and credibility (CB 134 at [25]).
4. The Tribunal had regard to the applicants' evidence about the disappearance of their mother. The first applicant said the applicants had been living with the uncle at the time when their mother disappeared, whereas the second applicant's evidence was that their mother told them to go and live with the uncle because she was "going off to work" and that he had discussed this with the first applicant. When the inconsistency was put to the applicants pursuant to s 424AA, the Tribunal observed that the applicants provided no explanations for the discrepancy. The Tribunal found the inconsistences in the applicants' evidence undermined their credibility and claims (CB 134 at [26] to [27]).
5. Next, the Tribunal set out the applicants' evidence about what they had each been doing prior to coming to Australia. In reply, it recorded the first applicant's explanation that:

she didn't know exactly what the second applicant was doing when he was working, she just knew he was following the uncle

and that her brother "did not know what she was doing". The second applicant agreed with that explanation. In circumstances where the applicants claimed to have been living together in Malaysia, the Tribunal was of the view that they would have given consistent evidence about each of them (and the other) had been doing during tin that period. It found this discrepancy undermined their claims and credibility (CB 134 at [28] to [31]).

1. The Tribunal also recorded having put to the applicants' differences in their documentary, written and oral evidence about the nature of their relationship, where they had lived in Malaysia. Pursuant to s 424AA, the Tribunal did not find the applicants' explanations for listing the same residential address for themselves and their mother (in the Form B) to be satisfactory. This concern was exacerbated by inconsistent evidence about addresses in legal documents. In combination with the inability of the applicants to recall their addresses during the hearing, the Tribunal considered these deficiencies in their evidence to undermine the applicants' claim that the mother had disappeared and had left them in the hands of the abusive uncle (CB 135 at [32] to [37]).
2. The Tribunal addressed other inconsistencies in the applicants' accounts which it found cumulatively to add to its credibility concerns, including:

(a) the distance the applicants had travelled when they tried to escape the uncle and details of who lived at the house where they were abused. Whilst the Tribunal did not expect the applicants to be able to give precise distance or time, it was deemed difficult to understand the differences in evidence. Given this was the applicants sole attempt to escape their abuser, the Tribunal considered that they would have given consistent evidence about the estimated time and method they used to escape (CB 136 at [38]);

(b) the Tribunal noted the applicants' inability to recall who they were living with at the house. The Tribunal put these inconsistencies to the applicants pursuant to s 424AA of the Act. The Tribunal determined that the applicants should be able to recall "significant people" with whom they lived. The Tribunal was not persuaded by the applicants' explanations for this and found this further undermined their claims and credibility (CB 135 at [38]).

