DVO16 and Minister for Immigration and Border Protection

[2021] HCATrans 11

[2021] HCATrans 011

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S66 of 2020

B e t w e e n -

DVO16

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Office of the Registry
  Melbourne  No M109 of 2020

B e t w e e n -

BNB17

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 FEBRUARY 2021, AT 9.54 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, in the first matter I appear with my learned friend, MR S.G. LAWRENCE, for the appellant, DVO16.  (instructed by Norton Rose Fulbright)

MS G.A. COSTELLO, QC:   May it please the Court, in the second matter I appear for the appellant, BNB17, with my learned friends, MR A. ALEKSOV and MR M.J. KENNEALLY.  (instructed by Lander & Rogers)

MR G.R. KENNETT, SC:   May it please the Court, in both matters I appear for the first respondent, in the first matter with my learned friend, MR H.P.T. BEVAN, and in the second with my learned friend, MR N.M. WOOD.  (instructed by Clayton Utz)

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   If it please the Court.  Your Honours, this is an appeal which raises the question of completion of the function reposed in the Authority, the second respondent, under section 473CC of the Migration Act.  Part 7AA, as your Honours well appreciate, has distinctive features which affect, in particular, what would have been no doubt otherwise the common law of procedural fairness.  It is a case where the relation between that which is reviewed under section 473CC, a so‑called fast‑track reviewable decision by a delegate of the Minister is, of course, confined by reference to material adverted to, used in, the delegate’s decision.

As a result, in the argument that we wish to advance, the question arises whether serious or material or disabling defect in the material appreciated by the delegate for the purposes of the delegate’s function carries through to the reviewer, the Authority, when it too is not aware of the existence, nature or seriousness of that defect.  So the character of the review function and the effect, if any, on its legal validity or efficacy upon such a defect remaining undetected to the end of and culminating in the purported completion of the review function is at the heart of the issues before the Court.

As your Honours know, the defect in this case is called by us material mistranslation.  Can I take your Honours to the way in which Justice Stewart in the Full Court below found, relevantly, the facts concerning that mistranslation in the appeal book page 75, picking it up at his Honour’s paragraph 76.  I will not of course read these passages but can I note that there was uncovered by subsequent investigation and expert evidence after the delegate’s decision, after the review decision but before Federal Court proceedings and for Federal Court proceedings the rather striking mishap by which in particular the language of ethnicity and, indeed, more importantly, the language of persecution was mangled and misconveyed both between our client and the interpreter and, much more importantly, between the interpreter and the delegate.  Indeed, commentary by the delegate to our client was mangled through the interpreter as well.

The commentary conclusions, or inferences drawn by Justice Stewart are to a considerable degree adopted by us – I will of course be going to the way in which the plurality described the matter as well – but those parts in Justice Stewart’s commentary that we rely upon, that start in paragraph 79, the first sentence of which shows what might be called a deflection from a critical issue. 

Without going into the detail, which is not in contest, your Honours appreciate with or without the possibility of conceptual overlap there was for convenience presented matters that were called “tribal issues” and matters that referred to the “Ahwazi Arab ethnicity” matters, and in particular the relevant State persecution with respect to the ethnicity claim was a matter of considerable significance.  Attention was, however, factually deflected away from that, as his Honour points out in paragraph 79.

The summary effect is found in his Honour’s paragraph 82 on appeal book page 78, and then his Honour refers to the significance, according to the treatment of the matter in SZFDE, of what, in that case, was by fraud, in this case, by mistranslation, namely a failure for a function to be carried out. 

In paragraph 87, at appeal book 79, his Honour refers to the effect of the errors where, in particular, that which plainly would have cast a rather dampening effect on the ethnicity claim of persecution is referred to, namely:

the appellant said that he did not know what persecution due to his ethnicity meant . . . we now know that this is incorrect; the appellant did not say that . . . he did not say that he does not fear returning to Iran for any reason other than the tribal conflict and fearing harm from the Chanani tribe.

Then at the end of 87 I should draw to attention that in his Honour’s reasoning it emerged, according to his Honour’s understanding of the matter, that the Authority did:

consider the likelihood and consequence of discrimination against the appellant on the basis of him being an Ahwazi Arab.

Of course, we interpolate, as your Honours know from our written argument, that that was done, such as it was done, on a fundamentally mistaken notion as to the position of outline concerning it.

The way in which the matter was put below, which we seek to develop here as well, can be detected in paragraph 91.  His Honour notes the conceptual unavailability of procedural fairness by that expression, bearing in mind the statutory provisions in question.  His Honour also notes the requirement of materiality in the sense and with the effect, as we understand that concept and as set out in our written submissions in this Court. 

It is key to our argument here that the effect of the mistranslation and the incompletion or miscarriage of the essential review function hedged around as it is of other statutory provisions to which we will shortly come, was of course material by denying the appellant the possibility, properly, of the case he had tried to put to the delegate being made known, including in relation to its possible defects of translation to the reviewer. 

Could I, before leaving those matters, remind your Honours that there is also the misunderstanding or miscommunication, as Justice Stewart put it in his Honour’s paragraph 60 at appeal book page 72, to which we draw attention.  Put together, in our submission, it leads to the conclusions of the plurality to which I am about to come. 

Could I remind your Honours of course that by reason of the provisions which governed the review, which are handily collected by Justice Stewart starting on page 67 of the appeal book in Part 7AA, the function created with the concomitant duty of course by 473CC is regulated – not merely in detail or procedure, but in important substantive respects – by Division 3. 

I do not wish to dwell on matters with which your Honours are very well familiar, but it starts of course with the expulsion in large, if not complete, measure of the common law by 473DA.  Section 473DB, by confining the review in the main or primarily, or in default of exception appearing, to papers, necessarily focuses on the great significance, the existential character given to the review by reason of or reference to the content of what I am going to call the delegate’s record.

The exception that is hovering behind the facts of this case, as behind any case of an unwitting mistranslation, unwitting on the part of delegate or reviewer, is then dealt with by Subdivision C of Division 3, again with which your Honours are well familiar.  Under the heading of “Additional information” perhaps one might understand that that will very often be in the nature of necessary supplementary information or correct information. 

There is a power given which in section 473DC(2) is a power which is not the subject of a duty as to its exercise.  The exceptional circumstances in which that power of consideration of new information is to be exercised is then spelled out in 473DD and one sees in particular the test of the capacity to have supplied material to the Minister under subparagraph 473DD(b)(i).

Mistranslation would not appear easily or obviously to fit within, for example, either of 473DD(b)(i) or (ii), though we are not to be understood as suggesting that would be always impossible.  Certainly they are not provisions obviously on their face apt to encompass such a mishap.  Then 473DE steps in as a guardedly protective provision in relation to what the statute provides in place of procedural fairness, but only in the event of certain new information. 

That is a schema which, in our submission, makes very clear the fundamental base for a review, as the very word “review” would suggest, constituted by the delegate’s record, and hence this case raises for determination – we do not suggest as a novelty – the proposition, we submit simply stated and applied in the circumstances of a case such as the present, that a fatal defect, that is, a defect which of its nature would certainly at common law be fatal to a delegate’s consideration, cannot be cured by being automatically, as it is, as continuation of the fast track sent for review to an authority who may well, as in this case, remain as unaware of that defect as the delegate was.

GAGELER J:   Is it critical to your argument that the delegate’s decision is invalidated by the defect in translation?

MR WALKER:   It is probably critical to my argument that if the delegate’s decision were a decision that had there and then been reviewed there was a fatal defect.  But, of course, because it is automatically sent to review, it is critical to our argument, I think, only, that there was no awareness of, let alone correction of, that defect between delegate and reviewer and that the provisions to which I have drawn attention really contemplate that in most cases and all ordinary cases there will not be any addition to the record before the delegate.

