Federal Court. Could a mistranslation error leading to a finding that an applicant lacked credibility fall within the type of error referred to by the High Court in DVO16?
The Federal Court (FCA) described the holding of the majority in DVO16 (Kiefel CJ, Gageler, Gordon and Steward JJ) as follows:
(1) “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”: at 379 [8].
(2) In the context of a process which is conditioned on the requirement to accord a party natural justice, the question is whether the mistranslation has resulted in any unfairness in the decision-making process amounting to practical injustice: at 379 [8].
(3) In circumstances where the requirement of natural justice has been excluded or reduced to compliance with specific statutory requirements, the question is whether the mistranslation resulted in one or more of those requirements not being met: at 379 [8].
(4) The IAA’s duty is to consider the review material which has been provided to it so as to form its own assessment of the relevance of that particular material to the review of the decision and to weigh the material in making its decision on the review, and it is not disabled from performing that duty merely because of translation errors which might exist in any part of the review material: at 381 [17].
(5) There are two potential ways in which mistranslations in the material might result in non-compliance with the express or implied duties imposed on the IAA under Pt 7AA. First, the requirement of reasonableness in considering the review material and in the exercise of the power to receive new material may necessitate the IAA taking into account evidence of the mistranslations: at 381 – 382 [19]. If aware of the existence of errors of that nature, the IAA may act unreasonably if it were to fail to interview the referred applicant and then consider the applicant’s testimony as correctly translated, or if it were to proceed to undertake the review without having exercised its powers to obtain new information which addresses the errors: at 382 [20].
(6) The second way in which translation errors might result in non-compliance with Part 7AA of the Act is by preventing the IAA from performing its overriding duty to “review” the referred decision and in doing so undertake 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”: at 382 [22]. Mistranslations in the material before the IAA 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: at 382 – 383 [23].
The FCA answered that question as follows: