BEL18 v Minister for Home Affairs
[2018] FCCA 1606
•21 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEL18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 1606 |
| Catchwords: MIGRATION – Safe Haven Enterprise (Subclass 790) visas – applicants claimed to fear harm from authorities by reason of association to Liberation Tigers of Tamil Ealam (LTTE) – no evidence of adverse attention from authorities – IAA not accepting applicants’ claimed links to LTTE – IAA affirming delegate’s decision – whether IAA acted legally unreasonably – IAA discretion to get information considered –first applicant claimed inaccurate interpretation during IAA interview – no indication from first applicant of any inaccurate interpretation or misunderstanding during IAA interview – whether IAA constructively failed to exercise jurisdiction – applicants unable to specify jurisdictional error by delegate as would enable IAA to reach a state of satisfaction under the Migration Act – whether IAA failed to have regard to material evidence before it – whether IAA failed to have regard to an integer of applicants’ claim – IAA not accepting first applicant’s husband was a person of interest – IAA therefore not required to make a specific finding in relation to first applicant’s husband’s evidence – such a specific finding subsumed in IAA’s general findings about applicants’ husband – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 48A, 48B, 417, 473BB, 473CA, 473CB, 473CC, 473CC(2)(a), 473CC(2)(b), 473DB(1)(a),(b), 473DC, 473DC(1), 473DC(1)(a), 473DC(2), 473DD, 473DE, 473EA(1), 473GA, 473GB, 476, 477(1),477(2), 477(3)(a), 477(3)(ca), Part 7AA Migration Regulations 1994 (Cth), reg.4.43 |
| Cases cited: Applicant WAEE v Minister for Immigration and Indigenous Affairs (2003) 236 FCR 593 MZABO v Minister for Immigration and Border Protection [2016] FCA 980 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 |
| First Applicant: | BEL18 |
| Second Applicant: | BEM18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 621 of 2018 |
| Judgment of: | Judge Kirton |
| Hearing date: | 2 May 2018 |
| Date of Last Submission: | 2 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 June 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr Kenneally |
| Solicitors for the Applicants: | Kajaliny Ranjith Legal |
| Counsel for the First Respondent: | Mr Goodwin |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | The second respondent filed a submitting notice save as to costs |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The time for the filing of the application to this court be extended to 12 March 2018.
The application be dismissed.
The first applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 621 of 2018
| BEL18 |
First Applicant
And
| BEM18 |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first and second applicants (applicants) are Sri Lankan Tamil asylum seekers. The second applicant is the daughter of the first applicant. The applicants seek to make an application (Substantive Application) under s.476 of the Migration Act 1958 (Cth) (Migration Act) in relation to a migration decision made by the Immigration Assessment Authority (IAA). The IAA affirmed the decision made by a delegate of the First Respondent (Delegate) not to grant Safe Haven Enterprise Visas (Subclass 790) to the applicants. Only the first applicant made relevant claims for protection.
The applicants also make a further application pursuant to s.477(2) of the Migration Act for an extension of time within which to make the Substantive Application (Extension of Time Application).
The Substantive Application and the Extension of Time Application were filed on 12 March 2018. The decision of the IAA was made on 28 August 2017 (IAA Decision). Any application in relation to the IAA Decision should have been made within the 35 day period as specified in s.477(1) of the Migration Act. The applicants are therefore 162 days out of time. However, s.477(2) of the Migration Act provides that the Court may order that the 35 day period be extended.
Synopsis
In relation to the Extension of Time Application, I have determined that pursuant to s.477(2) of the Migration Act it is necessary in the administration of justice to extend the time for the applicants to file their application for judicial review of the IAA Decision to 12 March 2018, being the date upon which the application was originally filed in this Court.
In relation to the Substantive Application, I have determined that each of the three grounds should be dismissed, with costs to be paid by the first applicant.
Background
The applicants are Sri Lankan citizens. The first applicant (applicant) arrived in Australia on 1 April 2013.[1] Prior to arriving in Australia the applicant had lived in Chennai, India since February 2001.[2] The applicant married her husband in Australia on 7 November 2014.[3] Her husband was also a Tamil asylum seeker.[4] The second applicant was born in Australia on 12 May 2015.
[1] Court Book (CB) 41
[2] CB 41
[3] CB 36
[4] CB 155
On 23 November 2016 the applicants applied for Safe Haven Enterprise (subclass 790) visas (protection visa).[5] The application for the protection visa originally included the husband of the applicant, however the applicant was advised by the First Respondent that the application for her husband was not valid under s.48A of the Migration Act as he had previously been refused the grant of a protection visa.[6] The applicants were “fast track applicants” within the meaning of s.5(1) of the Migration Act. The applicants’ application was supported by statements made by both the applicant[7] (Applicant’s Statement) and her husband[8] (Husband’s Statement) and a statutory declaration by her husband.[9] In the Applicant’s Statement the applicant said that she feared harm in Sri Lanka due to her family’s association with the Liberation Tigers of Tamil Eelam (LTTE). The applicant said that her older brother had been forcibly recruited into the LTTE, that the Sri Lankan Army had harassed her family, including sexually assaulting her mother. She also said that in 2000 her fiancé had been murdered by the Sri Lankan Army. In February 2001 the applicant and her family fled to India where she had lived until coming to Australia by boat in 2013.
