DVO16 v Minister for Immigration and Border Protection

B W Walker SC with S G Lawrence for the appellant in S66/2020 (instructed by Norton Rose Fulbright)

G A Costello QC with A Aleksov and M J Kenneally for the appellant in M109/2020 (instructed by Lander & Rogers)

G R Kennett SC with H P T Bevan for the first respondent in S66/2020 (instructed by Clayton Utz)

G R Kennett SC with N M Wood for the first respondent in M109/2020 (instructed by Clayton Utz)

Submitting appearance for the second respondent in both matters

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

DVO16 v Minister for Immigration and Border Protection

BNB17 v Minister for Immigration and Border Protection

Immigration - Refugees - Application for protection visa - Where appellants each applied for protection visas - Where each appellant interviewed by delegate of Minister - Where each appellant assisted by interpreter in interview - Where interviews affected by translation errors in questions asked and responses given - Where Immigration Assessment Authority ("Authority") conducted review under Pt 7AA of Migration Act 1958 (Cth) - Where in case of DVO16, Authority not aware of translation errors - Where in case of BNB17, Authority aware of three translation errors - Where in each case Authority did not exercise powers to get new information under Pt 7AA - Where in each case Authority affirmed delegate's decision to refuse visa - Whether Authority's exercise of powers unreasonable - Whether Authority failed to comply with statutory duty to "review" decision under Pt 7AA.

Words and phrases - "automatic merits review", "claims to protection in fact made", "de novo assessment of the merits", "failing to consider substance of claim", "fast track reviewable decision", "Immigration Assessment Authority", "interpretation", "interpretation error", "interpreter", "jurisdictional error", "mistranslation", "new information", "overriding duty", "reasonableness condition", "translation", "translation error".

Migration Act 1958 (Cth), ss 51A(1), 54, 55, 56, 65, Pt 7AA.

1. KIEFEL CJ, GAGELER, GORDON AND STEWARD JJ. These appeals from judgments of the Federal Court of Australia concern the effect on a review by the Immigration Assessment Authority under Pt 7AA of the Migration Act 1958 (Cth) of errors in the translation of questions asked and answers given at an interview between a referred applicant and a delegate of the Minister for Immigration and Border Protection conducted after the applicant applied for a protection visa and before the delegate decided to refuse the applicant a protection visa.
2. One of the judgments under appeal, DVO16[1], is that of a Full Court constituted by Greenwood, Flick and Stewart JJ. The other, BNB17[2], is that of Anderson J alone exercising appellate jurisdiction. Each judgment dismissed an appeal from a judgment of the Federal Circuit Court of Australia. The Federal Circuit Court had in each case dismissed an application for judicial review of a decision of the Authority which had affirmed a decision of a delegate to refuse the applicant a protection visa.
3. The conclusion reached in each case, by the Federal Circuit Court and again on appeal by the Federal Court, was that such translation errors as had occurred at an interview between the applicant and the delegate did not result in the decision of the Authority being affected by jurisdictional error. The conclusion was in each case correct.

1. The function of translation in a curial or administrative setting is interpretation of communications as accurately and completely as possible. The process of interpretation involves comprehension of words spoken or written in a source language, conversion to a target language, and delivery in a manner faithful both to the content of the words and to the register and style of the speaker or writer[3]. That, at least, is the ideal.
2. Long past is the time when an interpreter might have been thought to be appropriately described as a "translating machine" or "bilingual transmitter" performing a function "not different in principle from that which in another case an electrical instrument might fulfil in overcoming the barrier of distance"[4]. More accurate is to conceive of an interpreter as a "bilingual mediating agent between monolingual communication participants in two different language communities"[5] and to recognise that "total equivalence" between words spoken or written in a source language and words translated into a target language is a "chimera"[6]. Translation is not a "simple word-matching exercise"[7] but "a difficult and sophisticated art" which, "[t]o be done well", "requires not only linguistic sophistication and sensitivity to 'minor' linguistic details (which may be correlated with vast differences in conceptualization), but also an intimate knowledge of the cultures associated with the language in question, of the social and political organization of the relevant countries, and of the world-views and life styles reflected in the linguistic structure"[8].
3. Professor Wigmore noted the "peculiarity" of language that "the most perfect system of signs, the most richly developed language, leads only to a partial comprehension ... whose degree of completeness depends upon the nature of the subject treated, and the acquaintance of the hearer with the mental and moral character of the speaker"[9]. Imperfections in communication arising out of mistranslation of words spoken or written in one language into another language are inherent in the human condition, as are imperfections in communication arising out of misuse or misunderstanding of words spoken or written in a common language. "Perfect interpretations" simply "do not exist"[10].
4. Unsurprisingly therefore, questions not infrequently arise as to the effect of mistranslation on curial or administrative outcomes. Those questions cannot be answered through the application of a simple or uniform mode of analysis.

