DVO16 v Minister for Immigration and Border Protection & Anor [2020] HCATrans 51 (17 April 2020)

Last Updated: 17 April 2020

[2020] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S300 of 2019

B e t w e e n -

DVO16

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 17 APRIL 2020, AT 10.25 AM

Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR I. CHATTERJEE, for the applicant. (instructed by Norton Rose Fulbright Australia)

MR H.P.T. BEVAN: May it please the Court, I appear for the first respondent. (instructed by Clayton Utz)

NETTLE J: Mr Walker.

MR WALKER: Your Honours, could I take you immediately please to page 57 of the application book, paragraph 12 in the plurality reasons in the court below:

Left to one side‑

as their Honours there put it, which means a different case from the one their Honours thought they were looking at, were:

cases in which deficiencies in translation services are so manifestly apparent ‑

I lean on that phrase, “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.

The language at the end of that sentence is, correctly, the language of jurisdictional error. Their Honours say that was not this case. That would appear to be because of what might be called the catch‑22 that always appears when translation is necessary because of the linguistic skills or lack thereof of a decision‑maker, that is, if you do not understand Arabic of a particular ethnicity you are scarcely likely to find manifest any inadequacy in its interpretation.

That, in our submission, cannot surely be in accordance with principle, all the more so, that is, all the more glaringly so where that which is compulsorily relayed to the reviewer is that which has been understood in English by the original reviewer. We have referred to that as an important part of our reasonings in an attempt to obtain special leave at application book page 86, paragraph 14 in our submissions.

The very statutory truncation of that which could be required on the part of the second respondent is all the more reason to understand the significance of the material, jurisdictional in its nature, which is forwarded for the second respondent to perform the statutory duty. If by reason of an interpretation error understandably not manifest either to the first review decision‑maker or the second respondent then there is the kind of jurisdictional error which would naturally fall by reason of the inadequacy of the material upon which a decision‑maker is asked to make a decision.

At page 88 of the application book in our paragraph 21 of our submissions, we then note what might be called the succeeding step in our reasoning, which of course depends upon acceptance of the first one. If there is this deficiency, then had it been able to be understood then it could have been remedied, it being, we would submit, an elementary and uncontroversial proposition that the discretion would not be exercised legally reasonably not to repair the deficiency thrown up by inadequate translation.

Now, in this case the inadequate translation concerned a matter which can genuinely be described as fundamental or basic, a ground for treating protection turning on, relevantly, persecution on the ground of ethnicity, an abstract noun - an abstract noun that apparently probably defeated the interpreter and certainly eluded our client, there being no possible suggestion that that is something where either blame or some responsibility should be sheeted home to my client.

One knows how the original reviewer dealt with that failure of understanding, a matter which, in our submission, the Full Court, certainly the plurality reasons, would suggest that but for their error of reasoning already referred to there would have been a failure of procedural fairness, according to their Honours, by a failure properly to appreciate the lack of opportunity my client suffered properly to put his case in that regard.

Now, your Honours, it is for those reasons that in our submission this is a case which provides, without relevant factual controversy, an ideal vehicle to advance in these strictly constrained statutory decision‑making processes the enduringly important procedural fairness such as can survive statutory constraint, particularly with what this Court in Hossain, to which we make reference on page 89 in our paragraph 25, stress includes always and as a matter of principle, always significantly, the gravity of the error.

The gravity of the error here is that that which would have enabled the second respondent to repair the deficiency by a legally reasonable exercise of discretion to get new material was utterly defeated at the threshold by reason of the failure of translation.

GORDON J: Is that to put it in terms of Plaintiff S157 that in a sense there is no decision at all?

MR WALKER: That is exactly correct, your Honour, yes. The statutory scheme is for a review and then, if one likes, a review of a review, both statutorily constrained, and more constrained at the second stage. But it involves, obviously, relevant material being available. If you do not have the material, then you are not conducting a review of that which you ought to review.