[5] CB 157–161
[6] CB 151-154, and 259, [1]
[7] CB 122-126
[8] CB 127-131
[9] CB 132-133
The Husband’s Statement[10] said that he was forced to join the LTTE in 2001 and as a result the Sri Lankan Criminal Investigation Department (CID) and the Sri Lankan Army had subsequently harassed him. The applicant’s husband said that from 2004 he spent most of his time overseas, however whenever he returned to Sri Lanka the CID would threaten him and ask him questions about his involvement with the LTTE. The applicant’s husband said that he fled Sri Lanka in 2011 after the harassment by the CID had escalated.
[10] CB 127-131
On 27 February 2017 the applicant participated in a Safe Haven Enterprise Visa interview by telephone with the Delegate (SHEV Interview). When interviewed the applicant was located at the Anglicare office in Biloela, Queensland,[11] with a caseworker from Anglicare (Anglicare Caseworker) supporting her. The SHEV Interview with the applicant was conducted with the assistance of an interpreter. The applicant’s migration agent (Migration Agent) also participated in the telephone interview from a separate location in Sydney.
[11] CB 253
Following the SHEV Interview, the Migration Agent provided a written submission to the Delegate, dated 1 March 2017 (March 2017 Submission).[12]
[12] CB 180-202
On 9 May 2017 the Delegate refused the applicants’ application for a protection visa (Delegate’s Decision).[13]
[13] CB 210-229
On 12 May 2017 a case manager at MDA Ltd in Queensland sent an email to the IAA requesting a transcript of the SHEV Interview. The case manager said that the applicant would like “to request an extension on her submission based on the inaccurate information relayed by the interpreter during the [SHEV Interview] which formed the foundation of the refusal of her SHEV application”.[14]
[14] CB 230
IAA Decision
On 15 May 2017 the Delegate’s Decision was referred to the IAA.
A case file note from the IAA dated 8 June 2017 records that the Anglicare Caseworker telephoned the IAA on behalf of the applicant that day. The case file note records that the Anglicare Caseworker advised the IAA that the applicant “would like to question some of the responses noted in the [Delegate’s] decision as they did not believe that these were responses [the applicant] had provided at the interview”.[15] That same day the Anglicare Caseworker sent a letter by email to the IAA requesting an extension of time to respond to the referral to the IAA. It was stated in the letter that the applicant wanted to question the Delegate’s Decision “due to a perceived translation error” during her SHEV Interview.[16]
[15] CB 242
[16] CB 243-244
On 9 June 2017 an email was sent from the IAA to the Anglicare Caseworker in response to the request for an extension of time.[17] This email noted that under the Practice Direction for Applicants, Representatives and Authorised Recipients any new information must be given to the IAA within 21 days of the date on which the case was referred to the IAA. The email noted that in this case the relevant date that any new information was due was 5 June 2017. The IAA nevertheless said that as a decision on the review was not anticipated before 31 July 2017, any submission should be received by the IAA by 31 July 2017.
[17] CB 251
On 14 July 2017 the Anglicare Caseworker emailed a letter from the applicant to the IAA (July 2017 Submission).[18] In the July 2017 Submission the applicant said that she had told the Delegate about her husband’s role in the LTTE and that he had positions of leadership in the LTTE Army. The Delegate had not recorded this evidence in the Delegate’s Decision, only finding that the applicant had little knowledge of her husband’s background.[19]
[18] CB 252-254
[19] CB 215
On 28 August 2017 the IAA affirmed the Delegate’s Decision.[20] The IAA considered that the July 2017 Submission was mostly argumentative rather than providing new information. However it found that the July 2017 Submission contained some new information and that it was able to consider the information pursuant to s.473DD of the Migration Act because it could not have been provided to the Delegate and exceptional circumstances justified its consideration. The IAA took into account the applicant’s evidence that she was eight months pregnant and unwell at the time of the SHEV Interview. The IAA noted that the SHEV Interview was conducted by telephone and that both the applicant and the interpreter had initially said that they had trouble hearing each other. The IAA however found that there was no evidence that the applicant could not understand the interpreter, despite the initial difficulty.[21]
[20] CB 258-272
[21] CB 259-260, [8].
The key findings of the IAA Decision were that:
a)the IAA accepted the applicant’s account of her family history of discrimination and harm in Sri Lanka before they fled to India;[22]
b)the IAA did not accept that the applicant’s husband had links to the LTTE that were, or would be, of concern to the Sri Lankan authorities. The IAA noted that the applicant’s husband had returned to Sri Lanka in 2004, 2008 and 2010 from overseas and had been able to pass through security at the airport on each occasion;[23] and
c)the IAA found that given the passage of time and change in country circumstances, the applicant would not be imputed with a pro-LTTE opinion, or be of interest to the Sri Lankan authorities.[24]
[22] CB 262, [12]-[14].
