EMA17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 142
Federal Circuit and Family Court of Australia
(DIVISION 2)
EMA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 142
File number(s): SYG 3077 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 28 February 2023 Catchwords: MIGRATION – Duty to inquire – incorrect names included in delegate’s decision – whether Immigration Assessment Authority had a duty to obtain transcript of interview to consider standard of interpretation – applicant’s solicitors failed to file Notice of Withdrawal of Lawyer or to appear Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Migration Act 1958 (Cth) ss 5H, 36, 473DB, 473DC, 473DF, 486I
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 9.03
Cases cited: BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Prasadv Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 5 October 2022 Place: Sydney The Applicant: In person Solicitor for the Respondents: Clayton Utz ORDERS
SYG 3077 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EMA17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
28 February 2023
THE COURT ORDERS THAT:
1.The application filed on 5 October 2017, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application seeking judicial review of a decision of the Immigration Assessment Authority (Authority) made on 12 September 2017, which affirmed a decision of a delegate of the first respondent (delegate) made on 10 March 2017 refusing the applicant a Safe Haven Enterprise (subclass 790) Visa (visa).
The following background and summary of the Authority’s decision is derived from the submissions of the first respondent, but is not in dispute.
The applicant is a citizen of Iraq, born in the Basra province. On 12 April 2016, the applicant applied for the visa seeking protection based on a claimed fear of harm due to his religion, as a Sunni Muslim (CB 33 to 84). The applicant claimed that he and his family had previously faced harm by Shia extremists.
On 14 March 2017, the applicant was notified that his visa application had been refused by the delegate (CB 147 to 163). On 16 March 2017, the Authority wrote to the applicant to notify him that the delegate’s decision had been referred to it by the Department (CB 164 to 166).
The Authority’s decision
On 12 September 2017, the Authority affirmed the decision of the delegate. Relevant to these proceedings are the following findings of the Authority:
(a)the applicant’s evidence was not credible by reason of significant inconsistencies at his arrival interview, protection visa interview, and in post-interview submissions. The Authority rejected a submission that the inconsistencies could be explained by trauma, anxiety, stress, fear, concentration issues, prolonged detention or separation from family, the applicant’s mental or physical conditions or interpretation issues (CB 213 at [41]);
(b)the Authority was prepared to accept that the applicant had some wounds or scars on his body as claimed at the SHEV interview and that among items lost by the applicant in transit may have been medical reports from Iraq. However the Authority described the possibility (even with the benefit of said records) that documents could establish whether the applicant’s wounds or scars had been the result of an abduction as claimed. to be “highly speculative” (CB 214 at [53]);
(c)found that a psychological report which made reference to a visible wound on the applicant’s arm could (similarly) not provide an independent opinion as to its cause (CB 214 at [53]) and the Authority was not satisfied that the report assisted it in overcoming its concerns about the applicant’s problematic evidence or provided independent evidence about the wounds or scars having been the result of torture or abduction (CB 215 at [53]);
(d)accepted that the applicant was a Sunni Arab born in Basra which is a Shia dominated area, but not that the applicant or his family had received threats in the past (CB 218 at [68]);
(e)did not accept that the applicant’s brother had been shot and killed by Shia militias (CB 218 at [68]);
(f)did not accept that the applicant was of interest to any of the groups or militias, the applicant named (CB 218 at [68] and 219 at [73]);
(g)considered extensive country information (CB 215 to 218 at [55] to [70]);
(h)found there to be only a remote chance that the applicant would be abused, kidnapped, extorted or caught in generalised/sectarian/tribal violence on return to Basra and, accordingly, was not satisfied that the applicant faced a real chance of harm on those bases (CB 219 at [74]);
(i)considered the applicant’s background, education, vocational training and health conditions (CB 219 at [75]) before concluding that the applicant would be able to find work on return, and that he would have work rights and access to services including health services on return (on par with other Iraqis) (CB 219 at [76]);
(j)considered whether the applicant would face a real chance of harm as a returnee, in particular upon his immediate return, but was not satisfied that he faced a real chance of harm on this basis (CB 220 at [77] to [80]);
(k)found that the applicant’s claims considered singularly and cumulatively did not give rise to a well-founded fear of persecution on return to Basra, and the applicant did not meet the requirements of the definition of a refugee pursuant to s 5H(1) of the Migration Act 1958 (Cth) (Act) and did not meet s 36(2)(a) of the Act as a result (CB 220 at [81]); and
(l)based on its anterior factual findings, which were recounted at some length, including its credibility concerns and factual findings regarding a lack of past harm, the Authority was similarly not satisfied that the applicant met the complementary protection criterion pursuant to s 36(2)(aa) of the Act (CB 221 to 222 at [83] to [89]).