1. Part 7AA, which has previously been examined in detail[15], provides for the Authority to engage in "automatic merits review"[16] of a "fast track reviewable decision", referred to it by the Minister, by which a delegate of the Minister has refused to grant a protection visa to the referred applicant at the conclusion of a primary decision-making process which commences with the applicant applying for a protection visa and which is governed by the Code of Procedure for dealing with visa applications in Subdiv AB of Div 3 of Pt 2.
2. The Code of Procedure is "taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with"[17]. Though it contains no requirement for a visa applicant to be interviewed, the Code of Procedure permits the Minister or a delegate, "if he or she wants to", to "get any information that he or she considers relevant" by means which include an interview between the applicant and an officer of the Department of Immigration and Border Protection[18]. In practice, officers of the Department who are delegates of the Minister and who will go on to make the primary decisions to grant or refuse protection visas routinely conduct interviews with the applicants for those visas. The interviews, known as "protection interviews", are conducted with the assistance of interpreters and are routinely audio-recorded but not routinely transcribed.
3. Despite containing no requirement for the applicant to be interviewed, the Code of Procedure imposes obligations on a delegate having conducted an interview with the applicant in going on to decide whether to grant or refuse the protection visa both to "have regard to" relevant information "given" by the applicant in the interview[19] and to "have regard to" information "got" by the delegate in the interview considered by the delegate to be relevant[20]. Non-compliance with either of those obligations can result in invalidity of the delegate's decision[21].
4. Each obligation to "have regard to" information is an obligation to engage in "'an active intellectual process' directed at the information"[22]. Mistranslation of words spoken during the protection interview has the potential to cause the intellectual process in fact engaged in by the delegate to be misdirected. Mistranslation in that way has the potential to result in non-compliance with a condition of validity of the decision of the delegate imposed by the Code of Procedure.

1. The appellant in DVO16 is a Shia Muslim from Khuzestan province in Iran. He identifies as an Ahwazi Arab.
2. In his written application for a protection visa, the appellant raised two overlapping claims to protection. He claimed to fear persecution resulting from the failure of the Iranian state to protect him from harm inflicted by another tribal group in Iran (described as the Jalali or Chanani tribe) resulting from a specific incident on a bus by reference to which he was alleged to have had physical contact with a woman from that other tribe. He also claimed to fear persecution resulting from the failure of the Iranian state to protect him more generally from harm inflicted by another tribal group by reason of his ethnicity as an Ahwazi Arab.
3. The appellant participated in a protection interview with the delegate who went on to decide to refuse him a protection visa at which the appellant spoke an Arabic dialect from the Khuzestan region of Iran. The interpreter spoke urban Levantine Arabic. The interview was audio-recorded.
4. The Minister referred the decision of the delegate refusing the protection visa to the Authority for review, following which the Secretary gave the recording of the protection interview to the Authority as part of the review material. The Authority affirmed the decision of the delegate.
5. Expert evidence later adduced in the Federal Circuit Court on the appellant's application for judicial review of the decision of the Authority revealed mistranslation of a question asked by the delegate about the appellant's claim to fear harm resulting from the failure of the Iranian state to protect him from persecution inflicted by reason of his ethnicity. The result of the mistranslation was that the delegate, and later the Authority, misapprehended that the appellant did not understand what was meant by "ethnicity". The truth was that the appellant did not understand what was meant by "persecution". The delegate then said that the interview would "start again", which the interpreter failed to interpret. In an exchange imperfectly interpreted, the delegate then went on to ask the appellant what exactly he feared would happen to him if he were to return to Iran, to which the appellant responded that he feared that he might be killed by members of the Chanani tribe. In later exchanges, the delegate also asked a number of open-ended questions giving the appellant the opportunity to give evidence about whether there was anything he feared if he were to return to Iran "apart from issues to do with the Chanani tribe". In response to each question, the appellant referred back to the tribal dispute or otherwise failed to say anything to establish his claim of persecution on the basis of ethnicity.