[23] CB 262-263 [17].
[24] CB 263-264 [20]-[24]; 265-266 [31].
The Present Proceedings
Before the Court at the hearing on 2 May 2018 (hearing) were the following documents:
a)the Application filed 12 March 2018, comprised of the Substantive Application and the Extension of Time Application (Application);[25]
[25] CB 273-278.
b)the affidavit of the applicant affirmed on 10 March 2018 and filed on 12 March 2018, with the IAA Decision as Annexure KPN-1;[26]
c)the Court Book filed on 4 April 2018;
d)the Amended Application, filed 18 April 2018, which amended the grounds of the Substantive Application and the Extension of Time Application;
e)the further Amended Application, filed 26 April 2018, further amending the grounds of the Substantive Application (Further Amended Application);
f)the applicants’ Contentions of Fact and Law, filed 26 April 2018;
g)the affidavit of Kajaliny Ranjithkumar, affirmed 27 April 2018 and filed on that day, the deponent is the solicitor for the applicants, the affidavit annexed a transcript of the applicant’s SHEV Interview (Interview Transcript);[27]
h)the applicants’ Amended Contentions of Fact and Law and List of Authorities and Legislation, each filed 27 April 2018;
i)a Response for the First Respondent filed on 3 April 2018, with some pages of the response missing;
j)the First Respondent’s Written Submissions (First Respondent’s Written Submissions) and List of Authorities, each filed 1 May 2018; and
k)the affidavit of the applicant affirmed 1 May 2018 and filed that day (Applicant’s Affidavit). The Applicant’s Affidavit deposed to matters relating to the Extension of Time Application.
[26] CB 279-281.
[27] Affidavit of Kajaliny Ranjithkumar, affirmed 27 April 2018, Annexure KR-3.
On 14 May 2018 the First Respondent again filed the Response that had originally been filed on 3 April 2018, so that the Court would have a complete copy of the Response.
Extension of Time Application
An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made to the court within 35 days of the date of the migration decision: s.477(1). In the case of a migration decision made by the IAA the date of the migration decision is the date of the written statement pursuant to s.473EA(1) and s.477(3)(a) of the Migration Act. In this case the date of the relevant migration decision is the date of the IAA Decision, being 28 August 2017.
The Substantive Application was filed on 12 March 2018.[28] It was due to be filed by 2 October 2017: s.477(1) and s.477(3)(ca) of the Migration Act. The Substantive Application was therefore filed 162 days late and the applicants therefore require an extension of time to commence this proceeding.
[28] CB 273-278
The applicants seek an extension of time pursuant to s.477(2) of the Migration Act. Section 477(2) provides:
The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the administration of justice to make the order.
The application for an extension of time is supported by the Applicant’s Affidavit. The Applicant’s Affidavit provides evidence required by r.44.05 of the Federal Circuit Court Rules 2001, which requires that if an extension of time is sought, the application must be supported by an affidavit including:
(2)…
…
(c)if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
In considering whether an extension of time should be granted, it is well settled that an extension of time is not to be granted unless it is proper to do so. The legislative time limits are not to be ignored. The relevant considerations include:
a)the length of the delay;
b)there must be some acceptable explanation for the delay;
c)any prejudice to the respondent in defending the proceedings caused by the delay is a material factor mitigating against granting an extension; and
d)the mere absence of prejudice to the respondent is not enough to justify the grant of an extension.
The merit of the substantive application is also to be taken into account.[29]
[29] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 48 ALR 305 [349]-[350]; SZSPR v MIBP (2013) 139 ALD 109, [16] (Farrell J); MZABP v Minister for Immigration and Border Protection & Ors [2015] FCA 1391, [45]-[58]
Length of Delay
In this matter the delay in filing the Application is 162 days.
The applicants allege in the first ground of their Further Amended Application that:
The delay in filing the application was relatively short.
Counsel for the First Respondent (Minister) submitted that the delay was not “relatively short” but inordinate and extraordinary, being more than five times the relevant period.
Explanation for Delay
The applicants allege in their second and third grounds of their Further Amended Application that:
2.The [applicant] gave birth in June 2017, shortly before the IAA decision was made, and was therefore not in a position to obtain legal advice and make an application for judicial review promptly after the IAA Decision was made.
3.The applicants were advised by their former representative to seek ministerial intervention and were not advised of the availability of judicial review. The application for ministerial intervention delayed the applicants applying for judicial review.