Application to the Court
By an application to show cause filed with this Court on 5 October 2017 the applicant raised three un-particularised grounds of review. The matter was initially docketed to Judge Dowdy before whom the applicant appeared at a first Court date directions hearing on 27 October 2017. At that directions hearing, the matter was listed for a callover on 1 December 2017, on which occasion it was stood over, at large, to a date to be administratively listed, with no procedural orders being made. Despite the lack of orders, on 11 December 2017, the first respondent quite properly filed a Court Book in the matter, unprompted.
On 12 January 2018, the following documents were filed for the applicant:
(a)a Notice of Address for Service appointing a solicitor, Ms Rana Sayed as the applicant’s lawyer (2018 NOAS). The 2018 NOAS provided a NSW Street address as a postal address for service and an email address which concluded “@belawyers.com.au”. A telephone number with a NSW area code “(02)” was provided as well as a facsimile number with a Victorian “(03)” area code. The Notice of Address for Service appears to have been signed by the solicitor.[1]
(b)a proposed Amended Application, the footer to which said that it was prepared by Rana Sayed and named the law firm as “Bardo Lawyers”. The same postal and email address details were provided in the footer as in the 2018 NOAS. Page 4 of the proposed Amended Application suggests it was signed by Ms Sayed[2] in her capacity as the applicant’s lawyer, but the document omits the certification pursuant to s 486I of the Act, such that it has not been completed by Ms Sayed, or any other lawyer.[3]
[1] As the signature legibly accords with her name and does not also accord with examples of the applicant’s signature which appear in the Court Book (see for example CB 34), page 4 of the originating application filed 5 October 2017 or the Notice of Address for Service which the applicant completed, in person, in Court at the conclusion of the hearing on 5 October 2022 (see [18] below)
[2] See footnote 1 above
[3] Albeit that in the case of an amended application this may be understood as being technically unnecessary due to a lacuna in s 486I: see AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 at [49] to [50].
On 15 January 2018, a document which appears to be a duplicate of the 2018 NOAS was filed with the Court.
The proceedings were transferred at some juncture to the central migration docket where they remained until 22 December 2021, at which time they were brought into my docket and listed for hearing. Consequential orders were also made on that date for the preparation of the matter for hearing. On 20 January 2022, the Court Registry wrote to the parties (including to Ms Sayed who remained on the record, at the email address contained in the 2018 NOAS) attaching a listing notice indicating that the matter was listed for hearing on 2 May 2022. On the same date, the Court Registry received a ‘bounce back’ email from Ms Sayed’s email address and a note on the Court file records that emails should now be sent to and administrative email address at Bardo Lawyers (Bardo email address).
The solicitor for the first respondent wrote to acknowledge receipt of the Registry’s email on 20 January 2022, and to provide updated details of the solicitor in his employ who had day-to-day carriage of the matter. Despite that acknowledgement and the fact that orders had been made in December 2021, by late April 2022 no documents had been filed for either party in advance on the hearing.
On 28 April 2022, my Chambers wrote to the parties noting that, notwithstanding the fact that the matter had been listed (and listing notices had been sent), no party had complied with the procedural orders for the preparation of the matter for hearing. The solicitor for the first respondent responded, apologising for the oversight and explaining that the reason for the noncompliance was an administrative error in the systems of the first respondent’s solicitors, which had caused the deadline to fall on Anzac Day and, therefore, to be missed.
Given that no relevant pre-hearing documents had been filed by either party, and so as to not cause prejudice either of them by their having to consider submissions within a narrow timeframe, the matter was adjourned to 10:15am on 5 October 2022 before me. The email to the parties in this regard was sent to the Bardo email address in relation to the applicant.