1. The appellant in BNB17 is a Hindu Tamil from Sri Lanka. He claimed in his written application for a protection visa to fear persecution by reason of imputed links to the Liberation Tigers of Tamil Eelam ("LTTE"). He claimed that he had been detained by police in Colombo on some five occasions between 2006 and 2009, had been tortured by the Criminal Investigation Division ("CID") on the second occasion and had been detained for a number of hours on the last occasion. He also claimed that he had been required to report to the local police station and answer questions after returning from Colombo to his home in Karaveddy in 2010.
2. The appellant participated in a protection interview with the delegate who later refused the protection visa. He was legally represented. The appellant claimed in the interview for the first time that he had been sexually tortured by the CID when detained in Colombo in 2009 and that he had been beaten by police when required to report to the local police station after returning to Karaveddy in 2010. The interview was audio-recorded and the recording was evidently provided to the appellant's legal representative.
3. Not long after the protection interview, the appellant's legal representative made a "post-hearing submission" to the delegate. The legal representative wrote in the post-hearing submission that she had reviewed parts of the recording of the interview with the assistance of a Tamil interpreter and had concerns about the accuracy of the translation. The legal representative gave three examples of interpretation errors. The first was that a straightforward statement of the appellant that he feared harm from "army, CID, police" had been mistranslated as a statement that he feared harm as well from "other people". The second was that, when asked to explain what he meant by his claim to have been beaten, the appellant had given an answer to the effect that he had been beaten to find out whether he was a member of the LTTE or supported the LTTE. The substance of his answer had not been translated and the interpreter had instead gone off on a "tangent". The third was that, apparently by reason of the discomfort of the interpreter in dealing with the subject matter, a reference by the appellant to "sexual assault" had been mistranslated as "sexual harassment". The legal representative urged that the appellant be "afforded the benefit of the doubt in assessing the evidence given at his interview" and that the conduct of the interpreter "be given weight" in that assessment. Attached to the post-hearing submission was a statutory declaration of the appellant restating his claim to have been sexually tortured by the CID when in Colombo in 2009 and giving a cultural explanation for why he had not made the claim before the interview.

1. The common theme across these two appeals is the effect of erroneous interpretations of a visa applicant's evidence given in a foreign language. The appeals raise the question of when the Immigration Assessment Authority will fall into jurisdictional error in its conduct of a review under Pt 7AA of the Migration Act 1958 (Cth) where such erroneous interpretations are contained within the review material provided to it by the Secretary of the Department.
2. In each of these matters, the appellant, DVO16 and BNB17 respectively, had applied for a protection visa. Each had been interviewed by a delegate of the Minister who, in each case, subsequently refused the application. In each case, the Authority affirmed the decision of the delegate. DVO16 and BNB17 each sought judicial review of the decision of the Authority in the Federal Circuit Court of Australia. Each application was dismissed[50]. Appeals from the decisions of the Federal Circuit Court were dismissed by, respectively, the Full Court of the Federal Court of Australia[51] and a single Justice of the Federal Court of Australia exercising the power of a Full Court[52]. In each case, a central issue on appeal concerned whether errors in interpretation during the interview with the delegate resulted in the decision of the Authority being affected by jurisdictional error. In each case, the audio recording of the interview with the delegate formed part of the review material provided by the Secretary to the Authority to conduct its review.
3. There are at least three categories of error by an interpreter which might lead to a jurisdictional error by the Authority or a failure of a condition of the Authority's jurisdiction. The three categories of interpretation error discussed below are in ascending order of seriousness. First, if significant interpretation errors are apparent to the Authority then the errors might require, as a matter of legal reasonableness, the exercise of statutory power by the Authority to remedy the errors. The power might be to get new information under s 473DC of the Migration Act such as by obtaining a fresh interpretation of the foreign language spoken in the interview or, more exceptionally, by an invitation to the applicant to an interview with the Authority. Secondly, the interpretation errors might be so significant in critical respects that the Secretary will be unable, even by the broadest or most general of descriptions, to perform the duty - which is a precondition for a valid review by the Authority - of giving the Authority a statement that contains reference to the evidence on which the findings of the delegate were based[53]. Thirdly, and whether or not the interpretation errors are known to the Authority, the interpretation errors might be so extreme that they deprive the assessment by the Authority of its required character as a "review" under s 473CC of the Migration Act.