GAGELER J:   If the delegate’s decision is valid and you are correct that there is a fatal defect in the review record available to the Tribunal or to the Authority, can the Authority ever, in those circumstances, perform the duty imposed on it by section 473CC?

MR WALKER:   On the hypothesis your Honour has put to me, no, unless by happy accident the Authority comes to exercise power in such a way as to uncover and enable the correction either in the Authority or on remitter to the delegate of the defect.

GAGELER J:   What remedy would be available to your client in those circumstances.

MR WALKER:   In our submission, the remedy is the remedy of setting aside the rejection on review so as to enliven the power of the Authority on review to remit with appropriate directions to the delegate.

GAGELER J:   On the basis that review functions simply cannot be performed.

MR WALKER:   On the basis that the review function properly performed should, in light of what has come to light, proceed on the basis that there is a defect that can be fixed by the power of the reviewer under 473CC(2)(b).  Now, there are some oddities about the position because all of that comes about by reason of material which, ex hypothesi, indeed, essentially in the way we have put the case now was not available to the reviewer. 

But, in our submission, in the exercise of judicial review where such material has come before the court so as to expose the failure properly to complete both the process required of the delegate and, therefore, the process required of the reviewer, this Court is able to observe that there is a power under 473CC which does enable remitter for a reconsideration shaped, as the following words of that paragraph show, to the exigencies of the occasion.

GAGELER J:   So, the sequence of orders is certiorari, setting aside the decision of the Authority, and mandamus, presumably, directed to the Authority compelling it to exercise the power of remitter conferred by section 473CC(2)(b) on the basis of information that has come to light only in a judicial review process.

MR WALKER:   Either that, or probably more appropriately, so as to recognise the position and discretion of the Authority, a remitter to the Authority in order to consider exercising its power under 473CC(2)(b).  But I do not want to be disingenuous about that latter.  Were we successful in that fashion, your Honours could well understand that any advocacy on behalf of our client before the Authority on that remitter to the Authority could be expected to point out the near inexorable conclusion that that power should be exercised so as to enable, one way or the other, the mistranslation to be corrected. 

GORDON J:   May I ask one other matter about that, Mr Walker?  The precondition to this argument, regardless of how it is approached, is that there is a fatal error in the translation and that that fatal error is in effect transferred to the Authority by the provision of the transcript.  If you go to section 473CB, this Court has held that precondition to the exercise by the power of the Authority is that those things are met, one of which is that the Secretary gives to the Authority the material provided by the referred applicant to the delegate ‑ ‑ ‑ 

MR WALKER:   Yes.

GORDON J:   At the moment, the way I understand your case is put, what is provided in a sense is not the material given by the preferred applicant because it is a translation of something else, someone else’s information, someone else’s view of the world.  Do you put your case on that basis, that is that what is given over does not satisfy 473CB(1)(b), for example?

MR WALKER:   Your Honour, I suppose the first consideration is whether answers accurately transcribed - put aside the translation at the moment – answers accurately transcribed, given in an interview, is information given.  If the answer to that be correct, then when mistranslation intervenes the answer has not been provided.  So, yes.

GORDON J:   So, for example, here, one could not just have the audio recording because absent the translation, material provided by the Secretary to the Authority would not be able to be understood.

MR WALKER:   That is right.

GORDON J:   Is that part of your case because if it is, it seems to me then it is an argument that would have to be met.

MR WALKER:   Yes, is the answer.  The function is not completed (a) by the delegate and then (b) by the reviewer because what has to go from the delegate to the reviewer has to be answers not mistranslated and it has to be an interview not deflected from the subject matter in which the delegate was interested.  Our client was not in a position, because of mistranslation, to appreciate or respond to. 

It really means that by a combination of positive mistranslation and the stultification of the discourse by which the delegate could obtain the information that she was seeking that, in our submission, does mean that the function at both levels could not be completed.  It does include the notion of alien material being transmitted from delegate to reviewer, as well as real material that had been provided but had gone astray by mistranslation, not being provided. 

Both of those aspects combine to a quality of deficiency or defect in that which was transmitted from delegate to reviewer which, because the reviewer was also alas unaware, could not be fixed by, for example, having recourse to 473DD.

GORDON J:   Just to complete that, is the answer you gave to Justice Gageler about the relief the same answer? 

MR WALKER:   Yes.  Now, 473DD, I suppose needs to be added, but with some tentativeness on our part, to the possibilities that might in an alternative judicial order be contemplated as for further or new consideration by the Authority upon certiorari and remitter.  I say with some tentativeness because although subparagraph (i) of paragraph (b) of section 473DD may be adaptable to a case of mistranslation, there may be some strain to do the same for subparagraph (ii).

We would, were it to come to it, certainly argue that with real strain, not previously known, and had it been known, may have affected concepts which might apply to information which was well and truly within our knowledge – no question about that – it is just that the knowledge being imparted to the delegate had been frustrated by mistranslation.  I readily accept the strained interpretation that that may provide, but in our submission that is all the more reason to see an ample power in the remitter for reconsideration in accordance with directions and recommendations – unless prohibited by the regulations under 473CC. 

STEWARD J:   Can I ask a question in response to the answers that you gave Justice Gordon just now?  Your point under section 473CB, is it that we must read the word material as referring to only accurate material?

MR WALKER:   No. 

STEWARD J:   So that there is a disabling if there is any mistake, or is it material inaccuracy or what?

MR WALKER:   Certainly not any mistake. 

STEWARD J:   Yes. 

MR WALKER:   It would be utterly at odds with the – with what I might call the dignity and significance of judicial review for this to be, as it were, a proofreader’s jurisdiction.  It is certainly not that.  So, on any view of materiality as properly understood is a critical or driving and fundamental aspect of it.  That is the first thing.  Second, accuracy may be a quality, the absence of which might inform an argument of the kind that we are advancing.  But it is probably neither the typical case nor the only case. 

I suppose one can describe mistranslations of the kind that happened in this case as including inaccuracies, but it certainly was not confined to matters of simple inaccuracy.  The actual discourse, the to and fro, which had to be through the interpreter, was defeated in ways the findings of the Full Court show. 

So, it will not be any inaccuracy for sure.  It will not necessarily be something which is easily and obviously called an inaccuracy.  But no doubt inaccuracies – we would prefer the plainer word “error” or “mistake” – will often be the hallmark of that which means that translated material in a delegate’s interview can prevent the delegate’s purported exercise of function satisfying the statutory description.

STEWARD J:   But why would we not read the word “material” as just being a reference to the files, as it were, the things before the delegate and the things said and given by the applicant, a bit like the T documents which were given to the AAT?  They just go up.

MR WALKER:   The short answer is you should.  But then you should then ask the question:  and what happens when that has within it, for example ‑ - -

STEWARD J:   Is not the answer that it is up to the applicant, if there are inaccuracies in the translation, to inform the Authority?

MR WALKER:   That, in our submission, depends almost entirely upon the way in which the applicant comes to be involved in both the assembly of, transmission to, and consideration of that material on the papers by the Authority, bearing in mind the highly controlled and truncated participation before the Authority by way of so‑called new information, seen in 473DD.  So the short answer to Justice Steward’s inquiry is no, it is not simply a matter of leaving it to the applicant to, as it were, vet and correct the transmitted material.  The applicant does not have a role under the statute in transmitting the material.

KIEFEL CJ:   In practical terms, Mr Walker, and I think the Minister raises this, what is provided to the Authority by the Secretary is the recording of what took place before the delegate; that is provided under 473CB(1)(c).

