ETA17 v Minister for Immigration, Citizenship and Multicultural Affairs - [2023] FedCFamC2G 512

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ETA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 512

File number(s): SYG 3281 of 2017

Judgment of: JUDGE GOODCHILD

Date of judgment: 16 June 2023

Catchwords: MIGRATION - judicial review – protection visa – fast track review process – where errors in translation in entry interview – where Immigration Assessment Authority found the applicant’s evidence inconsistent - whether translation errors ‘suggested by’ the review material - condition of reasonableness implied into the procedural duty of the IAA to review the referred decision and procedural powers to get new materials – whether IAA erred by unreasonably failing to consider whether to exercise discretion under s 473DC of the Migration Act 1958 (Cth) - jurisdictional error established - writ of certiorari issued - writ of mandamus issued

Legislation: Migration Act 1958 (Cth) ss 473BA, 473CB, 473CC, 473DA, 473DC, 473DD, 473GA, 473GB, Part 7AA

Cases cited:
ABT17v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34

DGZ16 v Minister for Immigration and Border Protection [2017] FCCA 623

DPI17 v Minister for Home Affairs and Another (2019) 366 ALR 665; [2019] FCAFC 43

DVO16 v Minister for Immigration and Border Protection (2021) 388 ALR 389

EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20

Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1

Minister for Home Affairs v AYJ17 (2019) 165 ALD 64; [2019] FCA 591

Minster for Home Affairsv DUA16 (2020) 271 CLR 550; [2020] HCA 46

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration vSZMTA (2019) 264 CLR 421

MZZJO v Ministerfor Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80

Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16

SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142

Division: Division 2 General Federal Law

Number of paragraphs: 153

Date of hearing: 20 March 2023

Place: Sydney

Counsel for the Applicant Mr B Zipser

Solicitor for the Applicant Alkafaji Lawyers

Counsel for the Respondents Mr G Johnson

Solicitor for the Respondents Minter Ellison
ORDERS

SYG 3281 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ETA17

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Minister

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:

JUDGE GOODCHILD

DATE OF ORDER:

16 june 2023

THE COURT ORDERS THAT:
1.The name of the Minister be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the second respondent made on 21 September 2017.
3.A writ of mandamus issue requiring the second respondent to re-hear the application for review according to law.

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 GOODCHILD:
INTRODUCTION

This is an application made pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) for the review of a decision of the Immigration Assessment Authority (“the Authority”) made on 21 September 2017 (“the decision”) (Court Book (“CB”) 162-176). By that decision, the Authority affirmed the decision of a delegate of the then Minister for Immigration and Border Protection (“the delegate”) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (“the visa”).
The applicant’s primary claim in this review concerns what he characterises as “translation errors” that occurred at an entry interview that he gave in May 2012 and June 2013 not long after he arrived in Australia. He submits that as a result of the use of this erroneous translation material by the Authority, his protection claims were identified as “inconsistent”, when in fact they were not. The areas of inconsistency, characterised by the Authority as “evidence regarding the girl’s tribe, the visit and the claimed assault”, were identified as central by the Authority to his protection visa claim.
BACKGROUND
The applicant, a Shia Muslim from N, a city in Iraq, arrived in Australia, on Christmas Island, on 25 April 2013.
In his written application for the visa, the applicant claimed to fear persecution due to threats on his life as a result of a relationship he had with a young woman in his city.
The applicant also claimed fear of harm from Shia militias, particularly the Madhi Army, due to his work as a driver with the United States military in 2006.
The entry interview
The applicant participated in an Irregular Maritime Arrival Entry Interview on 27 May 2012 (Part 1) and again on 5 June 2013 (Part 2) (“the entry interview”). The interviews took place at Wickham Point Detention Centre with officers of the Department of Immigration. It is not clear which portion of the interview occurred on the dates in May 2012 or June 2013. The interviews were conducted with the assistance of an interpreter in the Arabic language (CB 1). The entry interview was audio-recorded. The applicant was not legally represented. A typewritten form headed “Irregular Maritime Arrival Entry Interview” relating to the applicant was before the Court.
As referred to by counsel for the applicant in submissions, the entry interview form is similar to that described by Moshinsky J in Minister for Home Affairs v AYJ17 (2019) 165 ALD 64; [2019] FCA 591 (“AYJ17”) at [11] – [12].
The form is divided into three parts. Part C of the form records the following as the first question (CB 12):
Why did you leave your country of nationality (country of residence)?
The applicant’s response was recorded on the form as:
Q: Briefly tell me why you left Iraq.
A: Tribal problem.
Q: What was the tribal problem?
A: I loved a girl of the same tribe and I tried to get her engaged to me many times, but they won’t agree, they won’t let me see her, because of religious matters and the traditions of the tribes. I tried to contact her by phone, but I couldn’t, so I went to her house and I was sitting in her bedroom and her brother came, the brother had something like a short sword in his hand when he opened the door and saw me, started hitting me and the girl was grounded, she is not allowed to get out of the house anymore.
Q: Stop, I don’t need the background information, get to the point and tell me what happened.
A: The tribe can and attacked my house and I ran away. My family went to them, they said he did wrong and you know the traditions of the tribes, so I went to another province.
Q: In June 2012.
(As per original)
The protection visa application
On 25 May 2016 the applicant was invited to make a protection visa application (CB 18).
The applicant made a written application for the visa on 3 August 2016. That application was submitted on the applicant’s behalf by a solicitor migration agent. The applicant was asked a number of questions about his reasons for claiming protection. Those questions were answered by reference to an attached statutory declaration dated 3 August 2016. That statutory declaration was declared before the solicitor migration agent who submitted the application on the applicant’s behalf (CB 62-64).
The applicant participated in a protection visa interview with the delegate on Monday, 19 December 2016 (“protection visa interview”). The interview was conducted with the assistance of an interpreter in the Arabic language. The interview was audio-recorded. The applicant was represented by his registered migration agent.
The delegate refused the applicant a protection visa.
The delegate’s decision
At “Part 4: Protection claims” of the delegate’s decision, the delegate identifies in dot point the applicant’s claims for protection, including those provided at interview, which I assume to be the protection visa interview. Referring only to the applicant’s claims relevant to this review, I reproduce below the portion of the delegate’s decision (CB 129, 130):
The applicant did not see A for two months. In June 2012, he received a call from A that her family was visiting Karbala. So the applicant went to her house in disguise with his face covered. When he entered the house he called her name and they went together to her room. They were sitting together for 10 minutes when her elder brother entered the room, shouting and swearing. He brought a metal pipe to hit the applicant that the applicant ‘managed to escape from the room’.
…
He left N for Baghdad because A’s tribe was big and could reach him everywhere in Iraq and Baghdad. He stayed for five months in ‘company accommodation’. The company moved to Karbala. However, he could not move there because Karbala was A’s tribe’s stronghold. He feared that someone from her tribe would kill him, especially because her tribe and his tribe had agreed to ‘shed his blood’ in a written agreement.
(As per original)
At “Part 5: Findings of fact” the delegate states that she has considered the applicant’s written claims, his testimony at the protection visa interview and his representative’s submissions, supporting documents submitted by the applicant and other information before the Department, in conjunction with country information.
Relying upon country information regarding the free movement of women, where arranged marriages are common and pre-marital relations of any sort are frowned upon, the delegate did not accept any of the incidents relating to the applicant’s relationship with the girl to be more substantial or outside the boundaries of norms and customs.
The delegate accepted it as “plausible” that the applicant’s family went to the girl’s house for an arranged match between she and the applicant.
The delegate did not accept that the applicant’s brother became suspicious that the applicant and the girl were in a relationship.
The delegate found it “implausible” that a girl from a conservative Shia background would choose to meet the applicant in the circumstances claimed. The delegate found the applicant’s testimony regarding meeting this girl in a conservative society to be vague and lacking in detail.
With respect to the assault on the applicant by the girl’s brother, the delegate records that the applicant was asked to explain how he escaped from the girl’s room. The delegate did not accept the applicant’s explanation that while he was seated in the girl’s room, her brother called out to her by her name and seeing the applicant there, ran to get a weapon in which time the applicant fled. This was because the explanation was inconsistent with his statement of claims. I take the reference to “statement of claims” to be a reference to his statutory declaration attached to his protection visa application.
The delegate found it “implausible” that in this case it would be the applicant, as a man, suffering a harsher situation than the woman in question and, therefore, she did not accept that an incident where the applicant visited the house of a girl alone and was found by her brother in her bedroom occurred.
The Authority’s decision
The applicant’s application was referred to the Authority pursuant to s 473CA of the Migration Act. The task of the Authority was to consider the applicant’s application for the protection visa afresh and to determine for itself whether or not it was satisfied that the criteria for the grant of the visa were met: s 473CC(1); Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [17] (Gageler, Keane and Nettle JJ) (“Plaintiff M174”).
On 21 September 2017, the Authority affirmed the decision of the delegate.
In the hearing before me, counsel for the first respondent confirmed that both the written record of the entry interview, as well as the audio recording of that interview, were provided by the Secretary to the Authority under s 473CB. There is no evidence before me that the written record of the entry interview or the recording of that interview had been provided to the applicant.
The Authority accepted that the applicant was in a relationship with his sister’s friend (The girl) approximately between October 2011 and April 2012. However the Authority found that the applicant did not face a real chance of harm from the girl’s family, her tribe, or anyone else due to this relationship ([32] of the Authority’s decision).
Paragraphs [12]-[18] of the Authority’s decision considered and assessed the applicant’s claim of “harm due to relationship with a girl in Iraq”.
The Authority referred to country information concerning Iraq as a conservative society where women generally do not have freedom of movement, however it noted that relationships can and do develop without familial knowledge or support irrespective of these conservative social norms. The decision recorded the country information that supports that women, and to a lesser extent men, can be killed in so-called honour crimes for entering such relationships. The Authority recorded that the applicant’s evidence concerning the development of the relationship with his sister’s friend (the girl) was consistent and presented in a manner suggestive of lived experience. The Authority noted (at [12]) that the applicant spontaneously provided the girl’s name, her age and gave basic information regarding their interactions.
The Authority accepted as plausible that the applicant was in a relationship with a girl who he met through his sister; that they talked on the telephone on several occasions; that they met twice at the market while her family were visiting the nearby Shrine; that the girl’s family rejected the marriage proposals from the applicant’s family as she was promised to her cousin; that the girl’s family threatened to harm the applicant and his family if they pursued the matter; and that he and his family ceased to pursue the marriage and the relationship.
At [12] of the Authority’s decision, the Authority recorded that it was not satisfied that the applicant or his family were further threatened as claimed.
At [13] of the Authority’s decision, the Authority stated that the applicant’s claim that he went to visit the girl two months after the rejection of the proposal at her request and was assaulted by her elder brother was “implausible”. The finding of implausibility appears to be based upon the applicant’s own evidence that he instructed his family to “leave it” and that the girl told him they could not meet anymore and they had no further contact. The Authority observed that, in the circumstances, it was unclear why the girl would contact the applicant two months later. The Authority referred to the applicant’s statement that they had been waiting to see each other and observed that this statement does not fit with the applicant’s evidence that they had no further contact.
Relying again upon independent information regarding women facing increased pressure to adhere to conservative societal norms, and the applicant’s own evidence that the girl believed her family were watching her movements, the Authority found it would be “implausible” that the girl would be left on her own while her family went to a nearby town. The Authority further found it “implausible”, in circumstances where the girl and the applicant’s previous meetings were in the presence of other people and that they had been alone together, that the girl would invite the applicant to her home while she was alone, particularly in circumstances where the previous meetings were in the presence of other people; either his sister, or in a shop at the market, as they had never been alone together ([13]).
At [14] of the Authority’s decision, the Authority identified three areas of inconsistent evidence given by the applicant concerning the girl’s tribe, the visit and the claimed assault. The Authority traversed those inconsistencies as follows:
…In his arrival interview, he stated that he and the girl were from the same tribe but could not be together for religious reasons and tribal tradition. However, in the protection visa application, he indicated they were from different tribes. He stated at his arrival interview that it was he who contacted the girl two months after the rejection of the proposal, which contradicts his claims in the protection visa application, that she contacted him. He also stated at the arrival interview that her brother entered her bedroom with ‘something like a sword’ in his hand and began hitting him. In contrast in the protection visa application he indicated that her brother came into the room empty handed, left the room and returned with a metal pipe…
The Authority considered these inconsistencies “central” to the applicant’s visa application and expected the applicant to accurately recall these details stating:
Even taking into account the passage of time, given the centrality of these matters to his protection visa application, I would expect the applicant to accurately recall these details.
The decision recorded at [14]:
The applicant has not raised any concerns with the quality of interpretation such that his evidence could be misinterpreted, and there is nothing else before me to account for these discrepancies.
The Authority considered that the applicant’s claims that he was hiding with his family in various locations and that he stayed in his company’s accommodation in Baghdad for five months without harm were at odds with his evidence that the girl’s family had strong tribal connections everywhere in Iraq and that he was not safe anywhere. The decision records at [15] that the Authority also considered the fact that the applicant remained in Iraq for about 10 months after the alleged incident, suggested that he was “not in immediate fear for his safety”.
At [16] of the Authority’s decision, the Authority identified factors that undermined the applicant’s claims regarding the intensity of the girl’s family towards the applicant – his evidence that he and the girl’s relationship did not become intimate, that her reputation was intact, that she was not harmed by her family or anyone else, and that he had heard from his mother that the girl subsequently married her cousin as intended by the family.
At [17], the decision dealt with the document purported to be from the applicant’s tribe. No weight was ultimately placed on this document.
At [18] of the Authority’s decision, the Authority identified those of the applicant’s claims with which the Authority was not satisfied. Those matters were:
·that the applicant visited the girl two months after the proposal was rejected;
·that the applicant trespassed into their home;
·that they were discovered in her bedroom by her brother; or
·that the applicant was assaulted by her brother.
The Authority stated that the matters identified, (presumably matters at [14] - [17]), whilst not individually significant, cumulatively led the Authority not to be satisfied of the above matters.
The Authority recorded that it was not satisfied that: the applicant fled home and informed his brother of the incident; he went into hiding in various locations in Iraq; the girl’s brothers visited the applicant’s family home; that these brothers threatened to kill the applicant and had an altercation with his family; or that their respective tribes entered into an agreement to kill, or otherwise harm the applicant. The Authority concluded at [18] that on the totality of the evidence it was not satisfied that the applicant and his family were subject to any further threats of harm from the girl’s family or tribe after they ceased their pursuit of the marriage and relationship in early 2012.

The decision further recorded that over five years had passed since the applicant ceased his relationship with the girl. The girl is now married and the applicant himself stated that they have not had any further contact since his arrival in Australia. As such, the Authority was not satisfied that the applicant faces a real chance of any harm from the girl’s family, her tribe or anyone else, as a result of their relationship if he returns to Iraq now or in the reasonably foreseeable future, including as an Iraqi person who breached strict social norms by initiating illicit relations with the girl ([19] of the Authority’s decision).
Similarly, the decision recorded that the Authority was not satisfied that the applicant faces a real chance of any harm or discrimination from Shia militias, the community or anyone else, due to this work with the US military in 2006.
Whilst accepting the applicant’s evidence that he had worked as a driver with the US Army, was threatened by a Shia Army to cease working, and had ceased that work accordingly, the Authority identified evidence given by the applicant that he “did not experience any harm or further threats from the Shia Army or anyone else” between the time he stopped working with the US military in 2006 and leaving Iraq in 2013 ([22]).
THE PRESENT APPLICATION
On 24 October 2017, the applicant initiated the current proceedings seeking judicial review of the Authority’s decision. On 10 February 2023 he amended that application and sought to rely on the following grounds to argue that the Authority fell into jurisdictional error:
[1] The applicant claimed that in June 2012 he visited [his female love interest] at her house, that they were discovered by [the female]’s brother who assaulted the applicant, and that [the female]’s brothers then came back to the applicant’s family home and threatened to kill the applicant (“the June 2021 Incidents”). The IAA at [18] was not satisfied that the June 2012 Incidents occurred or that the applicant was subject to any further threats of harm. The IAA at [13]-[17] gave reasons for its findings at [18]. The reasons at [13]-[17] contain a number of errors including the following:
a.The IAA at [14] relied in a manner against the applicant on evidence the IAA believed the applicant gave at an entry interview in May and June 2012. There was an Arabic/English interpreter at the entry interview who interpreted the applicant’s answers (in Arabic) into English. The IAA relied on the English interpretations. But the interpreter made a number of errors such that the English interpretations on which the IAA relied in a manner against the applicant was not the evidence he applicant actually gave. In the particular circumstances, the IAA fell into jurisdictional error by not giving the applicant an opportunity to comment on what appeared to the IAA to be inconsistencies between the applicant’s evidence at the entry interview and the applicant’s claims in his protection visa application and, because of the interpreter errors, not assessing the applicant’s actual claims: see DVO16 v Minister (2021) 388 ALR 389.
b. The IAA at [13] asserted that aspects of the applicant’s evidence was implausible and relied on the findings of implausibility as a reason to not be satisfied that the June 2012 Incidents occurred. These aspects of the applicant’s evidence were not implausible. The IAA erred in asserting and relying on findings of implausibility when the evidence was not implausible.
[2] The IAA at [17] found that, in relation to a letter allegedly from the applicant’s tribe which the applicant provided to the Department, the applicant’s evidence at the protection visa interview was “that the [letter] was issued after [the applicant] left Iraq”. However, the applicant’s evidence at the protection visa interview was, in context, clearly speculation or a guess. The IAA erred in stating that the applicant gave this evidence at the protection visa interview, when his evidence was clearly a speculation or a guess.
(As per original)
Expert evidence
At the hearing before me, the applicant relied upon expert evidence, without objection, of a transcript of the entry interview audio-recording compiled by Mr Tony Younathin (“the interpreter”), a NAATI qualified interpreter fluent in Arabic and English (“Younathin transcript”). The interpreter deposed to being provided with an audio recording of the case officer who spoke English and the interviewee who spoke Arabic (typical Iraqi dialect). There was an interpreter who interpreted the questions asked by the case officer in English into Arabic for the interviewee and vice versa for the answers given by the interviewee. The interpreter noted that the interpreter was of Arabic Egyptian Dialect.
The applicant also relied upon a transcript of a portion of the audio recording of the protection visa interview prepared by Bianca Louise Aboaal, an employee of the legal representative for the applicant who prepared a transcript of only the English communications in the audio recording from the point that the case officer commenced asking the applicant about his claims (“the Aboaal transcript”). There was no objection to this transcript.
For convenience, I set out below those relevant portions of the applicant’s evidence the Authority identified at [14] of it’s decision as inconsistent in the three areas of the girl’s tribe, the visit and the claimed assault.
The girl’s tribe
The first referred inconsistency revealed by the entry interview translation pertains to the girl’s tribe. According to the entry interview record, the applicant said “I loved a girl of the same tribe” (CB 12).
The Younathin transcript records the following:
Interpreter:      What is the tribal problem? What happened with you
Applicant:I was in love with a girl from the tribe, I propose more than once, but they refused to give her to me, finally they prevented me from contacting the girl for religious reasons and (unfinished sentence)
Interpreter:      ok
Interpreter:      (in English) I love the girl from the same tribe, and she tried to get engaged to me many time, but they won’t agree, they did not let me see her because of religious matter.
(As per original)
The applicant, by his statutory declaration says that the girl’s tribe “... was very big tribe” and “I feared that someone from her tribe will kill me especially that her tribe and my tribe agreed to shed my blood…” (CB 64).
The applicant submitted that at the entry interview he did not say that the girl was from the “same tribe”. He said that he was in love with a girl “from the tribe”. Counsel for the applicant submitted that it is the interpreter who has added the words “same tribe” and that the applicant never used the word “same”. The applicant says that the Authority relied on this erroneous interpretation in a manner adverse to the applicant.
The first respondent submitted that this was not a material error in translation, that translation is not a simple word matching exercise, citing DVO16 v Minister for Immigration and Border Protection (2021) 388 ALR 389 (“DVO16”)at [5]. Counsel for the first respondent submitted that the interpreter needs to convey meaning as best as possible and to convey the meaning of “I was in love with a girl from the tribe” was in the realm of correct interpretation and within the applicable standard that meant “I love the girl from the same tribe”.
The visit
The second referred inconsistency revealed by the entry interview translation pertains to the arrangements the applicant and the girl made, and who contacted whom.
According to the entry interview record, the applicant said “I tried to contact her over the phone but I couldn’t, so I went to her house” (CB 12).
The Younathin transcript records the following:
Applicant: We have contacted each other over the phone, between her and I; I came to the house, to her room to her bedroom to see each other, there was no one home, suddenly her brother came.
Interpreter: (in English): I tried to contact her on the phone but I couldn’t, so I went to her house and were sitting in the bedroom and a brother came.
(As per original)
The applicant submitted that because of the interpreter’s error, the Authority believed that the applicant stated at his arrival interview that it was he who contacted the girl when the applicant did not state this at the arrival interview. The applicant submitted that the Authority relied on the erroneous interpretation in a manner adverse to the applicant. The applicant, by his statutory declaration says the following (CB 63 at [9]):
I did not see A for almost 2 months, she did not even call me, until it was one day in June 2012, when I received a call from A…
(As per original)
The first respondent submitted that it was open for the interpreter to interpret the way that he did and that even on Mr Younathin’s account there would be two versions. First being that the parties contacted each other without it being clear who initiated that contact and the other version being that the girl contacted the applicant. Counsel for the first respondent submitted that such an interpretation is within the realm of permissible interpretation for the interpreter to attempt to convey what is meant, that it was not an error in the sense of conveying the opposite meaning, but what one might almost say was a gloss on what was understood to be said by the applicant.
The claimed assault
The third referred inconsistency revealed by the entry interview translation pertains to the circumstances of an attempted assault on the applicant by the brother of the young woman.
According to the entry interview record, the applicant said (CB 12):
… I was sitting in her bedroom and her brother came, the brother had something like a short sword in his hand when he opened the door and saw me, start hitting me.
The expert evidence records the following:
Applicant: I came to the house, to her room to her bed room to see each other, there was no one at home, suddenly her brother came…When he opened the door, he found us together, he attacked me, he brought a weapon (metal pipe) he tried to hit me but I managed to slip away, I escaped, I went home..
…
Interpreter: (in English) I tried to contact her on the phone but I couldn’t, so I went to her house and were sitting in the bedroom and a brother came …the brother had something like short sword in his hand when opened the room door found me, he started hitting me.
The applicant, by his statutory declaration, says the following (CB 63 at [9]):
… We sat there for almost 10 minutes, suddenly her elder brother entered the room, he was shouting and swearing at me, he then went and bought a big metal pipe to use it to hit me but I managed to escape from that room…
The applicant submitted that the interpreter’s translation contained a number of errors. Of significance for the applicant, firstly, was whether or not the brother had a weapon when he entered the room or left the room to obtain a weapon and, secondly, whether the weapon was a metal pipe or something like a short sword.
The first respondent submitted that the third asserted error exposes less of a problem, the greatest difference being the description of the weapon. Mr Younathin does not suggest that the applicant said the brother went away and came back with a weapon. The first respondent submitted that upon reading [14] of the Authority’s decision, it is not clear what impact the difference in description of the weapon had on its finding, noting that at [14] the Authority puts “something like a sword” in quotation marks.
The first respondent submitted that the differences are within the realm of differences that will be revealed when two interpreters interpret the same thing said in another language. The first respondent submitted that those differences were not significant enough so as to give rise to errors of the kind that would result in the thrust of what the applicant was trying to say going unconveyed.
STATUTORY FRAMEWORK
Before turning to the grounds of review and the parties’ submissions, I will consider the statutory framework under which the application is made and refer to the leading High Court Authority concerning the treatment of translation errors in the recording of protection visa interviews.
Part 7AA has been considered by the appellate courts: see ABT17v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 and the cases cited therein.[1]
[1] at [1] and fn (22).
Part 7AA of the Act provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012 but before 1 January 2014 and who have not been taken to a regional processing centre. These applicants are known as “fast track review applicants” and decisions to refuse to grant them protection visas are known as “fast track reviewable decisions”. In reviewing fast track reviewable decisions, the Authority is “to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)” per s 473BA of the Act. There is no dispute that the applicant is a fast track review applicant and that the delegate’s decision to refuse to grant him the visa is a fast track reviewable decision.
Division 2 of Part 7AA provides the mechanism by which fast track reviewable decisions are to be referred to the Authority.
Section 473CB (1) of the Act requires the Secretary of the Minister’s Department to give to the Authority certain material known as the “review material”. This material includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The Authority is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
Section 473DC of the Act allows the Authority to get any documents or information that were not before the Minster and that the Authority considers relevant. The Authority can, however, obtain “new information”, defined as information that was not before the delegate and that the Authority considers “may be relevant”: s 473DC(1) of the Act.
Section 473DC reads:
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.
Applicants may also provide “new information” to the Authority and ask that it take that information into account.
When the Authority does obtain or receive new information, the Authority cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act. That section provides:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the Authority. Section 473DA(1) of the Act stipulates that this Division, 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 conducted by the Authority.
The nature of the jurisdiction exercised by the Authority when conducting a review of a fast track reviewable decision was described in Plaintiff M174 at [17] as follows:
…[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister for delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority… is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.
There is an implied condition on the discharge of the Authority’s duty under s 473CC of the Act to review a delegate’s decision that the review must be undertaken reasonably per ABT17 at [19] – [20].
Errors in interpretation
Counsel for the applicant referred me to the leading High Court Authority on the circumstances, not too dissimilar to those in this case, involving translation errors in a recording of a protection visa interview.
In DVO16 the Court considered whether error in translation of questions asked and answers given at an interview with the applicants and delegates of the Minister in the context of Part 7AA protection visa, could lead to jurisdictional error.
At [4]-[6] and [8] of DVO16, the majority (Kiefel CJ, Gageler, Gordon and Steward JJ) stated the following on the nature of translation in the context of a Part 7AA review:
[4]The function of translation in a curial or administrative setting is interpretation of communications as accurately and completely as possible. The process of interpretation involves comprehension of words spoken or written in a source language, conversion to a target language, and delivery in a manner faithful both to the content of the words and to the register and style of the speaker or writer. That, at least, is the ideal.
[5] Long past is the time when an interpreter might have been thought to be appropriately described as a "translating machine" or "bilingual transmitter" performing a function "not different in principle from that which in another case an electrical instrument might fulfil in overcoming the barrier of distance". More accurate is to conceive of an interpreter as a "bilingual mediating agent between monolingual communication participants in two different language communities" and to recognise that "total equivalence" between words spoken or written in a source language and words translated into a target language is a "chimera". Translation is not a "simple word-matching exercise" but "a difficult and sophisticated art" which, "[t]o be done well", "requires not only linguistic sophistication and sensitivity to 'minor' linguistic details (which may be correlated with vast differences in conceptualization), but also an intimate knowledge of the cultures associated with the language in question, of the social and political organization of the relevant countries, and of the world-views and life styles reflected in the linguistic structure".
[6] Professor Wigmore noted the "peculiarity" of language that "the most perfect system of signs, the most richly developed language, leads only to a partial comprehension ... whose degree of completeness depends upon the nature of the subject treated, and the acquaintance of the hearer with the mental and moral character of the speaker". Imperfections in communication arising out of mistranslation of words spoken or written in one language into another language are inherent in the human condition, as are imperfections in communication arising out of misuse or misunderstanding of words spoken or written in a common language. "Perfect interpretations" simply "do not exist".
…
[8] Whether and if so in what circumstances mistranslation might result in invalidity of an administrative decision turns necessarily on whether and if so in what circumstances mistranslation might result in non-compliance with a condition expressed in or implied into the statute which authorises the decision-making process and sets the limits of decision-making Authority. In a decision-making process conditioned by a requirement to afford procedural fairness the content of which is implied by the common law, the effect of mistranslation on the resultant decision will turn on whether the mistranslation has resulted in "unfairness" in the decision-making process amounting to "practical injustice". In a decision-making process in which procedural fairness is excluded or is sufficiently provided if specific statutory requirements are met, the effect of a mistranslation on the resultant decision will turn on the "blunter question "of whether the mistranslation has resulted in one or more specific statutory requirements not being met.
(Footnotes omitted)
See also the reasons of Edelman J at [51]-[53].

In respect of the issues central to this review and the basis upon which an error of translation may be taken into account in the context of judicial review of a decision of the Authority, the Court said the following at [17].
The Authority performs its duty to consider the review material provided to it by the Secretary by examining the review material physically provided to it so as to form and act on its own assessment of the relevance of that material to the review of the referred decision. It is then up to the Authority to give each part of the material that it thinks relevant such weight in making findings of fact as it thinks is warranted in arriving at its decision on the review. The Authority is not disabled from performing its duty to consider the review material by translation errors that might exist in any part of the review material.
(Footnotes omitted)
The High Court identified two limited circumstances in which a misinterpretation during the course of a protection interview may give rise to jurisdictional error. The first arises from the condition of reasonableness implied into the procedural duty of the Authority to review the referred decision. The conditions for the consideration of new information under s 473DD(b)(ii) of the Actmay be met if the Authority is satisfied, relevantly, that there is credible information about the referred applicant not previously known to the Minister, which may have affected consideration of the claims had the new information been known to the Minister, and “exceptional circumstances” justify its consideration: s 473DD(a); DVO16 at [19]. The Court explained at [20]:
Faced with translation errors in a recording of a protection interview revealed or suggested by the review material provided by the Secretary, considered alone or in light of such submissions as might be made on behalf of the referred applicant during the course of the review, the Authority would have the potential to breach the reasonableness condition implied into its powers to get and consider new information were it to fail to exercise those powers to interview the referred applicant and then to consider the referred applicant's testimony as correctly translated. Equally, the Authority would have the potential to breach the reasonableness condition implied into its duty to review the referred decision by considering the review material were it to make findings adverse to the referred applicant with knowledge of translation errors without having exercised its procedural powers to get and consider new information which might address those errors.
The second manner identified by the Court in which translation errors might result in non-compliance with Part 7AA of the Act is by preventing the Authority from performing its overriding duty to conduct a de-novo “review” of the referred decision pursuant to s 473CC of the Act and, in doing so, preventing it undertaking a proper assessment of “the claims to protection in fact raised by the referred applicant against the criteria for the grant of a protection visa in order to determine whether or not to be satisfied that those criteria have been met” DVO16 at [22]. Mistranslations in the material before the Authority may have the consequence that it misunderstands the substance of the applicant’s claim and is therefore unable to discharge that core element of its overriding duty to assess the claims in fact made against the criteria for the grant of the visa. As the majority stated at [23]:
Just as mistranslation of words spoken during a protection interview has the potential to result in the delegate failing to understand and therefore to consider the substance of a claim in fact raised by the applicant in his or her own language, so the same mistranslation has the potential to result in the Authority failing to understand and therefore to consider the substance of the same claim. Mistranslation in that way has the potential to result in the Authority failing to discharge the core element of its overriding duty, namely to assess the claims to protection in fact made by the applicant against the criteria for the grant of the visa in determining for itself whether or not it is satisfied that the criteria for the grant of a visa have been met.
Ultimately, the determination of whether or not “...inadequate translation or interpretation is not fair will depend... on the particular circumstances of the case” per SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142.
Ground 1 (a)
The applicant’s submissions
By Ground 1(a) the applicant submitted that on the application of the principles identified by the plurality in DVO16, the translation errors in the recording of the entry interview provided to the Authority by the Secretary as part of the review material resulted in non-compliance with Part 7AA in both identified circumstances.
The applicant submitted:
(a)the Authority breached the reasonableness condition implied into its powers to get and consider new information by relying on the entry interview record without giving the applicant an opportunity, through s 473DC, to comment on the inconsistencies noted by the Authority before the Authority made a decision.
(b)the Authority breached the reasonableness condition implied into its duty to review the referred decision by relying, against the applicant, on the observation that “the applicant has not raised any concerns with the quality of interpretation” when the Authority, on the materials before it, knew the applicant had not had an opportunity to raise a concern with the quality of interpretation during the entry interview (DVO16 at [20]).
(c)the Authority did not “assess the claims to protection in fact raised by the referred applicant” in relation to the June 2012 incidents because of errors of the interpreter, did not assess the claims actually made by the applicant at the entry interview, assessed claims not actually made by the applicant at the entry interview and used this evidence to reject the claims actually made by the applicant at the protection visa interview (DVO16 at [22]).
In respect of the first of the limited circumstances identified in DVO16 - translation errors in a recording of a protection interview revealed or suggested by the review material provided by the Secretary - the applicant did not suggest that the Authority knew of the errors or that the errors were revealed by the review material provided by the Secretary. The applicant contended that translation errors were suggested by the review material provided by the Secretary to the Authority.
The applicant submitted that a combination of the following circumstances in this case suggest translation errors in the review material provided by the Secretary:
(a)the applicant lodged a visa application in August 2016 accompanied by a statutory declaration which sets out his claims;
(b)the applicant attended an interview in December 2016 and answers questions at the interview in which there is a consistency with the claims in the statutory declaration;
(c)the Authority member listened to the audio recording of the protection visa interview and with respect to the claims accepted by the Authority, the member considered the applicant gave answers “suggestive of a lived experience” and the applicant was “spontaneous”.
The applicant submitted that in relation to the events that occurred after the marriage proposal was rejected, it is that area where the Authority observed inconsistencies between answers given in the arrival interview and the rest of the applicant’s evidence.
Counsel for the applicant submitted that in light of the above circumstances there were only two possibilities open to the Authority: that there was an actual inconsistency between the answers the applicant gave in his entry interviews and the claims he made in his protection visa or, alternatively, that there was an interpretation error.
Counsel submitted that the Authority was alive to the possibility of interpretation error because of what is stated in [14] of the decision:
The applicant has not raised any concerns with the quality of the interpretation such that his evidence could be misinterpreted, and there is nothing else before me to account for these discrepancies.
Counsel, pointing to the ‘obvious significance’ to which the Authority placed on the identified inconsistencies, submitted that, for the Authority to make the adverse findings against the applicant on the translation issue when it knew that the applicant had not had an opportunity to comment, is legally unreasonable.
First respondent’s submissions
Counsel for the first respondent submitted that the applicant cannot establish that any error in translation in the arrival interview could have resulted in the Authority breaching a condition of reasonableness implied into its duty to conduct the review, either as a consequence of the Authority having failed to exercise its power under s 473DC to get new information, or because the Authority observed that the applicant had not raised any concerns about the quality of the interpretation. Counsel for the first respondent submitted, referring to DVO16, that this was because the Authority was unaware and had no reason or basis to believe that the record of the arrival interview was other than accurate.
Looking at the alleged translation errors in the arrival interview, the first respondent’s submissions are two-fold. Firstly, the errors are not errors. Translation is not a “simple word matching exercise’ (DVO16 at [5]) and secondly, if they are errors in translation, none of the asserted mistranslations resulted in the Authority misunderstanding the substance of what the applicant said at the arrival interview. The first respondent accepted that the second category of error described by the plurality in DVO16 at [22] might apply to answers that a person gives during an arrival interview, to the extent that those answers relate to, or might be considered relevant to, claims later advanced in connection with a protection visa application.
The first respondent contends that any differences between the arrival interview record as relied upon by the Authority and the translation of that interview were immaterial and did not result in any error by the Authority.
The first respondent submitted that the differences are within the realm of differences that would mean that the thrust of what the applicant was trying to convey was conveyed.
Consideration
I am grateful for the helpful written and oral submissions from counsel for both parties. The parties agree on the legal principles which apply to determine whether errors in interpretation constitute jurisdictional error. The difference between the parties lies in how these principles are applied to the facts of this case.
For the following reasons, I consider that the Authority’s failure to consider whether or not to exercise its power under s 473DC in respect of the relevant inconsistencies was legally unreasonable.
I will firstly address the submission from the first respondent that the translation errors are not errors and any differences between the versions are within the realm of differences that would mean that the thrust of what the applicant was trying to convey was conveyed. In respect of the three subject areas where the Authority found the evidence for the applicant to be inconsistent, the 2013 entry interview interpretation was described by counsel for the applicant as the “outlier”. I accept that description. If one looks simply at what was said, or what one can infer the applicant meant to be conveyed, the applicant’s 2016 statutory declaration and protection visa interview are both generally consistent and could be said to be the most reliable. In 2016 he was making a declaration as a statement of his claims as part of a protection visa application. That application was made by a registered migration agent. He was interviewed as a part of the application process. He was legally represented at the time of the interview.
During the protection visa process he did not say that the girl he was in love with was from the same tribe. He did not say that he contacted her after the refusal of the engagement. Nor did he say that the brother entered the room with a weapon – “a sword” – and started hitting him. Clearly, the thrust of what the applicant was trying to convey at the entry interview was not conveyed. The reason why it was not conveyed was because of the misinterpretation. It could not be said that the entry interview interpretation expressed as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 at [29], as referred to by Edelman J in DVO16 at [53].
As referred to above, the plurality in DVO16 at [20] identify two potentialities where a translation error in a recording of a protection interview provided to the Authority by the Secretary as part of the review material may result in non-compliance with a condition of the decision of the Authority expressed in or implied into Part 7AA. The first potentiality results from the reasonableness implied into the procedural duty of the Authority to get new information when faced with translation errors revealed or suggested by the review material provided by the Authority. The second potentiality is through non-compliance with the overriding duty to “review” the referred decision, such that the mistranslation has the potential to result in the Authority failing to assess the claims to protection in fact made by the applicant. One limb is concerned with the reasonableness of the process, the other limb with the review of the factual substance of the claims.
The errors in translation were not known to the Authority nor “revealed” by the review material. The applicant submits, and I accept, that in the circumstances of this case, the errors in translation were “suggested by” the review material. Guidance as to what “suggested by” means or would be established can be drawn from the plurality in DVO16 at [21]:
Whether or not the decision of the Authority was reached in breach of the reasonableness condition implied into its procedural duty and powers would turn, on either analysis, on whether the decision-making course in fact adopted by the Authority in the circumstances known to it was open to a reasonable member of the Authority cognisant of the statutory obligation of the Authority ordinarily to conduct its reviews without accepting or requesting new information or interviewing the referred applicant, cognisant of its powers to get new information in an interview with the referred applicant and to consider that information, and mindful of the statutory exhortation to the Authority to pursue the objective of providing a mechanism of limited review that is both "efficient" and "quick”.
(Footnotes omitted)
Noting this analysis is a “factor dependant” enquiry requiring close focus upon the particular circumstances of the exercise of the statutory power (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76] as referred to in Minster for Home Affairsv DUA16 (2020) 271 CLR 550 at 563 [26]; [2020] HCA 46) the circumstances known to the Authority at the time reveal the following:
(a)the applicant gave the entry interview in May 2012 and June 2013. An interpreter was provided. The entry interview was audio recorded. Part of the applicant’s interpreted answers from the interview are recorded on a form. The applicant was not legally represented;
(b)the applicant lodged a protection visa application in August 2016 and made a statutory declaration outlining his claims to protection. The applicant was legally represented;
(c)the applicant attended a protection visa interview in December 2016, four months after the protection visa application. The claims that the applicant made in his protection visa application and his statutory declaration and those in the interview with the delegate showed consistency across the claims he was making. The applicant was legally represented;
(d)the Authority listened to the applicant’s protection visa interview and with respect to the development of the relationship with the young woman, the Authority characterises the evidence as “consistent and presented in a manner suggestive of lived experience”. The Authority recorded that the applicant “spontaneously provided the girl’s name, her age and gave basic information regarding their interactions”. As a result, the Authority accepted as plausible that the applicant was in a relationship with a girl whom he met through his sister between approximately October 2011 and April 2012;
(e)the Authority identified the inconsistencies across evidence given by the applicant concerning the three areas;
(f)the Authority would be aware that the delegate’s reasoning did not identify any inconsistency of evidence regarding what tribe the applicant said the girl was from or who contacted whom after the rejection proposal or what the girl’s brother had in his hand when he entered the bedroom where the applicant and the girl were located. What worried the delegate about the assault by the girl’s brother was the sequencing of events, that being the brother entering the room with a metal pipe as opposed to the brother seeing the applicant in the room, leaving the room and “ran to get a weapon” (CB 132); and
(g)the Authority characterises the subject matter of the identified inconsistencies as “central” to the applicant’s visa application. Identifying these three areas as “central”, the Authority expected the applicant to accurately recall these details. So concerned was the Authority about the accuracy of the detail of the applicant’s recollections of events, that the Authority turned its mind to the availability of an explanation for these discrepancies and notes that there was nothing before it to account for these discrepancies. Significantly, the Authority raises for itself the possibility that the quality of interpretation could have been an issue such that there could have been a misinterpretation of the evidence.
Counsel for the applicant submits that based upon the materials before it, the Authority knew that if there was an error in interpretation at the entry interview then the applicant was not aware of the error. Counsel gives four reasons for this submission. Firstly, because there was no evidence that the Department (or Secretary or Minister) provided the applicant with a copy of the entry interview record in June 2013 or an audio recording of the entry interview. Secondly, even if the Department provided the applicant with a copy of the entry interview record he was at a detention centre in Darwin and it was unreasonable to expect him to retain the document or the recording until 2016 when he applied for a protection visa and in any event, he does not speak English and so would not have been aware of the errors from looking at the entry interview record or listening to the audio recording. Thirdly, counsel for the applicant says that the applicant did not have a representative at the entry interview and fourthly, the delegate’s decision did not refer to the claims made by the applicant during the entry interview.
Counsel for the applicant referred the Court to the Aboaal transcript noting that the interviewer in December 2016, when he discussed the applicant’s claim with the applicant, did not refer to the applicant’s claims made during the 2012/2013 entry interview. The inconsistency identified by the delegate was an inconsistency between what the applicant said at the protection visa interview concerning how he escaped the girl’s room, compared with what was in his statutory declaration.
A fair reading of [14] of the Authority’s decision suggests that the sources of the evidence then characterised as inconsistent was a comparison solely between the entry interview and the statutory declaration. No attention appears to be given by the Authority to the evidence given at the protection visa interview. There was no consideration given by the Authority of the consistency of evidence between the statutory declaration and the protection visa interview. There was no consideration by the Authority of the significance of the identified inconsistent evidence on the applicant’s case as a whole.

In my view, a reasonable decision-maker, giving appropriate attention to all relevant material in making the assessment, having listened to the recording of the entry interview, having listened to the recording of the protection visa interview, having regard to the protection visa application statutory declaration and having taken account of the delegate’s reasons, identifying inconsistencies in three areas central to the applicant’s claim and not having anything before her to account for the inconsistencies, would have reflected on whether it was appropriate to interview the applicant. A reasonable decision-maker would have observed that the identified inconsistencies were between a version given in 2012/2013 to the two separate and comparable versions given in 2016. The Authority expected the applicant to accurately recall the details in the areas of inconsistency and observed that the applicant had not raised any concerns with the quality of interpretation.
Having reflected on these matters, and reflected on the centrality of the evidence to the applicant’s protection visa application, and the impact of inconsistent evidence in these central areas, the Authority may well have decided that it was not appropriate to exercise the power under s 473DC to interview the applicant or to seek explanation of the inconsistencies. However, that conclusion to not interview the applicant or seek explanation would only be made by the Authority after reflecting on all of the evidence, reflecting on the inconsistencies and after considering if the inconsistent evidence could be accounted for.
Given the significance attached by the Authority to these three areas of purported inconsistencies and given the centrality of the matters to the protection visa application and the fact that the delegate had not observed any inconsistency such that it was something raised by the delegate to the applicant, I find that the Authority failed to consider whether or not to exercise its power under s 473DC. Having regard to the circumstances of this case, and considering what a reasonable decision-maker would have reflected on or observed, informs my conclusion that the failure by the Authority to consider whether or not to exercise its power under s 473DC in respect of the relevant inconsistent evidence, was unreasonable.
It has been held by the Full Court in DGZ16 v Minister for Immigration and Border Protection [2017] FCCA 623 at [72] that in a general sense, Part 7AA does not require the Authority to notify an applicant that “it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate”, nor provide the applicant with an opportunity to respond to any specific reservations the Authority may have about the applicant’s case. I consider that the circumstances of this case, where translation errors in a recording of a protection interview were suggested by the review material, meant that the decision-making course in fact adopted by the Authority in the circumstances known to it required the Authority to provide the applicant with an opportunity to respond to the identified inconsistencies.
Lastly, in the context of considering the particular circumstances of the exercise of the statutory power, regard should be given to the treatment of information given in entry interviews by decision-makers involved in determining applications for protection visas. Counsel for the applicant referred the Court to the decision of Moshinsky J in AYJ17, noting the closeness the facts and circumstances of that case with the present case. In that case, the Court upheld a decision of the primary judge that it was unreasonable for the Authority to make an adverse finding against the applicant because he did not identify all his protection visa claims in the arrival interview. Moshinsky J, referring to the typewritten form, described the purpose of the arrival interview as primarily to obtain details about bio data and travel to Australia. Its purpose was not to obtain a detailed description of the respondent’s claim.[2]
[2] AYJ17 [41].
Counsel for the first respondent distinguished the circumstances of the current case, where information was given in an arrival interview, to MZZJO v Ministerfor Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80,where the Full Court noted that some caution should be exercised by decision makers where information is omitted by an applicant at [56] and [57]:
56.On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where Authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
57. Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.
I do not think that distinction is warranted. The focus is on the course of the enquiry and the particular circumstances of the exercise of the statutory power by the Authority. In the circumstances known to the Authority, a reasonable decision-maker exercising some caution in the treatment of information given in an entry interview, having identified inconsistencies, would have had regard to all relevant material in assessing the significance of the inconsistencies in the context of the applicant’s case as a whole and would have reflected on whether it was appropriate to exercise the power under s 473DC.
Was there an operative mistranslation; the question of materiality
Materiality is bound up in the concept of legal unreasonableness per ABT17,[3] referring to Mortimer J (as her Honour then was) in DPI17 v Minister for Home Affairs (2019) 366 ALR 665; [2019] FCAFC 43 where her Honour said at [106]–[107]:
106.However, as the law currently stands, I do not understand that the ratio of the decisions in Hossain and SZMTA require that where an exercise of power has been found to be legally unreasonable (a ground not addressed in either of those decisions), the supervising court must conduct a separate assessment of “materiality”, before being able to characterise the error is jurisdictional in character.
107.In Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; 163 ALD 1; [2018] HCA 30, which did concern legal unreasonableness, while the judgement made it clear that a determination that an exercise of power is legally unreasonable is a conclusion about the repository having exceeded her or his jurisdiction (see [53-[56] (Gageler J), [80] (Nettle and Gordon JJ), [131] (Edelman J)), there is no mention of the need for an additional requirement of “materiality” before the error can properly be described as jurisdictional. Rather, materiality is bound up in the characterisation of an exercise of power is legally unreasonable.
[3] per Nettle J at [72].
Having determined that Authority’s failure to consider whether or not to exercise its power under s 473DC in respect of the relevant inconsistencies was legally unreasonable, in my view there is no need for an additional requirement of “materiality” before the error that I have found can properly be described as jurisdictional.
However, the parties have conducted the case on the basis of the additional requirement of the assessment of materiality. As such, I will turn now to determine whether the failure by the Authority to not consider the possible exercise of its power under s 473DC in respect of the identified inconsistent evidence was material.
In Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 (“Hossain”), the plurality (Kiefel CJ, Gageler and Keane JJ) stated the following at [25] and [30]-[31]:
25. To return to the explanation of Professor Jaffe, jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. In the language of Selway J, the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately “a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised”.
…
30. Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.
31. Thus, as it was put in Wei v Minister for Immigration and Border Protection, “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
(Footnotes omitted)
In Minister for Immigration vSZMTA (2019) 264 CLR 421 (“SZMTA”), the plurality (Bell, Gageler and Keane JJ) said at [45] and [46]:
Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
To use the language of the plurality in Hossain, the “condition” which was not complied with in this case was the implied condition of legal reasonableness which attaches to the Authority’s decision whether or not to consider the exercise of its power under s 473DC.
In EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20, Allsop CJ, Markovic and Steward JJ described at [42] the relevant issue as whether the error “could have affected the outcome of the review” (emphasis in original). Their Honours said that whether that is so will normally turn on an analysis of the applicant’s claims and the reasons given by the Authority.
As the plurality stated in SZMTA at [46], the question of materiality is an ordinary question of fact in relation to which the judicial review applicant bears the onus of proof.
The applicant submits that if the Authority had appreciated the multiple errors by the interpreter, it could “realistically have resulted in” the Authority accepting that the June 2012 incidents occurred, which may have caused the Authority to accept the remaining aspects of the applicant’s claims that he continued to have a well-founded fear of persecution.
The first respondent contends that any differences between the arrival interview record as relied upon by the Authority and the translation of that interview were immaterial.
The first respondent submits that the Authority did not consider the inconsistencies alone to be determinative of its decision but cumulatively, with the implausibility’s identified, lead the Authority to not reject aspects of the applicant’s evidence.
For the following reasons, I find that the error here was material.
There is little doubt that the differences between the 2012/2013 and 2016 version of events was of significance to the Authority. The Authority characterised these different versions as inconsistencies in respect of matters central to the applicant’s claim on subject matters that the Authority expected the applicant to accurately recall. Why it was that it was significant in the mind of this decision-maker whether the applicant and the girl were from the same or different tribes, or whom it was that made the contact after the rejection of the marriage proposal, is unclear. The Authority certainly focused on the difference between “something like a sword” compared to “returning with a metal pipe”.
If the Authority had turned its mind to exercising the relevant power and then invited the applicant to provide “new information” either in writing or by way of an interview, the Authority might have assessed the significance of the relevant inconsistencies differently.
Significantly, the Authority observed that, individually, the matters identified, including the areas of inconsistent evidence, may not be significant. However, when considered cumulatively, they led the Authority to not be satisfied that the applicant visited the girl two months after the proposal was rejected; that he trespassed into their home; that they were discovered in her bedroom by her brother; or that the applicant was assaulted by her brother (CB 168 at [18]).
Although the Authority also referred to other matters in affirming the delegate’s decision, the relevant inconsistencies undoubtedly formed part of the Authority’s reasons for affirming the delegate’s decision.
I am satisfied that the Authority’s failure to consider whether to exercise the power in s 473DC in relation to the inconsistencies was capable of affecting the outcome of the Authority’s review.
As a result, I find that jurisdictional error has been established and set aside the decision of the Authority.
In the circumstances, I am persuaded that a writ of certiorari should issue quashing the decision of the Authority and remitting the matter for the Authority to determine according to law, allowing the Authority to consider whether the most appropriate course is to request further information from the applicant using its limited statutory powers or remit the matter to the delegate.
Ground 1(b)
The applicant’s submissions
By this ground of review the applicant complains that the Authority made an error in finding that aspects of the applicant’s claims were implausible, referring to [13] of the decision of the Authority:
Further, noting information that women are facing increased pressure to adhere to conservative societal norms, and the applicant’s own evidence that the girl believed her family were watching her movements, it is implausible that she would be left on her own while her family went to Karbala. It is similarly implausible that she would invite the applicant to her home while she was alone, particularly in circumstances where their previous meetings were in the presence of other people… and as they had never been alone together.
It appears that the basis of the applicant’s complaint about implausibility is that the assertions were unfounded, were not explained and were not reasonable.
The applicant submits that the assertion of implausibility was unreasonable having regard to other evidence noted and accepted by the Authority.
The first respondent’s submissions
Counsel for the first respondent submits that by this review ground the applicant is inviting the Court to intrude into the merits of the decision-making, that it was part of the Authority’s fact-finding function to determine whether it believed the claims the applicant advanced. Counsel submits leaving aside extreme cases of illogicality or unreasonableness, it was a matter for the Authority to determine the facts. The Authority did not need to have evidence in its possession in order to reject the claim advanced by the applicant. Counsel submitted that the Authority explained in its reasons at [13] why it considered the applicant’s claims concerning contact with the girl to have been implausible, that this was “available fact-finding” such that the Court must not in a judicial review intrude into the merits of the decision-making as per Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6.
In oral submissions, counsel for the first respondent submitted that the assertion of implausibility was an aspect of why the Authority was not satisfied about the applicant’s claims, that it was a matter for the Authority for the reasons it gave why it thought those claims were not inherently likely and any challenge to that reasoning process would be otherwise straying to the merits.
Consideration
The Authority assessed the applicant’s claim that he went to visit the girl two months after the rejection of their proposal at her request and was assaulted by her elder brother as “implausible in a number of respects”.
The Authority proceeded, in my view, to provide the reasoning for that observation. The Authority recorded the applicant’s evidence that he instructed his family to “leave it”; that the girl told him they could not meet any more, and they had no further contact; and that it was unclear in the circumstances why the girl would contact the applicant two months later. The Authority referred to the applicant’s evidence that they had been “waiting to see each other” not fitting with his evidence that they had no further contact. Additionally, the Authority referred to country information, the United States (US) Department of State Iraq 2015 Human Rights Report, which state that women are facing increased pressure to adhere to conservative societal norms and the applicant’s own evidence that the girl believed her family were watching her movements such that it was implausible that she would be left on her own.
This is not a case of where a “bare statement by a decision-maker that a claimed circumstance is implausible” is used to cloak the failure of the decision-maker to address and resolve a material question of fact. On the evidence available to it, the Authority identifies a number of factual matters sourced from the applicant’s evidence which provide a reasoning process and evidentiary basis for its observation of implausibility.

Ground 1(b) is not established.
Ground 2
The applicant’s submissions
By this ground of review the applicant complains that the Authority erred in recording in the decision that the applicant in his protection visa interview stated that the ‘letter’ or document purported to be from his tribe, was issued to the applicant after he left Iraq in circumstances where the applicant’s evidence was that “I think it is after I fled Iraq. My brother sent it to me in an email”.
The applicant’s complaint is that the Authority attributed to the applicant evidence of certainty as to when the agreement was issued when his answer was I think i.e. his answer was speculation.
The first respondent’s submissions
The first respondent submitted, whether the applicant was speculating or not, the Authority did not misunderstand or misstate what the applicant said at the protection visa interview. Counsel submitted, noting that the written agreement was not dated (as the Authority observed at [17]), it was open to the Authority to make the factual findings it did about the agreement and the differences between the applicant’s written claims (CB 64 at [9]) and his answers in the protection visa interview. The applicant’s answer, in response to the question “[w]hen did they issue letter? Was it after you left Iraq, all were you still there” was “I think it is after I fled Iraq. My brother send it to me in an email”. Considering the agreement was not dated, it was open to the Authority to make the factual findings it did on the agreement and the differences between the applicant’s written claims (CB 64 at [9]) and his answers in the protection visa interview.
Consideration
The applicant stated in his statutory declaration provided with the protection visa application that he could not move from Baghdad to a nearby town with his company because he feared that someone from the girl’s tribe would kill him, “especially that her tribe and his tribe agreed to shed my blood, they reached into a written agreement with this regard”. The Authority considered this to suggest that the letter or document was issued prior to the applicant’s departure from Iraq and provided a basis for his fear about moving to Karbala.
The applicant participated in the protection visa interview with the delegate who went on to decide to refuse him a protection visa. The interview was conducted with the assistance of an interpreter in the Arabic language. The interview was audio-recorded. The applicant says that what he said in the protection visa interview was clearly speculation or guess because the partial transcript provides the following:
Case officer: … What I want to know is, when I say when did they issue this letter, was it after you had left Iraq, or were you still there?
Applicant: I think it’s after I fled Iraq, my brother sent it to me in an email.
The applicant’s complaint is that the Authority attributed to the applicant evidence as certainty when it was mere speculation. The applicant complains that this amounts to jurisdictional error.
The concept of jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in SZMTA, where their Honours said at [81]:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323 at 351 [82]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the Authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have Authority to make the decision that was made; he or she did not have jurisdiction to make it.”
(footnotes omitted)
At paragraph [17] of the decision, the Authority properly identifies a number of evidentiary issues with the document. The Authority observed that the document:
…states that the applicant ‘encroached upon their honour (their women)’ and did not observe tribal law, but it does not provide any further details of how he is purported to have done so. Nor does the document indicate the applicant breached the honour of her family by trespassing into their home, as he claimed at interview. The document does not appear to be dated”.
In these circumstances and in the circumstances where the Authority was not convinced as to the provenance of the document or when the document was issued, the Authority determined to place no weight on this document. This was a course open to the Authority.
There is nothing that can be properly described as jurisdictional error in this ground of review.
Ground 2 is not established.
CONCLUSION
In the foregoing circumstances, I make the orders sought by the applicant, quashing the Authority’s decision and issuing a writ of mandamus directing the Authority to determine the applicant’s application according to law.