The nature of interpretation errors and the alleged errors in these cases

1. Interpretation and translation are nouns that are now commonly used interchangeably, although the former is generally used in relation to oral words and the latter is generally used in relation to written words. But this common usage disguises important differences in concept, if not in etymology. The art of interpreting is the art of explaining meaning. It is not an exercise in literal rendering that might be connoted by translation of words. For instance, a sufficient interpretation of Greek words[58] to the effect that "[t]he spirit is willing, but the flesh is weak" might require further elucidation to convey meaning. That elucidation might be that "good intentions can be defeated by human weakness". But it would not be that "alcohol is desired when meat is rotten".
2. Inaccuracy in conveying meaning by literal interpretation is not the only reason that an interpreter will constantly be exercising evaluative judgment. Other reasons include that: in some languages there is no close match for some English words; grammatical constructs can lead to subtle but important changes in meaning; and linguistic devices and habits can change depending upon the region where a language is spoken. Numerous examples were identified decades ago. So it has been said: in English the "morning" finishes, and the "afternoon" starts, at noon but in Polish the morning finishes at 11 am and the afternoon starts at 3.30 pm[59]; the concept of "family" changes dramatically according to cultural context[60]; and the "undifferentiated English 'you' cannot be translated into Italian, Spanish, Polish, German, Russian or Serbian" because a more or less formal method of address must be chosen in those languages[61].
3. The goal of interpretation therefore is to use judgment in order to "express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language"[62]. Of course, perfect accuracy and complete clarity in expressing a concept from a foreign language are impossible. And as interpretation moves along a spectrum from the reasonably accurate to the clearly erroneous, the dangers of misunderstanding can also be multiplied by other matters. The possibility or extent of error is further enhanced where, as unfortunately occurred on occasion in the interpretations in these appeals, an interpreter does not interpret all the words spoken by one person and engages in uninterpreted conversation with the interviewer or interviewee.

1. BNB17's claim for protection was based upon claims that Sri Lankan authorities would persecute him due to his Tamil ethnicity and suspicion of involvement with the Liberation Tigers of Tamil Eelam ("the LTTE"). In his written application he alleged: that his father was a member of the LTTE; that his brother had been arrested, detained for ten months, beaten and tortured; that he had been detained by the police five times between 2006 and 2009 and tortured on the second occasion by members of the Criminal Investigation Division; and that after the war, he felt constantly threatened and harassed and was required to report to the local police station to answer questions and to drive members of the Criminal Investigation Division in his vehicle. At his protection visa interview, BNB17 also alleged that he had been sexually assaulted on an occasion when he was detained by the Criminal Investigation Division in 2009 and that he had been beaten by the police when he reported to the local police station.
2. The Authority accepted some of BNB17's claims but it rejected others. In particular, the Authority rejected BNB17's claim in his protection visa interview that he was beaten by the police when he reported to the local police station. The Authority described BNB17's manner of giving evidence in his interview as "vague and evasive when asked about this claim". The Authority rejected submissions that BNB17 had not understood the question about being beaten and suggestions that the question should have been rephrased. It dismissed concerns expressed by the representative of BNB17 regarding the quality of the interpretation. The Authority observed that during the interview the delegate had repeated on three occasions the question "what do you mean by beaten?" and that the delegate had asked BNB17 "what did they do?". The Authority observed that BNB17 was "unable to provide any detail around his claim to have been beaten". Ultimately, the Authority concluded that BNB17 did not meet the requirements of the definition of a refugee in s 5H(1) of the Migration Act.
3. BNB17 had made submissions to the delegate after the interview, but before the delegate's decision, about inaccuracies in the interpretation. Following the delegate's decision, BNB17's representative provided submissions to the Authority about inaccuracies in interpretation. The submissions were made fewer than four weeks after the delegate's decision, no doubt with an eye to the statutory requirement for the Authority to proceed quickly and efficiently[69]. It was submitted on behalf of BNB17 that conclusions about demeanour need "to be made in the context of an interview with clear and accurate interpreting" and that, in light of doubts about the interpretation, BNB17 should be afforded a further interview by the Authority if it had doubts about his credibility. BNB17's representative explained, as had also been explained to the delegate, that parts of the interview had been reinterpreted from the recording of the interview with the delegate. The reinterpretation had been made with the assistance of an independent Tamil interpreter provided by an interpreting agency, and three alleged errors in the interview interpretation had been identified.

"Delegate: OK. Is there anything else you would like to talk to me about in regards to things that have occurred since May 2009 onwards?

INT: Is there any things else you want to tell happened after 2009 until now which has affected you personally affected you?

BNB17: The thing affected me is the thing they tortured me that's it. I had the fear. Because they call me at anytime for their small jobs beat me. It came to a stage unknown people started to phone me I couldn't even scared to answer the phone.

INT: 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.

Delegate: And just to clarify, what do you mean - beaten many times?

BNB17: Nothing to tell ... [and elaborated upon questions asked by the authorities]

Delegate: So I understand the type of questions one may be asked ... but I want to know specifically about what you mean by many times they were beating you?

INT: ... But you are telling 'beat me several times'. Explain that. Why they beat you? How many time? The action 'beating'.

BNB17: 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'.

INT: 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.

Delegate: So what physically did they do in terms of...what do you mean when you use the word beating?

INT: When you use the word 'beating'. What you mean by 'beating'?

