DVO16 v Minister for Immigration and Border Protection

Case [2021] HCA 12


HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, GORDON, EDELMAN AND STEWARD JJ

Matter No S66/2020

DVO16  APPELLANT

AND

MINISTER FOR IMMIGRATION AND BORDER
PROTECTION & ANOR  RESPONDENTS

Matter No M109/2020

BNB17  APPELLANT

AND

MINISTER FOR IMMIGRATION AND BORDER
PROTECTION & ANOR  RESPONDENTS

DVO16 v Minister for Immigration and Border Protection
BNB17 v Minister for Immigration and Border Protection

[2021] HCA 12

Date of Hearing: 10 February 2021
Date of Judgment: 14 April 2021

S66/2020 & M109/2020

ORDER

In each matter:

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

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.

CATCHWORDS

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…

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AGLC
Dvo16 v Minister for Immigration and Border Protection [2021] HCA 12
Case
[2021] HCA 12
Decision Date

CaseChat Overview and Summary

In the matters of DVO16 and BNB17, the appellants sought protection visas. Their applications were initially refused by a delegate of the Minister for Immigration and Border Protection, with each appellant having been assisted by an interpreter during their interviews. Subsequently, the Immigration Assessment Authority (IAA) conducted a review of these decisions under Part 7AA of the *Migration Act 1958* (Cth). In DVO16's case, the IAA was unaware of any translation errors, while in BNB17's case, the IAA was aware of three such errors. In neither instance did the IAA exercise its powers to obtain new information. The IAA affirmed the delegate's decisions to refuse the protection visas, leading to the present appeals.

The central legal issues before the High Court of Australia were whether the IAA's exercise of its powers was unreasonable, and whether the IAA had failed to comply with its statutory duty to "review" the delegate's decision under Part 7AA of the *Migration Act 1958* (Cth), particularly in light of alleged translation errors during the initial interviews.

The High Court reasoned that the translation errors, while present, were not of a fundamental nature that would vitiate the review process. In BNB17's case, the errors were considered in the context of legal unreasonableness. For DVO16, although the errors may have deflected the appellant from fully elaborating on his case of persecution based on ethnicity, they did not entirely prevent him from presenting his case or preclude the IAA from understanding its substance. The Court noted that DVO16's interview still focused on the same incidents and allegations as his written claim, and the IAA had made findings in relation to these. Consequently, the Court concluded that the IAA's process could properly be described as a review of the delegate's decision.

Accordingly, the High Court ordered that each appeal be dismissed with costs.

Orders

Orders of the court

In each matter:

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, GAGELER, GORDON AND STEWARD JJ EDELMAN J
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.Conclusion Each appeal must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER, GORDON AND STEWARD JJ, EDELMAN J

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