I certify that the preceding one hundred and fifty three (153) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild.
Associate:
Dated: 16 June 2023

File number(s):	SYG 3281 of 2017
Judgment of:	JUDGE GOODCHILD
Date of judgment:	16 June 2023
Catchwords:	MIGRATION - judicial review – protection visa – fast track review process – where errors in translation in entry interview – where Immigration Assessment Authority found the applicant’s evidence inconsistent - whether translation errors ‘suggested by’ the review material - condition of reasonableness implied into the procedural duty of the IAA to review the referred decision and procedural powers to get new materials – whether IAA erred by unreasonably failing to consider whether to exercise discretion under s 473DC of the Migration Act 1958 (Cth) - jurisdictional error established - writ of certiorari issued - writ of mandamus issued
Legislation:	Migration Act 1958 (Cth) ss 473BA, 473CB, 473CC, 473DA, 473DC, 473DD, 473GA, 473GB, Part 7AA
Cases cited:	ABT17v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 DGZ16 v Minister for Immigration and Border Protection [2017] FCCA 623 DPI17 v Minister for Home Affairs and Another (2019) 366 ALR 665; [2019] FCAFC 43 DVO16 v Minister for Immigration and Border Protection (2021) 388 ALR 389 EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 Minister for Home Affairs v AYJ17 (2019) 165 ALD 64; [2019] FCA 591 Minster for Home Affairsv DUA16 (2020) 271 CLR 550; [2020] HCA 46 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration vSZMTA (2019) 264 CLR 421 MZZJO v Ministerfor Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142
Division:	Division 2 General Federal Law
Number of paragraphs:	153
Date of hearing:	20 March 2023
Place:	Sydney
Counsel for the Applicant	Mr B Zipser
Solicitor for the Applicant	Alkafaji Lawyers
Counsel for the Respondents	Mr G Johnson
Solicitor for the Respondents	Minter Ellison

SYG 3281 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ETA17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Minister IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	JUDGE GOODCHILD
DATE OF ORDER:	16 june 2023