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Whether "translation errors" between the applicant and the delegate result in the decision of the Authority being affected by jurisdictional error?

DVO16 v Minister for Immigration and Border Protection; BNB17 v Minister for Immigration and Border Protection [2021] HCA 12 (14 April 2021)

Intro:-

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.


Facts:-

BNB17 - The appellant 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"). The appellant participated in a protection interview with the delegate who later refused the protection visa. He was legally represented. The interview was audio-recorded and the recording was evidently provided to the appellant's legal representative.

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.

In his written reasons for his decision refusing a protection visa, the delegate directly addressed the concerns about the accuracy of the translation that had been raised by the legal representative in the post-hearing submission and rejected them as not "credible". The delegate noted that the interview had been conducted with the assistance of an accredited Tamil interpreter, recorded that "[f]or the most part during the interview it appeared that all parties were able to communicate clearly", and stated that he was "satisfied that the [appellant] was able to understand the interpreter and that he provided detailed responses to questions asked of him".

After referral by the Minister of the delegate's decision to the Authority for review and provision by the Secretary of the recording of the protection interview to the Authority as part of the review material, the appellant's legal representative made a written submission to the Authority drawing attention to the concerns about the accuracy of the translation that had been raised in the post-hearing submission. The legal representative requested that the Authority itself interview the appellant if it had concerns about his credibility.

The Authority made its decision to affirm the decision of the delegate without conducting the requested interview. The Authority explained in its reasons for decision that it was not satisfied that the circumstances of the case required it to invite the appellant to attend an interview but that it had borne the appellant's legal representative's post-hearing submission in mind in making its decision.


DV016 - 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. 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.

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.


Issue:-

BNB17 - In light of the alleged 3 interpretation errors (which the Authority was aware off), was 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?.

DV016 - Was the decision of the Authority (who was unware of the translation error) in affirming the decision of the delegate correct?


Analysis:-

BNB17 - The Authority had the recording of the protection interview as part of the review material and was made aware of the three examples of translation errors set out in the post-hearing submission. Those errors were not so grave or extensive as to compel the Authority to the conclusion that it was incapable of assessing the appellant's claims by reference to the recording. The Authority, moreover, was entitled to place weight on the delegate's opinion that the translation errors had not impeded clear communication during the interview. The choice of the Authority to proceed on its own assessment of the appellant's claims as recorded and translated in the protection interview rather than conduct a new interview with the appellant was well within the bounds of reasonableness.

DV016 - The Authority recorded in its reasons for decision that the appellant claimed that he feared persecution by reason of his ethnicity. The Authority went on to explain in its reasons for decision that, having regard to country information which it specified and to aspects of the appellant's circumstances which it also specified, it was not satisfied that the appellant would face a real chance of serious harm on return to Iran as an Ahwazi Arab.

The mistranslations indicated by the expert witness could not have borne on the reasonableness of the course adopted by the Authority in reaching its decision. Nor did the mistranslations result in the Authority failing to understand and consider the substance of either of the appellant's claims


Conclusion:-

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.

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