BDR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2021] FCCA 501

FEDERAL CIRCUIT COURT OF AUSTRALIA
BDR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 501

File number(s): SYG 662 of 2019

Judgment of: JUDGE DRIVER

Date of judgment: 13 April 2021

Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant’s individual claims rejected and his fears about the general security situation in Bangladesh found not to be well-founded – whether the Authority erred in applying s 473FB(5) of the Migration Act 1958 (Cth) and not applying s 473DC considered – jurisdictional error established.

Legislation:
Migration Act 1958 (Cth), ss 36, 46A, 473DA, 473DC, 473DD, 473DE, 473EA, 473FB, 473GA, 473GB

Federal Circuit Court Rules 2001 (Cth)

Cases cited:
AAL19 v Minister for Home Affairs [2020] FCAFC 114

ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928

Avon Downs Pty Ltd v Federal Commission for Taxation (1949) 78 CLR 353

BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365

BJO18 v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs [2020] FCAFC 189

BRZ17 v Minister for Immigration and Border Protection[2019] FCA 677

BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091

CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641

DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551

DHV16 v Minister for Immigration and Border Protection (2018) 331 FLR 204

DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146

DPI17 v Minister for Home Affairs (2019) 269 FCR 134

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

DZT18 v Minister for Home Affairs [2019] FCA 1639

EBV17 v Minister for Immigration & Anor [2019] FCCA 1216

El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038

FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369

FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Minister for Home Affairs v DUA16 (2019) 95 ALJR 54

Minister for Immigration and Border Protection v CED16 (2020) 380 ALR 216

Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482

Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475

Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 6[12]

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

1 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326

2 MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436

Nguyen v Minister for Home Affairs (2019) 270 FCR 555

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612

WACO v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 131 FCR 511

WAGO of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 437

Number of paragraphs: 142

Date of hearing: 16 March 2021

Place: Sydney

Counsel for the Applicant: Mr D McDonald-Norman

Solicitors for the Applicant: Parish Patience Legal and Migration Services

Counsel for the Respondents: Ms K Hooper

Solicitors for the Respondents: Minter Ellison
ORDERS

SYG 662 of 2019

BETWEEN:
BDR19

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

13 APRIL 2021

THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision into this Court, for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 27 February 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Bangladesh. He arrived in Australia by boat on 1 June 2013 as an unauthorised maritime arrival.[1] Shortly after his arrival in Australia, on 10 June 2013 and 2 August 2013 the applicant attended two “entry interviews” with officers of the Minister’s Department (Entry Interviews).[2]
[1] Court Book (CB) 241
[2] CB 4-21
On 28 July 2016 the Minister exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa.[3]
[3] CB 22–23
On 23 September 2016 the applicant applied for a Safe Haven Enterprise Visa (SHEV).[4] In support of his application, the applicant claimed to fear harm on return to Bangladesh:[5]
(a)at the hands of the Awami League and the government and its security forces on account of his political activities in support of the Bangladesh National Party (BNP) in Bangladesh and in Australia; and
(b)on account of the deteriorating security situation and as a member of the Bangladeshi diaspora.
[4] CB 27–100
[5] CB 28
On 6 February 2017, the President of the Administrative Appeals Tribunal (President) issued a Practice Direction for Applicants, Representatives and Authorised Recipients (First Practice Direction) for the conduct of reviews in the Authority.[6]
[6] CB 268-272
On 3 October 2018, the applicant attended an interview with the Minister’s Department (SHEV Interview).
On 7 November 2018 the delegate refused to grant the applicant a SHEV,[7] having relevantly not accepted that the applicant had an adverse profile of interest to anyone in Bangladesh.[8] The delegate's decision was a “fast track reviewable decision” and, on 12 November 2018, it was referred by the Minister to the Authority for review.
[7] CB 236–253
[8] CB 246
On 11 December 2018, the applicant provided submissions to the Authority.[9] These submissions contained an extract from, and a link to, a report from Odhikar, a human rights organisation in Bangladesh (Odhikar Report).[10] On 4 January 2019 the applicant's representative provided a further submission and links to country information with extracted parts of the information on which he sought to rely.[11]
[9] CB 296-298
[10] CB 296
[11] CB 299
On 17 December 2018, the President issued a new Practice Direction for Applicants, Representatives and Authorised Recipients (Second Practice Direction).[12]
[12] CB 302
On 13 February 2019 the Authority wrote to the applicant's representative to inform him that it did not consider the submissions received on 11 December 2018 and 4 January 2019 were compliance with the Practice Direction.[13] The applicant was provided an opportunity to provide information that complied with the Practice Direction. On 14 February 2019 the applicant provided a further submission and attached two pieces of country information in the form of articles.[14]
[13] CB 302
[14] CB 303–308
As noted above, on 27 February 2019, the Authority affirmed the delegate’s decision.[15]
[15] CB 314-327
Decision of the Authority
The Authority detailed the information before it including the material given by the Secretary of the Minister, and the two submissions provided by the applicant in the course of its review.[16] In respect of the applicant's evidence and claims, the Authority found that it had serious concerns with respect to the credibility of his account and in relation to many aspects of his circumstances in Bangladesh, particularly in relation to his claim to have been politically active, as well as the timing and nature of his departure from Bangladesh.[17] Relevantly, the Authority found:
(a)the applicant confirmed at his arrival interview that he was not personally involved in politics;[18]
(b)the applicant had given inconsistent evidence about his departure from Bangladesh and travel to Australia;[19]
(c)there were significant inconsistencies in his evidence about his political activities in Bangladesh;[20]
(d)there was no credible evidence of any meaningful association with the BNP.[21]
[16] CB 315 at [2]
[17] CB 317 at [11]
[18] CB 318 at [16]
[19] CB 318 at [19]
[20] CB 319 at [20]–[22]
[21] CB 320 at [23]–[24]
For these reasons the Authority did not accept that the applicant was associated with the BNP and found that he would not face harm on account of any actual or imputed political opinion.[22] Having regard to the applicant's profile and country information, the Authority did not accept the applicant would face harm on account of the deteriorating security situation.[23] The Authority also found that the applicant would not face harm on account of his illegal departure or as a failed asylum seeker.[24]
[22] CB 321 at [27]
[23] CB 321 at [28]–[31]
[24] CB 322 at [32]–[39]
The Authority was not satisfied that the applicant met the refugee criterion under s 36(2)(a) of the Migration Act.[25] For the same reasons, the Authority found that the applicant had not satisfied the complementary protection criterion under s 36(2)(aa).[26] In these circumstances the Authority affirmed the decision under review.
[25] CB 322 at [35]
[26] CB 323 at [38]–[39]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 20 March 2019. The applicant was at that time not legally represented. He filed an amended application on 17 October 2019.
The matter came before me for a show cause hearing on 24 October 2019. Upon analysis, I came to the view that two issues raised arguable grounds of jurisdictional error by the Authority. The first concerned the refusal of the Authority to entertain new information which had been included in a submission to the Authority. The second was whether it was unreasonable for the Authority not to invite or consider inviting further information from the applicant in circumstances where the Authority reached adverse credibility conclusions that had not been drawn by the delegate. I made the following show cause order:
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to the following issues:
1. the treatment by the Immigration Assessment Authority (Authority) of new information by reference to s.473DD and s.473FB(5) of the Migration Act 1958 (Cth), having regard in particular to [25] of the Minister’s submissions filed on 17 October 2019; and
2. whether it was unreasonable for the Authority not to extend or consider extending the opportunity for the applicant to provide further information, either orally or in writing, in relation to adverse credibility conclusions drawn by the Authority, being findings of inconsistency, having regard to the PAM3 Guidelines on the use to be made of arrival interviews and the differing conclusions drawn by the delegate and the Authority about inconsistencies between what the applicant said at the arrivals interviews and his later claims.
The applicant subsequently obtained legal representation and a further amended application was filed on 30 March 2020. At the trial of this matter on 16 March 2021 I gave leave for the applicant to file, serve and rely upon a second further amended application annexed to the applicant’s written submissions, filed on 26 February 2021. The grounds in that application address in more detail my show cause order as follows:
1. The decision (Decision) of the Second Respondent (Authority) was affected by jurisdictional error because the Authority erred in exercising its discretion not to consider ‘new information’ (an extract from a report from Odhikar).
Particulars
a.The Applicant’s representative provided an extract from a report by ‘Odhikar’ dated 9 December 2018 (Odhikar Report) to the Authority: CB 296; Affidavit of Sophia Gabriel Mackenzie Annexure “A”.
b.The Authority exercised its discretion not to accept the extract from the Odhikar Report because, relevantly, ‘the applicant’s representative … has not attached any extracts or copies of [this report’: CB 315-316 [5].
c.In exercising its discretion pursuant to s 473FB(5) of the Migration Act 1958 (Cth) not to accept the extract from the Odhikar Report, the Authority:
i.exercised its discretion on the basis of a misunderstanding of the material before it (in that it erred in finding that that the Applicant had not attached an extract from the Odhikar Report in a manner which complied with the relevant Practice Direction for Applicants, Representatives and Authorised Recipients); and/or
ii.exercised its discretion on the basis of a misunderstanding of its powers pursuant to s 473FB(5) and the Practice Direction (in that the extract of the Odhikar Report provided by the Applicant complied with the Practice Direction as it stood at all relevant times).
d.If the Authority had not misunderstood the material before it and/or its powers:
i.the Authority may not have exercised, or been capable of exercising, its discretion not to accept the extract from the Odhikar Report pursuant to s 473FB(5); and
ii.the Authority may have found that the extract from the Odhikar Report satisfied s 473DD of the Migration Act 1958 (Cth) and hence considered that information.
e.If the Authority had received and considered the extract from the Odhikar Report, there is a realistic possibility that it may have reached different conclusions as to country conditions prevailing in Bangladesh and, in consequence, may have reached a different conclusion as to whether the Applicant satisfied s 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth).
f. In the premises, the Decision was affected by jurisdictional error.
2.The Decision was affected by jurisdictional error because the Authority’s decision not to seek, or not to consider seeking:
a.‘new information’ from the Applicant pursuant to s 473DC of the Migration Act 1958 (Cth); and/or
b.submissions from the Applicant;
was unreasonable.
Particulars
a.In the Decision, the Authority made adverse credibility findings against the Applicant because it found that ‘[t]he evidence he provided at the Entry Interviews [on 10 June 2013 and 2 August 2013] is significantly different to the accounts of his circumstances and reasons for leaving Bangladesh that he has later provided’: CB 317-318 [12]-[17].
b.The Authority did not request, or consider requesting, new information or submissions from the Applicant in respect of his failure to mention specified matters in his Entry Interviews.
c.The Delegate of the First Respondent (Delegate) did not make any adverse findings about the Applicant’s credibility on the basis of his failure to mention specified matters in his Entry Interviews: CB 241-253.
d.The Authority’s decision not to request, or consider requesting, new information and/or submissions from the Applicant was unreasonable, in circumstances where:
i.the Applicant had not been asked about all of the omissions in his Entry Interviews during his interview with the Delegate: Affidavit of Kate Briscoe-Hough Annexure “A”; cf EBV17 v MICMSMA at [88](d) and [89];
ii.the Delegate had not made any adverse findings against the Applicant on this basis;
iii.paragraph [4.50.2] of the Protection Visa Processing Guidelines (PVPG) provides that, where significant discrepancies between entry interviews and protection visa applications give rise to credibility concerns, ‘the applicant should be given an opportunity to further explain or comment’: Affidavit of Sophia Gabriel Mackenzie Annexure “B”; cf EBV17 v MICMSMA at [88](a) and (b); and
iv.without seeking further information or submissions, there was not a sufficient evidentiary basis to support an adverse credibility determination by the Authority based on the Applicant’s responses during the Entry Interviews: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82]; DPI17 v Minister for Home Affairs [2019] FCAFC 49 at [46](3).
e.If the Authority had sought ‘new information’ or submissions from the Applicant about the entry interviews, this new information or submissions could have affected the Authority’s assessment of the Applicant’s credibility.
f.In the premises, the Decision was affected by jurisdictional error.
At the trial, in addition to the court book filed on 24 May 2019 I received the following affidavits:
(a)the affidavit of Kate Briscoe-Hough made on 6 March 2020, to which is annexed a transcript of the record of interview conducted with the delegate on 3 October 2018;
(b)the affidavit of Sophia Gabriel Mackenzie made on 28 February 2020 (with the exception of [2] and Annexure A which was objected to) but which includes the Protection Visa Processing Guidelines in effect from 1 January 2019 – 1 March 2019 (PV Guidelines) (First Mackenzie Affidavit); and
(c)the affidavit of Ms Mackenzie made on 25 February 2021 to which is annexed the Second Practice Direction.
It is common ground that although an earlier practice direction was operative at the time this matter was referred to the Authority, there is no material difference between them.
CONSIDERATION
Ground 1 – was the admitted error by the Authority in the application of s 473FB(5) of the Migration Act material?
The Minister concedes that the Authority erred in its application of s 473FB(5) to the extract of the Odhikar Report, however the Minister contends that the applicant has not proven the Authority’s error to be material and therefore jurisdictional.
Subsection 473FB(5) of the Migration Act provides that the Authority is not required to accept new information from a person who fails to comply with a relevant direction and it is a discretion antecedent to the consideration required by s 473DD of the Migration Act which, in turn, is a qualified prohibition on the receipt of new information.[27]
[27] DHV16 v Minister for Immigration and Border Protection (2019) 331 FLR 204 at [96]
Both the applicant and the Minister agreed with my proposition above that s 473FB(5) vests in the Authority a discretion which is anterior to any consideration under s 473DD. The parties agreed to proceed on the basis (as developed during oral argument) that if the Authority had not made the admitted error, the Authority would have decided to consider the Odhikar Report extracts under s 473DD in particular, because it would be satisfied that there were exceptional circumstances.
The applicant’s contentions
What was the error?
Both Practice Directions were issued pursuant to s 473FB(1) of the Migration Act. The Practice Directions set out the requirements to be followed by applicants and their representatives in dealing with the Authority.[28] The Authority is not required to accept “new information” from a person if the person fails to comply with a relevant direction that applies to a person.[29]
[28] CB 268 at [3]
[29] section 473FB(5)

