Federal Court of Australia

EPI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1691

ORDERS

THE COURT ORDERS THAT:

1.    The disposition of the appeal be deferred until the determination by the High Court of the appeal from DVO16 v Minister for Immigration and Border Protection (2019) 271 FCR 342.

2.    Within 7 working days of the publication of the High Court’s reasons, the parties file consent orders either:

a.    to finalise this proceeding; or

b.    for the making of further submissions in relation to ground 3 of the appeal.

 Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    The appellants are an Afghan family consisting of a married couple and their infant daughter. The couple arrived in Australia by boat in July 2013 as “unauthorised maritime arrivals”. The third appellant, the child, was born in Australia about 12 months later. In 2017 they lodged a combined application for a Class XE Subclass 790 Safe Haven Enterprise visa (SHEV), a form of protection visa. The husband and wife made separate claims for protection. The SHEV application was considered by a delegate of the then responsible Minister. The delegate refused to grant the visas because he was not satisfied that the family fulfilled the criteria for the grant of a protection visa contained in s 36 of the Migration Act 1958 (Cth). On review, the Immigration Assessment Authority affirmed the delegate’s decision.

2    The appellants applied to the Federal Circuit Court seeking orders that the Authority’s decision be quashed and that mandamus be issued requiring the Authority to determine their application according to law. The effect of s 476 of the Migration Act is that the decision could only be disturbed if the court was persuaded that the Authority had fallen into jurisdictional error. Three grounds of review were pleaded. In the first, the appellants alleged that incorrect country information had been used to determine their cases. In the second they claimed that all relevant information was not considered. And in the third they contended that the review was affected by “a judicial error”. No particulars were provided. The primary judge held that none of the grounds raised, let alone established, a jurisdictional error and therefore dismissed the application. This is an appeal from that decision.

3    The appeal relates only to the claims of the husband, who is the first appellant, and only to a discrete aspect of them. Now that the claim for protection made by his wife, the second appellant, has been finally disposed of, her eligibility for the visa, like that of the third appellant, rests on her membership of the same family unit as the first appellant.

4    The first appellant claims to fear harm on the basis of his Hazara ethnicity, because of his Shia Muslim religion, as a prospective returnee from a western country, and as a result of a land dispute with members of his own family who, he alleged, had threatened him. The Authority was satisfied that he was an ethnic Hazara and a Shia Muslim. But it was not satisfied that he was entitled to protection on either account. Consequently it was not satisfied that he was entitled to protection under s 36(2)(a) as a refugee or that he faced significant harm if he were returned to Afghanistan on either of the two bases he advanced. Consequently, it was not satisfied that he was entitled to protection under the so-called complementary criterion in s 36(2)(aa).

5    For various reasons the delegate considered that the first appellant had fabricated his claim concerning the family dispute. The Authority accepted that there had been a dispute over the land but did not accept that the first appellant had been threatened.

6    The appellants were unrepresented in the Federal Circuit Court. After the appeal was lodged, they were referred for pro bono legal assistance. I extend the gratitude of the Court to the lawyers who accepted that referral.

The appeal

7    Once the lawyers were engaged, a proposed amended notice of appeal was prepared raising four grounds of review not pleaded in the court below. The appellants filed an interlocutory application seeking leave to rely on those grounds. The fourth was not pressed. Leave was not opposed and leave was granted to the appellants to rely on an amended version of the notice of appeal containing the three remaining grounds. Since none of these matters was raised before the primary judge, it is unnecessary to refer to his Honour’s reasons.

8    The appeal relates to evidence given by the first appellant at the SHEV interview concerning his claim to fear harm from family members arising out of the land dispute. All three grounds turn on an alleged error in the interpretation of a single answer to a question raised by the delegate in relation to that claim.

The accounts concerning the land dispute

9    Before going any further it is necessary to refer to the accounts given by the first appellant about the land dispute.

10    In his induction or entry interview, conducted through a Dari interpreter, he said that he left Afghanistan for the following reason (as recorded):

My father issues and dispute on land with Uncles and Aunty’s and so we left the area long ago and my fathers brothers left Afghanistan long ago, and I had only one Aunty and Uncle in Afghanistan, so once my family, parents left the area because of the dispsute and he had a very old mother and they left me with the grandmother and they went to Kabul and in the beginning 2009 she passed away and then I went to Kabul to find the family and could not find them.

11    In a statutory declaration made in support of his SHEV application (the SHEV statement), the first appellant gave the following account.