BNB17: No. Beating for no reason. Beat for nothing. Immediately after calling they beat. Because there is no reason. And we even don't know why he is beating us?

INT: 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?

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.

Delegate: So he, did he restate that? Does anything need to be translate of what he has just said to me?

INT: [inaudible] so I asked the question what he mean by the beating, he is finding the reason why they are beating.

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.

INT: When you tell 'they beat you' what you mean by 'beaten'? What is that?

BNB17: What is beating means..... I didn't do an thing wrong. No wrong thing. Getting beaten was the issue for me.

INT: 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..

Delegate: OK, we'll talk about that later on, but right now my question is why did you not raise claims of being physically harmed from 2009 onwards in your written claims and you are now raising them today. I'm seeking to clarify that inconsistency.

INT: Before 2009.ah. In the statements you gave during that period you didn't mention you were physically harmed. Now you are telling 'they beat me' what is that?

BNB17: No. I mentioned. I did mention in that document.

Delegate: Is there anything else you would like to put forward as to why that doesn't appear in your written claims?

INT: Do you want to look at it, to see whether you have previously mentioned that or not?

BNB17: I have mentioned. I have mentioned it in both times. All the problems happened to me. Including beating and all."

1. BNB17 submitted that the group of interpretation errors revealed by this extract began with the misinterpretation during the interview by which the interpreter conveyed BNB17's evidence as saying that he had been "beaten many time". The later interpreter said that BNB17 had actually conveyed words to the effect of "they tortured me" and "they call me at anytime for their small jobs beat me". This was said to have led to the lengthy confusion. A further error was said to be that the delegate had asked BNB17 about his delay in raising his claim to have been beaten from 2009 onwards but the interpreter asked BNB17 why he had not mentioned being beaten in the period before 2009. Together, BNB17 submitted, these errors contributed to the finding by the Authority that BNB17 had fabricated his claims about being beaten.

1. DVO16 applied for a protection visa on grounds which included persecution by the State of Iran on the basis of his ethnicity. At his interview with a delegate of the Minister, the following exchange occurred, as subsequently interpreted from the audio recording in evidence before the Federal Circuit Court:

"Delegate: It also says here that you say that you will be persecuted for your ethnicity what do you mean by that?

Interpreter: [Arabic] 'You say here that persecution has happened to you, I mean, that you've been persecuted for, what's it called, your belonging to your community.'

Interpreter: Sometimes because he's Ahwazi, sometimes he doesn't understand my- I think my...

Delegate: No, I think it means because you're an Arab.

Interpreter: Yeah, because what happened, Arab, sometimes they use different expression.

Interpreter: [Arabic] 'She is saying that you, persecution has happened to you. You have been persecuted, in virtue of your belonging to the community you belong to.'

DVO16: [Arabic] 'You mean how much "protecution" [i.e. strange hybrid of 'persecution' and 'protection'] I had from them?'

Interpreter: He doesn't know the meaning of it, even in Arabic.

Delegate: Well obviously you don't hold a fear of that then it if you don't know what it means.

Interpreter: [Arabic] 'What it means is they treated you badly.'

Interpreter: [Arabic] 'Yes. Not your tr- the fact that you belong to the community you belong to.'

Interpreter: Just he wanted to know by which group.

Interpreter: [Speaks in Arabic] 'It's not written here. It's not written.'

Delegate: After that it talks about the Jalali tribe again, but -

Interpreter: [Arabic] 'Afterwards they mentioned the Jalali, what's it called, tribe. Um, you being, um, you belong, no. And you were persecuted by - sorry - because you belong to the tribe you do, you were persecuted by this tribe, the Jalali.'"

1. The errors in interpretation relied upon by DVO16, and accepted by the Full Court of the Federal Court[70], were threefold. The first was that at the commencement of this extract, the delegate enquired about future persecution but the interpreter described this as past persecution by DVO16's community. The second alleged error in interpretation concerned the inadequate interpretation of the exchanges concerning persecution: inadequately conveying to DVO16 that he was being asked about his ethnicity as an Ahwazi Arab and inadequately conveying to the delegate that DVO16 was confused about questions concerning persecution by reason of his tribe (indeed, not interpreting some of DVO16's spoken words at all) and the meaning of the word "persecution". The third alleged error in interpretation concerned the failure to interpret for DVO16 the delegate's statement that "we will start again".
2. The delegate refused DVO16's application for a protection visa. The Authority affirmed this decision. The Authority observed that DVO16 had responded to a question about what he meant by his claim that he would be persecuted due to his ethnicity by saying that he did not know. The Authority added that apart from tribal conflict and fearing harm from another tribe, DVO16 said that "he does not fear returning to Iran for any other reason" and did not claim to fear harm from the authorities on the basis of his ethnicity as an Ahwazi Arab. The Authority considered that although DVO16 is a member of an ethnic group that has been marginalised and discriminated against in Iran, he has the ability to obtain housing and employment. Ultimately, the Authority was not satisfied that DVO16 faced a real chance of serious harm on return to Iran.
3. DVO16 accepted in this Court, as he had in the Federal Circuit Court and the Full Court of the Federal Court, that the alleged errors of interpretation were not known to the Authority nor were they the subject of any submission or material before the Authority. But he submitted that the errors in the interpretation of his interview nevertheless invalidated the decision of the Authority. DVO16 submitted that the errors in interpretation had effectively distracted him from giving substantial evidence about the type and extent of persecution that he had suffered and thus deflected him from putting his case.