Paragraph [26] of the First Practice Direction provides, relevantly, that:[30]
[i]f you provide or refer to new information such as country information reports or media articles, you must provide a copy of that information or extract part(s) of the information on which you rely.
(applicant’s emphasis retained)
[30] CB 270
Paragraph [30] of the Second Practice Direction provides, relevantly, that:
[i]f you provide or refer to new information such as country information reports or media articles, you must… attach a copy of that information or an extract of the part(s) of the information on which you rely, and… identify the source of the information.
(applicant’s emphasis retained)
On 11 December 2018 (six days before the Second Practice Direction took effect), the applicant’s representative provided submissions to the Authority. Those submissions contained an extract from the Odhikar Report.[31] The extract was in italics and identified its source. The applicant’s representative submitted this extract “should not be disregarded as it is published after the Department decision”,[32] and hence explained why that information satisfied s 473DD(b)(ii).
[31] CB 296
[32] CB 296
On 13 February 2019, the Authority wrote to the applicant’s representative. It paraphrased [30] of the Second Practice Direction, stating that that paragraph required applicants to “attach a copy of that information or extract part(s) of the information on which you rely and identify the source of the information” (applicant’s emphasis retained).[33]
[33] CB 302
In its letter, the Authority stated, relevantly, that the applicant’s submissions of 11 December 2018 “make only brief references to the new information, and do not attach any extracts or copies of the reports cited”, and that the information provided in the submissions “does not comply with a key aspect of the Practice Direction”.[34] The Authority provided the applicant’s representative with “an opportunity to provide information that complies with the current Practice Direction” by 14 February 2019, warning that if he did not do so the Authority “may not accept the new information you have provided in the 11 December 2018 and 14 January 2019 submissions”.[35]
[34] CB 302
[35] CB 302
The applicant’s representative did not re-submit the Odhikar Report (or any extract from it).
On 27 February 2019, the Authority made its decision.
While acknowledging that “the sources of the information are identified and the representative has also provided hyperlinks”, the Authority found that it was “difficult to gauge” if the applicant’s arguments as to the content of the Odhikar Report were accurate, “as the applicant’s representative has made only a brief reference to the new information, and has not attached any extracts or copies of [the Odhikar Report]”.[36]
[36] CB 315 at [5]
The Authority found that the “new information” (the extract from the Odhikar Report) “does not comply with a key aspect of the Practice Direction”.[37] It noted that the applicant’s representative was an experienced migration agent, that he had been given an opportunity to provide the new information in a manner which complied with the Practice Direction, and that he had not done so.[38] As a result, the Authority “decided not to exercise [its] discretion to accept this information”.[39]
[37] CB 315 at [5]
[38] CB 316 at [5]
[39] CB 316 at [5]
The Authority hence relied on its finding that the applicant’s representative had not attached any extract from the Odhikar Report in determining that he had not complied with the Practice Direction.
That finding was reached in error.
The applicant’s representative’s submissions of 11 December 2018 provided the extracts from the Odhikar Report on which the applicant sought to rely.[40] The extracts were provided in a manner which complied with the First Practice Direction (that is, the Direction in force at the time).
[40] CB 296; Annexure “A” to the First Mackenzie Affidavit, pages 18 at [22] and 20 at [26]-[27]
Further, the extracts from the Odhikar Report were provided in a way which substantially complied with the Second Practice Direction, even though that direction came into force after the applicant’s representative’s submission. The applicant submits that the Second Practice Direction’s requirement to “attach” an extract should not be read to literally require a separate file “attached” to an email (especially given that new information need not be supplied by email); the word “attached” should be read in its ordinary, and not technical, sense. It was sufficient for the applicant’s representative’s submission to “attach” the extracts from the Odhikar Report by including them in the body of the email to the Authority itself.
The Authority erred in determining that the extracts from the Odhikar Report were not provided in a way which complied with the Practice Directions. It hence erred in how it determined that it was permitted by s 473FB(5) to exercise its discretion not to accept this new information. If not for that error, the Authority could have determined that that discretion did not arise, or it could have decided not to exercise that discretion.
The Authority’s error can be characterised in several ways.
First, it can be characterised as a misunderstanding of the contents of the 11 December 2018 submission. The Authority thought that the applicant’s representative had not attached an extract from the Odhikar Report, when he had in fact provided an extract from the Odhikar Report in a manner permitted by both Practice Directions. This misunderstanding, or this unwarranted assumption, is said to have given rise to a constructive failure to consider that submission or the material before the Authority; like in WAGO of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs[41] at [51] and [54], a mistake by the Authority as to its processes and procedures led it to fail to consider questions raised by the material before it. This failure to consider a submission or “new information” provided to the Authority led, in turn, to jurisdictional error.[42]
[41] [2002] FCAFC 437
[42] Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 at [63]; DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 at [46]-[48] and [54]
Secondly, it can be characterised as a misunderstanding or misconstruction of the Second Practice Direction. The Authority thought that the Second Practice Direction had been breached, when in fact the way in which the applicant provided the extract from the Odhikar Report did not breach either Practice Direction in that way. This mistake led to the incorrect application of the Second Practice Direction by the Authority[43] in its exercise of its antecedent discretion whether to consider the extract from the Odhikar Report.[44]
[43] AAL19 v Minister for Home Affairs [2020] FCAFC 114 at [39]
[44] DHV16 at [97]
The applicant contends that either of these characterisations would give rise to an error of law.
Was the Authority’s error material to its exercise of power?
The applicant submits that, in order to establish jurisdictional error, an applicant does not need to show that a failure to consider country information is likely to have changed the outcome. An applicant needs to merely establish that the failure to consider country information denied them a possibility of a successful outcome or could realistically have resulted in a different decision.[45]
[45] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]; DZT18 v Minister for Home Affairs [2019] FCA 1639 at [24]
The extracts from the Odhikar Report are said to have been relevant, contemporary information about the political situation in Bangladesh in November 2018 (that is, predominantly after the delegate’s decision). This information was more recent than the country information considered by the delegate.
The applicant had submitted that he would be at risk in Bangladesh as a result of widespread criminal activity in Bangladesh.[46] The Authority accepted that “[t]he Applicant has consistently claimed to fear harm on account of the chaotic and violent security environment in Bangladesh”,[47] but the Authority was not satisfied that the “chaotic and violent security environment in Bangladesh” exposed the applicant to a real chance of persecution or a real risk of significant harm.[48] This was based, in part, upon the Authority’s finding that only persons involved in certain forms of political activism “persons who are members of or closely associated with political parties, extremist Islamist groups, or criminal gangs”[49] were at risk in Bangladesh.
[46] see eg CB 300
[47] CB 321 at [29]
[48] CB 321-323 at [29]-[31] and [38]
[49] CB 321 at [29]
If the Authority had not declined to consider the extracts from the Odhikar Report, it could then have determined that that information satisfied s 473DD of the Migration Act. (Relevantly, that information post-dated the delegate’s decision and was hence information which could not have been provided to the delegate for the purposes of s 473DD(b)(ii).) If the Authority had done so, that information could have affected the Authority’s assessment of the country situation in Bangladesh at the time of the decision, even given its credibility findings regarding the applicant. In particular, the extract from the Odhikar Report indicates that:[50]
[l]eaders and activists of the ruling Awami League and its affiliated organisations are enjoying impunity for committing criminal offence, due to absence of democracy, accountability and rule of law.
[50] CB 296
This information about the “impunity” enjoyed by the Awami League could realistically have led the Authority to conclude that a broader range of people were at risk (including from criminal conduct) than those accepted to be at risk by the Authority at [29].[51]
[51] CB 321
There is hence said to be a realistic possibility that, if the Authority had not made its mistake, it could have exercised power differently. Its error was hence a jurisdictional error.
Minister’s contentions
Relevant background to Ground 1 of the amended application
There are references in the material in the court book to reports by Odhikar predating the Odhikar Report. They include, but are not limited to, multiple references to information from monthly reports by Odhikar in covering correspondence enclosing the SHEV application. For example, at [100],[52] the following appears (reproduced as written, emphasis in original):
We submit recent country information confirms that opposition political activities face serious and arrests, particularly Odhikar noted in its report that in February 2015, 38 persons were killed and 714 were injured in political violence. According to information gathered by Odhikar, in August 2015, According to information gathered by Odhikar, in June 2016, in May 2016, 51 persons were killed and 1569 were injured in political violence. In its most recent report Odhikar noted the following:
This practice has flourished through the criminal activities of the leaders and activists of Chhatra League and Jubo League across the country. They are attacking leaders and activists of the opposition political parties. The law and justice delivery system of the country is becoming increasingly unstable and human rights are blatantly violated, due to the persistence of extrajudicial killings.
[52] CB 71
By email dated 13 November 2018, the Authority provided the applicant with a copy of the First Practice Direction. The relevant paragraph of the First Practice Direction is [26].[53] That paragraph reads:
If you provide or refer to new information such as country information reports or media articles, you must provide a copy of that information or extract part(s) of the information on which you rely. You must identify the source of the information. Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable.
[53] CB 270
By email dated 11 December 2018, the applicant’s representative wrote to the Authority, relevantly as follows:[54]
On 09 December 2018, ODHIKAR, Human Rights Odhikar in its monthly report entitled, Monitoring Report on Bangladesh Reporting Period: 1 – 30 November 2018, relevantly noted: [ repression on citizens and organisations having alternative beliefs or dissenting voices continues.
(page 15)
….
In November 2018, according to information gathered by Odhikar, 11 persons were killed and 461 persons were injured in political violence. Furthermore, 20 incidents of internal violence in the Awami League and two in the BNP were also recorded during this period. 11 persons were killed and 282 were injured in internal conflicts within the Awami League while 35 persons were injured in conflicts within the BNP. 27. Leaders and activists of the ruling Awami league and its affiliated organisations are enjoying impunity for committing criminal offence, due to absence of democracy, accountability and rule of law. Allegations of murder, violence against women, suppression on dissenters, extortion, forcefully acquiring tender bids, land grabbing, fixing admissions at educational institutions etc were reported against them. (page 17)
[54] CB 296
The representative submitted that “the most recent country information which is published recently confirms volatile and worsening political and security situation in Bangladesh due to the upcoming election in end December 2018. We submit that the above new information should not be disregarded as it is published after the Department decision. …”. The submissions continued to refer to the likelihood of violence at the time of the (then) upcoming December 2018 elections.
On 17 December 2018, the Second Practice Direction was issued. Paragraph 30 of the Second Practice Direction states:
If you provide or refer to new information such as country information reports or media articles, you must:
- attach a copy of that information or an extract of the part(s) of the information on which you rely, and
- identify the source of the information.
Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable.
On 4 January 2019, the applicant’s representative wrote to the Authority by email and provided extracts of two media articles dated December 2018.[55] They were both dated December 2018 and concerned violence at the Bangladeshi general election held in that month.
[55] CB 299
On 13 February 2019, the Authority wrote to the applicant’s representative by email, relevantly as follows:[56]
The IAA ‘Practice Direction for Applicants, Representatives and Authorised Recipients’ (the Practice Directions) published 17 December 2018 states “If you provide or refer to new information such as country information reports or media articles, you must attach a copy of that information or extract part(s) of the information on which you rely and identify the source of the information. Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable.”
The information you have provided to the IAA in the submissions received on 11 December 2018 and 14 January 2019 [sic, 4 January] refer to a range of country information concerning the changes to the political and security situation in Bangladesh, however these make only brief references to the new information, and do not attach any extracts or copies of the reports cited. Attaching extracts or copies allows the IAA to consider the information in its context and avoids issues such as broken hyperlinks. The information provided in your submissions does not comply with a key aspect of the Practice Direction. You have an opportunity to provide information that complies with the current Practice Direction ...
[56] CB 302
The representative provided a further submission on 14 February 2019.[57] The representative did not resubmit the extract from the Odhikar Report, which had predicted electoral violence in and around December 2018. Instead, the representative attached two media articles, dated 30 and 31 December 2018, concerning in summary the number of persons killed in election-day clashes in Bangladesh. The representative stated that:[58]
…the most recent country information confirms volatile and worsening political and security situation in Bangladesh in the aftermath of the General election in December 2018. We submit that country information seems to indicate that there is no sign of improvement in country’s political and security situation. We note that the Awami League has enjoyed its power since 2008 and evidence indicates that the Awami League members and supporters taken the law in their to extremes with the active or passive support from the authorities in order to harass or intimidate BNP/ Jamaat activists.
Country information confirms there would be a risk of mass violence in Bangladesh due to the deep rooted hatred and competition between the Awami League and the BNP and is likely to be particularly acute further in the aftermath of the general election. …
[57] CB 303
[58] CB 308
At [2],[59] the Authority identified that it had received submissions from the applicant’s representative on 11 December 2018 and 4 January 2019. The submissions provided country information concerning the political and security situation in Bangladesh. This information was not provided to the delegate and was new information. The Authority referred to the abovementioned correspondence of 13 February 2019, and the further submission of 14 February 2019.
[59] CB 315
At [4],[60] the Authority referred to its Practice Direction, extracting the same part as is set out above in its 13 February 2019 email to the applicant’s representative. The Authority considered the extract from the Odhikar Report at [5][61] of its reasons (together with other reports). It stated:
The 11 December 2018 submission cites the Bangladeshi human rights monitor 'Odhikar' monthly report published on 9 December 2018 concerning the escalating competition between the two major political parties in Bangladesh ahead of the upcoming general election. It also cited the UN April 2017 report 'Concluding Observations on the Initial Report of Bangladesh' in support the claims in relation to Bangladesh's security forces' long-time practice of extrajudicial killings, arbitrary arrest, torture, and other grave human rights violations. The sources of the information are identified and the representative has also provided hyperlinks, however it is difficult to gauge if the arguments are an accurate depiction of the assessments in either of these reports as the applicant's representative has made only a brief reference to the new information, and has not attached any extracts or copies of either of these reports. The applicant has also presented a submission with arguments and more contemporary information that relates to the outcome of the December 2018 Bangladeshi election and its aftermath. Regardless, the information does not comply with a key aspect of the Practice Direction. I note that the applicant's representative is an experienced migration agent who is familiar with the Practice Direction, and that the IAA had notified the agent that this information did not comply with the Practice Direction and provided the representative with an opportunity to provide the information in a manner that complied, and he has not done so. In the circumstances I have decided not to exercise my discretion to accept this information.
[60] CB 315
[61] CB 315-316
The Authority ultimately rejected the applicant’s political claims in their entirety.[62] It found that as an ordinary citizen of Bangladesh, in light of evidence concerning the security situation in that country, the applicant did not face a real chance of serious harm.[63]
[62] see CB 321 at [27]
[63] at CB 321 at [29]; 321-322 at [31]
Disposition of Ground 1 of the amended application