12    After his grandfather died, there was a dispute over the inheritance. The grandfather left some land to the first appellant’s father. Two or three of his father’s cousins, who were village elders, “tried to get the land” from his father, saying “you have to give us the land”. The first appellant explained:

First, they had asked my dad nicely to hand the land to them. When he refused and they realised that my grandmother was ill, that’s when they started to pressure and threaten my dad. When he was inside the house, my dad was protected by my grandmother’s presence because my dad’s cousins respected her and would not do anything to him in her presence. Outside the house, there was no such protection. The farmland was not next to the house. It was a little outside the village. So, my dad was very afraid that he would be banned when he was working the land. He left the village, taking my mother, brother and sister with him. I was left to stay on the land with my grandmother.

13    The first appellant then described how the dispute affected him:

After my dad left, I stayed in the village for about 9 months until my grandmother died. During those 9 months I supported my grandmother and myself by tending the crop that my father had been growing on the land before he left. When the crop finished, my dad’s cousins came and took the land …

When my grandmother died, one of my father’s cousins … told me to take the money that the other cousins were offering for the land and leave the village or else they would kill me …

When my dad’s cousins took the land, they gave me a small amount of money for it …

(Emphasis added.)

14    At the SHEV interview the delegate was told that, when the first appellant left, he “sold some part” of his father’s land to the cousins. The delegate put significant weight on this statement. In effect, he considered that it was inconsistent with the first appellant’s evidence that he was “given money by his cousins under a situation of distress and told to leave”.

The submissions made to the Authority

15    Submissions made to the Authority on behalf of the appellants claimed that the delegate “misconstrued” what the first appellant said in relation to the land dispute. They stated that the first appellant “never stated or implied that he sold any part of the land on his forms, statutory declaration, SHEV interview or at any other time”. Rather, the submissions continued, he “was given money to leave the village” and that he believes that, if he had refused the money, he would still have been forced to quit the land. The submissions suggested that the alleged misunderstanding might, at least in part, have been due to “the poor interpretation by the interpreter”. They claimed that throughout the SHEV interview, the interpreter provided “poor interpretation”. They noted that the first appellant, who had “ascertained a good level of English from his time in Australia” had corrected the interpreter when he could but contended that “he would not have been able to correct every mistake” and, in any event, it was not his role to do so.

The Authority’s decision concerning the land dispute

16    The Authority accepted that the first appellant’s father was involved in a land dispute with members of his family in 2008 and that he remained in the village after his father and other family members had moved to Kabul, also in 2008. But it was not satisfied that either the first appellant or his father was threatened by members of the extended family before they left the district and found that the first appellant had sold part of the land in order to finance his travel out of Afghanistan. Consequently, it was not satisfied that the first appellant faced a real chance of harm from family members now or in the foreseeable future if he were to return to the district where the village was situated. The Authority’s reasons were set out at [23]–[34] of its decision record.

17    The Authority described the first appellant’s evidence about the claimed events leading to his departure from the village as “unconvincing” (at [23]). It summarised the claims made in the SHEV statement and the SHEV interview. On the latter subject, the Authority said at [25]:

In the SHEV interview, Applicant 1 claimed that his father still owned land in the village and that it was being used by his father’s cousins. He revealed that he did not know when his grandfather died and stated that it was likely before he was born, thereby indicating that the land dispute had been ongoing for over 20 years. He claimed that in 2008, his father’s cousins came to the house and threatened to kill him if he did not hand over the farm land. He also initially claimed that the cousins did not offer to buy the land and wanted to take it by force, but he later stated that he is unsure whether his father was ever offered money for the land. He further claimed that after his father and other family members moved to Kabul, he stayed in the village for another six or seven months farming the land. He advised the delegate that he was able to remain in the village because his father believed that he would not be harmed by the cousins. He said that neither he nor his father were ever physically harmed by the cousins. Applicant 1 stated that he was given 30,000 Afghani for the land which he eventually gave to a people smuggler to help him go to Europe. He initially advised the delegate that he “sold part of” his land before leaving to Kabul, but later in the interview he said that he had no choice but to take the money or be killed.

(Emphasis added.)

18    The Authority then referred to the account given in the entry interview (at [26]) in which the first appellant referred to his father’s involvement in a land dispute but said nothing about either his father or him having received death threats from his father’s cousins and only claimed to fear harm in Afghanistan on the basis of his Hazara ethnicity.

19    At [27] the Authority noted that in her entry interview, the second appellant had claimed that she and her siblings were forced to leave their province because of a land dispute between her uncles and her siblings in which her uncles threatened to take the land.

20    At [28] the Authority summarised the submission about “poor interpretation” and said:

I have listened to the audio recording of the SHEV interview and note that on one occasion Applicant 1 appeared to correct the interpreter, although this was not in relation to the land dispute but in connection with a place name.

21    The Authority then said at [29]:

When considered cumulatively, the above evidence leads me to conclude that Applicant 1 has fabricated certain aspects of his claims in respect of the events said to have occurred prior to him leaving his village ... in 2009.

(Emphasis added.)