The first respondent filed written submissions on 28 September 2022, in compliance with the Court’s orders. Nothing was filed for the applicant in time, or at all.
On 29 September 2022, correspondence was sent to my Chambers by the first respondent’s solicitors, indicating that in the course of serving written submissions on the applicant’s solicitor, the firm of solicitors at which Ms Sayed was recorded as working said that they no longer acted for the applicant and would file a notice effecting the same “in due course”.
No Notice of Withdrawal pursuant to 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) has been filed thereafter. Accordingly, as at the date of the hearing, the solicitor remained on the record. An email dated 29 September 2022 from the first respondent’s solicitors also indicated that correspondence had been with somebody described as the applicant’s friend, although, it seems it may be the applicant’s employer, who had provided current contact details to the first respondent’s solicitors. However, this did not, for the purposes of the Rules, do anything to effect the 2018 NOAS, which remained extant.
Notwithstanding the above, the applicant attended Court in person on the day of the hearing. Apprehending that this may occur, the Court had arranged an interpreter in the Arabic language to be present so that the applicant was not disadvantaged in the event his solicitors did not appear for him. The first respondent was represented by a solicitor.
At the outset of the hearing, after exploring the issues pertaining to the addresses for service, I made an order requiring that the applicant file a Notice of Address for Service perfecting the Court’s record in relation to his service details and indicated to the applicant that my Associate would assist him in completing the prescribed form and would file it for him in the Registry. I dispensed with the need for that to be served on the first respondent’s solicitors, who will be able to obtain a copy of it from the Commonwealth Courts Portal. The Notice of Address for Service completed by the applicant at the conclusion of the hearing was sealed by the Court on 5 October 2022 (2022 NOAS).
Having been informed by my Associate immediately prior to the hearing that the applicant was in attendance but without representation, I requested that the Minister’s written submissions be interpreted to the applicant in their entirety, which I confirmed with the applicant during the hearing had taken place. In addition, by reason of the fact that the first docket Judge had not made any procedural orders in the matter, I confirmed with the applicant that he wished to rely upon the proposed Amended Application which had been filed by his solicitor on 12 January 2018. The applicant said he did. Leave was not opposed by the first respondent and accordingly, that leave was granted.
As a result the matter proceeded on the basis of the Amended Application, which raises a single ground with particulars as follows:
The Authority made a jurisdictional error by failing to inquire into an obvious fact the existence of which could be easily ascertained, by making a finding of fact for which there was no evidence or by otherwise proceeding on a basis which was legally unreasonable.
Particulars
a.The Authority noted the Applicant’s submission at para 29 of its decision to the effect that there had likely been some error in interpretation at the interview.
b.The Authority found at para 30 of its decision that it had “listened to the audio recording of the SHEV interview”. It is clear that the applicant understood the questions and was able to give evidence at the SHEV interview.
c.There was no evidence for the finding made by the Authority, as the Authority was not qualified to interpret Arabic into English and vice versa.
d.The Authority unreasonable failed to obtain an independent assessment of the interpretation at the interview by a person who was qualified to interpret Arabic into English and vice versa.
In essence, the ground of review asserts that a duty to inquire arose in the circumstances of the present case which warranted the Authority investigating whether there had been an inadequate standard of interpretation at the SHEV interview, the corollary of which is (presumably) that the Authority ought to have rectified by exercising its discretion under s 473DF of the Act by inviting the applicant to an interview, albeit this latter component is not expressly raised in the ground.
The first respondent says that as a threshold issue the applicant has not filed any material or Affidavit evidence in support of the Amended Application. Specifically it is put against him that he has not filed any evidence which demonstrates errors in interpretation at the SHEV interview. Properly construed, the threshold question is actually whether such an obligation arose in relation to the Authority’s decision such that evidence of that kind would be relevant, and thereafter whether the Authority had a duty to obtain it for itself.