The Minister accepts that the Authority misconstrued [30][64] of the First Practice Direction. The First Practice Direction does not require that proposed new information such as country information be extracted as a document that is separate from a written submission. The First Practice Direction permits, as here, that an extract from country information be incorporated into the body of a written submission where it is clearly identified as being a quote, and the source is cited.
[64] CB 270
The Authority’s misconstruction of [30] of the First Practice Direction was of relevance to the way that it applied s 473FB(5) to the extract from the Odhikar Report and, as such, the Authority has erred in its application of s 473FB(5) to the extract from the Odhikar Report. Specifically, the Authority was not empowered by that subsection to refuse to accept “new information” on the basis that the applicant had not complied with the First Practice Direction. This is the case, regardless of whether the First Practice Direction, or the Second Practice Direction, is the one that governed the Authority’s exercise of power with respect to the submission.
The issue arises, however, as to whether the Authority’s error was material and therefore jurisdictional. The applicant bears the onus of proving materiality, as a question of ordinary fact. The test is whether the error deprived the applicant of the possibility of a favourable outcome.[65]
[65] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134-135[30]-[31] per Kiefel CJ, Gageler and Keane JJ, 147-148[72] per Edelman J; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 433[4], 444-445[44]-[46], 445-446[49] per Bell, Gageler and Keane JJ
If the Authority had not made the error it did, then the regular administration of the Migration Act[66] would have required it to consider and determine whether each of ss 473DD(a) and (b) were satisfied in relation to the extract of the Odhikar Report provided to it. Objectively, s 473DD(b)(i) was met; the Odhikar Report post-dated the delegate’s decision. Whether or not s 473DD(a) was met was an evaluative factual question for the Authority.
[66] SZMTA 445 at [47]
Assuming favourably to the applicant that the Authority may have found s 473DD was satisfied and considered the “new information”,[67] that being the extract of the Odhikar Report provided to it, the consequence of its admitted error is that the Authority did not consider the new information provided to it, that being the extract from the Odhikar Report.
[67] section 473DC(1)
The Minister submits that when one has regard to the extract from the Odhikar Report at CB 296, it is plain that, had the Authority considered the extract, this would have made no difference to its decision. That is because the Authority:
(a)already had before it more recent information from the applicant concerning the general security situation in Bangladesh following the December 2018 election, confirming the predictions of violence made by the extract from the Odhikar Report, and which the Authority found there existed exceptional circumstances to justify the consideration of;[68]
(b)already had similar information before it from the same source;
(c)was not satisfied that the applicant had been, or was, a BNP member, activist or supporter, and was not satisfied that the applicant was a person of interest to the Awami League or the Bangladeshi security forces;[69]
(d)was not satisfied that the applicant would be imputed to hold any particular opinion if he were to return to Bangladesh;[70]
(e)found that the applicant had never personally been threatened or harmed in Bangladesh;[71] and
(f)found that the applicant was an ordinary Bangladeshi civilian.[72]
[68] at CB 316 at [7] (and see CB 304 and following)
[69] at CB 321 at [27]
[70] at CB 321 at [27]
[71] at CB 321[28]
[72] at CB 321[29]
The Minister submits that particularly relevant are the Authority’s findings at [29] and [31].[73] There, the Authority had regard to the security situation in Bangladesh by reference to up-to-date country information including that most recently provided to it by the applicant. At [31], the Authority expressly referred to evidence of political violence in the lead up to the December 2018 General Election in Bangladesh, and to the deaths of 14 persons in clashes between activists of the Awami League and the BNP. The Authority found that, in considering the information before it, including the representative’s three submissions to it, there were no indications that there had been any mass violence in Bangladesh or further escalation of political violence since the immediate aftermath of the December election. The information before it did not suggest that the security situation for ordinary Bangladeshis had deteriorated in the two months since the Bangladeshi election. The Authority was not satisfied that violent incidents involving the harming of unrelated bystanders occurred in Bangladesh to the extent that the applicant faced a real chance of harm.
[73] CB 321-322
The Minister contends that the extract from the Odhikar Report could have had no bearing on these findings. It related to the period 1-30 November 2018,[74] which was before the December 2018 General Elections. The extract from the Odhikar Report was overtaken by the country information the applicant’s representative submitted commencing at CB 304. The representative could have, but did not, resubmit the extract from the Odhikar Report. The Minister submits that it should be inferred that he made a conscious decision not to do so, in light of the fact that the extract from the Odhikar Report had been overtaken by the more recent information.
[74] CB 296
The applicant submits that the “extracts from the Odhikar Report were relevant, contemporary information about the political situation in Bangladesh in November 2018 (that is, predominantly after the Delegate’s decision)” and more recent to that considered by the delegate. That may be accepted as regards the delegate’s decision, but the extract was not contemporary information at the time of the Authority’s decision;[75] it had been superseded by the more recent information the applicant’s representative chose to submit to the Authority. The Authority had regard to the newer information.[76]
[75] The Authority recognised this at CB 315[5], four lines from the bottom of the page.
[76] CB 316[7]
The Minister submits that the applicant cannot show that, if the Authority had considered the extract from the Odhikar Report, it could have reached a different decision. The applicant relies entirely on a particular statement in the extract from the Odhikar Report that “[l]eaders and activists of the ruling Awami League and its affiliated organisations are enjoying impunity for committing criminal offence[s], due to absence of democracy, accountability and rule of law”.[77] The Minister submits that this statement, about the impunity enjoyed by Awami League leaders and activists, could have had no realistic bearing on the outcome of the Authority’s decision, including on the range of persons at risk as identified by other country information. That includes, primarily, because the material before the Authority was replete with references to the impunity state and non-state actors enjoyed, in Bangladesh.
[77] CB 296
For example, the submission at CB 308 relevantly referred to impunity for crimes committed by members of security forces. Other references to state agencies, political parties, security forces and paramilitary groups operating with impunity in material before the Authority include at [68],[78] [82]-[83],[79] [84],[80] [148],[81] [152(c)],[82] [168],[83] [5.6] (DFAT Report),[84] and emailed submissions at CB 297 and 300.
[78] CB 57
[79] CB 64
[80] CB 65
[81] CB 82
[82] CB 83
[83] CB 89
[84] CB 193
Resolution
It might be thought incongruous that the Minister maintains that the new information from the Odhikar Report could not have made any difference to the outcome of the review while conceding (expressly during oral argument) that the Authority would have found that there were exceptional circumstances for considering the new information. While it is not unusual for the Authority to be unpersuaded by new information it has agreed to consider because of exceptional circumstances, I am not aware of any previous authority on the question of whether information considered due to exceptional circumstances could not have affected the outcome.
Nevertheless, the Minister maintains that position in light of the nature of the applicant’s claims and the available information in relation to them. The Minister also pays detailed regard to the reasoning of the Authority.
In my view, the Odhikar information which was excluded from consideration by the Authority, could have made a difference to the outcome in relation to the Authority’s consideration of generalised violence in Bangladesh, notwithstanding the adverse credibility findings made by the Authority in relation to the applicant’s claimed political activities.
The Odhikar information dealt with the risk of politically motivated violence in Bangladesh associated in particular with then upcoming elections. The Authority rejected the applicant’s claimed political profile and the Odhikar information had no bearing upon that profile. Rather, the relevance of the Odhikar information related to the risk which politically motivated violence had to the general population, especially around election time, and perhaps, the risk of generalised community violence more generally.
This was a claim considered by the Authority and rejected. While it might be said that the decision of the Authority on that claim was open to it on the material before it, there was a good deal of country information that supported the proposition that significant community violence in connection with elections was expected (or had occurred).