22    At [31]–[32] the Authority explained:

(1)    The first appellant’s evidence at the SHEV interview that his father was threatened in the family home was inconsistent with his written claims that his father was safe from his cousins there (while his grandmother was alive).

(2)    If the first appellant’s claim that his life had been threatened were true, then it would be expected that he would have referred to it in his entry interview when asked about why he had to leave Afghanistan and could not return. Yet in the entry interview he said that he feared returning to Afghanistan due to his ethnic/minority profile and wanted to go to Europe to seek a better life and to finish “being a wanderer”.

(3)    It was difficult to accept that, if the first appellant’s father had been forced to leave the village due to fear for his life over the land dispute, it was determined that it would be safe for the first appellant to stay there and continue farming the same land.

(4)    It was also difficult to accept that extended family members attempted to take the land by force when the first appellant’s father was in the village but later offered the first appellant money for the land.

23    The Authority dealt with the first appellant’s submissions on the alleged interpreting errors at [33], finding, in effect, that the submission that he had been misinterpreted was false:

I have had regard to the applicants’ submissions about purported interpreting issues during the SHEV interview. I note that the IAA submission does not provide any detail or specifics as to which of the delegate’s questions or Applicant 1’s responses were not correctly or adequately interpreted. The SHEV interview was conducted nine months ago now and corrections have not been provided. I am not satisfied that Applicant 1’s SHEV interview was impacted by ‘poor’ interpreting and I am satisfied he was given every opportunity to present his case during the interview. I find Applicant 1’s initial claim in the SHEV interview that he “sold part of” his land before leaving to Kabul, and that his father still retains land in his village inconsistent with any claim that the land has been taken by force by extended family members …

The scope of the Authority’s powers

24    The scope of the review and the powers and duties of the Authority are contained in Pt 7AA of the Act. The review is accurately described in s 473BA, which is the simplified outline, as a limited form of review. Part 7AA applies to the review of decisions, known as “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.

25    As soon as reasonably practicable after the Minister has made a decision on the visa application, whether personally or through a delegate, the Minister must refer the decision to the Authority (s 473CA). The Secretary of the Minister’s Department must then give the Authority the “review material”. That material includes a statement that sets out the findings of fact made by the decision-maker, the evidence on which those findings were based, and the reasons for the decision; material provided by the applicant to the decision-maker before the decision was made; and any other material in the Secretary’s possession or control which the Secretary considers at the time of the referral to be relevant to the review. See s 473CB.

26    The Authority’s obligation is to “review” the decision (s 473CC(1)) by considering the visa application afresh and deciding for itself whether it is satisfied that the criteria for the grant of the visa have been made out (Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17] per Gageler, Keane and Nettle JJ). In general, the review is to be conducted on the papers, without accepting or requesting new information and without interviewing the referred applicant (s 473DB). Subject to Pt 7AA, however, the Authority may “get” “new information” (including documents) that was not before the original decision-maker and the Authority considers relevant, but the Authority has no duty to do so (s 473DC)). Furthermore, new information may only be considered if the Authority considers there are exceptional circumstances to justify doing so and the referred applicant satisfies the Authority either that the new information was not, and could not have been, provided to the Minister before the original decision was made or that the new information is “credible personal information” which was not previously known and, had it been known, may have affected the consideration of the claims (s 473DD). The Authority “considers” new information within the meaning of s 473DD when and if it takes the information into account in making its decision on the review, “assigning the new information such probative weight as it thinks the new information deserves in its assessment of the probability of the existence of some fact about which it actually makes a finding”: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [4].

27    The provisions relating to the conduct of the review are to be taken as an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Authority’s review (s 473DA).

The grounds of appeal

28    The appellant contended that the Authority fell into jurisdictional error in a number of different ways.

29    By ground 1 of the amended notice of appeal, the appellants alleged that the Authority failed to complete its statutory task under Pt 7AA of the Act to assess the first appellant’s evidence since it took into account an irrelevant consideration (the failure to provide evidence to the Authority of the alleged interpretation error) and/or imposed a burden on the appellants to prove that that error had been made and failed to consider on the material before it whether the first appellant’s response was likely to, or had been, “mischaracterised by the interpreter as evidence that he had sold the land”.

30    By ground 2 the appellants alleged that the Authority’s conclusion that the first appellant did not satisfy the relevant criteria was based on a finding that was irrational or illogical. The particulars of this ground relevantly state that:

b.    The [Authority]’s reasons for finding the First Appellant had used the word “sold” — that the Appellants had not provided evidence of the specific interpretation error and the First Appellant had a fair chance to present his claims at the SHEV interview — were not in substance inconsistent with the appellant being specifically misunderstood in relation to the use of the word “sold”

c.    The [Authority] otherwise articulated no rational, logical or probative basis for excluding the possibility that the interpreter had misunderstood and mischaracterised the First Appellant’s evidence.