1. The Tribunal found neither applicant to be a credible witness. In that regard, it noted that, for each individual applicant, it only considered the credibility concerns which related to that specific applicant (CB 137 at [43]). In respect of the second applicant, the Tribunal found he was able to give evidence at hearing and identifying when he did not understand something. Accordingly, the Tribunal did not accept the applicant's age at the date of the hearing (being, 17 years and eight months) explained any inconsistencies and/or difficulties in the evidence (CB 137 at [44]).
2. Further, while it was prepared to afford the applicants the benefit of the doubt and not place weight on some inconsistencies (such as when in 2015 they said their mother disappeared), the Tribunal found this concession could not overcome the inconsistences which it had already identified, and which formed the basis of its credibility findings (CB 137 at [45]).
3. Cumulatively, the Tribunal found the applicants were not witnesses of truth and that each had exaggerated and fabricated accounts of backgrounds and events, as well as claimed fears, upon which they based their protection claims (CB 137 at [46]).
4. The Tribunal also gave the applicants the benefit of the doubt about their claim to be siblings (CB 138 at [47]). However, on the basis of its adverse credibility findings, it did not accept to be true their claims of past harm, or threats of harassment or future feared harm personally, in relation to other family members or in relation to each other (CB 138 at [48]). It found the applicants had not been honest about their situation in Malaysia, including as to their financial position, the whereabouts of their mother or their available family support. Accordingly, it did not accept they would face difficulties upon their return to Malaysia, noting they had survived in a foreign country without family support (CB 138 at [49]).
5. The Tribunal recorded that, with reference to DFAT Country Information, country conditions indicated the applicants were at no real chance of serious harm or real risk of significant harm upon return to Malaysia (CB 138 at [50]). It put this information to the applicants at the hearing, and, in reply, the second applicant said he "was strong" and could run away from the uncle but feared his sister could not because she was a girl. It also recorded the first applicant feared sexual harassment from the uncle (CB 138 at [51]).
6. The Tribunal did not accept the applicant had an uncle/family friend whom she feared or experienced sexual harassment from (CB 138 at [51]). Further, it did not accept the first applicant would face persecution or significant harm as a woman in Malaysia, in circumstances where her claims solely related to the uncle and not her past experiences or future fears as a woman in Malaysia (CB 138 at [52] to [53]).
7. In relation to employment, the Tribunal was not satisfied either applicant would be unable to obtain employment in Malaysia. In that respect, it noted the first applicant had worked in Malaysia before and had regard to the second applicant's education and work experience (CB 139 at [54]). Having considered the applicants' personal circumstances, DFAT Country Information, and having found the applicants did not have any problems in Malaysia, the Tribunal was not satisfied the applicants faced a real chance of serious harm or a real risk of significant harm for any reason (CB 139 at [55]).
8. Accordingly, having considered their claims individually and cumulatively, the Tribunal rejected the applicants' claims and found they did not have a well-founded fear of persecution for any of the reasons they had put forward (CB 139 at [56]). Relying on its anterior findings, the Tribunal did not accept the applicants met the complementary protection criterion for any reason claimed (CB 139 at [57] to [59]).
9. Having found the applicants were not persons to whom Australia owed protection obligations, the Tribunal affirmed the delegate's decision to not grant the visas (CB 139 to 140 at [60] to [61]).

1. By an application to show cause filed on 27 August 2018, the applicants sought judicial review of the Tribunal's decision. On 20 September 2018, a Registrar of the Court made procedural orders in this matter with a final hearing listing before a Judge of the Court (first primary Judge), to be made administratively. The proceedings were subsequently transferred to the central migration docket. On 14 September 2023, further procedural orders were made by a Registrar.
2. On 26 August 2024, the proceedings were docketed to me and I made orders on that day including a further grant of leave to the applicants to file an amended application, and that the applicants and the first respondent file written submissions 14 and 7 days (respectively) before the final hearing, which I listed for 24 September 2024.
3. On 16 September 2024, the first applicant emailed my Chambers requesting that the Court "postpone" the hearing listed on 24 September 2024 because she was "now having a high fever and my mental health is not well". My Associate sought the first respondent's position in respect of this adjournment request. The solicitor for the first respondent opposed the first applicant's adjournment request noting that the first applicant:

(a) did not provide evidence surrounding her high fever or poor mental health issues;

(b) did not identify the length of time needed for an adjournment; and

(c) provided no evidence as to the second applicant's ability to appear at the final hearing on behalf of both applicants.

1. The emails of the parties were brought to my attention and, at my direction, the parties were informed that the hearing remained listed on 24 September 2024.
2. On 19 September 2024, the first applicant emailed my Associate again, attaching a medical certificate from the "Western Health and Beauty Clinic", stating that the first applicant attended the clinic on 19 September 2024 and that:

And in my opinion, she will be unfit to attend her court hearing from 24/09/2024 to 24/09/2024 inclusive due to a recent acute medical condition.

She is also currently seeing a psychologist about her mental health.

1. On 20 September 2024, the solicitor for the first respondent emailed the Court to convey the Minister's opposition to the further adjournment request in the following terms:

First, the adjournment request is insufficiently detailed and is not supported by compelling medical evidence. The first applicant has provided a medical certificate prepared by Dr Uko and which is dated 19 September 2024. However, on that certificate alone, it remains unclear what "acute medical condition" the first applicant suffers from and why that condition would render her unfit to attend the hearing on 24 September 2024. Further, the medical certificate appears to imply the duration of the first applicant's medical condition is confined to 24 September 2024 alone.

Second, the requested adjournment had been made solely on the basis of the first applicant's health. It remains the case that no reason or evidence has been provided to explain why the second applicant is unable to appear at the final hearing on behalf of both applicants.

1. In response to the first respondent's email, the first applicant replied to say that she had another letter from her "mental health doctor" and that she had a preference to attend the hearing together with the second applicant as they needed to support each other. On 23 September 2025, at my direction my Associate responded to the parties with the following email (emphasis in original):

I refer to the correspondence below and the most recent letter from Aspire Health & Psychology, all of which has been brought to the attention of Judge Given.

The matters raised by the Minister's solicitor in her email of 20 September 2024 have considerable force. These proceedings have been on foot for more than 6 years. As such, the applicants (but more pertinently to the adjournment request, the first applicant) has had ample time to prepare herself for the hearing. Her Honour also notes the observation of the psychologist that "avoidance behaviour for the upcoming court date" may in fact be further detrimental to the first applicant's health. However, observing that the psychologist in question is going to assist the applicant with preparation for Court, her Honour is prepared to grant an adjournment of 6 weeks to enable that to continue.

The hearing therefore will be adjourned to 10:15am on 6 November 2024. To the extent that the applicant stated in recent emails that she wishes to attend with the second applicant because he is a support person to her, both applicants should attend the hearing if they wish to be heard on the judicial review application. The Minister's solicitor will no doubt take steps to reiterate that matter to the applicants as the hearing approaches. However, the absence of the second respondent will not, without more, be a sufficient basis upon which the proceedings would be further adjourned. If the first applicant is desirous of the second applicant's attendance in a support capacity as well as an applicant to the review, the onus is on her to secure his attendance.

As noted above, proceedings which have been on foot for so lengthy a time and in which the parties have had a significant period in which to prepare, should be heard and determined in accordance with the overarching purpose of this Court's practice and procedure that matters be dealt with efficiently. If any further adjournment request is to be sought with medical evidence, her Honour requires that a copy of this email have been provided to any medical/psychological practitioner in question, and that its contents be specifically considered and acknowledged by them when providing any further opinion.

1. On 6 November 2024, the applicants appeared before me for hearing, in person. An interpreter in the Malay language was present in Court albeit the applicants indicated that they predominantly wished to address the Court in English. The interpreter remained at my direction in order to facilitate as required by the applicants, which occurred on several occasions. The first respondent was represented by a solicitor.
2. The first respondent tendered the Court Book, which was marked as Exhibit "1R". The first applicant asked if she could also tender a letter from her doctor. I briefly adjourned the proceedings so as to allow the first applicant to email a copy of the letter to the first respondent and to the Court. This occurred. The first applicant explained that sometimes she has difficulty in explaining herself and could "zone out". The letter from her psychologist appeared to support this statement. The letter from the first applicant's psychologist, dated 18 October 2024 was marked "MFI-1".
3. During the hearing, towards the conclusion of the applicants' oral submissions address ground 1, the first applicant said the following:

I'm a bit nervous, so I have a lot of questions in my mind right now that have been missing. Can you please spare me some time for me to remind again. Just give me a little bit time for me to look at the decision again and remember me what is exactly the one that I want to tell you.

1. The Court adjourned for a period to allow the applicant to re-read the Tribunal decision and collect her thoughts, following which the hearing resumed. I was satisfied that the applicants were able to meaningfully engage throughout the hearing.

1. Despite several grants of leave throughout the life of the proceedings, the applicants did not amend their application. Accordingly, the grounds of review which arise for consideration are those contained in the originating application. The applicants have added a handwritten ground under among the prayers for relief, and two handwritten grounds under the heading "Grounds of application". The Court has interpreted each of these statements as being intended to be grounds of review, as did the first respondent. Accordingly, the grounds of review can be taken being (errors in original):

1. Decision made has lawfull error

2. The non citizen will be subjected to torture.

3. The non citizen will be subjected to cruel or inhuman treatment or punishment.

1. At my direction, the grounds were interpreted to the applicants in turn, and they were given the chance to address them.
2. Following the brief, mid-hearing adjournment referred to at [35] above, the applicants raised a fresh allegation about the standard of interpretation at the Tribunal hearing. The allegation can be summarised thusly:

(a) there had been errors in interpretation;

(b) the applicants were unable to understand the interpreter due to differences in dialect; and

(c) when they sought to bring the inadequacy of interpretation to the attention of the Tribunal Member they were told to "be quiet".