In my view, it is at least possible that the Odhikar information, if added to the other information before the Authority, could have made a difference. Considered cumulatively, the available information would have supported a conclusion that there was more than a remote possibility that the Bangladeshi community generally, including the applicant, could be impacted by politically motivated violence, notwithstanding a lack of individual political activity.
I find that the first ground of review has been established.
Ground 2 – did the Authority unreasonably fail to invite, or consider inviting, the applicant to provide additional information before making adverse credibility findings not made by the delegate?
Applicant’s contentions
What were the relevant findings?
In its decision at [11], the Authority raised “serious concerns with respect to the credibility of the [applicant’s] account of many aspects of his circumstances in Bangladesh, particularly in relation to his claim to having been politically active, as well as the timing and nature of his departure from Bangladesh”. One of the bases for the Authority’s “serious concerns” at [15]-[16] was that the applicant provided different accounts of his travel to Australia and of his reasons for leaving Bangladesh between his Entry Interviews and his subsequent accounts. The Authority noted at [12], in this regard, that the applicant had said during the SHEV Interview that “he did not provide truthful answers in this interview as he was scared when he first arrived in Australia, and afraid of the consequences of the interview”.
After considering these apparent discrepancies between the Entry Interviews and subsequent accounts, the Authority found as follows at [17]:
The evidence [that the Applicant] provided at the Entry Interviews in 2013 is significantly different to the accounts of his circumstances and reasons for leaving Bangladesh that he has later provided. Given the extent of these discrepancies and omissions, the centrality of his long term association with the BNP to his protection claims, as well as the matters that he did mention, I do not accept that the applicant’s complete omission of any part of his claim to be a member or supporter of the BNP, or his omission of having lived and worked in Malaysia for six years can be plausibly attributed to the applicant’s unspecified fear of providing truthful answers.
Further adverse findings were made on this account at [19] and at [22].
What was the error?
Section 473DC of the Migration Act confers a discretion, although not a duty, to obtain documents or information which were not before the Minister but which the Authority considers relevant.[85] The Authority’s powers under s 473DC must be exercised reasonably.[86] This includes reasonable exercise of the Authority’s discretion to consider the exercise of its discretion in this regard.[87]
[85] Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [69]
[86] CRY16 at [82]; Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at [27]
[87] CRY16 at [82]; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [74]
There are no fixed categories of circumstances in which it would be legally unreasonable to fail to exercise, or to consider the exercise, of the discretion in s 473DC.[88] Unreasonableness in a given case can only be determined by “close attention to the particular facts in which the issue of legal unreasonableness is raised”,[89] but this can include circumstances where there is not a sufficient independent evidentiary basis to support a determination by the Authority unless the Authority exercises its power under s 473DC.[90]
[88] CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [42]; DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at [37]
[89] DPI17 at [42]
[90] DPI17 at [46](3); ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at [29]-[30]
A mere lack of reference to the consideration or exercise of a discretion does not, of itself, mean that a decision-maker did not consider exercising that discretion,[91] but there may be circumstances where the lack of any information in the reasons as to, or reference to consideration of, the exercise of the discretion supports an inference that the discretion was not considered.[92]
[91] CCQ17 at [39]; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at [40]
[92] CCQ17 at [39]
There are four relevant circumstances which are said to cumulatively render the Authority’s failure to exercise its power under s 473DC, or its failure to consider exercise of its power under s 473DC, legally unreasonable:
(a)the fact that not all of the discrepancies were put to the applicant for comment during the SHEV Interview (and hence that the Authority did not have available explanations from the applicant on all these discrepancies);
(b)the fact that the delegate accepted the applicant’s explanations as provided in the SHEV Interview;
(c)the PV Guidelines; and
(d)the lack of a sufficient evidentiary basis to support an adverse credibility determination by the Authority based on the applicant’s responses during the Entry Interviews (without seeking further information or comment from the applicant).
The SHEV Interview
The Authority found at [12] that “[i]n the SHEV interview the applicant acknowledged that there were a number of omissions in his responses during the [Entry Interviews] and provided reasons for this”, but not all of the “discrepancies” between the Entry Interviews and later accounts on which the Authority relied were put to the applicant for comment during the SHEV Interview.
During the SHEV Interview, the delegate put to the applicant that he had said in his Entry Interviews that he had left Bangladesh in 2013 without a passport (and that prior to that he had been unemployed in Bangladesh), whereas in later accounts he had claimed to have lived in Malaysia from 2007 to 2013.[93] In response, the applicant stated that “when I first arrived I was very scared, and what I told, I mean, that was not correct”,[94] but the delegate never put to the applicant that his account of his political involvement and his reasons for leaving Bangladesh in the Entry Interviews differed from that which he had later claimed, which was another “discrepancy” on which the Authority relied.[95] The Authority hence had no explanation or submissions from the applicant about why he had not mentioned his political associations or involvement in the Entry Interviews, and he was not given an opportunity to provide any.
[93] Transcript page 18.19-33
[94] Transcript page 18.35
[95] CB 318 [16] and CB 319 [20]-[22]
The delegate’s decision
In her decision, the delegate noted that “the information the applicant provided to the Department on his arrival in 2013 was significantly different to the information in his PV application and further, at his PV interview”.[96] However, she accepted that, “[c]onsidering the nature of the journey by boat from Malaysia to Australia and the conditions in which he was entering Australia without a valid passport and visa, I accept the applicant’s statement that he was scared on arrival and as such, gave incorrect information to the Department at the arrival interview”.[97] She hence accepted his account of having travelled legally from Bangladesh to Malaysia in 2007, having lived in Malaysia from 2007 to 2013, and having travelled directly from Malaysia to Australia via Indonesia in 2013 by boat.[98]
[96] CB 243
[97] CB 243
[98] CB 243
The Authority is not required to seek new information from an applicant merely or solely because it intends to depart from favourable findings made by a delegate.[99] This integer is hence not sufficient by itself to make the Authority’s failure to exercise, or failure to consider exercise, of its s 473DC powers unreasonable, but this factor is capable of being one integer among many in the broader determination of whether the Authority erred in not seeking further information from an applicant in the context of an individual case. Because the delegate had accepted the applicant’s explanations in this regard, the applicant had no cause to provide any explanation or submissions to the applicant about why his story had changed between the Entry Interviews and his later claims, or why those later claims should nonetheless be accepted.
[99] DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [70]-[76]; ABT17 at [24]
The PV Guidelines
The PV Guidelines are processing guidelines issued by the Minister’s Department to assist in the assessment of protection claims. Section [4.50] of the PV Guidelines as at the date of the Decision is Annexure “B” to the First Mackenzie Affidavit.
Section [4.50.2] provides, relevantly:[100]
Discrepancies may arise between claims presented at point of entry interviews and PV interviews. As entry interviews usually occur soon after arrival, applicants may be in a state of shock or anxiety and, as such, may not understand the significance of providing information relevant to their protection claims. Decision makers should also be aware that it is unusual for persons to recall the same event in the same way on each occasion.
Furthermore, primary consideration should be given to claims provided in the PV application and interview as entry interviews are not for the purpose of obtaining details of protection claims or investigating those claims. If significant discrepancies give rise to credibility concerns, the applicant should be given an opportunity to further explain or comment
[100] Annexure B to the First Mackenzie Affidavit, page 32
The applicant concedes that this statement (and its equivalents in previous versions of the PV Guidelines) does not, of itself, give rise to an obligation on the part of the Authority to provide the applicant with a hearing opportunity.[101] The PV Guidelines are hence not by themselves sufficient to give rise to a “hearing opportunity”, or by themselves sufficient to create an obligation on the part of the Authority to seek “new information” from the applicant under s 473DC of the Migration Act.
[101] EBV17 v Minister for Immigration & Anor [2019] FCCA 1216 at [89]