Legislation
Section 473DB of the Act provides as follows:
Immigration Assessment Authority to review decisions on the papers
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
Section 473DC of the Act provides as follows:
Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
Many of the authorities which deal with the question of standard of interpretation do so in the context of Tribunal hearings. The relevant parts of the Act which govern those hearings, namely Parts 5 and 7, provide a framework as to what constitutes procedural fairness in a Tribunal context, and differ in salient ways from the Part 7AA regime under which the Authority operates. Precedents which consider the question of an adequate standard of interpretation do so in the context of the ss 360/425 obligation under the Act, which requires the Tribunal to invite the applicant to attend a hearing at which they are able to give evidence and present arguments relating to the issues arising in relation to the decision under review. In contrast, there is no such hearing opportunity provided by Part 7AA. Pursuant to s 473DA of the Act (set out below), Division 3 of Part 7AA of the Act (together with ss 473GA and 473GB) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews which the Authority conducts.
Section 473DA of the Act provides:
Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
There is no right to a hearing before the Authority and s 473DB makes clear that the Authority is to review the decision on the papers. This is a material difference in respect of the Part 7AA regimes, in contrast to Parts 5 and 7 of the Act, and adds a layer of obstacle in the present matter where the interview which is sought to be impugned is in fact not an interview that took place between the Authority and the applicant, but rather, between the delegate and the applicant. In this sense, it pertains to a primary decision, and the Court does not have jurisdiction to review the decision of the delegate.
However, properly understood, the applicant is alleging that the Authority had a duty to inquire which was enlivened by something that he raised in a submission made to the Authority, and that the failure to pursue that duty caused the Authority to fall into error. In order to understand the alleged error, one must first understand the regime and also, whether or not a duty to inquire arose in the present case.
Notwithstanding the fact that the Authority is required to review a decision on the papers, it has a discretion pursuant to s 473DC. Section 473DC enables the Authority to get any documents or information if they were not before the Minister when the Minister made the decision, and which the Authority considers may be relevant.
Importantly, s 473DC(2) provides that the Authority does not have a duty to get, request or accept any new information, whether it is requested to do so by the applicant or by any other person, or in any other circumstances.
When asked at hearing whether or not there were any cases which considered the common law duty to inquire, in the sense that that is understood pursuant to the decisions of Prasadv Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 (SZIAI) and referable to s 473DC(2), the first respondent’s solicitor was unable to assist.
Case law
The common law duty to enquire can be summarised pursuant to SZIAI at [25], as being that:
A failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
In BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310 (BZAID), Edelman J observed at [52]:
The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, “Working with Interpreters: Judicial Perspectives” (2015) 24 JJA 207. The relevant principles are summarised below:
(1) interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;
(2) whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;
(3) in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;
(4) where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;
(5) where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;
(6) where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;
(7) if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;
(8) however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.
In SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (SZRMQ) at [9] and [10] Allsop CJ (with whom Robertson J agreed) said the following:
The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing: cf Assistant Commissioner Condon v Pompano at [209]; NIB Health at [84]; R v Tran [1994] 2 SCR 951 at 988, Lamer CJ, writing for the Canadian Supreme Court otherwise comprised of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, in a passage cited by Kenny J in her Honour’s influential decision in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [30]. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?
In the present case, it appears that the applicant alleges that the critical fact, the existence of which would have been easily ascertained, was the failure of the Authority to obtain (for itself) a transcript to demonstrate that there were errors in interpretation at the SHEV interview. This is said to arise by reason of a submission which was made in writing to the Authority, pointing out a factual error in the delegate’s decision.
Consideration
The applicant made claims about his brothers, whom he named. For the purposes of the present judgment it is necessary to anonymise them, and they will be referred to as “A” and “B”. No disrespect is intended by this anonymisation, it is done to ensure that their names to do not inadvertently make the applicant’s identity readily ascertainable.
In the decision of the delegate, the delegate referred to each of A and B by the wrong first names.
In a written submission to the Authority, the applicant’s (then) solicitors[4] said the following:
We note that the fact that EMA17s two brothers who were persecuted by the Al-Mahdi Army were wrongly identified in the refusal decision (“Omar” instead of [A] and “Muhammad” instead of [B]) indicates that there was likely some error in translation between the interpreter and the applicant at interview.