31    By ground 3 the appellants alleged that the Authority constructively failed to exercise its jurisdiction as it operated on a misapprehension of fact (that the first appellant had sold part of the land) or could not properly consider the review material as required due to the error in interpretation.

32    In each case the error was said to materially affect the Authority’s conclusion that the first appellant had not satisfied the criterion in s 36(2)(a) or (aa) due to his fear of harm from his cousins if he were to return to Afghanistan.

The evidence on the appeal

33    By an interlocutory application filed on 21 September 2020, the appellants sought leave to adduce new evidence to prove that there had in fact been an error in interpretation in support of ground 3 of the amended notice of appeal. That evidence consisted of an affidavit of Hadi Zaher, a level 3 NAATI certified translator and interpreter, and an affidavit of Jennifer Kaye Lynagh, a “word processor” employed by the appellants’ solicitors. The Minister did not oppose the application and leave was granted.

34    Ms Lynagh was provided with an audio recording of the SHEV interview and asked to prepare a transcript of the English language heard in that recording. Her transcript was exhibited to her affidavit. Evidently, some words were indecipherable but nothing turns on them. Mr Zaher was provided with an audio file containing an extract of the audio recording given to Ms Lynagh to transcribe and a transcript of the English language as heard in the audio file. Mr Zaher translated the first appellant’s words from Dari into English. There were differences between his translation and the interpretation of the Dari interpreter through whom the first appellant spoke during the SHEV hearing. In only one respect, however, were the differences said to be significant.

35    Neither deponent was required for cross-examination.

36    I will discuss the substance of the evidence when I come to deal with ground 3.

Ground 1: impermissibly imposing a burden of proof on the appellants

37    In their written submissions the appellants argued that, by relying on the “literal” interpretation from the SHEV interview due to the absence of evidence to the contrary, the Authority effectively imposed a legal burden of proof on the appellants to establish that the first appellant had been misunderstood. In the alternative, they submitted that, by having regard to the absence of evidence on this matter, the Authority took into account an irrelevant consideration. Either way, this was said to be an indication that the Authority had misconstrued the statutory power and/or asked itself the wrong question.

38    In FTZK v Minister for Immigration and Citizenship [2014] HCA 26; 88 ALJR 754; 310 ALR 1 at [90] Crennan and Bell JJ observed (footnotes omitted) that:

[E]mpowering legislation can show that a tribunal’s identification of what it considered to be relevant matters may demonstrate that it asked itself the wrong question, as explained in Yusuf. Equally, it may demonstrate that a tribunal has misconstrued its functions and powers to decide, by taking into account matters which are irrelevant given the language of the empowering provision and the scope and purpose of the whole Act. Either form of error requires the impugned decision to be set aside.

39    The appellants’ argument was as follows. The Authority is required under Pt 7AA to conduct an administrative review. The Authority effectively found that, because the first appellant had not provided “definitive evidence” of the alleged interpreting error “after a nine-month wait”, the submission should be rejected. That was erroneous because it was only necessary for them to persuade the Authority that the first appellant might have been misunderstood. The appellants’ submission was a credible one. There was sufficient contextual material to support it but, by giving weight to the absence of evidence, the Authority did not consider the context or the material. It necessarily follows that the Authority imposed a legal burden of proof on the appellants. In the alternative, the appellants contended, the Authority took into account an irrelevant consideration, namely the fact that no evidence had been provided to support the submission.

40    Generally there is no legal burden of proof in an administrative proceeding, certainly not in a proceeding of the present kind: see McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356–7 (Woodward J), 368-9 (Jenkinson J); Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at [65] (Logan, Flick and Rangiah JJ). McDonald concerned a decision of the Administrative Appeals Tribunal. Sun, which followed it, concerned a decision of the Migration Review Tribunal. As the Full Court observed in Sun at [66], however, the remarks of Woodward J in McDonald have been applied to administrative decisions by other tribunals and in different contexts. The Minister did not contend that the principles in these cases did not apply equally here.

41    But the Authority imposed no legal burden of proof on the appellants. The appellants’ construction of the Authority’s reasons is itself a misconstruction. It is trite to observe that the reasons of an administrative decision-maker should not be construed minutely and finely with an eye keenly focussed on the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). It is apparent from what the Authority said at [33] that it did consider whether there might have been an error in interpretation. The effect of its remarks was that, having regard to the dearth of evidence, it could not be satisfied that there was. That is an unsurprising conclusion. And it involves no jurisdictional error.