The applicant contends, however, that they are nonetheless relevant as part of the broader context within which that discretion to seek new “information” should be exercised (and in determining whether it is “unreasonable” not to seek, or not to consider seeking, new information). That is, they are capable of being an integer in the broader assessment of unreasonableness. The applicant was not given an opportunity to further explain or comment in response to the full range of the Authority’s credibility concerns regarding the Entry Interviews, despite the matters listed in section [4.50.2] as to why these discrepancies may arise and contrary to the Minister’s Department’s own practices of seeking additional explanation or comment in these circumstances.
Lack of a sufficient evidentiary basis
The Authority acknowledged that it did not have an audio record of “Part One” of the Entry Interviews (presumably the Entry Interview which took place on 10 June 2013).[102] However, it stated that it had reviewed the audio record of “Part Two” (presumably the Entry Interview of 2 August 0213), and made findings as to the applicant’s demeanour and mode of presentation during the course of that interview:
It is not apparent from the audio record that the applicant was in a state of fear or anxiety, it appears the interview was conducted in a calm and considered manner. The applicant chose to answer some questions directly in English without waiting for the Bengali interpreter, and he provided detailed and highly specific answers to many questions about many aspects of his circumstances in Bangladesh that he has since confirmed are accurate. He also described in some detail the volatile political and security situation in Bangladesh and how it affected his ability to work and led him to fear for his life.
[102] CB 317 [13]
These findings as to the applicant’s demeanour during the Entry Interviews were made on the basis of an audio record of only one of those interviews. They were made without the Authority ever having had the opportunity to observe the applicant’s demeanour for itself. In these circumstances, the evidence before the Authority is said to have been not sufficient to support its adverse findings without prior consideration of whether it should exercise its powers under s 473DC to seek new information or submissions from the applicant.
The Authority hence made adverse findings about the discrepancies between the Entry Interviews and the applicant’s later accounts when not all of these discrepancies had been put to the applicant; when the explanations that he offered were accepted by the delegate; when the Minister’s Department’s relevant processing guidelines suggested that, where concerns arose about discrepancies between Entry Interviews and later accounts, an applicant should be given an opportunity to explain or comment; and where the Authority made findings as to the applicant’s demeanour and mode of presentation during the Entry Interviews based on an incomplete audio record of those interviews. In all the circumstances, the applicant submits that the Authority’s failure to seek further information from the applicant, or to consider seeking further information, as to the discrepancies between the Entry Interviews and his later accounts was unreasonable.
Was the Authority’s error material to its exercise of power?
The applicant submits that if the Authority had sought “new information” or submissions from the applicant on the discrepancies between his Entry Interviews and his later accounts, it could have taken any explanation proffered into account in determining how much weight to afford to those discrepancies, or even whether to regard those discrepancies as material at all.
There is said to be an analogy between the error in this case and that in Nguyen v Minister for Home Affairs.[103] In Nguyen, the Minister did not understand that he was permitted to afford procedural fairness to the appellant, and hence failed to do so. It was not necessary for the appellant to adduce evidence “of what the appellant or Minister would have done if the Minister had considered whether or not to [give] an opportunity to the appellant to provide further material or submissions and had decided to do so”, given that there was a clear causal link between the error and the Minister’s decision.[104]
[103] (2019) 270 FCR 555
[104] Nguyen at [51]
The applicant contends that in this case, the Authority acted unreasonably in not considering, or in not proceeding with, exercise of its powers to seek information from the applicant. It “misunderstood” its power by failing to proceed upon a correct understanding of what it was reasonably required to do. It is not necessary for the applicant to demonstrate what he would have done if that information had been sought, not least because it is artificial to reconstruct what submissions would have been made on the applicant’s behalf to accompany any new information provided, which would invariably have affected the Authority’s assessment of that response. It is sufficient that, had the Authority exercised its procedural powers in a reasonable fashion, that exercise of power “could have resulted in the making of a different decision and it could not be shown that the failure by the [Authority] to understand the nature of the power did not deprive the appellant of the possibility of a successful outcome”.[105]
[105] Nguyen at [49]
Principles applicable to procedural fairness under Part 7 of the Migration Act do not apply to the operation of Part 7AA of the Migration Act,[106] but it is nonetheless said to be relevant that, in the context of procedural fairness:[107]
…where… the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome.
[106] DGZ16 at [69]
[107] Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [60]
This principle remains good law.[108] If this case is understood in those terms, then it is not necessary for the applicant to prove what he would have done if the Authority had correctly exercised its powers,[109] merely that there is a realistic possibility that, if the Authority had not erred, it could have made a different decision.
[108] Nguyen at [54]
[109] WZARH at [58]; see also WACO v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [56]-[58]
If the applicant had been asked about all of these discrepancies (and not just the subset identified by the delegate), he and his representative could have provided an explanation for these discrepancies or could have provided submissions as to why these discrepancies could be excused or given less weight by the Authority. If this had occurred, there is a realistic possibility that the Authority could have reached a different finding as to the significance of these discrepancies, and hence a realistic possibility that the Authority could have exercised power differently. The applicant submits that the Authority’s error was hence a material error.
Minister’s contentions
Relevant background to Ground 2 of the amended application
In her decision dated 7 November 2018, the delegate relevantly found that the applicant’s involvement with the BNP was at a low level. The delegate found the applicant did not face any personal harm in Bangladesh for any reason, including political reasons, and that he left Bangladesh for reasons that were unrelated to any incidents of harm to him from anyone. The delegate found that the applicant did not have an adverse profile in Bangladesh for any reason.[110]
[110] CB 245
The delegate summarised her factual findings at CB 246. She did not accept that:
- The applicant was involved in BNP activities in Bangladesh to such a level that he was of adverse interest to anyone from the AL [Awami League], or any other political organisation in opposition; and
- The applicant was threatened or harmed in any way by anyone from the AL for his political opinion in Bangladesh or for any other reason; and
- The applicant has a profile of interest to anyone in Bangladesh.
By email dated 21 November 2018[111] the Authority wrote to the applicant’s representative and provided him with material including “Interview audio recordings”. This included the audio recording of the applicant’s arrival interview dated 2 August 2013.[112]
[111] CB 279
[112] that is, part two of the interview CB 17ff; CB index item 20
At [12],[113] the Authority observed that the applicant had acknowledged at the SHEV Interview that there were omissions from his responses during his Entry Interviews, and provided reasons for this. The Authority considered those reasons and, at [13],[114] took into account the nature and purposes of the Entry Interviews, that the first interview took place nine days after the applicant had undertaken the journey by boat between Indonesia and Australia, and its observations of the audio recording of the second interview, which it found was conducted in a calm and considered manner with the applicant electing to answer some questions in English without the assistance of the interpreter, and providing detailed and highly specific answers to many questions.
[113] CB 317
[114] CB 317
The Authority found, at [17],[115] that the applicant had provided inconsistent evidence at his Entry Interviews to that evidence he later provided, concerning his circumstances and reasons for leaving Bangladesh. It did not accept that the applicant’s complete omission of any part of his claim to be a member or supporter of the BNP, or his omission of having lived and worked in Malaysia for six years, could be attributed to the applicant’s unspecified fear of providing truthful answers. The Authority was not satisfied that the applicant departed Bangladesh on a valid passport in 2007, flew to Malaysia and lived there until leaving for Australia in June 2013. It found that, consistent with the account he provided during the Entry Interviews, the applicant departed Bangladesh illegally in April 2013, and travelled to Australia via Indonesia.[116]
