Federal Court (Full Court): Due to translation issues, the Appellant did not understand a question that was asked of him at an interview with a delegate. The delegate refused that application. The Appellant then put the IAA on notice of the translation issues. Was the IAA "required ... to consider whether or not to request more information from the Appellant by exercising its power under s 473DC(3)"? Did the interpreter's errors bring this case within SZFDE in that those errors amounted to constructive fraud "on" the Tribunal?
The Appellant applied for a protection visa (PV) and a delegate of the Minister interviewed him pursuant to that application. The interview included the following exchange:
Delegate: Mm, it’s all right, okay. Moving on from that, it also says here that you say that you’ll be persecuted for your ethnicity. What do you mean by that?
Interpreter: Because sometimes he’s Ahwazi, sometimes he doesn’t understand my - I think my
Delegate: No, I think it means because you’re an Arab.
Interpreter: Yeah, because what happened, Arab, sometimes they use different expression.
Interpreter: He doesn’t know the meaning of it, even in Arabic.
Delegate: So obviously you don’t hold a fear of that, then, if you don’t know what it means.
The Appellant was given further opportunities during the interview to state whatever he wished with regard to his claim of persecution on grounds of ethnicity. The Appellant essentially did not avail himself of those opportunities.
The delegate refused to grant the Appellant the PV and the matter was automatically referred to the Immigration Assessment Authority (IAA) pursuant to Pt 7AA of the Migration Act 1958 (Cth).
The Appellant made written submissions to the IAA which included an argument that the reason why he was unable to advance his claim of persecution on the basis of ethnicity before the delegate was that the Appellant did not speak English and there were miscommunication issues during the delegate's interview.
Although the IAA listened to the recording of that interview, it did not consider whether to exercise its discretionary power to interview the Appellant or obtain new information from him. As a result, the IAA did not give the Appellant an opportunity to correct the miscommunication failures that occurred in the delegate's interview.
As set out in Pt 7AA, the IAA is not obliged to get new information or interview an applicant. However, it may do so (s 473DC(3)) if there are "exceptional circumstances to justify considering the new information" (s 473DD).
The IAA affirmed the delegate's decision and the Appellant then applied to the Federal Circuit Court (FCCA) for judicial review of the IAA's decision, but the FCCA dismissed that application.
The Appellant eventually appealed the FCCA's decision to the Federal Court (FCA) and the appeal was heard by the Full Court of the FCA (FCAFC), the questions to which were as follows:
Question 1: Should the IAA "have been put on notice by material before it that there had been a misunderstanding or miscommunication in the interview of the appellant by the delegate to such a degree that it had the result that fairness, or the requirement to act reasonably, required the Authority to consider whether or not to request more information from the Appellant by exercising its power under s 473DC(3) of the Act"?
Question 2: In light of expert evidence adduced on appeal that the above extracted exchange revealed "material errors of interpretation with regard to the appellant’s ethnicity claim", can it be said that the IAA made a jurisdictional error because a "consequence of those errors is that the Authority was deprived of considering the exercise of its discretion under s 473DC"? In other terms, can it be said that the interpreter's errors brought this case within SZFDE in that those errors amounted to constructive fraud "on" the Tribunal?
The FCAFC answered as follows:
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