The applicant deposed that from 13 September 2014 to 5 March 2018 she lived with her husband in Biloela, Queensland, and that her migration agents were located in Sydney.[30] She said that after receiving the IAA Decision she was advised by her caseworker from the Department of Immigration and Border Protection that she should write to the Minister and seek ministerial intervention in her case. The applicant said that she relied upon this advice and wrote to the Minister seeking ministerial intervention. The applicant said that she was assisted in writing this correspondence by the Anglicare Caseworker. Correspondence was sent by the Anglicare Caseworker to the Minister by email on 29 September 2017, seeking ministerial intervention pursuant to s.48B of the Migration Act.[31] A copy of the email correspondence dated 29 September 2017 and attachments forwarded to the Minister is annexed to the Applicant’s Affidavit.[32]
[30] First Applicant’s Affidavit, affirmed 1 May 2018, [3]
[31] Ibid, [5]
[32] Ibid, Annexure “KPN-1”
The applicant deposed that:
the reason for my delay is that I followed the advice of my caseworker from Biloela and applied for a Ministerial Intervention rather than seeking Jurisdictional Review application.[33]
[33] Ibid, [10]
The applicant deposed that she did not seek legal advice after lodging her request for Ministerial intervention on 29 September 2017.[34] The applicant has also deposed that after she was taken to the Melbourne Immigration Transit Accommodation in Broadmeadows on 5 March 2018 and she then sought legal advice after being told that her request for Ministerial intervention had been unsuccessful.[35]
[34] Ibid, [6]
[35] Ibid, [7]
The applicant in her affidavit also deposed that “[l]iving in remote Queensland, we had limited access to Lawyers who were experienced in migration law”.[36] Counsel for the applicants submitted that the Court should take into account the applicant’s unfamiliarity with the Australian legal system.
[36] Ibid, [11]
It is submitted on behalf of the Minister that the applicant’s evidence that she was advised to seek ministerial intervention rather than commence judicial review proceedings is a discretionary factor against granting an extension of time. The Minister’s Counsel relied upon MZABO v Minister for Immigration and Border Protection [2016] FCA 980 where Jessup J said:
… I do not regard the making of a request under s417 of the Act and the lodging of an appeal from an adverse decision of the Federal Circuit Court as mutually inconsistent courses. However, to make a request under s417, and to allow time to pass (well beyond the 21st day after the Federal Circuit judgment) until the result of that request is known is, in my view, to be regarded as having plotted a course in the alternative to the filing of such an appeal. Put another way, I would regard it as a discretionary consideration of some force, against an extension of time, that the applicant has positioned these different remedies in line astern, as it were. By his own conduct, he has treated them as alternatives. As I have said, the applicant’s position should not be regarded as more favourable than that occupied by a person who had chosen to do nothing for the period which elapsed while the Minister was giving consideration to his or her request under s417 of the Act.[37]
[37] MZABO v Minister for Immigration and Border Protection [2016] FCA 980, [11] (Jessup J).
Counsel for the Minister also relied upon the decision of Jessup J in Vu v Minister for Immigration and Citizenship and Another (2008) 101 ALD 211[38] where Jessup J said:
I do not think that the applicant’s approach to the minister under s 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “plan B” to which resort was had once the approach under s 351 proved unsuccessful.[39]
[38] Vu v Minister for Immigration and Border Protection and Another (2008) 101 ALD 211, [28]-[30]; (Giles J agreeing) [1]; (Besanko J agreeing) [3].
[39] Vu v Minister for Immigration and Citizenship and Another (2008) 101 ALD 211, [29] (Jessup J) (Giles and Besanko JJ agreeing).
It was submitted on behalf of the Minister that no acceptable explanation for the delay has been provided by the applicant for the entirety of the period of delay.
Prejudice to First Respondent
The applicants allege in the fourth ground of their Further Amended Application that:
There is no prejudice to the Minister in permitting the application to be heard.
The Minister does not claim any prejudice. However, the mere absence of prejudice is not enough to justify the grant of an extension of time.[40]
[40] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305, 311 (Wilcox J).
However, it is the submission of the Minister that there is a clear public interest in the prompt disposition of allegations of jurisdictional error against administrative decision makers.[41]
[41] MZABO v Minister for Immigration and Border Protection [2016] FCA 980, [5] (Jessup J).
Merits of Substantive Application
The applicants allege in the fifth ground of their Further Amended Application that:
The applicants’ grounds of review have sufficient merit for the application to be heard, in that they are not hopeless or bound to fail.
In determining if it is necessary in the administration of justice to make an order extending time, the merits of the application are to be taken into account. The applicants’ counsel submitted that the grounds of review were reasonably arguable and relied upon MZABP v Minister for Immigration and Border Protection and Others (2015) 242 FCR 585, where Mortimer J said at [63]:
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48] SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
Other Considerations
The applicants allege in the sixth ground of their Further Amended Application that:
The consequences of not permitting the applicants to bring their application is to return them to face a real chance of persecution and possibly death in Sri Lanka, which greatly outweighs any public interest in refusing to hear an application made out of time.
Counsel for the applicants also argued that if an extension of time was not granted, it would make it more difficult for the applicants to pursue an appeal compared to an application for judicial review.
Consideration of Extension of Time Application
The length of the delay in this case is 162 days and in my view the delay is significant. I do not accept the applicants’ contention in ground one of the Further Amended Application that the delay in the filing of the Application was relatively short.[42] Notwithstanding the length of the delay, I will now consider the delay in the context of the other relevant considerations.