[115] CB 318
[116] at CB 318-319 at [19]
The Authority further found that the applicant had provided significantly inconsistent accounts of his political associations and activities as between his Entry Interviews, and the written statement provided in September 2016.[117] The Authority had regard to the applicant’s advice to the Minister’s Department of 27 September 2018 that his written statement was not correct and the amendment he made to it, which was to downgrade his claim from having been a BNP member and activist, to a supporter. The Authority found the applicant had not provided any explanation for his provision of incorrect information in the September 2016 statement.[118]
[117] at CB 319 at [20] and see CB 132
[118] at CB 319 at [20]
The Authority took into account the applicant’s omission to raise claims made in his September 2016 statement.[119] It also considered the applicant’s claim at the Entry Interview that he was not personally involved with any political groups in Bangladesh, and found his later claim to have been a member, activist or supporter of the BNP was “scant in detail, inconsistent, and is entirely unsubstantiated by any other independent evidence such as letters of support from the BNP, photographs, or any other form of evidence”. The Authority was not satisfied that the applicant was a member, activist, active supporter, or in any way associated with the BNP in Bangladesh.[120]
[119] at CB 319 at [21]
[120] at CB 319 at [22]
Disposition of Ground 2 of the amended application
Ground 2 alleges that the Authority’s decision not to seek, or not to consider seeking:
·“new information” from the applicant pursuant to s 473DC; and/or
·submissions from the applicant;
·was unreasonable.
The discretionary powers conferred on the Authority by Division 3 of Part 7AA of the Migration Act (including s 473DC(3)) are conferred on the implied condition that they are to be exercised within the bounds of legal reasonableness.[121] In DPI17 at 147 [35] Griffiths and Steward JJ summarised propositions established by the plurality’s judgment in Plaintiff M174 in relation to Part 7AA of the Migration Act.
[121] Plaintiff M174/2016 at 227 [21]
The Authority’s power in s 473DC(3) is to invite an applicant to provide “new information” in the sense described in s 473DC(1) and referred to in ABT17.[122] Section 473DC(3) does not confer upon the Authority a general power to invite an applicant to an interview to explain his or her claims.[123] There is a distinction between submissions or arguments based on information, and “new information”.[124]
[122] at 933-934 [9] (“knowledge of facts or circumstances relating to material or documentation of an evidentiary nature” citing Minister for Immigration and Border Protection v CED16 (2020) 380 ALR 216 at 222); see, similarly, DPI17 at 147[35] (point 4)
[123] see DGZ16 at 569 [72]
[124] AAL19 at [21] citing CLV16 at 494-495 [53]-[56]
The Minister contends that the applicant has not discharged his onus of proving that the Authority did not consider exercising its discretion pursuant to s 473DC(3).[125]
[125] BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1100 [38]-[40]; CCQ17 at [38]-[39]
Further, and even if it did not, the Authority has provided no reasons (nor was it obliged to cf s 473EA) for its exercise of discretion. Thus, the Court is engaged in an “outcome-focused” analysis of alleged legal unreasonableness.[126] In an outcome-focused challenge it is crucial to recognise that it is erroneous in judicial review for the Court to assess what it regards as being a reasonable outcome and thereby conclude that any other view (ie, that of the decision-maker) necessarily involves error.[127]
[126] Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445[44]; Avon Downs Pty Ltd v Federal Commission for Taxation (1949) 78 CLR 353 at 360
[127] Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 6[12]
As the High Court has observed, the test of legal unreasonableness is necessarily stringent.[128] It is accepted there may be circumstances in which it would be legally unreasonable for the Authority to fail to exercise the discretion in s 473DC(3).[129] The present case is not one of them. It cannot be said that the only course legally available to the Authority in the circumstances[130] was to exercise its discretion to get new information from the applicant.
[128] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551[11] (Kiefel CJ); and see 564-567[51]-[60] (Gageler J); 572-575[78]-[87] (Nettle and Gordon JJ); 583-586[131]-[135] (Edelman J); DUA16 at 61 [27]
[129] Plaintiff M174/2016 at 227[21], 235-236[49], 242[71] (Gageler, Keane and Nettle JJ), 245[86] (Gordon J), 249[97] (Edelman J); DPI17 at 147 [36], 160 [91]
[130] see BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 at [173]
Statutory framework
The Minister submits that this ground of review adopts a procedural fairness lens whereas this is not the correct analysis.[131] Pursuant to s 473DA, Division 3 of Part 7AA with ss 473GA and 473GB “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule”. There is no procedural fairness obligation on the Authority to put dispositive matters to an applicant or to alert an applicant that a matter might be decided on a different basis from how the matter was determined by the delegate.[132]
[131] BVD17 at 1099 [34]
[132] EBV17 at [85] citing DGZ16. See also, for example, BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71] and FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at [41], as to the relevance of the statutory context in analysing alleged legal unreasonableness.
Section 473DE did not apply to the material in question (that is, the answers given by the applicant at arrival interview(s)), as none of it was new information.[133] That is to say, the statutory regime did not oblige the Authority to give particulars of this material to the applicant for comment in accordance with s 473DE.
[133] see similarly CCQ17at [56]
Factual circumstances
The applicant’s representative made submissions addressing credibility, which were before the delegate and the Authority.[134]
[134] CB 75, 78-79
At interview, the delegate put to the applicant certain inconsistencies as between his evidence at the Entry Interviews and subsequently, and explained that they could lead her to doubt that the applicant had been truthful: “… may lead me to find that you have not been truthful in your claim regarding when you left Bangladesh and the reason why.”[135]
[135] Transcript page 18.30; see also page 19.4
The delegate also traversed the applicant’s political claims with him in a more general manner, giving him the opportunity to present evidence in support of those claims, including evidence concerning his personal involvement with the BNP.[136] The delegate said nothing to dissuade the applicant from presenting an account of his claims and did not indicate that any aspect of his account was positively accepted.
[136] Transcript pages 15-16, 17.29-17.45, 18.2-18.14, 19.35
The Authority provided the applicant’s representative with the audio recording of part two of the Entry Interview (held on 2 August 2013). Therefore, the representative and the applicant had access to this material, and were on notice of the evidence the applicant gave at that particular interview.
The only respect in which the Authority might be said to have evaluated the applicant’s “demeanour” was in relation to his evidence given at part two of the Entry Interview, in the course of deciding the weight to give to that evidence.[137] The observations made by the Authority as to the manner the Entry Interview was conducted are of the kind that can be discerned from listening to an audio recording. Further, the Authority’s statements that the applicant provided detailed and highly specific answers to particular questions are not statements that are based on “demeanour” but which concern the content of the evidence given.
[137] see CB 317 at [13]
The Authority was also not at any disadvantage compared to the delegate, in its assessment of the audio recording of part two of the Entry Interview.[138] Neither decision-maker visually observed the applicant at that interview. There is no evidence that the Entry Interview was video-recorded.
[138] cf the facts in ABT17
This case is not analogous to any authority in which legal unreasonableness has been found
Accepting that there are no fixed categories of circumstances in which legal unreasonableness is demonstrated, this is nevertheless not a case in which there was a new dispositive issue before the Authority in relation to which it needed, but did not have, information from the applicant.[139] To the contrary, the Authority made factual findings on the basis of the same body of material that was before the delegate (and new information the applicant provided to it).[140] Something more than the making of different factual findings is required, in order to establish legal unreasonableness.[141]
[139] cf CRY16 at 494 [82]; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 at 552 [94]
[140] DGZ16 at 569 [72]
[141] FND17 at [39], [43]
The Authority also did not reject the applicant’s account wholly or substantially on the basis of its own assessment of the manner in which the account was given contrary to an acceptance of that account by the delegate[142] and/or in circumstances where the delegate made favourable findings on the basis of, among other things, demeanour, and told the applicant at interview that aspects of his account were accepted.[143]
[142] cf ABT17 at 937[25]
[143] cf DPI17 at 141[14], 150[46]
Resolution