GORDON J: Then can I ask one further question, Mr Walker? Is it your argument then that even if it is not that sort of Plaintiff S157 approach, here you have what I think is somewhere described as the linchpin event being the interview, failure of the interpretation and then is it the position that having in a sense these problems which are conceded properly by the Minister to be errors in the interpretation in effect is exacerbated by the fact that not only was the applicant deprived of the opportunity to respond to questions which the applicant understood, but the delegate obviously thought that they needed to ask the questions and then rely upon the answers to those questions to make their decision?

MR WALKER: Yes, and that is one of the ways in which we seek to make out the appropriate level of gravity of error, such as to ground its characterisation as jurisdictional. Yes, this cannot be said to be peripheral, incidental or redundant. It was central and critical. Your Honours, those are the reasons why, in our submission, this is a case fit for special leave. May it please the Court.

NETTLE J: Thank you. Mr Bevan.

MR BEVAN: Thank you, your Honours. If I may go directly to the opportunities on which I rely, which demonstrate the first respondent’s common answer to the two grounds of appeal below, namely, that that answer being that the applicant was given ample opportunity to state what he wished to state with regard to persecution and on those occasions, which were not impugned by the expert evidence as to interpretation, the applicant failed to give evidence to establish that claim.

May I ask your Honours to go directly to the application book on page 71. At paragraph 62, in the final sentence of 62, Justice Stewart records the submission made about those ample opportunities. In paragraph 63, in the first sentence, his Honour immediately accepted that submission on the basis that a close analysis of the transcript bore it out.

Your Honours will then see in paragraph 63 seven dot points. I wish to spend some moments now just cross‑referencing those to give your Honours the context in which Justice Stewart’s later comments about the effect of errors have significance.

The first dot point that your Honours see in paragraph 63 was the subject of the expert evidence. I need to direct your Honours then, your Honours will see that phrase in the passage on application book page 70 in the fourth‑last paragraph from the quotation, from the end of the quoted passage, and I will ask your Honours to note that passage and then also the second‑last question in the quoted passage:

Okay and why would that be?

I interpolate here, without asking your Honours to go to the passage, that the primary judge had set out the interpretations of those passages in her Honour’s reasons at paragraph 33, application book 38 to 39, but which were otherwise correct or accurate.

Significantly for present purposes, if your Honours then turn to application book 74 and 75, at paragraphs 78 to 79, Justice Stewart in paragraph 78 identifies, by reference to the passage that I have just taken to your Honours, what happened with the interpreter, and your Honours will see that in his Honour’s reasons in paragraph 75.

In the final two sentences at the top of application book 75, the effect was that the appellant’s attention was not directed to what she was interested, which was his ethnic persecution claim, but his attention was not also directed to the fact she was starting again, thus he likely understood the open questions that followed to be related to or a continuation of the inquiries about his tribal disputes.

My submission to your Honours and the point that I take from this is that his Honour’s statement there in relation to the open questions is referable to the two open questions that your Honours see in the quote, at the end of the quoted passage in paragraph 60.

NETTLE J: I take it, therefore, Mr Bevan, you dispute the finding of the plurality at paragraph 5 of their reasons for judgment?

MR BEVAN: My submission to your Honour is that paragraph 5 of Justices Greenwood and Flick, where they identify the errors in translation and the failure to translate the responses, is a reference to the very errors that his Honour identified in this passage, and then later at paragraph 82 on application book 76.

NETTLE J: Yes.

MR BEVAN: My point is, which I will come to immediately, that if your Honours then return to the application book at page 71, none of the other dot points apart from the first one – so each of the second, third, fourth, fifth, sixth and seventh – were the subject of any expert evidence going to interpretation. I would ask your Honours to note the open and general nature of those, in particular insofar as a claim to ethnicity is concerned, the last two questions and in response to which Justice Stewart made a finding that on each of those occasions the appellant referred back to the tribal conflict arising from the bus incident, or otherwise failed to say anything to establish a claim for persecution on grounds of ethnicity.