[42] Further Amended Application, filed 26 April 2018, Extension of Time Application, ground 1.
In considering the explanation for the delay, the applicants’ position is somewhat inconsistent. The third ground of the Extension of Time Application in Further Amended Application pleads:
The applicants were advised by their former representative to seek ministerial intervention and were not advised of the availability of judicial review. The application for ministerial intervention delayed the applicants applying for judicial review.
This pleading does not specify which “former representative” advised the applicant to seek Ministerial intervention. It does not specifically refer to the reliance on advice from a representative from the Minister’s department.
The Application when originally filed pleaded a different position in the grounds of application for an extension of time. The Application pleaded in the first and second grounds:
1.The applicant and the family were advised not to issue jurisdictional review, but to request Ministerial Intervention.
2.The Ministerial Intervention was applied for by the former representatives.
This pleading does not specify who provided the alleged advice “not to issue jurisdictional review”. Nor does it plead that the applicant relied upon advice from a representative of the Minister’s department. The pleading indicates that the applicant made a conscious decision not to pursue judicial review and to request Ministerial intervention instead.
However, the applicant has deposed in the Applicant’s Affidavit that after the IAA Decision she was advised by her caseworker from the Department of Immigration that she should write to the Minister and seek Ministerial intervention in her case (IAA Advice). The applicant deposed that she relied upon the IAA Advice and that she wrote to the Minister seeking Ministerial intervention, with the assistance of the Anglicare Caseworker.[43]
[43] First Applicant’s Affidavit, affirmed 1 May 2018, [5]
The Applicant’s Affidavit is silent as to whether the applicant was aware that an application for judicial review of the IAA Decision could be made, prior to seeking legal advice after 5 March 2018. All that is said is that after 5 March 2018 she sought legal advice and that she was then advised by her current solicitors that she could make an application for judicial review. The applicant deposed “[t]his was the first time that we were advised that our case had merit”.[44] The applicant does not depose that it was the first time that she was advised that she could make an application for judicial review.
[44] Ibid, [9]
It is nevertheless apparent from the Applicant’s Affidavit that the applicant chose to rely upon the IAA Advice rather than obtaining legal advice from her own lawyer.
The applicant justifies not obtaining her own legal advice on the basis that she lived in “remote Queensland” and had “limited access to lawyers who were experienced in migration law”.[45] I do not accept either of these justifications. Firstly, in the overall context of the geography of Australia, Biloela, whilst being a rural town can hardly be described as “remote”. It is located about 120 kilometres southwest of Gladstone and 140 kilometres southwest of Rockhampton. It is classified by the Australian Bureau of Statistics as located in ‘Outer Regional Australia’, not ‘Remote Australia’.[46] Secondly, there are lawyers who practice in and from Biloela, Gladstone and Rockhampton. These lawyers have access to counsel around Australia who are experienced in migration matters. Thirdly, the Migration Agent previously retained by the applicant was based in Sydney. From Biloela, the applicant communicated with the Migration Agent for the purposes of the protection visa application process before the Delegate. The applicant had experience in distance communication with an independent migration advisor.
[45] Ibid, [11]
[46] Australian Bureau of Statistics, 2006 Australian Standard Geographical Classification: Remoteness Structure, Queensland Remoteness Area boundaries, 2009; Queensland Murray-Darling Committee, Remoteness Area Boundaries, 15 March 2018 <>
Notwithstanding that I do not accept the applicant’s justifications as stated above, I take into account that the applicant, when relying on the IAA Advice and not seeking any other migration advice from a lawyer, had recently given birth to her second child after a pregnancy with some complications.[47] The applicant was also responsible for the care of the second applicant, who was at that time aged two years. The applicant required the use of an interpreter and needed the assistance of the Anglicare Caseworker in managing her migration matters. In these circumstances, the applicant’s course of action in relying upon the IAA advice and making an application for Ministerial intervention without seeking out further independent legal advice was explicable.
[47] CB 259, [8]; CB 242; CB 243
I have considered the decision relied upon by Counsel for the Minister in MZABO v Minister for Immigration and Border Protection [2016] FCA 980 (MZABO). In MZABO the applicant was aware of his right to appeal from the judgment of the Federal Circuit Court but did not do so until the Minister had rejected his request to substitute a decision in place of the decision of the Refugee Review Tribunal pursuant to s.417 of the Migration Act. The applicant had been legally represented and had made an informed choice. The Federal Court considered that the applicant had “positioned these different remedies line astern” and had by his own conduct “treated them as alternatives”.[48]
[48] MZABO v Minister for Immigration and Border Protection [2016] FCA 980, [11] (Jessup J)
In the circumstances of the present case the applicant was not legally represented prior to 5 March 2018. I am not satisfied that the applicant had sufficient information prior to obtaining legal advice in March 2018, to understand that there was an alternative of judicial review available to her and that she had a time limit to file the application for judicial review. In the absence of being legally advised, I am not satisfied that the applicant understood the significant consequences of not abiding by the time limit to file her application for judicial review. I therefore distinguish the present case from that of MZABO.