1. BNB17 submitted that in light of the alleged interpretation errors it was legally unreasonable for the Authority not to exercise its power under s 473DC to obtain new information either by obtaining a proper interpretation of the interview, or at least the relevant exchange, or by reinterviewing BNB17. Although the focus of BNB17's submissions was upon the second alleged error involving the group of misinterpretations, there is a further, related issue. This is whether such doubt about the accuracy of the interpretation had been raised by the combination of all the errors that it was legally unreasonable for the Authority not to exercise its power under s 473DC.
2. The principles concerning legal reasonableness in the exercise of the power under s 473DC were discussed in Minister for Home Affairs v DUA16[71]. Since the reasonableness condition upon the power in s 473DC is derived by implication from the statutory provision, its content is also shaped by the statutory context. That statutory context includes the expressed assumption that the Authority is a body that generally "does not hold hearings" and "is required 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)"[72].
3. The statutory context also includes the fact that the Authority's review task is not "de novo" in the literal ("from the beginning") and usual sense of that expression as a fresh review, "on the evidence presented at that hearing"[73] and "regardless of error"[74] in the decision of the delegate[75]. By contrast with the usual meaning of "de novo", the Authority is provided with the delegate's reasons for decision and must take the reasoning of the delegate into account in its consideration[76]. As Gordon J said very recently in ABT17 v Minister for Immigration and Border Protection[77], when the Authority makes a demeanour finding it "is bound to accept [the] finding of the delegate" unless that finding is "glaringly improbable" or "some other sufficient reason" exists to set it aside.
4. Consistently with these aspects of statutory context, where the Authority has serious doubts about the accuracy of significant parts of the interpretation as recorded during the interview with the delegate, the obligation upon the Authority to exercise its power under s 473DC in a legally reasonable manner will generally require the Authority to obtain a fresh interpretation of the relevant parts of the interview rather than to reinterview the applicant. The latter might be the appropriate response if the hearing by the Authority were truly de novo and independent of the decision by the delegate. But in the context of a review that cannot be described as "de novo" in the ordinary sense, and which must be conducted with efficiency, speed, and usually without a hearing, the simplest response will usually be just to obtain a fresh interpretation of any significant and disputed part of a recorded interview contained in the review material.

Interpretation errors and material to be given to the Authority

1. In submissions which were broadly embraced by BNB17, DVO16 submitted that the requirement in s 473CB(1)(b) for the Secretary to give to the Authority "material provided by the referred applicant to the person making the decision before the decision was made" obliges the Secretary to give to the Authority any information provided by the applicant during an interview. DVO16 submitted that if oral interview remarks by DVO16 in Arabic constitute "information" given to the delegate then they must also constitute "material" required to be given to the Authority under s 473CB. Any substantial error in the interpretation of that information given by the applicant would, therefore, mean that the review material provided to the Authority was incomplete. The difficulty for this submission, however, lies in the contrast between the position of an applicant before a delegate of the Minister under Pt 2 and the position of an applicant before the Authority under Pt 7AA.
2. Part 2 of the Migration Act requires the Minister, when considering whether to grant or to refuse to grant a non-citizen a visa, to "have regard to all of the information in the application"[81] including "any additional relevant information" given by the applicant[82]. Although an oral interview is not required to be given[83], the requirement for the Minister to consider additional relevant information includes information given by the applicant at an oral interview, and through the medium of an interpreter[84]. The need for the Minister to have regard to that information requires an "active intellectual process" of engagement with material information provided by the applicant[85]. In turn, this active intellectual process requires sufficiently accurate interpretation of the information given by the applicant. The more substantial the interpretation errors, and the more significant the misinterpreted information is to the applicant's claims, the more likely it will be that the interpretation errors will prevent the necessary active intellectual engagement with the applicant's information, thus amounting to jurisdictional error.
3. Unlike Pt 2, there are no general requirements for engagement with "information" in Pt 7AA of the Migration Act. Part 7AA is not a de novo review in the sense that it does not require de novo engagement with information, including information provided by an applicant. Instead, it is a "limited"[86] review of a delegate's "decision"[87], which is conducted by "considering the review material provided"[88]. The review proceeds generally upon the materials that were before the delegate[89]. The general position is that new information is not to be requested or accepted by the Authority and the applicant is not to be interviewed[90], and even if new information is requested by the Authority it can only consider the information in limited circumstances[91]. In short, the focus of Pt 7AA is almost exclusively upon "material", not upon "information".