42    The observations made by North, Tracey and Mortimer JJ in Beezley v Repatriation Commission [2015] FCAFC 165; 68 AAR 23; 150 ALD 11 at [68] are apposite here:

[B]efore a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; 4 ALD 139; 1A IPR 708; 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356–7 and 358; 6 ALD 6 at 9–10 and 11 (per Woodward J), at FCR 366; ALD 19 (per Northrop J) and at FCR 369; ALD 21 (per Jenkinson J); Ward v Western Australia (WAG6006 1995 and WAG6002 of 1996) (1996) 69 FCR 208 at 215–8; 136 ALR 557 at 565–8; and Evans (as executor for the estate of the late Evans) v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237; [2012] FCAFC 81 at [18] and the cases there cited.

(Emphasis added.)

43    In any event, by s 5AAA, the Act requires an applicant for a protection visa to provide “sufficient evidence to establish the claim” and makes it clear that the Minister (or, if the power to grant the visa is delegated, the Minister’s delegate) does not have any responsibility to assist in establishing the claim. In this context, the submission that the Authority fell into jurisdictional error because it took into account the failure of the appellants (or the first appellant) to adduce evidence of interpreter error must be rejected.

44    What is more, in the absence of evidence to support the submission it is difficult to see how the Authority could evaluate the first appellant’s contention that he had been misunderstood. The Authority was not bound to accept what was put to it in submissions. It was not suggested that the Authority should have arranged for another interpreter to listen to the audio recording and then decide whether there had been an interpreting error. It is difficult to see how a submission to that effect could succeed since the Act expressly provides in s 473DC(2) that the Authority “does not have a duty to get, request or accept, any new information”, whether it is requested to do so or in any other circumstances. No argument was advanced that it was legally unreasonable to conduct the review without doing so: cf. ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407 at [29].

45    In effect, all the Authority was doing in [33] was that which s 473CC requires, namely, considering the submission that the appellants had made and giving it the weight it thought it deserved in its assessment of the likelihood that the land had been taken by force by the first appellant’s relatives. In other words, the Authority considered the possibility but, in the absence of evidence to support the submission and having regard to the time that had passed during which evidence could have been obtained, rejected it. That was an entirely orthodox approach. To the extent that the Authority’s remarks might suggest that it had any burden of proof in mind, it was only an evidential one. The appellants conceded that, if that were the proper construction of its reasons, then ground 1 must fail.

46    For these reasons ground 1 must be rejected.

Ground 2: making an irrational or illogical finding of fact

47    The appellants submitted that the Authority’s reasons reveal no intelligible or logical basis for rejecting the possibility that the first appellant had been misunderstood. Their argument was as follows:

a.    The Authority did not engage with the obvious reason the misunderstanding may have occurred. That is, the events the appellant described – money exchanged for land – could easily be understood as a “sale”.

b.    The Authority did not consider that the appellant had never used the language of “sold” apart from a single occasion in the SHEV interview.

c.    The Authority rejected the appellant’s submission because first he had not provided new evidence, and second the Authority found the appellant had an adequate opportunity to present his claims at the SHEV interview. Neither of these facts were inconsistent with the misunderstanding having occurred:

i.    In relation to the failure to provide new evidence of the error there was no reason to expect the appellant to provide that evidence. The appellant – but for the legal submissions provided - was unrepresented before the Authority. There was no indication in the material the appellant had requested or received a copy of the audio recording of the SHEV interview to review. The appellant’s silence did not support the conclusion that the misunderstanding had not occur[ed].

ii.    The Authority’s assessment of the quality of the overall interpretation at the SHEV interview was not relevant. Even if the interpretation was of a high quality a misunderstanding in relation to the use of a single word – sold – could have occurred.

48    The duty of the Authority to review a referred decision is imposed on the implied condition that the duty is carried out “within the bounds of reasonableness”: ABT17 at [3] (Kiefel CJ, Bell, Gageler and Keane JJ), at [80] (Gordon J). That applies both to the reasons for the decision and the manner in which the decision is reached: ABT17 at [19]. It is well-established that irrational or illogical reasoning by an administrative decision-maker “on the way” to a final conclusion may amount to jurisdictional error: see, for example, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [40]–[42] (Gummow ACJ and Kiefel J); [130]–[136] (Crennan and Bell JJ).

49    But there was no such error in this case. The Authority’s reasons at [33] disclose that the basis of its decision to reject (or more accurately not accept) the submission that the first appellant had been misinterpreted as alleged was the insufficiency of material to support the submission. There was nothing irrational, illogical or unintelligible about its reasoning process or its conclusion.

50    The Authority was not precluded from reasoning in this way because the appellants were unrepresented. Since the Authority does not conduct hearings and only interviews applicants at its discretion, a discretion it did not exercise in this case, the significance of the fact that the appellant was “unrepresented before the Authority” is obscure. In any event, it was common ground that the submissions were prepared by lawyers. There is no apparent reason why they could not have obtained the audio recording and arranged for a translation, just as the appellants’ current lawyers did. It was not suggested that they had insufficient time to do so. It is true that there was nothing to indicate that the first appellant had requested or received a copy of the audio recording of the SHEV interview. But there was an indication in the material that he had been informed of his right to request one. The letter from the Department of Home Affairs dated 24 March 2018 notifying the first appellant of the delegate’s decision advised him that he could receive a copy of the interview and gave him the email address to contact for this purpose.