I have also considered the decision relied upon by Counsel for the Minister in Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 (Vu). In Vu the Full Court of the Federal Court said at [30]:
The applicant was legally represented throughout, and it could hardly be doubted that the very nature of the proceedings before the Federal Magistrate would have made him, or at least his representatives keenly aware of the significance of time limits.
I also distinguish Vu from the present case on the same basis that I distinguished MZABO. The applicant in Vu was legally represented throughout the proceeding. The applicant in the present case was not legally represented until after 5 March 2018.
I have determined that for the reasons above, the applicant has provided a plausible explanation for the delay in filing the Application. Therefore, notwithstanding the length of the delay, I determine that the applicant has provided an acceptable explanation for the delay.
I have taken into account the issue of prejudice to the First Respondent. I accept the Minister’s submission that there is a clear public interest in the prompt disposition of allegations of jurisdictional error against administrative decision makers. I note however that the Minister in this case does not claim any prejudice.
In turning to consider the merits of this case I have taken into account the principles adopted by Mortimer J in MZABP v Minister for Immigration and Border Protectionand Ors (2015) 242 FCR 585 at [58]-[63] and approved by the Full Court in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 at [38], where her Honour, sitting as a single judge of the Federal Court, said:
…it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence of a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakour (1998) 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a proper function appropriate to a discretion such as that contained in s 477(2).[49]
[49] MZABP v Minister for Immigration and Border Protection and Others (2015) 242 FCR 585, [62]
I have also taken into account Mortimer J’s comments in MZABP at [66], in relation to the Federal Circuit Court’s practice of listing both an application for an extension of time and the final hearing at the same time. Her Honour said:
… the practice may encourage an undue focus on determination of the merits of the proposed grounds of review raised by an application for an extension of time and resulting in an artificial approach to the extension of time application.[50]
[50] Ibid, [66]
Her Honour continued with:
In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason that cannot be still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court.[51]
[51] Loc. cit.
The applicants in their Substantive Application in the Further Amended Application seek to rely on three grounds of review.
The first ground pleaded in the Further Amended Application (First Ground) is:
The IAA acted unreasonably in the exercise of its discretion, or alternatively, constructively failed to exercise its jurisdiction, in failing to exercise or failing to consider whether to exercise its discretion under s.473DC of the Migration Act to get information from the applicant in circumstances where there were real concerns about the accuracy and adequacy of the [SHEV Interview] before the delegate, and the IAA did not have in its possession a complete copy of the audio of the [SHEV Interview].
The particulars of the First Ground of the Further Amended Application are alleged to be that:
a)The IAA did not have a complete copy of the audio of the SHEV Interview.
b)There was evidence before the IAA of at least three instances where the applicant or her representative claimed that the Delegate’s decision record did not accurately reflect responses she gave in the [SHEV Interview] with the delegate and that the interpreter had not interpreted her responses accurately.
c)The IAA accepted that the applicant was eight months pregnant at the time of the [SHEV Interview], had medical issues that impacted on her wellbeing, that she had not been able to understand the interpreter fully, that the [SHEV interview] had been conducted by telephone and that both the applicant and the interpreter had complained about the difficulty of hearing each other.
d)Despite the circumstances where there were real concerns about the accuracy and adequacy of the [SHEV Interview] with the applicant, there is no indication that the IAA considered exercising its discretion under s.473DC to get information from the applicant by way of a fresh interview or by any other means.
e)The failure of the IAA to exercise or consider exercising its discretion under s.473DC in the circumstances was unreasonable.
Counsel for the applicants submitted that the third ground pleaded in the Further Amended Application (Third Ground) was an alternative to the First Ground. In the Third Ground it is alleged that:
Alternatively to Ground 1, if the IAA could not obtain information from the applicant pursuant to s.473DC, then the IAA erred in not remitting the matter to the Minister for further consideration.
The particulars of the Third Ground of the Further Amended Application are alleged to be:
a)The IAA was required by s.473CC of the [Migration Act] to assess whether the applicant satisfied the definition of a refugee or the complimentary protection criteria.
b)The IAA was required to assess whether any of the applicant’s claims made to the Delegate satisfied the criteria.
c)The IAA had an incomplete copy of the interview between the applicant and the Delegate, and was aware of concerns regarding the accuracy and adequacy of the interview.
d)If the IAA was prohibited by s.473DC from considering information from the applicant regarding her claims made to the Delegate that had not been recorded because it was not “new information”, then the IAA was not in a position to determine that the Applicant did not meet the statutory criteria for protection.
e)In those circumstances, the only lawful decision the IAA could make would be to remit the matter to the Minister to allow the applicant to provide further information regarding her claims pursuant to s.473CC.
The second ground pleaded in the Further Amended Application (Second Ground) is:
The IAA failed to have regard to material evidence before it and/or an integer of the applicants’ claim, namely the evidence that the first applicant’s husband had been targeted by the CID and received death threats from them on each occasion when he returned to Sri Lanka from working abroad.