1. Notwithstanding that these allegations had not been previously raised, in circumstances where the applicants were unrepresented, I gave them an additional opportunity to file evidence in support. After discussions with the parties, the most sensible way forward appeared to be to enable the solicitor for the first respondent to respond to all other submissions the applicants had made to date, other than in respect of the newly raised allegation. In this way, if no further evidence or submissions were forthcoming from the applicants in respect of the interpretation issue in accordance with the Court's grant of leave, the first respondent could otherwise rest on the submissions and evidence to date and without necessarily being put to the expense of further evidence or hearing.
2. At the conclusion of the hearing I made the following orders (November Orders) (emphasis in original):

...

2. The applicants must file and serve Affidavit evidence and written submissions in relation to the allegation of errors in interpretation at the Tribunal hearing by 4:00pm (AEDT) on 5 March 2025.

3. The first respondent must file and serve any further Affidavit evidence and written submissions in relation to the allegation of errors in interpretation at the Tribunal hearing by 4:00pm (AEDT) on 26 March 2025.

4. The proceedings are listed for further hearing at 10:15am on 9 April 2025 in court 13.1, level 13, 80 William Street, Woolloomooloo.

5. In the event that the applicants do not comply with order 2 above:

a. Order 4 above is vacated; and

b. judgment is reserved from the last date of filing of any document in compliance with order 3 above, to a time to be notified to the parties...

1. The applicants did not avail themselves of the additional opportunity to file further evidence in support of the allegations regarding the standard of interpretation. Despite the failure of the applicants to comply with the November Orders, and while order 3 thereof was permissive and not mandatory in its terms, the first respondent took the opportunity to file an Affidavit and supplementary written submissions which will be addressed in respect of the additional allegation, below.

1. At hearing, the first applicant said that in relation to ground one she considered the error to be that:

the tribunal didn't ask me a straight question for me to answer. And then she just asked me repeatedly regarding of the address that I put wrong.

1. Initially, the first applicant made reference to [9] of the Tribunal's decision as being indicative of the error alleged. However, that submission was withdrawn once it was observed that this part of the Tribunal's decision merely summarised the findings of the delegate (CB 131 at [9]).
2. Next the first applicant made reference to [34] of the Tribunal's decision and asked that the paragraph be interpreted to them by the interpreter, which occurred. The first applicant alleged that the Tribunal failed to inquire as to why she and the second applicant applied for their visas at different times (CB 135 at [34]). Upon further explanation, it became clear that the applicants disagreed with the Tribunal's statement that the applicants' visitor visas were issued at different times.
3. The first respondent submits that insofar as the applicant's make a general allegation of "legal error" they fail to articulate what that claimed error was, and no such error is apparent on the material before the Court.
4. I am not satisfied that the ground, as alleged, establishes error. While the applicants claim that the impact of nerves, confusion and the second applicant's age might have affected their ability to give evidence, it is clear from the Tribunal's decision that it was cognisant of those matters and was not satisfied that those explanations overcame the inconsistencies it identified (CB 137 at [44]). Absent further evidence from the applicants, there is nothing on the material before the Court to suggest, much less demonstrate, that the procedures adopted by the Tribunal resulted in any material unfairness, or that the applicants were denied a real and meaningful opportunity to present their case at hearing in breach of s 425 of the Act, in particular as that section is understood by reference to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37].