51    While the Authority might well have reasoned in the way the appellants pressed upon this Court, it was not obliged to do so. In the absence of evidence to support the appellants’ submission, the Authority was entitled to proceed as it did. The mere fact that there was a plausible argument that the first appellant had been misunderstood, without evidence, could not vitiate the Authority’s decision. The appellants accepted that the Authority was entitled to receive such evidence. In any case, the Authority might well have considered the argument plausible but rejected it. The Authority did not decide it was implausible. What it said, in effect, was that it was not persuaded by it. Where there is a reasonable opportunity to obtain supporting evidence, it is not illogical or irrational to conclude from its absence that the submission could not be supported by evidence. It follows that it was not illogical or irrational to reject the submission.

52    Ground 2 therefore fails.

Ground 3: constructive failure of jurisdiction due to a misapprehension of fact

53    By this ground the appellants contended, based on the new evidence, that there was in fact error in interpretation as alleged in the submissions to the Authority. As put in their submissions to this Court, “the [first] appellant never used the [Dari] word [for] ‘sold’ to describe his departure from the family land” and he “never referred to having sold ‘part’ of his land”. The evidence establishes that these errors were made. This ground of appeal turns on their significance.

54    It is unusual for error in fact-finding to give rise to jurisdictional error and rare for a decision to be vitiated for isolated errors by an interpreter. Moreover, when interpreter error has been raised it is usually, if not invariably, used to found an argument that there has been a denial of procedural fairness. In the context of reviews of migration decisions conducted by the Administrative Appeals Tribunal there is a useful summary of the authorities on that subject as at 2016 in the judgment of Edelman J in BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310 at [47]–[54]. That was not the appellants’ point here, though.

55    It was common ground that on the current state of the authorities this ground must fail.

56    In DVO16 v Minister for Immigration and Border Protection (2019) 271 FCR 342 the Full Court declined to find jurisdictional error in a decision of the Authority where a number of translation errors had been made by the interpreter through whom the appellant had given his responses to the delegate during the SHEV interview where the errors only came to light as a result of evidence presented to the primary judge on the judicial review application.

57    There was some overlap between ground 3 of the appeal in that case and ground 3 of the instant appeal. Amongst other things, in DVO16 the appellant submitted that the review by the Authority miscarried because “material interpreter error” meant that the Authority failed to complete the jurisdictional task to “review” the delegate’s decision.

58    In DVO16 at [4] Greenwood and Flick JJ said that:

Free of the constraints of Pt 7AA of the Migration Act, a conclusion may have been open that the errors in translation and the failure to translate the responses of the appellant constituted a denial of natural justice and the common law rules of procedural fairness. A failure to adequately translate questions and answers may deny a party a fair opportunity to be heard: cf SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [5] per Allsop CJ. And jurisdictional error may be held to have occurred even though the decision-maker is unaware of the facts and circumstances giving rise to the error: cf SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [3]-[8] and [51]-[52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. There the High Court held that fraudulent advice provided to the appellants (by a person holding themselves out as a solicitor and migration agent) to the effect they should not attend a hearing before the Administrative Appeals Tribunal was such that the Tribunal’s jurisdiction remained “constructively unexercised” despite the Tribunal being unaware of the fraud. Similarly, a decision-maker may be held to have denied procedural fairness even in the absence of personal “fault”: Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [22] per Gleeson CJ; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [37] per Gleeson CJ.

59    Indeed, their Honours went so far as to say (at [5]) that, had the common law rules of procedural fairness applied, they probably would have found that there had been a denial of procedural fairness, on the part of both the delegate and the Authority. Their Honours pointed out (at [6]) that Pt 7AA imposes significant constraints on the common law rules and proceeded to discuss them (at [6]-[10]). They said (at [11]) that any scope for judicial intervention must therefore be found in the statutory requirement imposed on the Authority to conduct a “review”. Although the review is a “de novo review” and the Authority is not bound by the delegate’s findings, their Honours described the scope for judicial intervention as “regrettably, short lived”. While it would require a genuine consideration of the material forwarded by the Authority pursuant to s 473CA, together with any “new information” which it “gets”, their Honours said that the “review” “cannot be construed as a review of only factually accurate transcriptions of an interview process”. They explained that:

Whatever misgivings may have occurred to the Authority when considering the audio recording of the interview, and even though the Authority “may” get further information that it considers “may be relevant” (s 473DC(1)), the Authority nevertheless remained subject to no “duty to get” any further information from the appellant: s 473DC(2).