The particulars of the Second Ground of the Further Amended Application are alleged to be that:
a)The IAA had before it a statutory declaration made by the [applicant’s] husband, which included claims that:
a.each time that he had returned to Sri Lanka from working abroad, the CID had targeted him, questioned him about his LTTE involvement and threatened to shoot him and not return his body to his family;
b.the CID interest in the applicant escalated in 2011 due to fear that the LTTE would regroup, and at that point the husband could no longer leave the country legally.
b)At [17] when considering the fact that the [applicant’s] husband had travelled to and from Sri Lanka when working abroad, the IAA failed to have regard to the claims that the [applicant’s] husband had been targeted and subjected to death threats on each occasion he returned.
In considering the merit of the Substantive Application I have considered each of the grounds of the review pleaded in the Further Amended Application. In my opinion on an impressionistic reading and consideration and without full argument, the grounds of review are not so hopeless that I am confident that they must fail. I agree with the submission of the applicants’ Counsel that the applicants’ grounds of review have sufficient merit to be heard and that they are not hopeless or bound to fail.
In considering the other matters raised by Counsel for the applicants, I have taken into account that a decision in relation to an extension of time application is not subject to appeal as of right. I have also taken into account that if an extension of time is not granted to the applicants, the likely result will be is that the First Respondent will effect deportation of the applicants from the Commonwealth of Australia.
Conclusion Extension of Time Application
For the foregoing reasons, notwithstanding the substantial delay in making the Substantive Application, the applicants have provided an acceptable explanation for the delay. Therefore, the substantive merits of the application require full consideration.
I am therefore satisfied that pursuant to s.477(2) of the Migration Act it is necessary in the administration of justice to extend the time for the applicants to file the Application to 12 March 2018.
Substantive Application
First Ground
Applicants’ Submissions
The allegations made in the First Ground of the Substantive Application as pleaded in the Further Amended Application, are set out in paragraphs 65 and 66 above.
Counsel for the applicants at the hearing conceded that:
a)there was no evidence put by the applicant as to what was missing from the transcript;
b)no submission could therefore be made that the missing information was necessarily a claim that was not considered, such that the applicant met the relevant criteria under the Migration Act for a protection visa; and
c)there was no evidence put by the applicant to prove that there were errors in interpretation by the interpreter during the SHEV Interview.
Counsel for the applicants submitted that the SHEV Interview was an important step in approving a fast track applicant’s eligibility for a protection visa. It was the only stage in the process where the applicant was able to put her claims directly to the Delegate without the assistance of a migration agent or representatives. It was an opportunity for the Delegate to directly test, probe and understand the applicant’s claims to satisfy the statutory protection criteria.
Counsel for the applicants submitted that it was clear from the Interview Transcript that content was missing from the audio of the interview. Counsel for the applicants submitted that the Interview Transcript revealed that the Migration Agent was disconnected from the telephone interview at the time that the applicant was discussing the date she fled from India. It was submitted that this was apparent in the following extract from the Interview Transcript:
[Delegate]: Right, okay, and when did your family decide to go to India?
---February – we came to India in 2001, February 16.
Right, okay. Nick, are you there? I have a feeling that your representative has dropped out. Do you want me to try and contact him again? ---Okay.
Okay, just hold – I’m just going to ask him if I need to connect with him if it drops out again. I don’t know (indistinct) why it would have dropped out.
(Temporary sound interruption)
[Migration Agent]: So it dropped out just at the point where you were saying, “What do you mean, torture?” Then I didn’t hear any more after that.
[Delegate]: Right, well, we can repeat the whole interview if you like.
[Migration Agent]: Rather not.
[Delegate]: Right, okay, so I believe she said that they were being questioned and beaten up about her brother. That was the response. I’ll just check again. So when you said that you were tortured, what did you mean? ---Yes, so they beat us, they speak to us in bad language and treat us in bad way.[52]
[52] Interview Transcript, T7:22–8:10
Counsel for the applicants submitted that the IAA had said in the IAA Decision that it had had regard to the audio recording of the SHEV Interview.[53] Counsel for the applicants submitted that the IAA therefore would have or should have been aware that the recording was incomplete.
[53] CB 259, [8]
It was further submitted by Counsel for the applicants that the IAA was also aware that:
a)the applicant and the interpreter had complained in the interview that they had difficulty hearing each other;
b)the applicant and representatives from Anglicare had subsequently expressed concern to the IAA that her evidence had not been correctly recorded or considered by the Delegate;
c)the applicant specifically claimed that the Delegate had not properly recorded her evidence regarding her husband’s involvement in the LTTE; and
d)the IAA accepted the applicant’s ill health at the time of the interview may have affected her ability to advance information.[54]
[54] CB 259, [8]
Counsel for the applicants submitted that without a complete record of the SHEV Interview, the IAA could not:
a)determine if the Delegate had mischaracterised the applicant’s evidence;
b)determine if the Delegate had failed to consider some of the applicant’s claims made in the SHEV Interview;
c)make a complete assessment of whether the applicant understood the interpreter for the entire SHEV Interview; or
d)assess whether all of the applicant’s claims for protection had been considered.
