CTHFCA

BNB17 v Minister for Immigration and Border Protection

[2020] FCA 304

Federal Court of Australia|2020-03-12|Before: Anderson J

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Court

Federal Court of Australia

Decision date

2020-03-12

Before

Anderson J

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Introduction 1 The appellant, a citizen of Sri Lanka, appeals from a decision of the Federal Circuit Court of Australia (Circuit Court). The Circuit Court dismissed the appellant's application for judicial review of a decision of the Immigration Assessment Authority (Authority), which affirmed a "fast track reviewable decision" by a delegate of the Minister for Immigration and Border Protection (delegate) not to grant the appellant a Safe Haven Enterprise visa (visa). 2 Prior to the appellant's visa application being referred to the Authority, the appellant conducted an interview with the delegate (SHEV interview), at which the appellant was assisted by a Tamil interpreter. After that interview, but prior to the delegate's decision, the appellant's solicitors raised with the delegate alleged errors with the interpretation of the appellant's answers at the interview. The appellant's solicitors identified three purported errors, but said there could be more. The delegate dismissed these concerns and refused the visa application. 3 After the delegate's decision was referred to the Authority, the appellant's solicitors again raised their concern regarding the interpretation at the SHEV interview. The solicitor submitted that, in these circumstances, if the Authority held doubts as to the appellant's credibility, then the Authority ought to invite the appellant to a further interview to enable the appellant to address those doubts. The Authority had the power to do so under s 473DC of the Migration Act 1958 (Cth) (Act). However, the Authority dismissed the appellant's request for a further interview and proceeded to affirm the delegate's decision. 4 My view, for the reasons expressed below, is that the Authority's failure to invite the appellant to a further interview was not legally unreasonable. In the context of a review of a "fast track reviewable decision", and given the insignificance of the mistranslations identified by the appellant's solicitors, it was not legally unreasonable for the Authority to instead rely on the review material provided by the Secretary to the Authority. 5 Furthermore, there is no merit to the appellant's separate argument that the Authority's failure to specifically refer to the appellant's evidence regarding scarring on his body means that the Authority failed to perform its statutory task. 6 The appellant's appeal to this Court is accordingly dismissed.

[2]

Background 7 The appellant arrived in Australia in September 2012. He applied for a protection visa in August 2016. The appellant's claims for protection were summarised as follows at [7] of the reasons of the Authority (IAA Reasons): • His father was a member of the Liberation Tigers of Tamil Eelam (LTTE) from 1980 to 1990. • In 1998, his brother was arrested on suspicion of being a member of the LTTE. He was held for ten months, beaten and tortured. He did not have any links to the LTTE. • The applicant was detained by the police in Colombo on five occasions. The first time, in 2007, he was tortured by the Criminal Investigation Division (CID). The last time was in 2009 when he was kept for about five hours. • He returned home to Karaveddy in 2010 after the war had ended. He felt constantly threatened and harassed. He was required to report to the local police station and answer questions. He was also required to drive members of the CID in his vehicle. The harassment interfered with his ability to earn a living. • He became anxious about this situation and also believed the Tamil community was growing suspicious of him because he spoke some Sinhalese. • After he left Sri Lanka his mother told him that people came to her home asking about him. The last time was in May 2016. • He fears he would be arrested like his brother if he returns to Sri Lanka. He left the country when he was meant to be reporting to the authorities. 8 The appellant conducted the SHEV interview with a delegate of the Minister for Immigration and Border Protection on 13 January 2017. The appellant was represented at that interview by a solicitor and migration agent and was assisted by an interpreter conversant in both the Tamil and English languages. 9 The appellant raised a claim for the first time at the SHEV interview. The appellant claimed that he had been sexually assaulted when detained by the Criminal Investigation Department (CID) in Sri Lanka in 2009. He also claimed that he had been beaten by the police when he was required to report to the local police station after he returned to his home area from Colombo. 10 The appellant provided further detail regarding this sexual assault claim in a statutory declaration dated 27 January 2017 (2017 statutory declaration). The 2017 statutory declaration relevantly stated the following: 2. At my interview I disclosed that I suffered sexual assault while I was detained by the CID. This was the first time that I have told anyone that this happened to me. I felt ashamed and felt that I needed to keep what had happened inside me only. I decided to speak about the sexual assault at my interview as I reasoned that the interview is my chance to tell everything; and that because the sexual abuse was something that happened to me and affected me it was important for me to tell. 3. I was not asked many questions at my interview about what happened when I was sexually assaulted. After meeting with my lawyer on two occasions following the interview, I want to provide the following further detail about what happened to me. 4. As I explained at my interview, the sexual assault was part of the torture that I was subjected to when I was detained and interrogated by the CID in March or April of 2009. The CID stepped on my feet with their boots, and melted plastic packing and put it on my feet so that it burned me. I was burned on the arm with a hot rod. My hands were tied behind me, and one of the CID officers hit me a rifle, breaking my arm. I have visible scars on my arm and feet from this treatment, and it is also visible where the fracture did not heal well. … Later on, I believe after a few days, I was sexually assaulted. My hands were tied behind me, the officers removed my pants. They kept a gun on me, pressed on my head or chest. They raped me. They also put their penises in my mouth. 11 As indicated above, one of the key criticisms raised by the appellant in the Circuit Court, and now in this Court, is the alleged inaccuracies in the interpretation of the appellant's answers to questions at the SHEV interview. On 27 January 2017, two weeks after the interview, the appellant's then solicitors provided the delegate with written submissions in support of the appellant's claims for protection. It is necessary to extract the passages of these submissions regarding the alleged mistranslations at the SHEV interview: 2. Issues arising at the interview 2.1. Concerns with interpreting We wish to note that it appeared at points throughout the interview that the interpreting was not accurate. We have since obtained certain parts of the interview recording with the assistance of a Tamil interpreter provided by On Call Interpreters and Translators on 24 January 2017, who confirmed that the interpreting at the sections listened to were inaccurate. By way of example, we refer to the exchange starting at 15:30 of the recording: Case officer: I am going to start with some broad questions about your claims and then go into more detail. I have read your written claims, I want to make sure I understand what your claims are. Who do you fear would harm you in Sri Lanka? Applicant [interpreter]: Army, CID, police or other people I am in fear. Case officer: What do you mean by other people? Applicant [interpreter]: Not the other people, army, CID, police. However, on listening to the recording the interpreter advised that the applicant's initial answer had been 'The forces of the government - Army, CID, police', and did not make reference to 'other people'. While this particular exchange may be considered to be of minor importance, we note that it is an indication of inaccurate interpretation on even a short and straightforward response. As a further example, we note the exchange at 1:06:10 of the interview recording: Case officer: I understand the kind of questions that one might be asked if they were moving from Colombo to Karaveddy, but I want to know specifically what you mean by many times they were beating you. Applicant [interpreter]: Their nature is, is… their nature is… they have to keep us always intimidated, intimidating, and making fear, and that sort of thing. In this condition, we may say anything about LTTE involvement. This is why time to time, not a particular authority, personnel, but different personnel, would involve this matter and ask questions. On review, the interpreter advised that this interpretation was largely inaccurate and did not reflect the substance of what the applicant had said, which was to the effect of 'They beat me because they want to find out, by inflicting pain, whether I am a member of the LTTE or supporting the LTTE' - bur rather the interpreter had gone on a 'tangent'. We refer to further concerns in relation to the interpretation of [the appellant's] evidence of sexual assault below. In view of these examples (which were only selectively reviewed on the basis that it had seemed apparent from the English interpretation that there may have been errors), it should be borne in mind that other questions and responses may not have been accurately interpreted. In that context, we submit that [the appellant] should be afforded the benefit of the doubt in assessing the evidence given at his interview, particularly if it is considered that that any responses he gave were unclear, indirect or inconsistent. 2.2. Evidence of sexual assault At the interview, [the appellant] disclosed that he had been sexually assaulted as part of the torture inflicted on him by the CID while he was detained in Colombo. We wish to note that the interpreter appeared highly uncomfortable in interpreting [the appellant's] evidence in this regard. We refer to the following extract where [the appellant] first disclosed the sexual assault (at 21:00): Case officer: When was the most recent time you were physically harmed or mistreated by any persons in Sri Lanka? Applicant [interpreter]: On and off I was called by the authorities, if I go with them I will be harmed, hitting and beating and slapping, that sort of assault was taking place. They humiliated, like sexual harassment, folding my hand behind. Case officer: How do you mean sexual harassment? Applicant [interpreter]: Holding back... binding hand behind, and stripping off clothes, they would, ah, penetrate, with their, their... body part… or penis or something like that. Case officer: Ok, we will come back to that. On review of this section with the assistance of a Tamil interpreter, we were advised that the initial interpretation of 'sexual harassment' was not accurate, but should have referred to 'sexual assault'. In the first response extracted above, the applicant had said words to the effect that 'they tied up my hands and came behind and had sexual dealings'. The interpretation of this as 'sexual harassment' would appear to further reflect the interpreter's discomfort with the subject, which meant that the full meaning of the applicant's evidence was not initially relayed. Again, we submit that this conduct by the interpreter must be given weight when assessing [the appellant's] evidence. As explained further below, there is extensive country information highlighting the pervasive use of sexual violence by the Sri Lankan authorities including the CID, both during and after the war. … We note that at the interview, minimal questions were asked of [the appellant] on this matter, which we presume was due to sensitivity towards the difficulty for [the appellant] of speaking about the sexual assault he experienced. However, if there are any concerns with [the appellant's] evidence on this aspect of his claims, we submit they should be put to him with opportunity to respond at a further interview. (Citations omitted.) 12 On 3 February 2017, the delegate refused to grant the appellant a visa. The delegate only partially accepted the claims made by the appellant, and determined that the appellant was not owed refugee or complementary protection. 13 Relevantly for current purposes, the decision record of the delegate noted the following about the concerns raised by the appellant's solicitors regarding the alleged mistranslations at the SHEV interview: Concerns with interpreting In a post-interview submission the applicant's representative noted their concern with the accuracy of the interpreting from Tamil to English at the PV interview. The submission refers to two examples of responses by the applicant that it is claimed were not clearly and/or accurately translated by the interpreter. I note that the interview was conducted with the assistance of an accredited Tamil interpreter. For the most part during the interview it appeared that all parties were able to communicate clearly. I am satisfied that the applicant was able to understand the interpreter and that he provided detailed responses to questions asked of him. I have considered the concerns with interpreting as it relates to claims I have not found to be credible. (Citations omitted.)