60    Thus, in the context of a review governed by Pt 7AA their Honours held, in effect, that, even if an interpretation error in a SHEV interview is material to the outcome, the error does not constitute a jurisdictional error unless the Authority is on notice (if not actually, then constructively) that the interpretation was manifestly inadequate. As their Honours put it at [12]:

Left to one side are those cases in which deficiencies in translation services are so manifestly apparent that both the delegate and the Authority must be taken to be on notice that any interview process was manifestly deficient and a manifestly inadequate basis upon which a “review” can lawfully be undertaken. Such is not the present case.

61    As a single judge of the Court I am bound to follow DVO16. The appellants formally submitted that it was wrongly decided but went no further.

62    On 17 April 2020 the High Court granted special leave to appeal in DVO16. According to the appellant’s submissions in that matter, the issues arising on the appeal are these:

(1)    whether the Authority, in conducting a review under Pt 7AA, failed to complete its statutory task because the review material was necessarily incomplete owing to “material translation error”; and

(2)    whether the Authority failed to complete its statutory task because it conducted its review under a material misapprehension of fact due to the translation error in the interview conducted by the delegate, being an incorrect belief that the applicant had been afforded an opportunity to properly advance his claims and had no further evidence to give.

63    In the present case, the appellants submitted that, if the determinative issue in relation to this ground is whether reliance on a SHEV interview affected by interpretation error cannot constitute a jurisdictional error, the appeal should not be determined until after the resolution of the appeal in DVO16 and the parties should be allowed to make further submissions after the High Court’s judgment.

64    Further, on 8 October 2020 the High Court also granted special leave to appeal from the judgment in BNB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 304, a judgment of Anderson J, and I was given to understand that the appeal in that case will be heard at the same time as the appeal in DVO16. At the time of writing, submissions had not yet been filed on the appeal in BNB17. The special leave questions, however, were:

(1)    whether the Authority failed to perform its function of considering the “review material” when the delegate’s interview with the applicant is affected by material mistranslation; and

(2)    when on notice of translation errors in an applicant’s evidence at an interview, whether it is legally unreasonable for the Authority to make adverse credibility findings relying on mistranslated aspects of the evidence without getting new information under s 473DC or taking some other step to “cure” the effect of the translation errors.

65    The first ground overlaps with the third ground of appeal in the present case.

66    The interpreting errors in DVO16 were far more extensive than the two alleged errors of which the appellants complain in the present case. I see the wisdom, however, in awaiting the outcome of the High Court’s consideration of the common legal question. Moreover, the Minister accepted that it was appropriate to defer consideration of ground 3, at least, if I was satisfied that the relevant interpreting errors were material.

67    The only question for determination at this point, then, is that question.

68    A material error in this context is one which could realistically have deprived the appellants of a successful outcome: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31] (Kiefel CJ, Gageler and Keane JJ); [66]–[72] (Edelman J).

69    The appellants allege that the errors were material because the finding that the first appellant had used the word “sold” was one of four reasons given by the Authority for rejecting his claim and the Authority relied on the original SHEV interview to conclude that he had in fact sold “part of” the land. Had the errors not been made, the appellants submitted, the Authority could have reached a different conclusion regarding his central claim to fear harm from his cousins.

70    On this question the appellants carry the burden of proof: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4] (Bell, Gageler and Keane JJ).

71    The new evidence establishes that this is what occurred during the relevant part of the SHEV interview.

72    During the delegate’s questioning of the first appellant about the reasons his father left the village where they lived and moved to Kabul, the delegate asked the first appellant what had happened to his father.

73    The first appellant told the delegate that his father’s cousins came to the house and threatened him, saying: “Give all the lands to us or we kill you”. He said that he was not present at the time. The delegate asked the first appellant whether the cousins offered to buy the land. That was interpreted as “Did they want to buy the land?” The first appellant replied that they did not, rather they wanted to dispossess him. That was interpreted as: “They didn’t want to buy. They wanted to take it by force”.

74    The delegate then asked the first appellant whether “he” sold them “any of the land”, which was interpreted as: “Did he sell any part of the land?”

75    The first appellant replied:

Not my father, but I got some…they gave me some money for the land.

76    The interpreter asked:

Who?

77    The first appellant actually responded:

My father did not sell. My father did not receive any money. But I, before leaving … got some money for the land.

78    It is at this point that the allegedly significant error is said to have occurred. The interpreter interpreted the first appellant’s response as:

My father didn’t sell. My father didn’t sell any part of the land. But when I left, I sold some part of that.

