Case: Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1
Outcome: cited
Perera does not, at [37] or at all, contrary to the reasons of the Federal Magistrate at [57] stand for the proposition that errors in interpreting can be rectified. Nonetheless, I would accept that in certain circumstances errors of that kind may be rectified. This could be done by written submissions to the Tribunal after the hearing: Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [25] per McHugh, Gummow, Callinan and Heydon JJ and per Kirby J at [75]. It could also be done by the provision of a corrected transcript accepted by the Tribunal as accurate. Indeed, that is what occurred in this case in respect to the question of when the appellant commenced the practice of Falun Gong in China. Such errors however cannot always be rectified in this way and a further oral hearing at which an applicant gives evidence may be necessary. It will at least depend on the nature and extent of the errors. 37 Furthermore, a witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation: Perera at [49]. The negative impression in the mind of the Tribunal Member conveyed by the appellant's answers, incorrectly interpreted, is, in my opinion, difficult if not impossible to eradicate, after the hearing. Such a negative impression, in one area of evidence, such as the question of when the appellant began to practice Falun Gong in China, will often affect a decision-maker's conclusions in other areas. It is impossible to discern the affect such impressions made at the time may have had on the Tribunal's conclusions as a whole: cf Applicant NAAF of 2002 at [40]. The subsequent characterisation of this evidence as a "misunderstanding" by the Tribunal does not inevitably overcome the unfavourable impression obtained at the hearing by the Tribunal concerning the appellant's credit. 43 There was no finding nor evidence to warrant a finding that the appellant consented to not having a further hearing such as to trigger the exempting provision in s 425(2)(b) of the Act . No such submission was put in the appeal. I do not regard the above submission concerning the appellant's "implicit ... acceptance" that it was appropriate for the Tribunal to proceed to make a decision as being to that effect. Even if it was I would not accept the submission. Consent for the purposes of s 425(2)(b) of the Act would be required to be given, in my opinion, in unambiguous terms. It would be an unusual case for such consent to be implied. Accordingly it is not to the point that the appellant did not ask for a third Tribunal hearing. The statutory obligation under s 425 to "invite" the appellant to appear before it to give evidence and present arguments lay with the Tribunal. It is a continuing obligation: Applicant NAAF of 2002 at [26]-[27]. It extended no such invitation to the appellant to attend a further hearing so that he could give evidence, with adequate interpretation, on the topics where it had been demonstrated that his "evidence" at the hearing on 11 October 2006 was riddled with confusion and error because of poor interpretation. The failure by the appellant to ask for a further hearing did not affect that obligation. I am satisfied that the interpretation of matters of significance to the appellant's case and the Tribunal's reasons fell well short of the requisite standard. 44 It may be that if there had been no interpretation error the result would not have changed. However I am unable to conclude on the balance of probabilities that this would have been the case. The potential consequences for the appellant should he be forced to return to China are dire. Justice requires that he be afforded another opportunity to give evidence and present arguments. 45 The failure to provide adequate interpretation services meant, in this case, that the Tribunal did not comply with s 425 of the Act . The appellant was in significant respects prevented from giving evidence and for that reason did not receive a fair hearing. Jurisdictional error on the part of the Tribunal has been established. The decision of the Tribunal was accordingly invalid. This ground of appeal is made out. 46 Because of the view to which I have come in respect of the first ground of appeal it is not strictly necessary to consider the new second ground in respect of which leave is sought. However I propose nonetheless to consider the merits, going to the question of leave, because the particulars of this ground raise serious allegations against the Tribunal Member. They should not be left unresolved.