[3]

Authority's decision 14 The delegate's decision was a "fast track reviewable decision" within the meaning of s 473BB of the Act. The decision was accordingly referred to the Authority for review: ibid, s 473CA. 15 On 28 February 2017, the appellant's solicitors wrote to the Authority reiterating their concerns about the accuracy of the interpretation at the SHEV interview: 1.4. Procedural concerns and request for a further interview We refer to our concerns raised at Part 2.1 of our post-interview submission regarding issues with the interpreting at the applicant's protection visa interview. Despite claiming to have 'considered' these concerns, the delegate did not make further reference to way that the established problems with the interpreting may have affected the responses given by [the appellant], for example when proceeding to make findings that his evidence had been 'vague and evasive'. In our submission, [the appellant] must be given the benefit of the doubt in considering the evidence given at his interview. Further, if the IAA holds any concerns with [the appellant's] credibility, we request that he be afforded an in person interview by the IAA. Particularly in view of the interpreting issues, we submit that [the appellant's] credibility cannot be adequately evaluated only from the recording of his interview and the written material. Assessment of his demeanour is critical to a finding on credibility, and such an assessment needs to be made in the context of an interview with clear and accurate interpreting. In our submission, if there are doubts as to the applicant's credibility, it is not possible to make a decision reaching the state of satisfaction required by s 65 of the Migration Act, or providing the applicant with procedural fairness, without a further interview. (Emphasis added.) 16 On 22 March 2017, the Authority affirmed the delegate's decision to refuse the appellant a visa. The Authority's explanation for why it determined not to invite the appellant to a further interview was as follows: [5] The representative has submitted that there were issues with interpreting at the applicant's protection visa interview and that this may have affected the applicant's responses to the delegate which may have, turn, affected the delegate's perception of his credibility. The representative has submitted that if the IAA holds any concerns with the applicant's credibility he should be afforded an interview as, due to the interpreting issues, his credibility cannot be adequately evaluated only from a recording of his interview and the written material. As demeanour is critical to a finding on credibility, it is not possible for the IAA to reach the state of satisfaction required by s.65 of the Act, or providing the applicant with procedural fairness, without a further interview. [6] I am not persuaded by that submission. Issues relating to concerns about inaccuracies with the interpreting in the applicant's protection interview were raised by his representative in the post-interview submission of 27 January 2017 in which it was submitted that the applicant should, in light of inaccuracies in the interpreting, be given the benefit of the doubt. I have borne that in mind in my decision. The request is, essentially, a request that the applicant be given a second opportunity for the credibility of his claims to be tested. I am conducting a fast track review under the Act. The IAA is not obliged to invite an applicant to provide new information whether in writing or at an interview, simply because the person requests it. The ability of the IAA to consider new information is subject to the restrictions in s.473DD. I further note that Division 3 of the Act, in which s.473DD appears, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. The applicant has, in my view, had an opportunity to present his claims and to have his claims tested in the SHEV interview conducted by the delegate and taking all of the circumstances into account, I am not satisfied the circumstances of this case require me to invite the applicant to attend an interview. 17 The Authority was willing to accept some, but not all, of the claims raised by the appellant. The Authority's consideration of the appellant's claims was summarised in the Circuit Court's reasons (BNB17 v Minister for Immigration & Anor [2019] FCCA 1314) as follows: [28] The IAA dealt with the applicant's recent claims that his father was in fact a member of the Liberation Tigers of Tamil Eelam ("the LTTE") and that this was a factor in making him and his brother a target of the authorities. Relevantly, the IAA noted a number of inconsistencies in the applicant's claims in relation to his father and the timing of his making of those claims. In response to the suggestion by the applicant that his initial statement made in 2013 was "prepared in a rush", the IAA did not accept that this was an adequate explanation. [29] The applicant also sought to explain his failure to make reference to his father's LTTE involvement in his 2013 statement by reference to difficulties with the interpreter he used at that time. The IAA noted: While I accept problems in translation can occur and this may account for minor differences or discrepancies, it is not plausible that a qualified interpreter in the Tamil language would miss or misunderstand an entire claim and I do not accept that any deficiencies in the 2013 statement are attributable to this. [30] The IAA then dealt with the applicant's claims about his brother's detention which the tribunal accepted. The IAA noted however, that the treatment which the applicant's brother received was attributable to the general mass detentions and arrests of young Tamil males at the time, rather than any family association to the LTTE. [31] At paragraphs 17 to 27, the IAA considered the applicant's various claims about the circumstances in which he was questioned and detained both in Colombo and after he moved to Karaveddy. The IAA found that the applicant's claims in relation to the former "fluctuated over time". [32] In relation to the alleged sexual assault which was said to have occurred in 2009, the IAA noted that this was raised for the first time in the hearing before the delegate. The tribunal considered the submissions made on the applicant's behalf as to why he had not raised these matters earlier. To the extent that the applicant told the delegate that he had disclosed this incident when he arrived in Australia and was offered counselling but declined it, the IAA noted that there was no information presented, other than the applicant's word which verified that claim. [33] The IAA did not ultimately accept that there were incidents in either 2007 or 2009 in which the applicant was tortured and/or sexually assaulted. [34] In relation to the 2007 incident, the IAA found that the applicant's "evidence was general and lacking in detail". Moreover, he first referred to this incident in his 2016 statement, with no mention being made in either his entry interview or his 2013 statement. 18 Relevantly for current purposes, the Authority also rejected the appellant's claim that he was tortured and sexually assaulted by authorities in 2009: [20] In regard to his claim that in 2009, he was sexually tortured and assaulted, there is ample credible country information that sexual assault has been engaged in by the authorities in Sri Lanka in a systematic way against detainees, usually Tamils. As the delegate noted, his SHEV interview was the first time this claim was raised. I also note that he claimed his arm was broken but he did not give evidence that he sought medical treatment afterwards for his injuries which, on his evidence, must have been quite serious although I also note that he was not specifically asked about this. During his interview, his evidence regarding for how long he was detained was internally inconsistent - at one stage he said he was kept by the CID for 3 or 4 days and later, that he was released after a week. Even if I accept his reasons for not mentioning the incident before his interview, this does not explain other changes in his evidence such as why he stated the detention lasted five hours (2016 statement) and later 3-4 days or a week (SHEV interview). Given the changes in his evidence, the lack of detail provided at interview, the inconsistencies in his evidence, two sworn statements neither of which mention the incident and my finding above that he has not been truthful in relation to all of his claims, I do not accept that there was an incident in 2009 during which the applicant was tortured and sexually assaulted by the authorities. (Citations omitted and emphasis added.) 19 Based on the claims accepted, the Authority was ultimately not satisfied that the appellant was owed refugee or complementary protection: IAA Reasons at [50] and [57].