1. As the first respondent correctly observes, by grounds 2 and 3 the applicants adopt the language of ss 36(2A)(b) to (c) of the Act, being two of five bases upon which a non-citizen may suffer significant harm pursuant to s 36(2A) of the Act.
2. In the absence of particulars or further explanation from the applicants it remained wholly unclear what legal error they assert in the Tribunal's decision by reference to these sections.
3. The first respondent contended that, insofar as grounds 2 and 3 might be read as allegations that the Tribunal failed to consider whether the applicants would be subjected to torture or cruel or inhuman treatment or punishment in Malaysia, no such error is made out. I accept that submission.
4. The Tribunal expressly considered whether there was a real risk that the applicants would suffer significant harm for the purposes of s 36(2)(aa) of Act, which is defined to include torture and cruel or inhuman treatment or punishment: see s 36(2A)(c) and (d), respectively.
5. It was also submitted by the first respondent that, in considering the complementary protection criterion, the Tribunal did not accept the applicants had experienced any past harm or threats or had received adverse interest in Malaysia as claimed (CB 139 at [58]). Those claims included (as the Tribunal summarised at CB 138 at [42]) that their mother had disappeared, they had lived with the abusive uncle, they were not taken care of, had suffered financial difficulties and that the second applicant was forced to withdraw from school. In assessing the refugee criterion, the Tribunal rejected those factual claims in their entirety and in circumstances where it had made adverse credibility findings against the applicants' evidence as a whole. It was open for the Tribunal to rely on its anterior findings in considering the complementary protection criterion as there was no factual basis for the applicants' claims: see SZSGA v Minister for Immigration and Citizenship [2013] FCA 774 at [56] per Robertson J and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [32] per Robertson, Griffith and Perry JJ.
6. I am not satisfied that there is any error as alleged by ground 2 and/or 3.

Additional allegation - standard of interpretation

1. As noted above, at the final hearing before the Court, the applicants newly took issue with the standard of interpretation at the Tribunal hearing.
2. Despite the applicants having failed to file any further material in support of this allegation, on 26 March 2025, the first respondent filed supplementary written submissions, and an Affidavit of Sophie Joy Turnbull affirmed 26 March 2025 (Turnbull Affidavit). Ms Turnbull deposes to being a paralegal in the employ of the first respondent's solicitors. Ms Turnbull deposes to having listed to the full (3 hour and 13 minute) audio recording of the Tribunal hearing. The Turnbull Affidavit annexes a transcript which is said to set out "all instances"[2] during the Tribunal hearing where the interpreter and/or interpretation was discussed in any way.
3. As the first respondent correctly observes, the relevant question for the Court is whether the applicants were provided a real chance to present their case: see Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [61]. This requires the Court consider the circumstances of the applicants' case as they arise on factual matters: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]. Further, as was set out in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 at [9], where deficient interpretation forms the basis of the asserted denial of procedural fairness, it is stated (emphasis added):

[i]t 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."

1. As noted above at [38] the applicants make a number of complaints about the interpretation at the Tribunal hearing.
2. Firstly, the applicants say that that the interpreter spoke Indonesian Malay, whereas they speak Malaysian Malay. The applicants say that this difference in dialect caused the interpreter to misinterpret questions asked by the Tribunal member, along with their answers to those questions.
3. The first respondent submitted that when regard is had to the only material before the Court, namely the Turnbull Affidavit, there is no evidence to enable the Court to conclude there were any errors in the interpretation of the applicants' answers or of the Member's questions at the hearing held on 16 November 2017, by reason of dialect, or at all. I agree. On the material before me, there is no indication that the applicants were unable to understand the Tribunal during the hearing (or vice versa) nor that the applicants were unable to respond to the Tribunal's numerous questions (CB 132 to 133 at [13] to [17] and CB 134 to 137 at [25] to [42]). Moreover, to the Tribunal was on notice from an exchange early in the hearing that the interpreter spoke Malay with an Indonesian dialect and said the following to the applicants:

...So, what is going to happen is I think because you are speaking the same language, we can proceed but if you think I am not understanding this, it is very important you say right away I am not understanding this. Okay. Right. So, is it - Sorry. So, it is my understanding that you mostly understand by there are just some words that are different is that correct?