[4] Who are not the solicitors who were on the record for him in these proceedings but failed to attend the hearing
The applicant says that this statement ought to have caused the Authority to inquire by obtaining for itself, a transcript, to ascertain whether or not there was any error in what passed between the interpreter and the applicant at the delegate interview. In essence, the applicant asserts that the Authority was required to examine the overall level of interpretation for itself to consider whether it was satisfactory.
Based on the authorities set out above, namely BZAID and SZRMQ, there was no obligation on the Authority to inquire further. The applicant has not sought to establish, let alone prove how the error in relation to the names of his brothers led to a material and adverse finding relevant to a decision against the applicant such that it caused the Authority to miscarry in its own review.
Even if the statement in the submission to the Authority (CB 181) could be taken to constitute a request to inquire further, it was so general and so lacking in specificity, let alone a connection between the error in interpretation and inaccuracies which effected the decision, that it did not give rise to such an obligation. Given that the Authority is specifically not obliged to get information even if it did constitute a request, I can see no error in the Authority’s approach.
In the present case, the ground also fails at a factual level. While the Authority was not required to investigate the standard of interpretation for itself by obtaining a comparative transcript, the other obstacle for the applicant is that, within the parameters of the review material the Authority did consider the allegation about an inadequate standard of interpretation for itself.
The particulars of the ground and their intersection with the following parts of the Authority decision, warrant paragraphs [29] and [30] being set out in full. By those paragraphs the Authority said as follows:
29. In the IAA submission, it was submitted that the fact that the incorrect references to the names of the brothers who were killed and threatened in the delegate’s decision indicates that there was likely some error in the interpretation at the interview. The representative referred to the submissions and information in the post-interview submissions, including the wealth of psychological literature on the impact of trauma on recall and behaviour, and submitted that this provides a reasonable explanation in this case.
30. I do not accept these explanations. I have listened to the audio recording of the SHEV interview. It is clear that the applicant understood the questions and was able to give evidence at the SHEV interview. He provided spontaneous and specific evidence regarding matters such as his background and how he travelled from Iraq to Australia, including the approximate number of days that he spent in various countries en route to Australia. Also, as noted above, the interviewer repeated and reframed the questions about the inconsistency several times. The applicant was given a number of opportunities to provide evidence about this issue at the SHEV interview, including at the beginning of the interview where he volunteered the information that his earlier evidence at the arrival interview was incorrect, during the interview when he was specifically questioned about the discrepancies and towards the end of the interview. Neither the applicant nor the representative raised any issues regarding interpretation or misunderstandings at any stage before, during or at the end of the SHEV interview. The representative provided a lengthy post-interview submission. But it made no mention of any issues regarding interpreting errors or misunderstanding at the SHEV interview. I do not consider the incorrect references in the delegate’s decision to the applicant’s other brothers establish that there were interpretation errors during the SHEV interview.
Despite having apparently undertaken his own assessment of the interview, the applicant is still not able to point to any specific aspect of it which he says was so affected by an inadequate standard of interpretation that he is able to demonstrate materiality, in the sense that had the alleged error not occurred, this could realistically have resulted in a different decision being made.
At hearing, when asked to speak to the ground of review in the Amended Application, the applicant focused entirely on his dissatisfaction with having been disbelieved by the delegate. In this regard, the applicant made several submissions to the effect that the delegate had refused to look at wounds and scars on his body. Given that the applicant had been left by his solicitors to represent himself at hearing, I considered this complaint as being another basis upon which the decision is alleged to be legally unreasonable (being the allegation raised by the Amended Application).
To the extent that this additional complaint directs itself to an alleged error on the part of the delegate, the Court does not have jurisdiction in relation to a primary decision. Secondly, there is nothing to suggest that this could, in any event, have resulted in an error on the part of the Authority which, at [53] of the decision, accepted that the applicant did have some wounds and scars on his body which he had mentioned at the SHEV interview.
The Authority, while accepting the existence of the scars, could not be satisfied that the scars and wounds had been the result of torture, as claimed. There is nothing unorthodox about the Authority’s reasoning in this regard, nor is there any suggestion of any error in interpretation which gave rise to a problem in respect of the request to the delegate that he have regard to these wounds. In any event, the Authority accepted the wounds and scars existed as a matter of fact. In order to consider this through the prism of the ground as pleaded, there is nothing to support a finding of legal unreasonableness on the part of the Authority’s decision in relation to its findings about the wounds and scars. It was open to the Authority to find that, while accepting their existence, that the wounds and scars were not a result of torture.