MR WALKER:   Yes, but the recording means of course not merely what for most delegates will be difficult or impossible to understand as to part of it, it will therefore utterly depend for its, I will call it cogency, on the correctness or fidelity of the translation interpreting.

EDELMAN J:   But why is not the translation also then other material in the Secretary’s possession that is provided under 473CB(1)(c)?

MR WALKER:   I am sorry if I have been misunderstood.  Of course that is true, and I was about to say to the Chief Justice, so that it means that the material that goes up by way of recording – and it would be true if it was also transcribed – will include some material that the Authority is in some cases probably no more capable than the delegate of understanding in its own right, but will be accompanied by material, the raison d’être of which is to enable that to be understood – that is the translation.

So all of that is transmitted.  Our point is that if it is transmitted suffering from defects that we have called in shorthand “mistranslation”, then neither the position of the applicant as it was (a) actually made known in his language or (b) would have been but for the deflection and dead‑ending that occurred in this case as to certain aspects of the exchanges, it will not be ‑ - -

KIEFEL CJ:   The language of – I am sorry.

MR WALKER:   I am so sorry, your Honour.

KIEFEL CJ:   You had not finished.

MR WALKER:   No, no.

KIEFEL CJ:   The language of 473CB(1)(b) and (c) does not really contemplate the particular factual scenario that we have here.

MR WALKER:   No.

KIEFEL CJ:   Is it not arguable that (1)(c) proceeds upon an assumption that the material that is in the Secretary’s possession, because it was before the delegate, is material upon which the Authority is to rely and conduct its review?  That is, its correctness is assumed.

MR WALKER:   Yes, emphatically, like completeness.  In other words, it is in the words, but it is also in the nature of an assumption that there will not be something left out.

KIEFEL CJ:   So your argument really has at its centre the correctness of your submission about (1)(b), that it is capable of referring to what was said by the applicant?

MR WALKER:   Yes.

KIEFEL CJ:   That is what your argument hinges on really, as a matter of statutory construction.

MR WALKER:   It is a very important step, yes.

GAGELER J:   So, words spoken in an interview constitute material for the purpose of section 473CD?

MR WALKER:   Yes.

GAGELER J:   Is that the whole argument?

MR WALKER:   No, not least because of the remedy question that your Honour has asked me about, which it might be tempting for me to say is swept along with any success I might have on what your Honour has just invited me to consider is the whole of the argument, and I would never resist that bundling up, of course, but I do accept that that is a further or next step in the argument, yes.

KIEFEL CJ:   But your submission about material provided by the applicant to the delegate has to somehow be expanded upon or explained in the context of a fast‑track process which has regard, really, to written record.

MR WALKER:   Yes, and when I say “written record” I do – it is “record” - so the recording of interview, for example, whether transcribed or not, can be made available, must be made available.

GORDON J:   There are some times it is not translated and all they have is the audio.

MR WALKER:   Sometimes not translated, but as I understand it, not always completely transcribed.

GORDON J:   Yes, so they have only the audio available.

MR WALKER:   Exactly.

GORDON J:   Yes, so as I understand your argument, “material” would include photographs ‑ ‑ ‑ 

MR WALKER:   Yes.

GORDON J:   ‑ ‑ ‑ written record ‑ ‑ ‑

MR WALKER:   Yes.

GORDON J:   ‑ ‑ ‑ audio ‑ ‑ ‑ 

MR WALKER:   Yes.

GORDON J:   ‑ ‑ ‑ and the translation, to be able to understand the audio to the extent to which it is not in English.

MR WALKER:   Yes. Let me suppose, and I do not know how realistic this might be, let me suppose that, in this day and age, somebody has recorded an untoward encounter with an agent of the state in question, the foreign state in question, and simply shows that recording to the delegate.  It is not true I have nothing to fear, look at how – look at his face, look at his fists, et cetera.  We are not suggesting for a moment that that needed to be subject to some painstaking and clunky storyboarding or transcribing in order to be a record, and nobody suggests that.  That would be part of the material made available.

GORDON J:   By the applicant.

MR WALKER:   By the applicant.  If it involved language that the delegate needed to have translated, in order for the delegate to appreciate the force of what was being put, and it had been translated there and then by an interpreter, and the interpreter had got it all wrong, it would not fall outside the category of thing, material, that has to be transmitted for the review, it would not be a review if something so significant had not been made available for the reviewer.

Our point is this.  If, in that process, there happens to be - leaving immaterialities to one side firmly, if there happens to be significant or substantial mistranslation, as we urge was true here, then it follows that the delegate was disabled through no fault of the delegate and the reviewer will be disabled through no fault of the reviewer in carrying out to the intended statutory completion their separate tasks.  They are tasks which have some similarities as between delegate and reviewer, but they are distinctly different when one considers the fact that the review on the papers will be, but for carefully limited exceptions, done on the papers, so to speak. 

That is a figure of speech nowadays, and it is for those reasons, in our submission, that the fact that there was brought into existence material which the delegate could not understand, that is, the foreign language answers by my client, and also misleading, that is, mistranslated versions said to be the English equivalence by the interpreter, is enough.  We had more in this case.  We also had the evident deflection of and dead‑ending of inquiries by the delegate with respect to persecution on grounds of ethnicity, to which reference has been made in the Full Court below.

Your Honours, my answers to some of your Honours’ questions may have somewhat shortened the material that I wanted to go to in supplementation from the reasons below.  Can I rapidly take you back to page 56 of the appeal book where there is an important finding in paragraph 3 that self‑evident difficulties did not amount to self‑evident series of errors, et cetera. 

Then in paragraph 4, true with language falling short of conclusive findings, nonetheless what might be called suggestive indications of very considerable cogency, with respect, is raised in paragraph 4, and in paragraph 5 where their Honours see what we characterise as the requisite materiality for the purposes of the function being carried out by the delegate through interview, et cetera, and in due course by extension the function, different but focused on the same questions of history, being carried out by the reviewer.  

Those, in our submission, are powerful indicators that this is a case where, but for an error to which I am about to come, it would appear that at least the plurality, maybe all three of the justices below, would have regarded the review as having miscarried in such a way as to render it apt to be judicially reviewed.

The error in particular to which I refer can be put most succinctly by taking your Honours to page 59 of the appeal book in paragraph 12 of the plurality’s reasons.  Now, this comes at the end of a sequence of reasoning which, on the basis of the peculiar statutory replacement of common law procedural fairness, dispensed the Authority upon review from what might be called a duty to get correcting material.  In paragraph 12, no doubt mindful of – even with the provisions in question, of the unattractiveness in certain cases of such an approach, their Honours say this:

Left to one side –

meaning standing differently:

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 –

and then a significant phrase:

and a manifestly inadequate basis upon which a “review” can lawfully be undertaken.  Such is not the present case.

That, in our submission, has within it the fallacies that we have, I hope, respectfully sought to identify in our written submissions.  It is simply not the law that jurisdictional error of a kind that may spring from a failure to take into account or to appreciate or to hear material that an affected person is entitled to have the decision‑maker take into account, consider or hear, arises only where, as it were, that is a knowing defect in process on the part of the decision‑maker.  That would be a most disturbing anti‑rule of law approach, surely.

GORDON J:   Are they talking about knowledge there or are they deeming the knowledge?

MR WALKER:   Your Honour has raised a question to which I was about to come.  The first curiosity, if I may put it that way, is that by repetition of “manifestly” – it manifests three times in the paragraph – we are talking apparently about a clear case.  One is reminded of Justice…..whose Turkish was good enough to directly interrogate, in Turkish, witnesses to the bewilderment of counsel.  We are not talking about cases where the – we are not talking only about cases where everyone in court can speak French and knows that the translation was wrong, for example.  We have, however, that phrase “must be taken to be on notice”.