1. It is for the applicants to demonstrate that errors occurred in the course of interpretation at the hearing, and that any errors were so material as to cause the decision-making process to miscarry: see WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29], citing Soltanyzand v Minister for Immigration [2001] FCA 1168 at [18]. The applicants have not discharged that evidentiary burden.
2. In the absence of a transcript prepared by an accredited interpreter, setting out the words used by the applicant and Tribunal, the interpretation of those words by the interpreter, and the proper interpretation of those words in the Malay language, the Court cannot be satisfied that there were deficiencies in interpretation as the applicants allege: see SZQVN v Minister for Immigration & Citizenship [2012] FMCA 325 at [16].
3. The first respondent has, quite properly, acknowledged that at the outset of the hearing and in direct reply to a question from the Tribunal,[3] the first applicant said there was "a little difficulty" understanding the interpreter[4] and that the interpreter spoke Indonesian Malay,[5] which the first applicant stated was "different" to and "more formal than" the applicants' dialect of Malaysian Malay.[6] If it is to this which the applicants refer as constituting an objection to that interpreter (which the first respondent neither accepts nor concedes), I am of the view that the Tribunal clearly engaged with, and responded to, that "objection" at hearing.
4. Relevantly, and as the Tribunal correctly recorded in its decision (CB 132 at [13]), the first applicant informed the Tribunal that she understood English and that, despite the differences in their backgrounds, she "sometimes" understood the interpreter.[7] On that basis, the Tribunal proposed to proceed with the hearing on the basis that the first applicant give her evidence in English and Malay, and that the second applicant give his evidence in Malay. The first applicant expressly consented to the hearing continuing on that basis, stating it was "correct" that,[8] for the interpreter, she "mostly understand[s] but there are just some words that are different" and that,[9] for the Tribunal Member, she "also understand[s] [their] English".[10]
5. The applicants' complaint that the Tribunal "ignored" difficulties with the interpreter which they raised at hearing is without merit. I accept the first respondent's submission that statements to the contrary effect are a mischaracterisation of the events which occurred, at the hearing before the Tribunal.
6. At the final hearing the applicants also alleged to the Court that they had raised objections with the Tribunal about the interpreter which had been ignored, and that the Tribunal member had told them to "be quiet". That assertion fails on its facts by reference to Annexure "ST-1" to the Turnbull Affidavit. Accepting Ms Turnbull's unchallenged evidence that the transcript annexed to her Affidavit contains "all instances" during which the interpreter was discussed in any way, I am satisfied that (contrary to the applicants' allegations) there is no evidence at all to support the allegation that the Tribunal admonished the applicants for raising an objection to the interpreter, much less that they were ever told to "be quiet".
7. Lastly, by reference to Annexure "ST-1" to the Turnbull Affidavit the final mention of any matter pertaining to the interpreter at the Tribunal hearing was the Tribunal asking the applicants whether they had (emphasis added):

any objection to using this interpreter for any reasons - because you know her or any other reason?"[11]

and the applicants each replied, in unison, "no".[12]

1. In any event, the issue before the Court is not whether the applicants complained about the interpreter, but rather whether the quality of the interpretation was such that the applicants were not able to properly participate in their hearing before the Tribunal. For the reasons set out above, the evidence shows that no such issue arises in the circumstances of this case and the further allegation raised at hearing does not give rise to error.

1. The applicants have failed to establish error by the grounds of review including as those grounds were expanded at hearing, or by the allegation made at the final hearing in respect of which they were given a further opportunity to provide evidence and submissions.
2. Accordingly, in the absence of a jurisdictional error, the decision of the Tribunal is a privative clause decision, and the application must be dismissed. I will so order.
3. I will hear the parties as to costs.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] Not named so as to avoid potentially identifying the applicants

[2] Paragraph [3] of the Turnbull Affidavit

[3] "Now, do you understand this interpreter without any difficulty?": Turnbull Affidavit, p 4 (56.1-57.1).

[5] Turnbull Affidavit, p 5 (28.2 to 42.2).

[8] Turnbull Affidavit, p 5 (58.2); Turnbull Affidavit at p 6 (3.3).

[9] Turnbull Affidavit, p 5 (55.2-56.2).

[11] Turnbull Affidavit, p 6 (5.3 to 6.3).