I prefer generally the Minister’s submissions in relation to the second ground. In particular, I accept that there was ample material before the Authority to support its adverse credibility conclusions, without resort to the particular credibility findings, which reversed favourable findings by the delegate. In that context, those particular adverse credibility findings were unnecessary and might by described by Sir Humphrey as “courageous”. It does not follow, however, that it was unreasonable for the Authority not to invite, or consider inviting, comment upon apparent inconsistencies between what the applicant had said at his arrival interview, and his SHEV claims.
On that issue, I am unpersuaded by the applicant’s submissions.
The applicant refers to four “circumstances” said to cumulatively render the Authority’s non-exercise of its power in s 473DC, or failure to consider the exercise of that power, legally unreasonable.
The first is that not all inconsistencies relied on by the Authority were put to the applicant for comment during the SHEV Interview (the delegate’s interview). The second is that the delegate accepted certain of the applicant’s explanations for his inconsistent evidence.
So much may be accepted. However, I agree with the Minister that this is to approach the analysis through a procedural fairness lens. The applicant must show more than that the delegate did not traverse at interview all matters later relied on adversely by the Authority, or that the Authority analysed the body of factual material in some respects differently to the delegate, and arrived at different findings.
In the present case, although accepting the applicant was a low-level supporter of the BNP,[144] the delegate otherwise did not accept the applicant’s material factual claims. The Authority reached its conclusion on this issue based on the same information that was before the delegate.
[144] CB 245, 246
Within the context of Part 7AA, the fact that the Authority came to a different conclusion to the delegate did not trigger an obligation on it to seek further information from the applicant. It was not legally unreasonable for the Authority to determine the review without considering the exercise of, or exercising, the power under s 473DC(3) of the Migration Act to invite the applicant to give new information.[145]
[145] FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29 at [60]; BRZ17 v Minister for Immigration and Border Protection[2019] FCA 677 at [38]-[39] and [56]
The third circumstance relied on by the applicant is that the delegate had before her “Protection Visa Processing Guidelines” which form part of a larger departmental policy document called the Procedures Advice Manual 3 (PAM3).
In its terms, the PAM3 amounts to guidance directed to primary decision-makers.[146] Neither of the delegate or the Authority were bound by the PAM3.[147] The applicant does not contend otherwise. Rather, his argument is that a circumstance relevant to showing legal unreasonableness is that he was “not given an opportunity to further explain or comment in response to the full range of the Authority’s credibility concerns regarding the Entry Interviews, despite the matters listed in section [4.50.2] of the PAM3 as to why these discrepancies may arise and contrary to the Department’s own practices of seeking additional explanation or comment in these circumstances”.
[146] see, eg, First Mackenzie Affidavit, page 35, referring to s 57 of the Migration Act
[147] See, eg, Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 at [15] citing Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038 at [45]
The difficulties with this argument are, first, the applicant has not shown the delegate departed from the PV Guidelines in the conduct of her decision-making process.
Secondly, the Authority is bound in its conduct of the review by the provisions of Part 7AA. The PV Guidelines cannot override the statutory regime that governs the Authority’s conduct of the review. Aspects of those Guidelines are plainly inapplicable to reviews under Part 7AA, for example, “4.51. Applying procedural fairness principles…”.[148]
[148] First Mackenzie Affidavit at pages 35-36
Thirdly, the Authority adopted a fact-finding approach consistent with the PV Guidelines. It was cognisant of the caution which should be exercised in relying on omissions at Entry Interviews when making adverse credibility findings.[149].
[149] MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at 449-450 [56]-[57]; see the Authority’s reasons at CB 317-318 [13]-[17]; first Mackenzie affidavit at page 32.7
The fourth circumstance relied on by the applicant is said to be the lack of an evidentiary foundation for the Authority’s adverse findings. Contrary to the applicant’s submissions, [21]-[22][150] reveals that the Authority relied on four matters cumulatively to reject the applicant’s claimed political activities in Bangladesh. They were:
(a)the omission of claims from his oral evidence at the SHEV Interview and his vague evidence at that interview;
(b)his omission to make his political claims at the Entry Interview;
(c)the nature of his subsequent political claims which were found to be scant in detail, inconsistent, and unsubstantiated; and
(d)the absence of further information concerning the applicant’s BNP association in any of his representative’s three written submissions to the Authority.
[150] CB 319
Thus, only one of the four cumulative matters relied on by the Authority was the applicant’s omission to make his political claims at the Entry Interview. There was no lack of an evidentiary foundation for the Authority’s findings. The Authority’s limited evaluation of the applicant’s demeanour by reference to the audio recording of part two of the Entry Interview was risky and unnecessary but not determinative. The evidence before the Authority was amply sufficient to support its adverse factual findings without any consideration or exercise of its power in s 473DC(3) to get “new information” from the applicant, noting that contrary to the applicant’s submissions, s 473DC does not confer a power to get “submissions”. The applicant had, in any event already had that opportunity.
CONCLUSION
The applicant has established that the decision of the Authority is affected by jurisdictional error. He should receive the relief he seeks. I will make orders for writs of certiorari and mandamus to be issued.
I will hear the parties as to costs.