79    The Minister contended that the errors in the last sentence are not material for two reasons. First, he argued, it is apparent from the transcript of the SHEV hearing annexed to Ms Lynagh’s affidavit, that the first appellant was able to put his case, which was that he was forced to take money to quit the land. Second, he argued that the inconsistency the Authority found, based on the interpretation error, was one of several independent reasons for rejecting the claim arising from the land dispute.

80    I accept that the evidence indicates that, despite the interpreting errors, the first appellant was able to put his case. Sometime after the sentence containing the errors, the following exchange (not said to be affected by error) took place:

Delegate:    So you said that your, after your grandmother died, one of your father’s relatives told you to take the money?

…

Applicant 1:    Yeah. Actually I mentioned before you mentioned before that 3 of them regarding the cousins, you said that is why it took it off them from those 3, one came and offered me the money, take the money and I went to [indecipherable]. Sorry there are 5 people but 3 of them attempted to take the lands by force. And just one of them came and bring some money and said take this money and go.

…

Delegate:     So you sold them the land?

Applicant 1:    No not officially I not any paper or anything.

Delegate:    But they gave you money? You took the money for the land?

Applicant 1:    It was no choice, take the money or they or I will have my, I was to be killed.

…

Delegate:    So what did you do with the money?

Applicant 1:    I gave it to smuggler to go to Europe.

81    Furthermore I accept that the Authority’s findings on the claim arising out of the alleged land dispute were not merely based on its view that there was an inconsistency between the claim that the land was taken by force and the erroneous account that the first appellant had sold part of the land before leaving for Kabul. The Authority proffered several reasons for rejecting the first appellant’s claim to have been threatened by family members or to have been personally involved in a land dispute in his village.

82    Nevertheless, I am persuaded that the errors could realistically have made a difference to the Authority’s findings on this particular claim.

83    It has often been said that, where an impugned finding is only one of a number of findings that independently may have led to the ultimate conclusion of the Administrative Appeals Tribunal or the Authority, jurisdictional error will generally not be made out. The most frequently cited source is the observation by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [55], which has repeatedly been cited in Full Court judgments: see, for example, CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] (McKerracher, Griffiths and Rangiah JJ); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Charlesworth J, with whom Flick and Perry JJ agreed); BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109, [45] (Tracey, Farrell and Charlesworth JJ); DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260, 265–266 [19] (Tracey, Murphy and Kerr JJ); Singh v Minister for Home Affairs [2020] FCAFC 7, [92] (R Derrington J, with whom Logan and Reeves JJ agreed). But this is no more than a reflection on the general position. There are exceptions. In CGA15 v Minister for Home Affairs (2019) 268 FCR 362 at [61] (Murphy, Mortimer and O’Callaghan JJ), for example, the Full Court observed that jurisdictional error may result where an administrative decision-maker relies on intermingled findings or matters to reach an ultimate conclusion and there is no proper basis for one of them. In my opinion, this is such a case.

84    The conclusion the Authority reached about the land dispute appears in [34] of its reasons. There, the Authority said:

While I accept that land disputes can occur in parts of Afghanistan, having regard to all the evidence before me, I do not accept that Applicant 1 was threatened by family members or personally involved in a land dispute in … as claimed. I find that after his family and other family members left the village, Applicant 1 remained in the village farming the family land. I find that he sold a portion of family land in around 2009 in order to fund his travel outside of Afghanistan. On the evidence before me, I am not satisfied that Applicant 1 faces a real chance of harm from family members now, or in the foreseeable future, if returned to … District.

(Emphasis added.)

85    It is clear from the opening sentence that the findings made in this paragraph were based on “all the evidence”. It is also clear from what the Authority said earlier (at [29]) that the Authority’s conclusions were based on the cumulative effect of the evidence. It is possible, of course, that the Authority would have reached the same conclusion if the errors had not been made. After all, they were isolated. But one could not be sure of that. While the distinction drawn in the case between selling the land and receiving money in exchange for the land seems, in context, to be a distinction without a difference, the Authority’s finding in [33] that there was an inconsistency in the first appellant’s evidence at the SHEV interview was based on the misconception caused by the error in interpretation that he had sold “part” of the land and his father had retained the rest. It was plainly a matter upon which the Authority placed weight. What is more, it is an inescapable inference from the Authority’s reasons, particularly at [33] but also at [28], that it did not believe the submission about “poor interpretation”. The interpreting errors are likely to have contributed to some extent to the Authority’s dim view of the first appellant’s credibility, which could well have affected its overall consideration of the first appellant’s evidence to fear harm from his relatives arising out of the land dispute.

Conclusion

86    Grounds 1 and 2 are not made out. Since I have found that the interpreter’s alleged error could have made a difference to the Authority’s disposition of his application, I will defer making orders until after the appeal in DVO16 is determined and, if necessary, give the parties the opportunity to make further submissions following the High Court’s judgment.

Associate:    

Dated:    27 November 2020