I can only suppose that that is partially at least what I might call a sample approach, that is their Honours have in mind that there are some things which are frank errors appreciated by the reviewer, that is you know that that is wrong, but what you do not know is how much else was also wrong, which is not so frankly apparent.  That may be what their Honours have in mind when they move from “deficiencies manifestly apparent” to “the interview process was manifestly deficient”.  However, we cannot, with respect, entirely resolve the curiosity that in paragraph 12 one moves from the notion of things which are manifestly apparent to then the language which, in other contexts, would be constructive rather than actual notice:  “must be taken on notice that”. 

In our submission, whether it be a requirement of actual notice, that is actual knowledge, awareness, self‑conscious understanding or, on the other hand, the very invidious proposition that the judicial review court imposes some standards of what a reasonable person in that position knowing those facts ought to have concluded – that is the constructive notice - it is doctrinally wrong and unsound ever to require that in order for there to be a relevant jurisdictional error and that is because the ‑ ‑ ‑ 

GORDON J:   We are assessing, in a sense, the standard which is, I accept – does not seem to appear to be set out at the moment in paragraph 12, but do you accept that the line of authorities really starting with Lam and moving forward, raise the question about which you are to assess this, that is, whether or not the applicant has lost an opportunity to put a claim or defend something that is put against him, or to put any information or argument, or otherwise suffered a detriment ‑ ‑ ‑ 

MR WALKER:   Yes.

GORDON J:   ‑ ‑ ‑ which is the language that Chief Justice Gleeson used in Lam and which I think has been subsequently been picked up in not only decisions in this Court, but also decisions in courts below dealing with translations?

MR WALKER:   Yes, without hesitation or qualification because that is caught up in the absolutely necessary requirement of materiality, because I stress this is not a question of – this is not a question in which pedantry could ever enter, this is not marking the work of a foreign language exercise ‑ ‑ ‑ 

GORDON J:   That standard accepts that there can be no perfect hearing or perfect translation. 

MR WALKER:   Speaking for myself, that is true, when I am speaking in English to English speakers, your Honours.  So that must obviously be true when we introduce a foreign language.  Yes, of course.  That is one of the reasons why, in our written submissions, we have emphasised the centrality of that quality in order that judicial review remain judicial review, rather than usurpation of administrative function. 

We do not suggest that there need to be paraphrases of that requirement, though the one that Justice Gordon has used in the beginning of her last questions to me is one that we would accept – it is entirely workable to say that materiality is that quality which is true of information or consideration that ought – it is a normative proposition – ought to have been part of a proper opportunity to put your case or to rebut an allegation, et cetera, et cetera. 

KIEFEL CJ:   Mr Walker, does actual or constructive knowledge on the part of the delegate or the Authority lead one into, or become relevant to, a question of whether or not the delegate or Authority was acting unreasonably not to seek to correct it?  Is that the true relevance of knowledge in this context?

MR WALKER:   Yes.  Yes, there would be a Li unreasonableness argument had there been what their Honours called the manifestly apparent deficiency in translation and yet the reviewer decides to ignore that.

KIEFEL CJ:   And absent that knowledge, you say?

MR WALKER:   It is a jurisdictional error because the significance of the material now known to be mistranslated means that what was before the ‑ ‑ ‑

KIEFEL CJ:   They unknowingly took into account irrelevant or wrong ‑ ‑ ‑

MR WALKER:   No, not – unknowingly.

KIEFEL CJ:   Unknowingly, I am sorry.  Yes, unknowingly.  Yes, quite.

MR WALKER:   If there is one thing we wish to make clear, there were other alternatives which are no longer live, but ‑ ‑ ‑

KIEFEL CJ:   They proceeded upon a wrong understanding of the facts?

MR WALKER:   Yes.

KIEFEL CJ:   As one might have in relation to evidence.

MR WALKER:   Yes.  To which knowledge ‑ ‑ ‑

KIEFEL CJ:   But that is not – in the context of evidence that is usually because the reviewer misleads themselves and the error lies in their misleading themselves.

MR WALKER:   Yes.

KIEFEL CJ:   But here there no consciousness, no action on the part of the reviewer, which would normally be captured by jurisdictional error of this kind involving a misapprehension.

MR WALKER:   Judicial review for jurisdictional error of this kind is obviously always case specific.  But in order to be brought within categories that lend themselves to be expressed as matters of principle, there will be a number of species of behaviour by a decision‑maker.  Some of it will be, as the Chief Justice has put it to me, self‑misdirection.  Other times it will be a function of the circumstances of the process, including perhaps one party, not the party seeking judicial review, having – and I will assume innocently – misrepresented by act or omission something critical.

The way in which that may be expressed as jurisdictional error, those ways are various.  In the latter case, you would have as to wrong information supplied by the government, for example, as being an irrelevant consideration.  On the other side of that coin often is failure to take into account the correct information, which is the relevant consideration.

Sometimes the jurisdictional error, being based in procedural deficiencies as opposed to what I will call substantive deficiencies of reasoning, will be more readily in the orthodox fashion seen as jurisdictional, hence the classic case of paradigm denial of procedural fairness at common law, about which I need to say no more.

But where we are talking about a substantive deficiency in material brought about by a mistranslation, as your Honours have seen, we do offer seriously the familiar trope that that means that irrelevant material – that is, the spurious translation – has been taken into account, or relevant material – that is, the proper translation – has not been taken into account.

In every such case where the facts are patterned as they are in this case, there will be no moral fault, no professional shortcoming on the part of the delegate, but that accidental or innocent quality of the deficiency in the process cannot possibly defeat jurisdictional error.

EDELMAN J:   Mr Walker, do you accept that what you are describing as “relevant” or “irrelevant” material is or can be seen as shorthand for material that is considered by the Secretary to be relevant, under section 473CB(1)(c)?

MR WALKER:   Yes, I can say that because the delegate here asks questions, and they were not being asked in vain.  Yes, they were considered to be relevant.

EDELMAN J:   But if the Secretary considers a translation to be relevant, even if the translation contains substantial material errors, why would that not then be relevant material?

MR WALKER:   Because the notions of “relevant” and “irrelevant” capture the proper use of information material representations in the making of the decision, so that it is not relevant because historically it is on a file.  Files will often contain irrelevant material, that is, extraneous material, and it does not become relevant if it has no quality of persuasiveness, according to the minimal standards of reasonableness that the court patrols as a boundary of jurisdiction for decision‑making and that means that a mistranslation will have been as a matter of history - that is, description, narratively, of the process - it will have been regarded as relevant, but wrongly so.

EDELMAN J:   But that explanation, as I understand it, imports, justifiably so, a reasonableness qualification in the exercise of the power by the Secretary in section 473CB(1)(c).  But if one would not expect a secretary to be fluent in the particular foreign languages, why would it not be reasonably considered by a secretary to be relevant when the secretary considers a translation that, on its face, purports to be an accurate translation of the interview?

MR WALKER:   If that is all that is ever known about the material, the answer is no reason at all.  Indeed, it would be an administrative error not to.  But it is, when revelation comes to hand that it is not what it purports to be, then, in our submission, it loses instantaneously that quality of being relevant.

STEWARD J:   Mr Walker, can I ask you a question, if I may?  Your case, as I hope I apprehended correctly, is that there was no lawful review here under 473CC because it proceeded based upon materially flawed material, if I can put it like that.

MR WALKER:   That is right, sufficiently flawed material.