I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.
Associate:
Dated: 13 April 2021

File number(s):	SYG 662 of 2019
Judgment of:	JUDGE DRIVER
Date of judgment:	13 April 2021
Catchwords:	MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant’s individual claims rejected and his fears about the general security situation in Bangladesh found not to be well-founded – whether the Authority erred in applying s 473FB(5) of the Migration Act 1958 (Cth) and not applying s 473DC considered – jurisdictional error established.
Legislation:	Migration Act 1958 (Cth), ss 36, 46A, 473DA, 473DC, 473DD, 473DE, 473EA, 473FB, 473GA, 473GB Federal Circuit Court Rules 2001 (Cth)
Cases cited:	AAL19 v Minister for Home Affairs [2020] FCAFC 114 ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 Avon Downs Pty Ltd v Federal Commission for Taxation (1949) 78 CLR 353 BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 BJO18 v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs [2020] FCAFC 189 BRZ17 v Minister for Immigration and Border Protection[2019] FCA 677 BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 DHV16 v Minister for Immigration and Border Protection (2018) 331 FLR 204 DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 DPI17 v Minister for Home Affairs (2019) 269 FCR 134 Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 DZT18 v Minister for Home Affairs [2019] FCA 1639 EBV17 v Minister for Immigration & Anor [2019] FCCA 1216 El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038 FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Minister for Home Affairs v DUA16 (2019) 95 ALJR 54 Minister for Immigration and Border Protection v CED16 (2020) 380 ALR 216 Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 6[12] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 1 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 2 MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 Nguyen v Minister for Home Affairs (2019) 270 FCR 555 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 WACO v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 131 FCR 511 WAGO of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 437
Number of paragraphs:	142
Date of hearing:	16 March 2021
Place:	Sydney
Counsel for the Applicant:	Mr D McDonald-Norman
Solicitors for the Applicant:	Parish Patience Legal and Migration Services
Counsel for the Respondents:	Ms K Hooper
Solicitors for the Respondents:	Minter Ellison

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	13 APRIL 2021