In respect of the part of the applicant’s ground which relies upon unreasonableness, this focus again seems to be about the Authority having failed to have made an inquiry. The first respondent says that the Authority did not unreasonably fail to do so. Again, there is no duty on the Authority to inquire generally. Secondly, the threshold for legal unreasonableness is a high one, and the applicant would need to demonstrate that no reasonable person could have arrived at it or that it lacked an evident and intelligible justification (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] and [67], Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [135] and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541).
In the present case, I am not satisfied there was anything unreasonable in the manner in which the Authority reasoned in relation to this general assertion that the decision may have been affected by a less than adequate standard of interpretation.
In particular, having regard to the authorities’ findings at [30], the following can be observed:
(a)the Authority did in fact listen to the audio recording of the SHEV interview and formed a view that the applicant had understood the questions and was able to give answers;
(b)the applicant was said by the Authority to have provided “spontaneous and specific” evidence during the interview;
(c)the delegate repeated and reframed the questions about inconsistencies several times; and
(d)neither the applicant nor his representative raised any issues regarding the interpretation or misunderstanding at any stage before, during or even at the end of the SHEV interview. The first time the issue was raised was only by reason of the error in the delegate’s decision. In relation to this last point, it is reasonable to infer that nothing that took place during the interview which gave the applicant or his representative’s cause for concern in relation to the manner in which the interview had proceeded.
By particular (c) to the ground of review the applicant says, that in the absence of being fluent in Arabic and English, the Authority was not able to positively satisfy itself based on the aforementioned factors that there were no interpretation issues. In circumstances in which the Authority was satisfied that the applicant was in fact responsive to questions and where there was clearly a correlation between the question that the interviewer was asking and the responses that were coming from the applicant, those contextual clues were open to the Authority irrespective of whether or not the Authority had any Arabic language skills to ascertain that the standard of interpretation was adequate on its face to convey the information, again noting that no issues were raised by the applicant nor by his representative.
For all the foregoing reasons, in my view, there was nothing unreasonable about the manner in which the Authority formed its view that there was no interpretation issue nor did that give rise to a reason that it should make inquiries to form its own independent assessment. This reasoning does not display any arbitrary, capricious, irrational or disproportionate decision-making nor does it lack evident or intelligible justification. Accordingly, the Authority’s findings at [30] of the decision were open to it for the reasons that it gave.
For the reasons set out above, there was no obligation on the Authority to take further steps to obtain its own independent comparative transcript of the delegate’s interview, and there being no obligation, the fact that it did not do so does not give rise to any error, let alone a jurisdictional error.
Additional issue
As will be observed from the background to this matter, at a certain point the applicant became legally represented. The basis and terms of the agreement he had with those solicitors is not known to the Court. The solicitors’ reasons for abrogating their representation of him is also not known. What is known is that from 12 January 2018 until 5 October 2022 (being the date on which the Court directed the applicant to provide a current address for service by completion of the 2022 NOAS), those solicitors remained on the Court’s record. That is despite, at a certain point, knowing about the impending hearing and indicating in correspondence to the solicitors for the first respondent (but not extending the same courtesy by ever corresponding with the Court) that they would cease to act.
The Court expects that practitioners who remain on record as representing a party assist their client and the Court. Sections 190 to 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), but in particular s 191(2) of the Court Act makes this plain.
The solicitors who were on record for the applicant did not assist themselves (nor assist the applicant) to comply with obligations required of them. This may be a matter which the applicant may wish to explore with the Law Society of New South Wales with the benefit of these reasons for judgment, in particular if he was charged for their ongoing representation of him.
Conclusion
Accordingly, in my view, the ground of the Amended Application must be dismissed. I will so order.
I will hear the parties as to costs, and note by reference to [55] above, that s 191(4) of the Court Act mandates that I take any failure to comply with the duty imposed by s 191(1) or (2).
I certify that the preceding fifty-eight (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 28 February 2023
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