[4]

Federal Circuit Court's decision 20 The appellant, with legal assistance, sought judicial review of the Authority's decision in the Circuit Court. The appellant raised the following two ground of review: 1. First, the IAA erred by not fashioning its procedures to cure the interpreter errors that affected the delegate's interview. Not inviting the applicant to an interview under s 473DC in the circumstances of this case was unreasonable. 2. Secondly, the IAA failed to consider corroborating evidence in that it ignored both the applicant's physical scars; and the details in his statutory declaration about being sexually assaulted. As such, the IAA constructively failed to carry out its review. 21 On 24 May 2019, the Circuit Court dismissed the appellant's judicial review application: BNB17 v Minister for Immigration & Anor [2019] FCCA 1314 (FCCA Reasons). 22 In relation to the first ground of review, the Circuit Court held that, having regard to the circumstances in which the alleged mistranslations were raised with the delegate and the Authority, and the limited form of review provided for in Pt 7AA of the Act (as detailed below), it was reasonably open for the Authority to refuse the appellant's request for a further interview: ibid at [82]-[83]. The Circuit Court expressed that "this is not a case where viewed individually or collectively, the errors identified in the post hearing submission lead to the conclusion that the [appellant] was not able to understand the questions asked of him and to convey his responses adequately": ibid at [84]. The Circuit Court moreover held at [85] that none of the mistranslations identified by the appellant in that court rose to a level of materiality that would lead to jurisdictional error. 23 In relation to the second ground of review, the Circuit Court held that the alleged "scars" were not "corroborating evidence": ibid at [103]-[104] and [107]. The Circuit Court held that it was evident from the IAA Reasons that the Authority had regard to the material referred to it, which included an explanation by the appellant for not raising his sexual assault claim earlier: ibid at [105]. According to the Circuit Court, it could not be concluded that the Authority failed to consider this information: ibid at [107]. 24 As detailed below, these grounds of review were repeated in the grounds of appeal raised in this Court, albeit in a slightly different form.

[6]

Relevant legislation 28 Part 7AA was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act). The explanatory memorandum to the relevant bill described that … Part 7AA establishes the IAA and the new limited merits review framework. Under this Part, the Minister will be required to refer fast track reviewable decisions to the IAA and provide the IAA with review material as soon as reasonably practicable after the primary decision to refuse to grant a protection visa has been made under section 65 of the Migration Act. Similar to the [Refugee Review Tribunal], the IAA will have the power to either affirm the decision or remit the decision to the department for reconsideration in accordance with prescribed directions or recommendations. In carrying out its functions under the Migration Act, the IAA is to pursue the objective of providing a mechanism of limited review that is efficient and quick. While there will be discretionary powers for the IAA to get new and relevant information and to get information in the most suitable and convenient way from applicants, the IAA is under no duty to accept or request new information or interview an applicant. (Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) (Explanatory Memorandum to the Amending Bill) at 8-9). See also Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 (Plaintiff M174) at [1] per Gageler, Keane and Nettle JJ, [80] per Gordon J and [96] per Edelman J. 29 The operation of Pt 7AA has been detailed by the High Court on recent occasions: Plaintiff M174 at [6]-[38] per Gageler, Keane and Nettle JJ; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 93 ALJR 1091; 373 ALR 196 at [3]-[17] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140 (CNY17) at [2]-[7] per Kiefel CJ and Gageler J, [60]-[66] per Nettle and Gordon JJ and [114]-[116] per Edelman J. 30 Part 7AA of the Act only applies to a limited class of applicants for protection visas. A necessary characteristic is that the visa applicant is an "unauthorised maritime arrival" who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country: see s 5 definition of "fast track applicant"; AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222 at [7] per Allsop CJ, Jagot and Moshinsky JJ. The appellant in the present case is a "fast track applicant" and, as defined by s 5 of the Act, a "fast track review applicant". 31 Division 2 of Pt 7AA confers on the Authority the power and duty to review a "fast track reviewable decision" and prescribes the material that must be provided to the Authority to enable it to undertake that function. That division contains the following provisions: 473CA Referral of fast track reviewable decisions The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made. 473CB Material to be provided to Immigration Assessment Authority (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA: (a) a statement that: (i) sets out the findings of fact made by the person who made the decision; and (ii) refers to the evidence on which those findings were based; and (iii) gives the reasons for the decision; (b) material provided by the referred applicant to the person making the decision before the decision was made; (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; (d) [broadly, contact details for the applicant for the purposes of receiving documents]. (2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority. 473CC Review of decision (1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA. (2) The Immigration Assessment Authority may: (a) affirm the fast track reviewable decision; or (b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation. 32 Although the Authority does not have the power under s 473CC of the Act to set aside a "fast track reviewable decision" and substitute its own decision, the Authority, when conducting the review of such a decision, is not concerned with the correction of error by the Minister or his delegate, but is instead engaged in a de novo consideration of the merits of the decision referred to it: Plaintiff M174 at [17] per Gageler, Keane and Nettle JJ, [85] per Gordon J and [92] per Edelman J; see also BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; 253 FCR 448 at [15] per Dowsett J and [87]-[88] per Charlesworth J; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 (CRY16) at [68] per Robertson, Murphy and Kerr JJ; EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; 163 ALD 422 at [33] per Allsop CJ, Markovic and Steward JJ and DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157 at [11] per Greenwood and Flick JJ. 33 Division 3 of Pt 7AA, entitled "Conduct of review", prescribes the manner in which the Authority is to conduct a review of a "fast track reviewable decision", including by specifying the circumstances in which the Authority is permitted to seek and consider new information. That division relevantly provides as follows: 473DA Exhaustive statement of natural justice hearing rule (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority. (2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65. … 473DB Immigration Assessment Authority to review decisions on the papers (1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. (2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority. … 473DC Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 34 If the Authority has, or will, consider "new information" that would be the reason, or part of a reason, for affirming the fast track reviewable decision, the Authority is required to provide the visa applicant with an opportunity to comment on the information: ss 473DE and 473DF of the Act. 35 Division 5 of Pt 7AA further governs the exercise of the Authority's powers and functions. That division relevantly contains s 473FA, which provides the following: 473FA How Immigration Assessment Authority is to exercise its functions (1) The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review). (2) The Immigration Assessment Authority, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence.

[8]

Appellant's submissions 38 The appellant submitted that the inaccuracies in the interpretation of the SHEV interview, as raised by the appellant's solicitors with the Authority, were material to the outcome of the Authority's decision. Relevantly, in cases where mistranslations occur in the context of credit findings, the appellant submitted that the impact of those errors on the assessment of credibility is not necessarily linear (that is, an unfavourable view as to a visa applicant's credibility, even in respect of minor issues of fact, may often be decisive). The appellant argued that, in the absence of the mistranslations, the Authority may have reached a different conclusion about his credit, a different conclusion about the past harm that the appellant had suffered, and a different conclusion about the future risk of harm. 39 The appellant highlighted that his representatives raised the mistranslations with both the delegate and the Authority. On both occasions, the appellant requested an opportunity to respond at a further interview to any concerns with his claims. 40 The appellant pointed to the Authority's power under s 473DC of the Act to invite the appellant to give new information in a further interview. The appellant argued that the Authority unreasonably failed to "fashion its procedure" to deal with the problems faced by the mistranslations. In the appellant's submission, the result was that he was practically unable to put his testimony to the delegate. 41 The appellant submitted that, without an accurate translation of the appellant's claims and evidence, the Authority could not: (a) determine if the delegate had mischaracterised the appellant's evidence; (b) assess whether the claims for protection should be accepted; (c) make credit findings open to it; (d) review the case, as obliged by s 473CC of the Act; or (e) consider the "review material" as obliged by s 473DB(1) of the Act. 42 The appellant moreover contended that the Authority's reasoning as to why it determined not to invite the appellant to a further interview (at [6] of the IAA Reasons, as extracted above at [16]) was defective in various respects: (a) first, the Authority's reference to the appellant's request for an interview being "essentially, a request that the [appellant] be given a second opportunity for the credibility of his claims to be tested" evidenced a misunderstanding of the Authority's own role, which was a de novo review of the merits of the appellant's visa application; (b) second, the Authority's reference to the appellant already having had an opportunity to present his claims was "an empty piece of analysis". This "opportunity" was insufficient if it was undermined by the misinterpretations; (c) third, the expression of the Authority's conclusion - that it was not satisfied that the circumstances of the case required it to invite the appellant to a further interview - revealed a misunderstanding of the Authority's powers. The Authority had an unlimited discretion to invite a further interview, and did not need to satisfy itself that an interview was required; and (d) fourth, the Authority stated that it had "borne in mind" that the translation concerns had been raised with the delegate and the Authority. However, the Authority continued to draw negative credibility findings and rejected claims of the appellant because of vague, inconsistent and non-responsive testimony during the interview. In doing so, the Authority failed to adequately take into account that the appellant's testimony may have been compromised by the misinterpretations.