Interpretation errors and the basic requirement for "review"

1. There remains for consideration the most extreme circumstance of the categories of error by an interpreter which might lead to jurisdictional error or failure of a jurisdictional condition: where the information provided by an applicant at an interview is so poorly interpreted that the gist of the applicant's case has not been conveyed. In the context of procedural fairness, it has been said that the right to a hearing "is a vain thing if the [applicant] is not understood"[94]. So too, the expression "review a fast track reviewable decision" in s 473CC includes the implication that the essence of the applicant's case will be considered when assessing the delegate's decision. On the assumption that this implication is not of the variety of implications said by members of this Court to have been proscribed if derived "through the application of the common law principle of statutory interpretation" relating to procedural fairness[95], it was common ground that interpretation errors might be so extreme as to deprive the exercise of power by the Authority of its character as a "review" of the decision.
2. Neither the interpretation errors in the BNB17 appeal nor the interpretation errors in the DVO16 appeal were of this fundamental nature. The interpretation errors in the BNB17 appeal have been addressed above in the context of the legal unreasonableness issue. As to the interpretation errors in the DVO16 appeal, senior counsel for DVO16 correctly described the effect of those errors as having deflected DVO16 from speaking further to his case of persecution on the ground of ethnicity. But the errors did not deprive him of the opportunity to put that case altogether, nor did they preclude the Authority from understanding the gist of his case. DVO16's interview focused upon the same incidents and allegations that he had raised in his written claim for protection. The Authority described those incidents and allegations and made findings in relation to them. The process is properly described as one of review of the delegate's decision.

DVO16 v Minister for Immigration and Border Protection (2019) 271 FCR 342. ↑

BNB17 v Minister for Immigration and Border Protection [2020] FCA 304. ↑

Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017) at 78-83. ↑

Gaio v The Queen (1960) 104 CLR 419 at 430-431. See also at 429, 432-433. ↑

Bell, Translation and Translating: Theory and Practice (1991) at 15, quoting House, A Model for Translation Quality Assessment (1977) at 1. ↑

Bell, Translation and Translating: Theory and Practice (1991) at 6. ↑

Hale, Interpreter Policies, Practices and Protocols in Australian Courts and Tribunals: A National Survey (2011) at 2. ↑

Dixon, Hogan and Wierzbicka, "Interpreters: Some basic problems" (1980) 5 Legal Service Bulletin 162 at 163. ↑

Wigmore, The Science of Judicial Proof, 3rd ed (1937) at 569-571, quoting Whitney, Language and the Study of Language, 4th ed (1869) at 111. ↑

Shulman, "No Hablo Inglés: Court Interpretation as a Major Obstacle to Fairness for Non-English Speaking Defendants" (1993) 46 Vanderbilt Law Review 175 at 177, quoted in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 18 [26]. ↑

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 132 [23], 145 [66]; Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at 59 [15]; 385 ALR 212 at 217. ↑

SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at 215-216 [9]-[10], 219 [24], 224-225 [46]-[48], 229-230 [65]-[75]. ↑

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37]. ↑

SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at 230 [74], citing Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6. See also Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at 6 [26]-[28]. ↑

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 222-232 [6]-[38]; CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 144-145 [2]-[8]; 375 ALR 47 at 48-50; ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 932-937 [1]-[25]; 383 ALR 407 at 408-414. ↑

CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 144 [2]; 375 ALR 47 at 48; ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 949 [79]; 383 ALR 407 at 431. ↑

18. Sections 56 and 58(1)(d) of the Migration Act. ↑

19. Sections 54(1), (2)(c) and 55(1) of the Migration Act. ↑

21. Minister for Home Affairs v Ogawa (2019) 269 FCR 536 at 556-558 [95]-[102]. ↑

22. Minister for Home Affairs v Ogawa (2019) 269 FCR 536 at 557 [101], quoting Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at 164 [59]. ↑

24. cf Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092 [24]-[25], 1101 [86]-[89], 1102 [95]; 197 ALR 389 at 394, 406-407, 408. ↑

26. Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 221 [3]-[4]. ↑

30. ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 933 [6]; 383 ALR 407 at 410, quoting CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 144-145 [6]; 375 ALR 47 at 50. ↑

32. ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 934 [12]; 383 ALR 407 at 411. ↑

34. Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 228 [24]. ↑

38. Sections 473DE and 473DF of the Migration Act. ↑

BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1099 [33]-[35]; 373 ALR 196 at 204-205. ↑

ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 933 [7]; 383 ALR 407 at 410, quoting CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 145 [7]; 375 ALR 47 at 50. ↑

ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 933 [3]; 383 ALR 407 at 409. ↑

Section 473DD(b)(ii) of the Migration Act. See Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 230-231 [33]-[34]. ↑

Section 473DD(a) of the Migration Act. See Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 229 [30]. ↑

Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at 61 [26]; 385 ALR 212 at 220. ↑

ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 933 [5]; 383 ALR 407 at 409, quoting Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 226 [17]. ↑

BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 at [72]. ↑

DVO16 v Minister for Immigration and Border Protection [2018] FCCA 3058; BNB17 v Minister for Immigration and Border Protection [2019] FCCA 1314. ↑

DVO16 v Minister for Immigration and Border Protection (2019) 271 FCR 342. ↑

BNB17 v Minister for Immigration and Border Protection [2020] FCA 304. ↑

54. See Merchant Service Guild of Australasia v Newcastle and Hunter River Steamship Co Ltd [No 1] (1913) 16 CLR 591 at 624; Lubrano v Gollin & Co Pty Ltd (1919) 27 CLR 113 at 118; R v Rigby (1956) 100 CLR 146 at 151; Wurridjal v The Commonwealth (2009) 237 CLR 309 at 368 [120]. ↑

55. Together with Migration Act, ss 473GA and 473GB. ↑

56. Migration Act, ss 51A, 97A, 118A, 127A, 357A, 422B. ↑

57. See BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091; 373 ALR 196. But compare Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 442 [34]. ↑

Australian Law Reform Commission, Manner of Giving Evidence, Evidence Reference Research Paper No 8 (1982) at 94-95. ↑

Dixon, Hogan and Wierzbicka, "Interpreters: Some basic problems" (1980) 5 Legal Service Bulletin 162 at 163. ↑

Dixon, Hogan and Wierzbicka, "Interpreters: Some basic problems" (1980) 5 Legal Service Bulletin 162 at 164. ↑

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 19 [29]; SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at 222-223 [42]. ↑

Norman, "Assessing the Credibility of Refugee Applicants: A Judicial Perspective" (2007) 19 International Journal of Refugee Law 273 at 289. See also WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 at 601‑602 [17]. ↑

Barnett, "Mind your Language - Interpreters in Australian Immigration Proceedings" (2006) 10 University of Western Sydney Law Review 109 at 111-112. ↑

Groves, "Interpreters and Fairness in Administrative Hearings" (2016) 40 Melbourne University Law Review 506 at 512-513. ↑

See also Taylor, "Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions" (1994) 13 University of Tasmania Law Review 43 at 69-70. ↑

Norman, "Assessing the Credibility of Refugee Applicants: A Judicial Perspective" (2007) 19 International Journal of Refugee Law 273 at 287. ↑

ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 959 [128]-[129]; 383 ALR 407 at 444-445. ↑

70. DVO16 v Minister for Immigration and Border Protection (2019) 271 FCR 342 at 360 [82]. ↑

71. (2020) 95 ALJR 54 at 61 [26]-[27]; 385 ALR 212 at 220. ↑

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 [13]. ↑

Allesch v Maunz (2000) 203 CLR 172 at 180 [23]. ↑

ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 943-944 [59], 950-951 [85], 955 [113]; 383 ALR 407 at 423, 433, 439. But compare (2020) 94 ALJR 928 at 933 [5], 933 [8], 935 [16]; 383 ALR 407 at 409, 410, 412. ↑

Migration Act, ss 473BB (definition of "review material"), 473CB(1)(a). ↑

(2020) 94 ALJR 928 at 952 [93]; 383 ALR 407 at 435. ↑

Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at 61 [26]; 385 ALR 212 at 220. ↑

80. Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at 62 [29]; 385 ALR 212 at 221. ↑

85. Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at 164 [59]. ↑

91. Migration Act, s 473DD. See AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007; 384 ALR 196. ↑

92. BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 at [95] (emphasis added). ↑

94. Gonzales v Zurbrick (1930) 45 F 2d 934 at 937. ↑

95. BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1099 [33]; 373 ALR 196 at 204. ↑