STEWARD J:   Sufficiently flawed.  What is the significance then of the following two factors in assessing that argument:  (a) the Authority did consider the applicant’s claim to fear persecution by reason of ethnicity and addressed it in their decision at paragraphs 23 to 26; and (b), at the end of the interview before the delegate there were a number of open questions put to the applicant asking him on three occasions, “What else do you fear about returning to Iran?”  That is more particularly at the supplementary book - appeal book pages 216 and 217.

MR WALKER:   May I take those questions in reverse order?

STEWARD J:   Yes, of course.

MR WALKER:   As to the first, compendiously may I answer by referring to the detail we provide in our submissions in reply in this Court, paragraphs 12 through 17, and that is my answer to Justice Steward’s question that the ‑ ‑ ‑

STEWARD J:   All right, part (b)?

MR WALKER:   Yes, in our written submissions in reply, I stress.  Those open questions were, for the reasons we there set out in writing, not to be seen as questions that rendered moot or irrelevant or of no weight the mistranslation errors and deflections because of the understanding that even Justice Stewart held was operating upon our client with respect to those answers.  The detail is contained in our writing.  It is not correct, in our submission, to say that the open questions, as it were, enabled the so‑called fresh start, the “let’s start again” process to render of no materiality those matters about which we complain. 

Indeed, the deflection to which I have been referring includes the fact that the open questions were not able in those circumstances to provide the opportunity to present the case on that important matter of ethnic persecution that was intended by the questions on the part of the delegate.  So that is the answer to the second of Justice Steward’s questions.

As to the first, I suppose I should start by noting that in Justice Stewart’s reasons it would appear in particular from paragraphs 87 and 88, perhaps 91, on pages 79 and 80 of the appeal book, that that was an operative consideration for his Honour below.  It obviously is not the position that informed the plurality’s comments to which I have already drawn attention because had that been the case then there could not have been, had common law obtained, the sufficient materiality and that, in our submission, is the key to the point. 

What Justice Steward, with respect, wrongly leaves out of the count is that our client was deflected from or outright mistranslated as to his attempt in discourse with the delegate to put the case that he wished to put.  It was so deflected that the impression was utterly wrongly given that he was not able to speak to what we call in English “persecution on the grounds of ethnicity”.  It is for those reasons, in our submission, that the “it all came out in the wash” approach - I do not mean that disrespectfully - does not apply on the facts of this case. 

Your Honours, I am conscious that I have not, as it were, step by step, mirrored what we had in our outline of oral submissions but also that I have now covered everything in them particularly in answers to your Honours.  Those are our submissions.

GAGELER J:   Mr Walker, perhaps before you sit down, if I may.  Your last paragraph, I was wanting to ask you exactly what it means because I think it captures the bottom line of your argument.

MR WALKER:   Paragraph 14 of our outline, your Honour.

GAGELER J:   Correct.  It says the review material before the Authority was “necessarily incomplete”.  Now, I understand at least one strand of your argument to say that there was non‑compliance by the Secretary with the duty to provide ‑ ‑ ‑

MR WALKER:   The transmission, yes.

GAGELER J:   ‑ ‑ ‑review material to the Authority.  Is there another strand to the argument?

MR WALKER:   No, that is a way which will capture it all.  It captures errors and omissions.  If it please your Honours.

KIEFEL CJ:   Thank you, Mr Walker.  This might be an appropriate time for morning break.

AT 10.56 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.11 AM:

KIEFEL CJ:   Yes, Mr Kennett.

MR KENNETT:   Your Honours, I begin with a proposition which our learned friend’s oral submissions this morning may, in effect, have taken to heart, but which still has a bearing on a lot of what has been said in writing.  It is a proposition prompted by the reference in the court below to the decision of this Court in SZFDE, a case about third party fraud which, of course, your Honours, have recently looked at in The Minister v DUA16.  DUA16 is in the materials for the other case. 

The point that we would seek to make is that the present ground of review has some affinity with grounds involving allegations that a decision has miscarried because somebody else other than the decision‑maker failed to do something.  What the Court noted in DUA16, referring to SZFDE, was that, firstly, the grounds of judicial review in Australia are ultimately arrived at by implication from statute and as a process of statutory construction.  Paragraph 15 makes that point. 

Secondly, and, therefore, it is always necessary in a case of that kind, and we would say of this kind, to identify a specific aspect of the particular scheme of administrative review that has been stultified or unable to be performed or not performed as a result of the error that is alleged to have occurred in an anterior place.  So that here, the failure of interpretation in an interview before the delegate that was established by evidence, and the Circuit Court needs to be shown to have affected a particular duty, function, or power of the Authority, and so one needs to adhere very closely to the statute.

Now, I was going to say, as your Honours will have seen from the outline, that it does not seem now to be put that the delegate’s decision was vitiated by a denial of procedural fairness.  I understand the position to be that the decision was not vitiated by such a denial, but a lack of procedural fairness on the part of the delegate is called in aid, at least in a rhetorical sense. 

There are a couple of points that should be made about that, and the companion proposition that, as a result of failures of translation the delegate, and thus the Authority, took into account irrelevant material and failed to take into account relevant material.

The first point is that the central role of the interview is somewhat overstated in our learned friend’s written submissions, at least.  Unlike the Administrative Appeals Tribunal and its reviews under Part 5 and Part 7, the delegate deciding a visa application in the primary sense is not required by the statute to interview the visa applicant.  One can see from the sequence of sections 56, 57 and 58 of the Act that there is a general power to obtain further information.  There is a duty in some circumstances to see comment on information – on adverse information. 

In section 58 it is provided that these things can be done in various ways, including by an interview.  An interview, as we have seen from the written submissions, always occurs in a refugee case as a matter of policy, but it is not something dictated by the statute.  The code of procedure that applies to delegates also includes of course section 51A, which renders the other provisions of the relevant division an exhaustive statement of procedural fairness.  So that as a legal proposition, the proposition that the present appellant was denied procedural fairness by the delegate at the very least has some work to do. 

The second matter is as to relevant and irrelevant material.  Those propositions that fell from our learned friend sit uneasily, we would say, with a point that was made by members of this Court in Yusuf, not in the material but it is 206 CLR 323, particularly at paragraph 74, where it was noted that the so‑called considerations grounds of review looked to whether correct legal tests have been applied and not to the particular evidence upon which findings might or might not have been based.

In saying that, though, I have to accept that there could be an issue as to whether the delegate had complied with the obligation in section 55 to take into account such information that he or she obtains from the visa applicant.  But all of that really operates, as I have suggested, at a rhetorical rather than a legal level because it is tolerably clear, for the reasons we set out in paragraph 18 of our written submissions, making reference to Plaintiff M174, it is tolerably clear that an error by the delegate even going to jurisdiction does not deprive the Authority of jurisdiction to review the delegate’s decision, and that the decision that the Authority renders upon that review then becomes the legally effective decision, so that the delegate’s decision falls away.  Hence, we say it would not avail our learned friends in any direct legal way to be able to say that the delegate’s decision was vitiated. 

GAGELER J:   Mr Kennett, I think you are referring not to section 55 but to section 54.  Is there any case law that bears upon that potential difficulty with the delegate’s decision? 

MR KENNETT:   One case of which I am rather painfully aware, although I have not gone back to it for the purposes of today, was in the Full Court in a case called Ogawa – I think there may be several Ogawa cases – this was the one decided a year or two ago in which I appeared – we can find the reference if that is ‑ ‑ ‑ 

STEWARD J:   That was a five-member Bench that sat?

MR KENNETT:   Yes, your Honour.

STEWARD J:   In Brisbane?

MR KENNETT:   Yes. 

GAGELER J:   So the potential that we are just looking at, at least in passing, is for the delegate’s decision to be vitiated by jurisdictional error for non‑compliance with section 54 ‑ ‑ ‑ 

MR KENNETT:   It is section 54, your Honour, yes.