[9]

Minister's submissions 43 The Minister rejects the appellant's submission that the Authority's determination not to invite a further interview was legally unreasonable. In the Minister's submission, it was not apparent on the material before the Authority that the appellant had been substantially impaired from giving evidence at the SHEV interview. 44 The Minister argued that none of the examples of misinterpretations asserted by the appellant, considered in isolation or collectively, suggested that the substance of the appellant's evidence to the delegate was not properly communicated. And, in the Minister's submission, it was not apparent that the conduct of the interpreter, considered "in the aggregate", had caused the interview to miscarry. Translation is an art, not a science, and the translations in the present case were not demonstrative of a miscarriage. 45 The Minister moreover highlighted that, despite the passage of more than two months after the SHEV interview and before the Authority's decision, the appellant (who was represented by a solicitor and migration agent, and who had apparently been able to privately acquire translation services to interpret an audio recording of that interview) did not identify any further examples of misinterpretation. 46 In these circumstances, it was, in the Minister's submission, open to the Authority not to be satisfied that there were material errors of translation such that it should exercise its discretion to invite the appellant to a further interview. Relevant to the "framework of rationality" constraining the exercise of the Authority's discretion, Pt 7AA of the Act expresses an intention that, generally, the Authority will not conduct an interview with a visa applicant, and the Authority does not owe a duty to get new information from a visa applicant. 47 The Minister argued that the appellant was overly critical of the Authority's reasons for not inviting a further interview, and for making adverse findings in relation to the appellant's credit. In particular, the Minister highlighted that some of the inconsistencies with the appellant's evidence identified by the Authority derived from oral and documentary evidence given other than at the SHEV interview. As such, even assuming there were material misinterpretations (which was denied by the Minister), the adverse credit assessments cannot necessarily be traced back to evidence given at the SHEV interview.

[10]

Duty of reasonableness 48 The power in s 473DC of the Act is conferred on the Authority with the implied condition that it is to be exercised reasonably, in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li): Plaintiff M174 at [21] per Gageler, Keane and Nettle JJ, [86] per Gordon J and [97] per Edelman J; CRY16 at [82]-[83] per Robertson, Murphy and Kerr JJ; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; 253 FCR 526 (DZU16) at [93] per Robertson, Murphy and Kerr JJ; DPI17 v Minister for Home Affairs [2019] FCAFC 43; 366 ALR 665 (DPI17) at [43] per Griffiths and Steward JJ; BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171 (BJK17) at [41] per Middleton, Bromberg and Snaden JJ. 49 In some circumstances, the Authority will act with legal unreasonableness where it fails to consider whether or not to exercise its power under s 473DC. Examples of this occurring are found in the decisions of the Full Court in CRY16 (see [82]-[83] per Robertson, Murphy and Kerr JJ), DZU16 (see [76]-[96] per Robertson, Murphy and Kerr JJ) and DPI17 (see [45] per Griffiths and Steward JJ and [115]-[126] per Mortimer J); see also Minister for Home Affairs v DUA16 [2019] FCAFC 221 at [72] per Griffiths J, with Wheelahan J agreeing; but cf, for example, BJK17 at [45]-[46]. These cases are not factually analogous to the present case, where the Authority openly considered the exercise of that power and provided reasons for determining not to invite the appellant to a further interview. 50 Where the Authority considers its power under s 473DC (such as in the present case), there may be circumstances in which the exercise of that power amounts to legal unreasonableness: Plaintiff M174 at [21] per Gageler, Keane and Nettle JJ, [86] per Gordon J and [97] per Edelman J; see also DPI17 at [116] per Mortimer J. 51 The considerations that inform the standard as to whether or not the exercise of statutory power is legally reasonable have been detailed elsewhere: see, for example, Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 365 ALR 202 at [37] per Griffiths J, with Gleeson J agreeing and Khalil v Minister for Home Affairs [2019] FCAFC 151; 372 ALR 424; 166 ALD 1 at [34]-[35] per Logan, Steward and Jackson JJ. It is convenient to quote Allsop CJ, Griffiths and Wigney JJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton) at [11], where their Honours expressed that the task of evaluating whether a statutory decision was made within its jurisdictional boundaries of power is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. 52 In accordance with these principles, the relevant question in the present case is whether the Authority, in the circumstances known by it at the date of its decision, acted with legal unreasonableness by determining not to invite the appellant to give "new information" at a further interview. There are two key considerations that influence the answer to that question.

[11]

Zone of decisional freedom 53 The first key consideration is that, in the context of Pt 7AA of the Act, the zone of decisional freedom in which the Authority may lawfully determine not to seek "new information" is particularly broad: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (DCP16) at [110] per Beach, O'Callaghan and Anastassiou JJ. 54 The standard of legal reasonableness applicable to the exercise of statutory power takes its content and boundaries from the text, context, subject matter and purpose of the particular statutory content in which the relevant power is being exercised: DCP16 at [106], citing Li. In the present case, the Authority was required to conduct an efficient and quick review: s 473FC(1) of the Act. This operates to make the task of establishing legal unreasonableness more demanding: see TTY167 v Republic of Nauru [2018] HCA 61; 362 ALR 246 at [24] per Gageler, Nettle and Edelman JJ and BJK17 at [49]. Moreover, as a default position, the Authority is only required to consider the review material provided to it by the Secretary: s 473DB(1). Although the Authority is empowered to request further information, it is not under a duty to get, request or accept any such information: s 473DC(2). As such, as a general rule, there is no duty on the Authority to interview the appellant: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [75] per Reeves, Robertson and Rangiah JJ. 55 In my view, the zone of decisional freedom granted to the Authority under s 473DC of the Act to obtain "new information" may also be influenced by the circumstances in which the Authority is permitted to subsequently consider such information under s 473DD: see EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (EMJ17) at [60(7)] per Thawley J. For instance, it may be within the bounds of legal reasonableness for the Authority to decline to obtain a particular form of "new information" where the Authority is satisfied that there would be no possible "exceptional circumstances" that would justify the consideration of that form of information. Having said that, the Authority must not conflate the requirements of ss 473DC and 473DD: ibid; DFK16 v Minister for Immigration and Border Protection [2019] FCA 789; 166 ALD 41 (DFK16) at [13]-[14] per Moshinsky J; CCR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 9 (CCR18) at [26]-[43] per Jackson J. In particular, the Authority must not exercise the discretion in s 473DC as if it was confined by a requirement that there exist "exceptional circumstances" that would justify the Authority later considering the information. 56 What amounts to "exceptional circumstances" for the purposes of s 473DD of the Act is "inherently incapable of exhaustive statement": Plaintiff M174 at [30] per Gageler, Keane and Nettle JJ. The Explanatory Memorandum to the Amending Bill suggests (at 9), by way of example, that "exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant's country of origin that means the applicant may now engage Australia's protection obligations". It appears that, for a circumstance to be "exceptional", it "need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered": R v Kelly [2000] 1 QB 198 at 208 per Lord Bingham of Cornhill CJ, for the Court of Appeal, quoted in Plaintiff M174 at [30] per Gageler, Keane and Nettle JJ; see also Maan v Minister for Immigration and Citizenship [2009] FCAFC 150; 179 FCR 581 at [51] per Dowsett, Greenwood and Collier JJ. 57 Notwithstanding the centrality of the statutory context in Pt 7AA of the Act for the purposes of the present case, the characterisation of a decision as legally reasonable or not is invariably fact dependent: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [42], [47] and [48] per Allsop CJ, Robertson and Mortimer JJ, cited in DPI17 at [37], DCP16 at [108] and BJK17 at [41]. The key factual feature of the present case is the alleged misinterpretations at the SHEV interview.

[12]

Significance of alleged misinterpretations 58 The second key consideration influencing the determination of whether the Authority acted with legal unreasonableness in the present case is the degree of significance of the alleged misinterpretations. 59 The importance of considering the degree of deficiency in translation services is demonstrated by the Full Court's decision in DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157 (DVO16). The visa applicant in DVO16 argued that the Authority erred by failing to consider whether it ought to hear further from the visa applicant in relation to his claims of ethnic persecution. The facts of DVO16 are distinguishable from the present case on the basis that the translation errors (or at least the possibility of such errors) were not raised with the Authority: see ibid at [3] per Greenwood and Flick JJ and [90] per Stewart J. However, aspects of the Full Court's reasoning remain pertinent to the present case. 60 Although the Authority in DVO16, unlike in the present case, did not expressly consider whether or not to exercise its power under s 473DC, Greenwood and Flick JJ nonetheless expressed a view as to whether the Authority acted unreasonably by not exercising that power. Their Honours relevantly stated the following: [9] Within the constraints imposed by Pt 7AA, no argument is open to the Appellant that the Authority acted unreasonably in not exercising the discretionary power to get "new information" pursuant to s 473DC. Any such argument would confront a number of difficulties. [10] First, it is simply not known whether the Authority in fact gave consideration to whether or not it should seek further information. It is simply not known what significance it attached, if any, to the self-evident difficulties being experienced between the delegate and the Appellant in respect to what was being said, those difficulties being evident from listening to the audio recording. Second, and more importantly, it cannot be said that any consideration that the Authority gave to whether it should seek further information was unreasonable when there was no information available to it at the time of undertaking its review, other than that the audio recording, which exposed difficulties in communication as between the delegate and the now-Appellant. Upon the information then available to it, including the audio recording, it cannot be concluded that the Authority acted unreasonably in proceeding upon that information. The extent of the errors in translation made apparent by evidence only obtained subsequent to the Authority's decision, and for the purposes of the Federal Circuit Court proceeding, cannot be employed retrospectively to render the decision-making process of the Authority legally unreasonable. [11] Any scope for judicial intervention, accordingly, is to be found - if at all - in the statutory requirement imposed upon the Authority to undertake a "review" as required by ss 473CC and 473DB of the Migration Act. The "review" to be undertaken is a de novo review and the Authority is not bound by the findings of fact made by the delegate: cf. [Plaintiff M174 at [17] per Gageler, Keane and Nettle JJ and [85] per Gordon J]. But such scope for judicial intervention is, regrettably, short lived. Although a "review" would include a genuine process of considering the material forwarded to the Authority pursuant to s 473CA together with any "new information" which it "gets", a "review" cannot be construed as a review of only factually accurate transcriptions of an interview process. Whatever misgivings may have occurred to the Authority when considering the audio recording of the interview, and even though the Authority "may" get further information that it considers "may be relevant" (s 473DC(1)), the Authority nevertheless remained subject to no "duty to get" any further information from the Appellant: s 473DC(2). [12] Left to one side are those cases in which deficiencies in translation services are so manifestly apparent that both the delegate and the Authority must be taken to be on notice that any interview process was manifestly deficient and a manifestly inadequate basis upon which a "review" can lawfully be undertaken. Such is not the present case. 61 Some aspects of this passage ought to be emphasised for current purposes. The first aspect, as noted at [10] of DVO16, is that the reasonableness of a decision whether or not to exercise the power under s 473DC is to be assessed by reference to the information then available to the Authority. The second aspect of this passage, and the most important for current purposes, is the focus on the degree of deficiency in the translation services. As suggested at [12] of DVO16, the translation errors in that case were not so serious such that the interview process could be characterised as "manifestly deficient": see also [82] and [87]-[88] per Stewart J. 62 Although the differences between reviews by the Administrative Appeals Tribunal under Pt 7 of the Act and those of the Authority under Pt 7AA of the Act should not be overlooked, the focus in DVO16 on the degree of deficiency in the translation services is broadly consistent with general principles regarding mistranslations in the former context: see Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 at [27]-[31] and [45]-[46] per Kenny J (Perera); WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; 131 FCR 511 at [63]-[69] per Lee, Hill and Carr JJ (WACO); SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 (with Allsop CJ, Flick and Robertson JJ writing separate reasons) (SZRMQ); SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [71]-[81] per Griffiths J (SZSEI) and SZTFQ v Minister For Immigration and Border Protection [2017] FCA 562 at [33]-[40] per Lee J (SZTFQ). 63 In the context of reviews under Pt 7 of the Act, it has been repeated that translation is not a perfect science: Perera at [27]-[31]; SZRMQ at [48] per Flick J; SZSEI at [79]. It is enough if the translation is sufficiently accurate so as to permit the substance of the idea or concept being translated to be communicated: WACO at [66]; SZRMQ at [9] per Allsop CJ; SZSEI at [79]. This was explained by Flick J in SZRMQ at [46] in the following terms: … it is considered to be a mistake to fix the standard of interpretation by reference to touchstones such as whether a translation has been "accurate" or whether any particular interpreter meets the standard of a "first-flight interpreter". Errors in translation will inevitably occur. Even in the absence of such errors, words or expressions used may initially fall short of conveying an intended meaning. Even when proceedings are being conducted in English by those fluent in the English language, it may require two or more attempts to accurately convey a particular meaning. In those contexts where a claimant is entitled to be heard, that entitlement necessarily demands that any hearing involves a meaningful opportunity where that which is sought to be conveyed by both the claimant and the decision-maker is conveyed in a real and meaningful manner. Initial errors in translation may be corrected by subsequent questioning and answers. A danger necessarily lurks in errors that may go undetected at a hearing and which only emerge after a hearing has concluded. But whether the error emerges during the administrative hearing itself, or subsequently, the fact that an error in translation may have occurred may assume no ultimate significance if the true meaning and content of that which is sought to be expressed ultimately emerges. 64 Accordingly, not every departure from the standard of interpretation will prevent a visa applicant from properly giving evidence; error will only be established if the departure relates to a matter of significance for the visa applicant's claims or the ultimate decision: Perera at [45]; SZRMQ at [66] per Robertson J; SZTFQ at [34]. Thus, the court should consider whether the misinterpretation had, or could have had, significance if the visa applicant's words had not been mistranslated: SZRMQ at [67] per Robertson J; SZSEI at [76]-[77]; SZTFQ at [40].

[13]