NETTLE J: What she was driving at was that Justice Stewart’s analysis is, in effect, a refutation or repudiation of what the plurality expressed at paragraph 5.

MR BEVAN: Yes.

NETTLE J: If the plurality is correct at paragraph 5 then Mr Walker is correct, is he not, that the issue to be decided is whether the fact that the error in interpretation was obscured from the decision‑maker and, indeed, from the point of view of the reviewer, does or does not leave in place the jurisdictional error that would exist, were it not for the fact that the error was obscured?

MR BEVAN: May I answer your Honour’s question slightly differently. It was no part of the first respondent’s case below that the interview with the delegate had to be anything other than a real and meaningful opportunity to be heard. As Plaintiff M174 establishes, Part 7AA of the review process is undoubtedly framed on the assumption that a decision to refuse to grant a visa to a fast‑track applicant will have been made in accordance with that procedure.

The point is that by virtue of the opportunities given in paragraph 63 a real and meaningful opportunity to be heard had in fact occurred and, therefore, the question as to what effect of a denial of a real and meaningful opportunity to be heard would have on a Part 7AA review did not – and, in my respectful submission, that is what their Honours - their Honours Justices Greenwood and Flick - were conveying in paragraph 12, by saying this is not one of those cases.

Those other cases will invariably be fact dependent, not only with respect to the question of interpretation, which is an evaluative task having regard to the number, type, frequency of errors, but it will also be affected in any particular case by what, if anything, was done by and to the Authority on behalf of the applicant with respect to the conduct of the review, and what if anything the Authority did in accordance with Part 7AA. Your Honours, those are my submissions.

NETTLE J: Thank you. Anything in reply, Mr Walker?

MR WALKER: Briefly. Your Honours, the case remains one which, on the facts found below, is a vehicle to test this notion that the subjective absence of knowledge, perhaps the impossibility of having knowledge of a defect in the relayed material for review cannot possibly be the disagreement between jurisdictional error and not. Your Honours have already seen and drawn to attention paragraph 5 in the plurality at page 55.

It is significant of course even in the reasons of Justice Stewart agreeing in the outcome, but for different reasons, page 76, paragraph 82, one sees matters which quite obviously could be regarded as alarming from the point of view of the genuineness according with what the statute required of what was before the Authority, the second respondent, for its ultimate decision.

Now, we know that things went off the rails badly before the delegate, by reason of the passage, some of which is quoted at page 74 of the application book, particularly at about line 21. It is for those reasons, in our submission, that the question of fact that my learned friend referred to as being an opportunity to be heard simply runs up against what plainly are in that sense concurrent findings of the plurality and corroborated by that observation by Justice Stewart concerning the mishap that has deprived my client of that which was required by the statute. May it please your Honours.

NETTLE J: Mr Walker, is the applicant still in detention?

MR WALKER: No, is the answer, your Honour.

NETTLE J: So I take it there is no particular urgency about the matter?

MR WALKER: I think that follows. I hesitate to give your Honour an unqualified answer because I am completely ignorant of any other personal circumstances, I am sorry. But in that regard, namely a person in effect in custody, no, that does not obtain.

NETTLE J: Thank you very much. In this matter there will be a grant of special leave. Counsels’ instructing solicitors will need to consult with the Registrar as to the directions which are in standard form.

MR WALKER: If it please the Court.

MR BEVAN: May it please the Court.

NETTLE J: I take it the matter can be completed well within one day, Mr Walker?

MR WALKER: Well within. Yes, your Honour.

NETTLE J: Mr Bevan, agreed?

MR BEVAN: Yes, your Honour.

NETTLE J: Thank you, gentlemen. We will adjourn now briefly.

AT 10.46 AM THE MATTER WAS CONCLUDED