GAGELER J:   ‑ ‑ ‑ by reason of a mistranslation, meaning that the information provided by the applicant is not actually taken into account.

MR KENNETT:   Yes.  Now, I would not concede that of course, certainly not in the ether, but one could see that there could be an issue there.

GAGELER J:   But you say there is no equivalent once you get to Part 7AA, do you?

MR KENNETT:   No, your Honour, there is no direct equivalent.  There is section 473DB, which I will come to.  Turning to Part 7AA, our learned friend’s address this morning focused largely on section 473CB, the substance being that there was non‑compliance with that section and that that non-compliance vitiates the subsequent decision of the Authority.  I had a number of things that I wanted to say about that. 

Firstly, in paragraph 20 of our written submissions, we suggest a possibility that the appellant’s answers to questions, that is his oral answers in Arabic, might be considered to be material that he gave to the delegate.  If that is the correct analysis, then that material, or at least the recording of it, was also given to the Authority who was in as good a position as the delegate was to do something with it.

There is then an issue about the translated answers, that is the renderings of his answers in Arabic that the interpreter delivered to the delegate.  We would resist the proposition that those renderings are material that the appellant himself gave, at least in any direct way to the delegate, and thus that they are within 473CB(1)(b), although that may not matter, because as we have put in the other case, BNB17, Justice Anderson in that case, at paragraph 95, came to the view that the oral answers that are given in an interview are not themselves material in the sense that section 473CB(1) speaks of, and that the better view is that it is the recording of the interview that is required to be provided because the recording is a piece of material in the Secretary’s possession that he or she could not but consider potentially relevant.

That point was noted by this Court recently in ABT17, another case that is in the material for BNB – that was at paragraph 12.  So that is the way we would say that the recording of the interview becomes a piece of material that needs to be provided to the Authority, and the mechanism by which it becomes part of the review material.

We would say that there is no room in the language of 473CB for an implication that somehow the duty is unperformed if material that is required to be provided because of paragraph (c) contains errors.  One just cannot find a hook in the statutory language for any implication of that kind.

If the proposition is that what is provided must be relevantly properly translated answers and not inaccurately translated answers, that of course sets an impossible standard and a standard that my learned friend did not suggest ought be applied, but there is then a question of where a line is to be drawn in that regard.  The statutory command would then become a rather diffuse one.

So the right way to understand this, we would submit, is that the audio recording of the interview was put before the Authority properly and as required by paragraph (c) of section 473DC(1).  The things that were said in the room during the interview did not have an independent status for the purposes of 473CB(1)(b).

All that has been said about – another point that should be noted about 473CB of course is that one can only bring it to bear or seek to bring it to bear on the present case by focusing on the appellant’s answers to questions.  It does not do any work, it seems to us, to the extent that there is a complaint made of the appellant having been deflected by incorrect translation of questions.

The questions that the delegate asks are not, on any view, material that the appellant has given to the Minister so that the analysis which we understand our friends to propound based on 473CB(1)(b), even if it works in relation to mistranslations of answers, does not do any work in relation to correct translations of answers which have been procured by mistranslation of a question.  So there is, in the end, in the present case, no failure by the Secretary to comply with section 473CB. 

If one then moves on into Part 7AA, one sees that the Authority has a duty under section 473CC to conduct a review, and that that duty is shaped by the provisions, as my learned friend noted, of Division 3 of Part 7AA.  But one looks in vain for any indication in that statutory scheme that the review is off the rails if the review material contains errors of the kind seen here.

Different questions may arise in relation to 473DC in a case where the Authority is on notice of the errors.  That is not this case.  Those matters are not pressed any further.  No occasion arose here for possible admission of new information under DD or for comment on new information under DE.  Thus, our learned friend’s argument, apart from reliance on 473CB, fails to identify any duty, function or power of the Authority said to be affected by the errors of interpretation. 

The argument appears rather to be that the Authority just could not get off the ground at all because there was a problem with the – further – earlier in the chain, as it were, that manifested itself in the review material upon which the Authority was bound to base its review. 

I do not think I mentioned, and I should have, of course, the important provision of section 473DB which requires, subject to certain exceptions, the Authority to conduct its review by considering the review material and the review material is the material that the Secretary has provided. 

GAGELER J:   There is a strange disconnect though, is there not, between section 54, the duty on the delegate to consider the information and the duty of the Authority to consider the review material.  It is not quite doing again what the delegate did.

MR KENNETT:   Not quite, no.  It is in many ways an attenuated form of merits review and deliberately so, we would say.  Now, the next point I was going to make is a point that your Honour Justice Gageler raised with my learned friend which is a point about where the ground of review leads if it be right and where it seems to lead, we would submit, is that if the review material is as the ground propounds necessarily incomplete and if that vitiates the Authority’s decision then how, one asks, can the Authority fix that problem and render a valid decision. 

If the flaw is a breach of section 473CB then one can understand that there is a duty unperformed by the Secretary and the Secretary could, at least, in principle, be subject to a mandamus to require him or her to complete that function.  But if the problem is otherwise, if the problem is an implication that the Authority is disabled by errors in the review material, then if this Court sets aside the Authority’s decision, there is no power the Authority can exercise that would fix that underlying problem.

The Authority might be able to paper over it, in a practical way, by conducting an interview, but the issue which, as a matter of law, vitiates the decision, is beyond any remedy by any power of the Authority because it cannot revise the review material and the errors in the review material are there, no matter what anybody does.

Now, that, in one sense, is a – and I should note there is no general power of remitter vested in the Authority under section 473CC.  It is given the power to remit subject to such directions as regulations provide for.  So our learned friend’s argument, unless it depends wholly and solely on 473CB, creates an intractable problem which may be in a sense a debating point, but we would say it is an indication that Parliament just did not intend to create as a jurisdictional requirement for the Authority a need for the review material to be beyond reproach.  It would lead to the Authority being unable to proceed and unable to exercise, to perform the function that it is given, a function which it is given in some cases for the benefit of the referred person.

The final point of principle, and this arises from points made by my learned friend this morning, is as to the proposition that jurisdictional error in this country is not understood to be limited to cases of what my friend called knowing error, that is, there can be jurisdictional error in circumstances where the actual decision‑maker does not know anything about what has gone wrong. 

We do not suggest to the contrary.  The point that we would make, and that we understand the plurality below to have been making at paragraph 12, is that different issues would present themselves if it were the case that the Authority was on notice of the errors in translation.  That would raise a question as is raised in BNB17 as to whether there was an unreasonable failure by the Authority to exercise the powers that it had to seek to remedy the problem.  But the reasoning below and the reasoning which we propound does not depend on any general proposition that jurisdictional error arises only when the decision‑maker is aware of the matters that lead to the error.

GAGELER J:   Mr Kennett, if the tape of the interview is provided by the Secretary to the Authority under section 473CB(1)(c), is the Secretary or the Authority under any obligation to give that tape to the applicant?

MR KENNETT:   Your Honour, I think the answer is yes, but I will need somebody to check that.

GORDON J:   So, can I just clarify - I thought that you accepted that the tape would go under (b) and not (c).  Is that right?

MR KENNETT:   We would say the tape would go under (c).

GORDON J:   Under (c), I see.

GAGELER J:   I am just wondering if the first time the applicant gets to hear the tape is on judicial review?

MR KENNETT:   Your Honour, our present understanding is that there is no express obligation to provide it, but as a matter of ordinary course it is provided and is available under freedom of information legislation. 

GORDON J:   Sorry, Mr Kennett, I could not hear what you just said then.

