Federal Court of Australia

DKA18 v Minister for Immigration, Citizenship and Multicultural Affairs (Amended Notice of Appeal) [2022] FCA 953

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application be dismissed.

2.    The Appellant pay the First Respondent’s costs.

3.    The title of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

PERRAM J:

1    This is an application by the Appellant to file an amended notice of appeal and to rely on, at the hearing of the appeal, fresh evidence. The substantial point which arises from both of those matters is what the Appellant alleges to be bad interpretation by an interpreter during the course of his protection visa interview. There are two complaints: first, that at some points in the interview, words have been incorrectly interpreted; and secondly, that at various points in the interview, the interpreter interrupted the Appellant and prevented him from completing his answer.

2    The fresh evidence took the form of an affidavit by an interpreter skilled in Tamil who listened to the audio file which is available of the interview. The interpreter was able to interpret: (a) the Tamil questions asked by the interpreter at the interview; (b) the responses in Tamil by the Appellant; and (c) the interpreter’s translation of those responses in English. About five minutes of the interview were transcribed in that fashion for the purposes of the present application. The question comes before this Court in the form of an appeal from a judicial review action which was concerned with the lawfulness or otherwise of a decision made by the Immigration Assessment Authority (‘the Authority’). The particular complaint which was made at first instance to which this fresh evidence is or may be relevant was that the Authority was called upon to exercise a power it had to consider whether to receive what the Migration Act 1958 (Cth) Pt 7AA refers to as ‘new information’.

3    One of the claims that the Appellant made (and I should say there are others) was that two of his brothers had been involved in the Liberation Tigers of Tamil Eelam (‘the LTTE’) and that they had worked for intelligence in the LTTE. The Authority declined to receive letters to that effect which the Appellant tendered to it. It did so on the basis that those two claims were ‘new information’. They were new information because they had not been mentioned at the protection visa interview. I am prepared to assume for the purposes of the present application that the evidence demonstrates that sufficient irregularities have happened in the interpretation process to cast doubt upon the correctness of the approach which appears at [10] of the Authority’s reasons, in particular, the Authority’s statement:

I consider that the claim that they served in the LTTE intelligence unit is a new and embellished description of the type of role he previously claimed for his brothers and I consider it is new information.

4    I consider that the interpreter’s evidence suggests that either that is not actually what was said, or possibly, more likely that the Appellant was interrupted and prevented from giving his answer on that topic. There is a difficult question of law, in my view, as to whether the principles which the High Court has articulated in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 388 ALR 389 (‘DVO16’), about how deficient interpretation impacts upon a review under Pt 7AA, is to be applied in a circumstance such as the present.

5    The question which the Authority was seized of was not immediately, or in a direct sense, the review application under Pt 7AA. Instead it was dealing with an adjectival issue, which was whether it should receive new information in the course of discharging that review function. Its determination that the information was new because it had not been disclosed at the protection visa interview is not, therefore, an immediate discharge of the statutory review function under Pt 7AA. A contrary view would be that it is artificial to excise out of the review function the discharge of some ancillary function, such as the power to receive new information. I do not think it would be appropriate to determine the outcome of that question on an application such as the present, and therefore, I propose to accept, for the purposes of this application, that the reasoning in DVO16 can indeed be applied to a situation such as the present.

6    Consequently, I am prepared to accept that the Appellant, on the evidence he wishes to put before the Court, has an arguable case that something has gone wrong with the determination of whether there was new information. I would not say, necessarily, that it was a strongly arguable case. There are parts of the transcript which Ms Hooper, counsel for the Minister, took me to which are quite capable of trending in the opposite direction. For example, there is an available reading of the short part of the transcript which is available that the Appellant may be able to speak English. There are passages which indicate that, in terms which might be regarded as reasonably clear, he indicated that he really did not know what it was that his brothers had done with the LTTE.

7    I do not disregard those matters in reaching the conclusion I have indicated above. I have taken them into account. They contribute to my sense that, based on the small part of the interview which has been translated, there is something which is potentially worth looking at here. I should say, for completeness, that one of Ms Hooper’s forceful points was that only a very small part of the entire interview has been interpreted. No doubt, it would be useful to see the whole interview translated in the fashion which has been undertaken by those acting for the Appellant. It was exactly that proposition which formed Ms Hooper’s point that if the amendment were permitted and the evidence were allowed, it would be necessary to give to the Minister an adjournment in order to advance the very point I have just made. So, for those reasons, I accept that there is an arguable, although not strongly arguable, case and one which, at a high level of principle, I would accept would warrant an amendment.

8    There are, however, I think, two problems. The first is that the Appellant has not led any evidence as to why this point was not raised in the court below. The Appellant was represented by a solicitor in the court below and there is no doubt that this point was not something which was put to Judge Driver. In the course of his submissions, Mr Taylor submitted that the exercise of reasonable diligence on the part of the solicitor who had then appeared would not have led either to the obtaining of the audio recording or, assuming it was obtained, to the subjection of it to a process of close interpretive analysis of the kind which has been undertaken for the purposes of this application. I do not think, despite that submission, that it can be said that this evidence was not available for the purposes of the trial. The evidence consisted of the audio recording. The Appellant, who was present at the interview, could give instructions, but those who preceded Mr Taylor did not think to obtain instructions from the Appellant or to make contact with those sufficiently skilled in Tamil to conduct the kind of analysis which has now been undertaken. It does not entail that the evidence was not available by the exercise of reasonable diligence.

9    The second matter which is a problem is that I would accept the Minister’s submission that the consequence of acceding to the present application will be that the entire appeal will have to be adjourned. That will involve a depletion of costs which will be unrecoverable and some wasting of public time. Thus, whilst I accept that there is something in the interpreter argument which Mr Taylor wishes to raise, which has about it sufficient seriousness that would otherwise persuade me to give Mr Taylor what he seeks, the fact that the evidence was available by the exercise of ordinary reasonable diligence at trial and the fact that allowing the amendment to occur would cause the adjournment of the proceedings, together with my assessment that although the case is arguable, it is perhaps not the strongest arguable case, leads me to the conclusion that the application should be refused.

Associate:

Dated:    16 August 2022