Authority's decision 65 Having regard to all the circumstances of the case, and in particular the considerations discussed above, my view is that the Authority's decision to not invite a further interview was not legally unreasonable. The present case is not one in which the result of the Authority's decision was "so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power": Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [83] per Nettle and Gordon JJ. It was legally open for the Authority to rely on the material provided to it by the Secretary. 66 The critical considerations underpinning this conclusion have been foreshadowed above. As discussed, the zone of decisional freedom in which the Authority may legally operate in exercising s 473DC of the Act is particularly broad. The task of establishing legal unreasonableness in respect of a decision under that provision is accordingly a demanding one. Moreover, in relation to the facts of the present case, the alleged mistranslations raised by the appellant's solicitors were not so material, either in isolation or in aggregate, such that it was legally unreasonable for the Authority not to invite a further interview. 67 The first alleged mistranslation was that the appellant claimed that he feared harm in Sri Lanka from "Army, CID, police", but he had been incorrectly translated as also fearing harm by "other people" (see para 2.1 of the appellant's solicitor's submissions to the delegate, as extracted above at [11]). It is unclear how this constitutes a material error in the totality of the appellant's claims. In any event, the appellant's subsequent answer at the SHEV interview - "Not the other people, army, CID, police" (emphasis added) - appears to have clarified his answer and corrected any mistranslation. 68 The second alleged mistranslation requires more detailed consideration. According to the appellant's solicitor's submissions to the delegate, the interpreter had "gone on a 'tangent'" regarding a question from the delegate about the beatings the appellant said that he had received in Sri Lanka. For reference, para 2.1 of the appellant's solicitor's submissions, as fully extracted above at [11], relevantly expressed the following: As a further example, we note the exchange at 1:06:10 of the interview recording: Case officer: I understand the kind of questions that one might be asked if they were moving from Colombo to Karaveddy, but I want to know specifically what you mean by many times they were beating you. Applicant [interpreter]: Their nature is, is… their nature is… they have to keep us always intimidated, intimidating, and making fear, and that sort of thing. In this condition, we may say anything about LTTE involvement. This is why time to time, not a particular authority, personnel, but different personnel, would involve this matter and ask questions. On review, the interpreter advised that this interpretation was largely inaccurate and did not reflect the substance of what the applicant had said, which was to the effect of 'They beat me because they want to find out, by inflicting pain, whether I am a member of the LTTE or supporting the LTTE' - bur rather the interpreter had gone on a 'tangent'. 69 Reading these submissions in isolation, it may be accepted that the translation was, as conceded by counsel for the Minister in this Court, more "garbled" than the translation subsequently given by the appellant's interpreter. The omission of any express reference in the translation to a "beating" or being "beat" is also striking. However, like the first alleged mistranslation considered above, it is necessary to consider subsequent conversation at the SHEV interview to discern whether any mistranslation was remedied. 70 A transcript of the SHEV interview, created from an audio recording of that interview, was provided by the appellant's solicitors to the Circuit Court (and also included in the appeal book in this Court). According to affidavits filed on behalf of the appellant, the English portion of the SHEV interview was transcribed by a graduate lawyer at the appellant's solicitors, and the Tamil portion of the SHEV interview was translated and transcribed by a certified provisional interpreter. 71 It is necessary to extract the relevant part of the transcript of the SHEV interview that contains the second alleged mistranslation, and also the conversation that immediately followed that alleged mistranslation. The rows in English are shaded grey and the rows in Tamil portion are coloured white with italics (with errors in original): 599. [Interpreter] After 2009 the time … from time to time, on and off, they called … called me and asked me questions like what I'm doing, where I'm going and sort of things and they would ask help me, help me, they need to use my vehicle, and err, beaten many time and in this situation they err … to cause me fear that I wasn't able to, umm, move so … so freely that move around the country. 600. [Delegate] And just to clarify, what do you mean - beaten many times? 601. [Interpreter] Explain the phrase 'they beat me many times' 602. [Appellant] Yes. 603. [Delegate] What do you mean by that 604. [Interpreter] What are you trying to tell? 605. [Appellant] Nothing to tell. Thy beat and ask from Colombo I went Nelliady. Ah Point pedro ah ab Karaveddy Because I went they ask where were you all these time? Did you worked with LTTE? For that I said 'No. I stayed in this place. I stayed in Colombo. There is no connection for me with that. 606. [Interpreter] They would ask a question relating to the Colombo and Karaveddy - I came from Colombo to Karaveddy and lived in Karavedd. Then they are in suspicion because, err, I was in Colombo, err, and then they have any involvement in LTTE - that's sort of a question they would ask to clarify that. 607. [Delegate] So I understand the type of questions one may be asked if they were moving from Colombo to Karaveddy, but I want to know specifically about what you mean by many times they were beating you? 608. [Interpreter] The way they think because you moved from Colombo to Karaveddy. But you are telling 'beat me several times'. Explain that. Why they beat you? How many time? The action 'beating'. 609. [Appellant] The beating. They beat and ask questions to get the truth. They beat and try to get information to make sure whether I know anything about LTTE. When they ask we tell. 'No we don't have any connection. I tell 'I don't have anything to that manner.' 610. [Interpreter] Their nature is, err, is … the nature is that they have to keep us always intimidated, intimidating and making fear and that sort of thing. Err, in this condition, err, umm, we may say anything about LTTE involvement, that's why they time to time … not a particular authority but … a particular personnel but different personnel would involve this matter and would ask questions. 611. [Delegate] So what physically did they do in terms of … what do you mean when you use the word beating? 612. [Interpreter] When you use the word 'beating'. What you mean by 'beating'? 613. [Appellant] No. Beating for no reason. Beat for nothing. Immideatly after calling they beat. Because there is no reason. And we even don't know why he is beating us. 614. [Interpreter] Sorry, um, he's trying to tell the reason why they are beating, but … err … but … err … your question is, err, what form of attack. Is it? 615. [Delegate] Um, yeah. I'll get you to, I'll get you to, um, translate and I'll seek to clarify with my next question. 616. [Interpreter] Yep. 617. [Delegate] So he, did he restate that? Does anything need to be translate of what he has just said to me? 618. [Interpreter] [inaudible] so I asked the question what he mean by the beating, he is finding the reason why they are beating. 619. [Delegate] Right, so is there anything … right OK. When you say, when you use the word that you were beaten, I would like to know what you mean by that. Not why someone might want to talk to you or harm you, but specifically what you mean by having been beaten. 620. [Interpreter] When you tell 'they beat you' what you mean by 'beaten'? What is that? 621. [Appellant] What is beating means … I didn't do an thing wrong. No wrong thing. Getting beaten was the issue for me. 622. [Interpreter] I didn't do any wrong thing for them of for … the society or for the community, but, err, I was beaten by them when ever I go..

[14]

72 As can be seen from the transcript, the appellant submitted to the delegate and the Authority that the interpreter's translation in row 610 of the transcript mistranslated the appellant's answer in row 609. Moreover, it can be seen from rows 614-618 that there was some confusion with communication between the delegate, interpreter and appellant. However, the conversation resets, and the delegate asks at row 619 the question he had already asked numerous times (see rows 600, 603, 607 and 611), namely, what did the appellant precisely mean when he said he was beaten? 73 The significance of the second mistranslation alleged by the appellant is abated by the delegate providing the appellant numerous opportunities to explain what he meant by a "beating". The appellant does not impugn the veracity of the entirety of this sequence. As such, my view is that, to the extent that the interpreter's translation in row 610 was a misrepresentation of what the appellant had said in row 609 (in particular that the translation did not refer to any beating), that discrete error was redressed, or at least mitigated, by the subsequent discussion at the interview such that it does not reasonably give rise to an inference that the integrity of the interview was compromised. 74 In any event, I observe that the Authority acknowledged and considered the appellant's claim that he had been beaten by police: see, for example, IAA Reasons at [8], [18], [22] and [23]. As such, it is unclear how this mistranslation, accepting that it is one, materially influenced the Authority's reasoning process and its conclusions. 75 The third alleged mistranslation was that the interpreter at the SHEV interview referred to "sexual harassment" instead of "sexual assault" (see para 2.2 of the appellant's solicitor's submissions to the delegate, as extracted above at [11]). Notwithstanding any differences in the meaning of "harassment" and "assault", this mistranslation was immaterial given the appellant specified what he meant by "sexual harassment" in his next answer: "Holding back... binding hand behind, and stripping off clothes, they would, ah, penetrate, with their, their... body part… or penis or something like that". Thus, to the extent that the meaning of what the appellant was expressing was initially distorted by mistranslation, it was cured by the appellant providing particular content to the experience that he had purportedly endured. Moreover, in any event, the IAA Reasons (at, for example, [8] and [17]) characterised this claim by the appellant as having been sexually assaulted. The material consequence of this alleged mistranslation is thus unclear. 76 Notwithstanding the immateriality of the alleged mistranslations, the appellant's challenge to the Authority's decision to not invite a further interview did not necessarily hinge on these three particular translations being characterised as material. The submissions on behalf of the appellant to the Authority used these alleged mistranslations to support an inference of wider inaccuracy. The appellant further sought in those submissions to connect these "interpreting issues" to the delegate's concerns regarding the appellant's credibility. The appellant's solicitors submitted to the Authority that, "if there are doubts as to the [appellant's] credibility, it is not possible to make a decision reaching the state of satisfaction required by s 65 of the [Act], or providing the [appellant] with procedural fairness, without a further interview". The appellant now submits that, given the doubt created by the interpretation issues, it was legally unreasonable for the Authority not to seek to allay that doubt by requiring a further interview. 77 Ultimately, my view is that the premise underpinning the appellant's solicitor's submissions to the Authority - that there were "established problems with the interpreting" at the SHEV interview - is not borne out. Yes, there may have been inaccuracies in the translation. But translation is not an exact science. In respect of the alleged mistranslations raised on behalf of the appellant, those translations, for the reasons explained above, were not so deficient, either in isolation or collectively, such that the substance of the appellant's evidence at the SHEV interview was distorted in any material way. To apply DVO16 at [12] per Greenwood and Flick JJ (as extracted at [60] above), the deficiencies in translation were not so apparent such that the interview process was a manifestly inadequate basis upon which the Authority's review was to be undertaken. 78 The appellant had sufficient opportunity to provide the Authority with further substantiation of translation issues at the SHEV interview. That interview was held on 13 January 2017. In submissions to the delegate on 27 January 2017, the appellant's solicitors stated that they had obtained the assistance of an alternative interpreter who listened to the recording of the interview (and noted the three alleged mistranslations discussed above). The delegate's decision was made on 3 February 2017. In submissions to the Authority on 28 February 2017, the appellant's solicitors again raised the alleged mistranslations, but failed to provide any further examples. The Authority then made its decision on 22 March 2017. Although this procedural sequence was relatively quick (as is intended by Pt 7AA of the Act), it provided sufficient time for the appellant's solicitors to provide to the Authority further substantiation of erroneous translation, or otherwise provide a revised transcript of the SHEV interview. Their failure to do so invites an inference that there was no further errors for them to highlight. 79 The appellant's solicitors submitted to the Authority that, "in view of the interpreting issues [at the SHEV interview], we submit the [the appellant's] credibility cannot be adequately evaluated only from the recording of his interview and the written material". However, in light of the analysis above, it was not unreasonable for the Authority to rely on the "review material" provided to it by the Secretary. That is the default position under Pt 7AA of the Act. It was not unreasonable for the Authority to refuse to deviate from that position in the present case.