MR KENNETT:   I am sorry, your Honour.  I am told that there is no express obligation in the statute for the tape to be provided.  It is available under freedom of information legislation, although the time that is involved in that may be a problem given the automatic referral to the Authority and the relatively speedy way in which it makes its decisions.

GAGELER J:   Is there an administrative practice – you referred to some administrative practices in your submissions?

MR KENNETT:   Off the top of my head, your Honour, I do not know but we will see if we can find out.  I wanted to address finally the question of materiality in this case.  As your Honours have seen, the Authority said some things based on answers of the interview in paragraph 22 of its reasons which the evidence now shows were factually incorrect, propositions about what the present appellant did or did not say – or propositions about what the appellant said in his interview along the lines that he, in effect, was not advancing any claim based on his ethnicity. 

Your Honours have also seen that at paragraphs 23 to 26 and despite that the Authority went on to consider whether he would face harm amounting to persecution by reason of his ethnicity.  That is consistent with a long course of practice and authority which treats claims to refugee status as being live if they are raised by the material even if they are not raised directly and orally by the visa applicant. 

Now, it can be accepted that that ethnicity claim which the Authority dealt with and ultimately found that as an Arab the appellant would suffer discrimination but not harm rising to the level of persecution, one can accept that that claim might have enjoyed more success if he had expanded on it during the interview, given examples of treatment he had suffered or things of that kind which, of course, he did not.  The evidence does not establish, we would say, that that failure was wholly or even partly brought about by the translation errors that have been identified.

The mistranslations that are relied on, we would say, do not rise to the level of errors that would be said to have prevented the Authority from performing its review task, assuming that such a ground of review can be advanced consistently with the statute.  As to those legal questions, I do not think I need to add anything to what was said this morning in the case of DVO16.

GAGELER J:   Mr Kennett, this might be going back to what you said at the end of your submissions in that case. 

MR KENNETT:   Yes.

GAGELER J:   But the bracketed words at the bottom of the first page of your written submissions where you frame the issue in terms of whether the Authority is prevented from understanding and deciding upon the claims advanced, implicitly, I think, contain the proposition that the statutory duty to conduct a review encompasses a duty to understand and decide upon the claims in fact advanced.  Is that correct, and do you accept that?

MR KENNETT:   Well, it is an assumption that we make on the basis that our propositions of law are not accepted.  So we put that on the assumption that there is to be found somewhere in Part 7A a jurisdictional requirement that the Authority have before it review material that does not contain material errors.  We resist that proposition, but if it be right, then we seek to try and give some content to what material errors might mean, and that is one of the formulations that we have come up with, not exactly the same as my formulation in the other case, which is a problem that I need to work on.

That, I think, concludes what I need to say about ground – the first ground.  Could I go then to unreasonableness.  We would accept that – and there is authority of this Court for the proposition that cases may arise in which as a result of apparent problems with what the Authority has been presented with, it may be unreasonable in a legal sense for the Authority not to consider exercising or, indeed, exercise the power that it has in 473DC. 

The decision in ABT, I think it is - ABT17 stands clearly for that and it is perhaps worth noting in relation to a question that your Honour Justice Gageler asked my learned friend what the plurality say at paragraph 20 to the effect that compliance with the implied condition of reasonableness requires not only that the decision – the ultimate decision has an intelligible justification but that there be an intelligible decision‑making process. 

That, we apprehend, is one way of explaining why an unreasonable exercise or non‑exercise of a procedural discretion may undo the ultimate decision which is where one would be, we would submit, if the Authority had been presented with very clear and compelling indications that the interview transcript was unreliable but, nevertheless, propose to make findings on the basis of it.  Then there would be quite a strong argument, of course, that it was unreasonable in those circumstances not to have used the power that the Authority had available to it.

I hasten to say that is not – we would say that is not this case, but that is how that result might arise.  We would, if it be relevant, not accept that there is some additional inherent power in the Authority to seek new information.  The seeking and consideration of what the statute describes as new information is dealt with very specifically by 473DC and DD and it would be unusual, we would submit, if there were also an inherent power to do the same thing and, indeed, there would be no need to find an inherent power to do the same thing.

Another perhaps side issue that emerged from questions put to my learned friend was as to the power of remitter of the Authority.  I think there was a proposition that the Authority might respond to perceived problems in an interview by remitting the matter with the direction that there be a further interview.

There is a specific Full Federal Court authority to the contrary of that, not in the materials, but the reference is a case called BJB16 260 FCR 116, at paragraph 52, and again, not in the materials, but regulation 4.43 of the Migration Regulations is the regulation that specifies the directions that the Authority can give on remitter. 

We would submit that is a suggestion that the Authority might, without finding that the delegate’s decision was wrong, send the matter back to the delegate to do another interview, using its power of remitter.  We would submit that that is firstly not right, but secondly, unnecessary, because we would accept that in an appropriate case, the Court might find unreasonableness in the failure to use 473DC and that is at least how we apprehended that the matter had been argued before Justice Anderson, and Justice Anderson, we would say, reached the right result on that. 

Whether there was unreasonableness depends firstly, we would submit, on the information available to the Authority, so one puts aside things that we know that the Authority did not, or at least that the Authority had no way of knowing, such as the translation evidence, but, secondly, on the significance of the deficiency, or at least the significance of the deficiency as far as the Authority was capable of seeing it. 

Now, in terms of what the Authority had to go on there was a post‑interview submission to the delegate, which appears in the bundle of further materials at, relevantly, pages 141 and 142.  It might be appropriate just to go very briefly to that.  So we are now – this is a submission that the appellant’s advisers made to the delegate before the delegate’s decision. 

At 141, starting at about line 23, there is an exchange from the interview that is set out and then there is an explanation that an interpreter retained by the advisers had suggested there was a mistake in that.  Incidentally, one thing we see from that is that the advisers had the recording of the interview at that stage.  The error pointed out at about line 30, we would submit, is inconsequential, and our friends do not place any reliance on it in their ground 1. 

Then there is the second problem that is referred to is an aspect of the exchange that we have been through about being – what was meant by being beaten.  Then the third one is at page 142, under the heading “Evidence of sexual assault”.  Then, when the matter goes to the Authority, the Authority gets the submission from the advisers that starts at page 124 and at 126, under the heading “1.4 Procedural concerns and request for a further interview”, your Honours will see what is said there and that refers back to the post‑interview submission but does not seek to add any further examples to it.

So the Authority had before it a very limited set of suggested mistranslations which might be argued to be of some significance but certainly we would suggest none of them anywhere near critical in its own right.  The Authority had the recording and thus it could hear what we can see in the English version at pages 9 and following of the book of further materials – so the Authority was able to hear as it is set out at the end of paragraph 23, for example, that questions about being beaten had been repeated several times and ultimately not answered.

The Authority, of course, did not have the expert translation evidence.  The Authority was entitled, we would submit, to have regard to the fact that those three examples had not been added to.  There had been a bit more time – perhaps not a lot of time – but there had been some more time for the advisers to build the case, but it had not been added to so as to make out a more general deficiency, and the Authority was also, we would say, entitled to give some weight to the delegate’s conclusion that for the most part the parties had been able to communicate clearly. 

So this was, we would say, by no means an overwhelming case, and a long way from a case that demanded that something be done under 473DC to get to the bottom of potentially serious translation errors.  The errors that had been brought to the Authority’s attention were not particularly serious and there were indications before the Authority that they had not materially affected how the appellant gave his answers or the conclusions that could be drawn from those answers.

EDELMAN J:   Mr Kennett, as I understand, you accept that there may be cases, although you say this is not one, where it would be unreasonable for the Authority not to consider the exercise of a power under 473DC to get new information when it is confronted by, for example, very serious translation errors.  What about a situation where it is confronted by a number of translation errors that are not necessarily very serious but which might be the result of only an assessment of part of the oral hearing, particularly given the shortness of time - in other words, where the concern that is raised is a concern with the efficacy of, or the ability of the translator, even if large errors had not been specifically pointed to?