[15]

Authority's reasoning 80 It is also necessary to consider the reasoning expressed by the Authority for its decision under s 473DC of the Act. The appellant alleged that defects in that reasoning supported the conclusion that the decision was legally unreasonable. 81 The Authority's reasons for refusing to invite a further interview was set out at [6] of the IAA Reasons. The relevant parts of that paragraph are set out again for reference: [6] … Issues relating to concerns about inaccuracies with the interpreting in the applicant's protection interview were raised by his representative in the post-interview submission of 27 January 2017 in which it was submitted that the applicant should, in light of inaccuracies in the interpreting, be given the benefit of the doubt. I have borne that in mind in my decision. The request is, essentially, a request that the applicant be given a second opportunity for the credibility of his claims to be tested. I am conducting a fast track review under the Act. The IAA is not obliged to invite an applicant to provide new information whether in writing or at an interview, simply because the person requests it. The ability of the IAA to consider new information is subject to the restrictions in s.473DD. I further note that Division 3 of the Act, in which s.473DD appears, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. The applicant has, in my view, had an opportunity to present his claims and to have his claims tested in the SHEV interview conducted by the delegate and taking all of the circumstances into account, I am not satisfied the circumstances of this case require me to invite the applicant to attend an interview. 82 The Authority's reasoning and justification for its decision under s 473DC of the Act is evidently less detailed than the consideration undertaken in these reasons. It would have been preferable for the Authority to independently consider the particular forms of mistranslation alleged by the appellant, rather than simply bearing in mind the delegate's response to those allegations. However, in my view, given the refusal to obtain new information played a relatively minor part in the Authority's overall decision, and given the nature of the fast-track review to be undertaken by the Authority, this passage evidences sufficient engagement by the Authority for its decision under s 473DC. 83 The bases for the appellant's attack on the Authority's reasoning that were outlined at [42(b)] and [42(d)] above are negated given the insignificance of the alleged mistranslations. I also reject the bases outlined at [42(a)] and [42(c)] above, which alleged that the Authority's reasoning evidenced a misunderstanding of its own statutory function. 84 In relation to the criticism noted at [42(a)] above, the Authority's statement regarding the appellant's application for a further interview - that it was essentially "a request that the [appellant] be given a second opportunity for the credibility of his claims to be test" - simply conveys the Authority's implicit view that there was little substance to the argument that the integrity of the SHEV interview was undermined. The Authority's view was apparently that the evidence from the SHEV interview formed a sound foundation for its own review, and that the appellant was, contrary to the broad policy underpinning Pt 7AA of the Act, seeking a second chance to prove the credibility of his claims. 85 Finally, in relation to the appellant's criticism noted at [42(c)] above, my view is that the Authority, in stating that the circumstances of the present case did not require it to invite a further interview, did not conflate the requirements of ss 473DC and 473DD. Having regard to the language of the reasons given by the Authority, my view is that the present case is distinguishable from the facts in EMJ17 (per Thawley J), DFK16 (per Moshinsky J) and CCR18 (per Jackson J). In the first two of those cases, the language of the Authority's reasons indicated that the Authority had conflated ss 473DC and 473DD: see EMJ17 at [59] ("I am not satisfied that there are exceptional circumstances to justify the IAA getting new information regarding the applicant's application for protection in Nauru") and DFK16 at [10] ("I am not satisfied that there are exceptional circumstances which justify obtaining new information from these two people"). Moreover, in CCR18, the Authority proceeded straight to considering the requirements of s 473DD without considering whether it should first obtain the relevant information in that case: CCR18 at [38] and [42]. 86 The facts of the present case are instead akin to those considered by Bromwich J in EBY17 v Minister for Immigration and Border Protection [2019] FCA 222 (EBY17). In that case, the visa applicant, like the appellant in the present case, requested a further interview. The Authority considered that request, but rejected it by the following reasoning (see EBY17 at [65]): The applicant has also requested an oral or written interview. I have listened to the recording of the protection visa (PV) interview. I am satisfied the applicant was clearly able to present her claims to the delegate and respond to questions for information. The applicant's representative stated at the end of the interview that the applicant did have concerns about what the interpreter was saying but was happy to continue without the assistance of the interpreter. Under s.473DB of the Act, the IAA must, subject to Part 7AA, review the decision by considering the material referred to it by the Department without, inter alia, interviewing the applicant. While the IAA may get new information, it can only consider it in very limited circumstances. The applicant had an opportunity to put forward her case before the delegate and prior to the decision being made. She was also represented by a migration agent who provided submission. I do not consider that an interview, either oral or written, is required in this case. 87 Bromwich J held that the final sentence of this passage did not establish that the Authority had conflated ss 473DC and 473DD: [66] The applicant submits that by the use of the word "required" in the last sentence in the passage reproduced above, the Authority was committing the error identified by Thawley J in EMJ17. I do not accept that is so. The Authority was doing no more that deciding that it did not consider that obtaining new information from the applicant was required in all the circumstances that are identified earlier in the paragraph. Without even resort to a beneficial reading, the Authority was not treating the power to obtain information as being fettered by the limited circumstances in which such information may be considered once obtained. 88 The same conclusion is warranted in the present case. The Authority, after assessing the appellant's request for a further interview, was simply concluding in the last sentence of [6] of the IAA Reasons that it did not consider that the obtaining of new information was justified in the circumstances of the present case (which had been identified earlier in that paragraph). I am therefore not satisfied that the last sentence of [6] of the IAA Reasons establishes a misapprehension of the Authority's discretion under s 473DC of the Act. 89 For these reasons, the appellant's first and second grounds of appeal are dismissed.

[17]

Appellant's submissions 91 The basis for this ground of appeal starts with s 473CB(1) of the Act. That provision provides that, once the Minister has referred a fast track reviewable decision to the Authority, the Secretary must provide certain materials and information to the Authority to enable the Authority to conduct its review. In particular, s 473CB(1)(b) requires the Secretary to provide the Authority with "material provided by the referred applicant to the person making the decision before the decision was made". 92 The next step in the appellant's argument involves the Full Court's decision in EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; 163 ALD 422 (EVS17). On the facts of that case, the Secretary had failed to comply with s 473CB(1)(b) by not giving to the Authority documents that were provided by the appellant to the delegate, namely a bundle of "medical documents": EVS17 at [14]-[15]. The Full Court, constituted by Allsop CJ, Markovic and Steward JJ, held that that breach of s 473CB(1) led to the Authority being prevented from conducting its review under Pt 7AA of the Act such that jurisdictional error was established in the Authority's decision under review: EVS17 at [44]-[57]. It was critical that the Authority erroneously believed it had the totality of the appellant's evidence before it: ibid at [51]. 93 In the present case, the appellant, relying on EVS17, contends that the interpretation errors at the SHEV interview means that the Secretary failed to provide to the Authority all of the requisite information under s 473CB(1)(b), and that jurisdictional error is accordingly established in the Authority's decision. More precisely, the appellant argues that, instead of the Secretary giving the Authority the "material provided by the referred applicant" (that is, the evidence truly given by the appellant at the SHEV interview), the Secretary gave the Authority only purported review material, which contained the mistranslations provided by the interpreter at that interview.