MR KENNETT:   I am not telling your Honour anything new when I say that unreasonableness is always heavily fact dependent.  One can certainly imagine a case where a strong argument might emerge that the interpreter was just not up to the job but might not be necessary to go through the entire interview in order to demonstrate that.  If the Authority was squarely on notice that the interpreter was just not qualified or not able to get anything right, then one might well conclude that it would be unreasonable for the Authority to place weight on the interview without seeking to verify what had been said. 

EDELMAN J:   I ask that because the submissions to the Authority do say that it is only certain parts of the recording that have been reviewed.

MR KENNETT:   Yes, and I suppose there are two points to make about that.  One is that in the intervening period between that submission to the delegate and the submission to the Authority there did not seem to have been any further – any attempt to boost that by reviewing more of the recording.

I would also note that Justice Anderson understood the submissions to the Authority as having been directed at trying to build an inference of wider inaccuracy.  His Honour refers to that at paragraph 76 on page 102, and concludes that the Authority was entitled not to be persuaded by that and we would submit that that was right, with respect.

The other integer, of course, of the question of unreasonableness is what is the zone of decisional freedom that the Authority has, and what are the statutory objectives to be served by the exercise of its procedural powers, and that is very dependent on the statutory regime.

STEWARD J:   Can I ask you a question, just before you go onto that point, before I forget to ask it, that is.  Am I to take it that for the purposes of ground 2, your submission is that the translation errors are to be limited to the way in which they were presented to the delegate and then to the Authority and that we are to ignore the expert evidence that was subsequently adduced?

MR KENNETT:   Yes, we would so submit.

STEWARD J:   All right, thank you.

MR KENNETT:   Our learned friends put a point on the – in relation to the Coulton v Holcombe questions, which have fallen away along the lines that they would need the expert evidence in order to show materiality on the unreasonableness ground.  We would not have put them to that need if the Authority was unreasonable not to hold a further interview.  One therefore asks, would a further interview have made a difference, or could a further interview have made a difference to the outcome, and it would be a very bold submission to say that that could not have made a difference. 

So our friends do not need the expert evidence in any sense, we would say, on the unreasonableness question, and as to the basic question of whether the Authority acted reasonably it is just irrelevant, not having been before the Authority.

The matters of statutory context that we would emphasise in relation to the zone of decisional freedom, as his Honour put it, or the framework of rationality, as we put it in writing, are those which we mention at paragraph 55 of the written submissions, so the first point is that Part 7A excludes largely, if not wholly, ordinary notions of procedural fairness, and so it would be a mistake to approach the exercise of powers through that particular lens. 

The second point is that Parliament has expressed an intention that generally the review will be on the papers, as one says colloquially, without obtaining further information.  There is expressly in 473DC no duty to get new information in any circumstances.  Accepting that reasonableness might make it necessary in some circumstances, Parliament clearly intended to confer a very broad discretion there and that the circumstances in which new information having been obtained can be considered are also limited, and finally, the exhortation in section 473FA to be efficient and quick.

With those things in mind we would submit that it was well within the decision or freedom of the Authority to proceed to make the findings that it did without having conducted its own interview. 

STEWARD J:   Can I ask another question, I am sorry, Mr Kennett.  What do you say, if anything at all, about how the content of the implication of legal reasonableness in 473DC is to operate in the light of 473DA and its reference to exhaustive statement of the requirements of natural justice hearing rule?

MR KENNETT:   What we take from 473DA is, in effect, the first of those points that we mention at paragraph 55 of the written submissions ‑ ‑ ‑

STEWARD J:   Does it just simply mean that there is even more decisional freedom?

MR KENNETT:   Yes, and that procedural fairness is not a value that the statute is to be understood – this part of the statute is to be understood as promoting.

So that the question “Is this fair?”, or “Does fairness require this step to be taken?” would not be a pertinent question in relation to that statutory regime.  There can be cases where the ultimate decision will be infirm because of a lack of information, if the power has not been used – and one can see why non‑use in those circumstances might be unreasonable.  But the fact that it is unfair not to provide a further opportunity is something that passes Part 7A as a ship in the night.

Your Honours, there is one further matter.  Those are my submissions on BNB17.  I need to add slightly to something I said in the earlier matter in relation to the provision of interview recordings by the Department to visa applicants.  I said that there was no practice of providing the recordings as a matter of course.  I have since been told that at the time of the delegate’s decision in DVO16 there was such a practice, and there is in the appeal book before the Federal Court, not before your Honours, a letter conveying the delegate’s decision which shows that the audio was provided in that instance.

Now that, I think, is an uncontroversial fact, and I stress that we do not proceed from that to make any criticism of the appellant in that case, based on the fact that he had the recording.  But just as a matter of accuracy,

there was at that time a practice of providing the recording with the notification.  It was a practice that ceased in August of 2016, I am told.

But your Honours will have noted in the specific facts of BNB17 that, from the document I took your Honours to in the bundle of further materials, his advisers had access to the recording before the delegate’s decision had even been made, which suggests that if one asks for the recording, it will at least usually be provided.  But there is now no general practice of providing it come what may.  Those are the submissions, if the Court pleases.

KIEFEL CJ:   Thank you, Mr Kennett.  Do you have anything in reply, Ms Costello?

MS COSTELLO:   Yes, your Honours.  We respectfully adopt the observations of Justice Edelman in respect of cases, which we say this is one of, where non‑exhaustive examples of poor interpretation are put forward, and the substance of the submission from Refugee Legal to the Authority was of that nature.  They specified, in particular, these were non‑exhaustive examples.

We would like to draw your attention to the appellant’s chronology, which you have been provided with, to see that this was a fast process.  At the interview, of which you have heard much about, was on 13 January 2017.  The written submissions were provided on 20 January 2017.  The decision of the primary decision‑maker was on 3 February 2017.  The submissions to the Authority were on 28 February 2017, and the decision affirming the decision was on 22 March 2017.  So, it was a fast process. 

We submit that, even on the English version, listening to the recording, as presumably the Authority did, the impression that any listener would get was of a garbled and confused exchange, and what the Authority had before it was a submission aided by the input of a Tamil speaker who had identified errors in the translation.

If you look at the Authority’s reasons carefully, as you will, and as you have, from paragraph 20 to 25, you can see, your Honours, that the Authority reasons with respect to evasiveness findings, particularly at 22, with reference not only to the, shall we say, reset attempt, which you have been taken to on page 97 of the court book, but also with respect to the earlier questions.  So, if you look at the middle of paragraph 22 in the Authority’s reasons, the reason was:

When he was asked about what he meant by beaten many times, his responses were, in my view, evasive; he simply restated that he was questioned and that he didn’t do anything wrong.

Then, at 23, the Authority refers to concerns with interpreting, but, having already made that finding about evasiveness on the wrong assumption about non‑answers to repeated questions, the Authority then refers to the attempted cure to that, at the top of page 12, and then there is the mistake that it was not “what did they do”, it was “what did they do, physically?”

The conclusion at 25 that the applicant was vague and evasive draws upon the finding earlier made at 22 and so it is not only the so‑called reset answer that the Authority is drawing upon, but the whole passage which, as your Honours have seen, has numerous difficulties in terms of the translation.  Those are our submissions in reply.

KIEFEL CJ:   Yes, thank you.  The Court reserves its decisions in these matters and adjourns to 9.30 am tomorrow.

AT 3.17 PM THE MATTERS WERE ADJOURNED