[18]

Consideration 94 There is no merit in this line of argument by the appellant. To start, the mistranslations alleged by the appellant were, as discussed above, not so substantial such as to undermine the exercise of the Authority's review. 95 Moreover, even assuming the mistranslations were material, I do not accept that there was a breach of s 473CB(1) of the Act by the Secretary in the present case. It may be that the text of s 473CB(1)(b) of the Act is purposive, and is intended to facilitate the Authority comprehending the full body of material before the initial decision-maker: BBI18 & Anor v Minister for Home Affairs & Anor [2020] FCA 84 at [22] per Greenwood J. However, in the context of s 473CB, "material" refers to, in my view, physical or electronic documents, objects and information. As such, the oral evidence itself provided by the appellant at the SHEV interview was not "material" provided by the appellant to the delegate. 96 Of course, the oral evidence provided by a visa applicant for the purposes of a fast track reviewable decision may be recorded in written or audio form. Where that occurs, unless the visa applicant (or somebody on his or her behalf) records the oral evidence and then provides it to the initial decision-maker prior to the fast track reviewable decision, that form of material will more naturally fall under s 473CB(1)(c) of the Act, namely "any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review": see, for example, FRW17 v Minister for Immigration & Anor [2019] FCCA 3701 at [143]-[152] per Judge Kendall. 97 In the present case, the appellant does not rely on any breach of s 473CB(1)(c) to support this ground of appeal. As the Minister submits, there is no evidence that the Secretary failed to give the recording of the SHEV interview to the Authority. The detailed references in the IAA Reasons to aspects of the SHEV interview suggest that the Authority was provided with the same "material" that was in the Secretary's possession or control.

[21]

Appellant's submissions 104 The appellant contends that the Authority overlooked the appellant's claims to have scars from the injuries suffered during the torture. In the appellant's submission, this is apparent from the absence of any reference to the scarring in the IAA Reasons, which otherwise expressed detailed findings about what the Authority took into account. The appellant in particular refers to [17] and [20] of the IAA Reasons, in which, according to the appellant, the Authority failed to refer to "the substance or detail of the appellant's claims about the sexual abuse". Those paragraphs are extracted below for reference: Refugee assessment … Well-founded fear of persecution … Young Tamil male from the east and imputed LTTE links 17. The applicant's evidence about when he was questioned and detained in Colombo, how many times this happened and what happened has fluctuated over time. The written record of his arrival interview indicates that it happened on four occasions. In his 2016 statement he submitted that he stated in that interview that it happened four or five times. The recording of his arrival interview is of poor quality. I am therefore unable to verify this statement. For that reason, I am prepared to give the applicant the benefit of the doubt and accept that he may have said in that interview that it happened on four or five occasions from 2006 to 2009. He also said that he was assaulted and beaten and on one occasion held for 2 days (2008). In his 2013 statement, he referred to being arrested four times, held on one occasion for 3 days and beaten. In his 2016 statement he claimed there was a fifth incident in 2009 when he was kept for about five hours by the CID. He stated that he hadn't mentioned it in his 2013 statement as the appointment was rushed and there were also some difficulties with the interpreter. He also claimed in that statement that the first time he was detained was in 2007 and that he was tortured on that occasion by the CID by being hung upside and beaten; he also claimed to have had a gun held to his head. He made the new claim at his SHEV interview that on the fifth occasion in March or April 2009 he was tortured and sexually assaulted. He stated that he is shy and wasn't able to put it into words for a statement. He said he'd made a mistake by not mentioning it earlier and had been wondering since then how to make it up and explain what happened. In a statement dated 27 January 2017 provided with a post-SHEV interview submission to the delegate, he stated that he felt ashamed of the incident and hadn't previously told anyone about it but decided to disclose it at the interview as he reasoned it was his chance to tell everything that had happened to him. He claimed that he disclosed the incident when he arrived in Australia and was offered counselling but declined it because he's a quiet person and doesn't like to talk about the things that have happened to him. There is no information before me to verify this claim. … 20. In regard to his claim that in 2009, he was sexually tortured and assaulted, there is ample credible country information that sexual assault has been engaged in by the authorities in Sri Lanka in a systematic way against detainees, usually Tamils. As the delegate noted, his SHEV interview was the first time this claim was raised. I also note that he claimed his arm was broken but he did not give evidence that he sought medical treatment afterwards for his injuries which, on his evidence, must have been quite serious although I also note that he was not specifically asked about this. During his interview, his evidence regarding for how long he was detained was internally inconsistent - at one stage he said he was kept by the CID for 3 or 4 days and later, that he was released after a week. Even if I accept his reasons for not mentioning the incident before his interview, this does not explain other changes in his evidence such as why he stated the detention lasted five hours (2016 statement) and later 3-4 days or a week (SHEV interview). Given the changes in his evidence, the lack of detail provided at interview, the inconsistencies in his evidence, two sworn statements neither of which mention the incident and my finding above that he has not been truthful in relation to all of his claims, I do not accept that there was an incident in 2009 during which the applicant was tortured and sexually assaulted by the authorities. (Citations omitted.) 105 The appellant consequently argues that the Authority's decision is affected by error because the Authority failed to carry out its statutory task under s 473DB of the Act, which was to review the fast track decision by considering the review material (including the appellant's 2017 statutory declaration) that the Authority received from the Secretary.

[22]

Consideration 106 For the following reasons, I reject that the contention that the Authority overlooked the appellant's claims that he had been scarred such that the Authority failed to perform its statutory task. 107 First, the Authority expressly referred to other parts of the appellant's 2017 statutory declaration (see, for example, the third last sentence of [17] of the IAA Reasons, as extracted above). The 2017 statutory declaration was brief. It is improbable that the Authority failed to consider the whole document. 108 Second, even if the Authority overlooked the detail of the scarring, it did not overlook the core claim by the appellant that he had been tortured upon detention and interrogation by the CID in 2009. That is clear from [17] and [20] of the IAA Reasons, as extracted above. In this regard, I note that, although the overlooking of particular evidence may be central in some circumstances, the distinction between overlooking a claim and overlooking evidence remains a useful tool in determining whether a decision-maker has jurisdictionally erred: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [49] and [54] per Katzmann, Griffiths and Wigney JJ. 109 As is clear from [20] of the IAA Reasons, the Authority disbelieved that the appellant was tortured and sexually assaulted in 2009 based on, in the words of the Authority, "the changes in his evidence, the lack of detail provided at interview, the inconsistencies in his evidence … and my finding above that he has not been truthful in relation to all of his claims". Given these fundamental concerns with the credibility of the appellant's evidence more broadly, there was no necessity for the Authority to specifically refer to the appellant's scarring. 110 Although I accept that the failure of the Authority to have regard to evidence may, in certain circumstances, give rise to an implication of constructive failure to exercise its jurisdiction (BUD17 v Minister for Home Affairs [2018] FCAFC 140; 264 FCR 134 at [65] per Robertson, Steward and Thawley JJ), it is equally true that the Authority was not required to recite every detail of the appellant's evidence (ETA067 v The Republic of Nauru [2018] HCA 46; 92 ALJR 1003; 360 ALR 228 at [14] per Bell, Keane and Gordon JJ), or engage in a "line by line" refutation of all the evidence provided by the appellant (Minister for Home Affairs v Buadromo [2018] FCAFC 151; 237 FCR 316 at [48] per Besanko, Barker and Bromwich JJ). In the circumstances of the present case, having regard to the appellant's claims and the IAA Reasons as a whole, my view is that the Authority's failure to specifically refer to the appellant's evidence regarding his scarring does not result in the Authority having failed to perform its statutory task. 111 For these reasons, the appellant's fourth ground of appeal is dismissed.

BNB17 v Minister for Immigration and Border Protection - [2020] FCA 304 - FCA 2020 case summary — Zoe

BNB17 v Minister for Immigration and Border Protection

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (37)

Cited By (11)