It was submitted that the IAA could have exercised its discretion pursuant to s.473DC of the Migration Act to get new information regarding the applicant’s claims that may not have been conveyed to the Delegate due to interpreting errors or not recorded by the Delegate. The applicants’ counsel submitted that any information provided by the applicant to the IAA in a new interview or in response to an inquiry that was not recorded in the “review materials” would be new information pursuant to s.473DC of the Migration Act.
Section 473DC of the Migration Act provides as follows:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Counsel for the applicants submitted that it was open to the IAA to find the incomplete audio recording of the SHEV Interview and allegation of interpreting errors constituted exceptional circumstances. Section 473DD of the Migration Act relates to considering new information in exceptional circumstances. This section provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
It was submitted on behalf of the applicants that the IAA, by not exercising its power to get new information, effectively disabled itself from assessing whether the applicant’s claims to satisfy Australia’s protection obligations had been considered and to make its own assessment of the applicant’s evidence. It was submitted that this was a necessary step in determining whether to remit or affirm the Delegate’s Decision pursuant to s.473CC. Section 473CC provides as follows:
(1)The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2)The Immigration Assessment Authority may:
(a)affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
Regulation 4.43 of the Migration Regulations 1994 (Cth) (Migration Regulations) lists permissible and impermissible directions for the purposes of s.473CC(2)(b) of the Migration Act. The permissible directions include a direction that that the applicant satisfies the refugee or complimentary protection criteria.[55]
[55] Migration Regulations 1994 (Cth) reg.4.43(2)(b) and (d)
It was submitted by Counsel for the applicants that to conduct the review and make directions under reg.4.43, the IAA must make its own assessment of the applicant’s claims to meet the protection criteria. Counsel relied upon CDZ16 v Minister for Immigration and Border Protection & Anor [2017] FCA 967[56] and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, where the Full Court said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s.36(2)(a) of the Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).[57]
[56] CDZ16 v Minister for Immigration and Border Protection & Anor [2017] FCA 967, [6] (Logan J).
[57] BBS16 v Minister for Immigration and Border Protection [2017] FCAFC 176, [79] (Kenny, Tracey and Griffiths JJ).
It was also submitted by Counsel for the applicants that it was significant that the applicant was not legally represented when her application was before the IAA. She had retained the Migration Agent when her application was before the Delegate for consideration. As a consequence it was submitted the applicant did not have assistance to make a Freedom of Information request or to receive the legal advice in relation to a review of the Delegate’s Decision.
It was submitted by Counsel for the applicants that the failure by the IAA to consider exercising its discretion under s.473DC was unreasonable because it compromised the IAA’s capacity to exercise its jurisdiction.
Counsel for the applicants submitted that what was required for the reasonable exercise of a power depends on the scope and purposes of the statute: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, per French CJ at [23] and [26] and Hayne, Kiefel and Bell JJ at [69] and [72].
Counsel for the applicants relied upon the decisions in two cases that considered the IAA’s discretion to get information. In Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 the Full Court considered s.473C in circumstances where the IAA had found that an applicant could relocate to avoid harm. The Delegate had not raised the issue of relocation with the applicant. The Full Court noted that an assessment of the reasonableness of relocation required consideration of an applicant’s personal circumstances.[58] The IAA could only obtain information about the applicant’s personal circumstances from the applicant. By not exercising its discretion to seek new information the IAA “disabled itself” from considering whether it was reasonable for the applicant to relocate.[59] The Full Court said:
[It] is not apparent how the conclusion not to consider the exercise of the discretionary power was reached in the present case, having regard to the facts and to the statutory purpose for which the discretion to get new information was directed”.[60]
[58] Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, [66] (Robertson, Murphy and Kerr JJ)
[59] Ibid [82]
[60] Ibid [83]
Counsel for the applicants also relied upon PlaintiffM174/2016 v Minister for Immigration and Border Protection & Anor (2018) 353 ALR 600, where the applicant claimed that that the delegate had contravened s.57(2) of the Migration Act which required that the Delegate put adverse information to the applicant. Counsel submitted that in obiter, the majority had said a failure by the IAA to exercise its discretion under s.473DC to invite an applicant to give new information to rectify a contravention of s.57(2) would:
…risk transgressing the bounds of reasonableness in the conduct of the review under s 473DB were the Authority to go on to treat the information as the reason, or part of the reason for affirming the decision to refuse to grant the protection visa.[61]
[61] M174 v Minister for Immigration and Border Protection & Anor (2018) 353 ALR 600, [49] (Gageler, Keane and Nettle JJ)
Counsel for the applicants submitted that it had been unreasonable for the IAA not to consider exercising its power to get new information where the information was necessary to properly conduct the review, or to enable the IAA to correct a breach of procedural fairness or other jurisdictional error by the Delegate.
Minister’s Submissions
Counsel for the Minister submitted that in light of the factual circumstances, the legislative framework and the boundaries of legal unreasonableness, it was clear that in this case the IAA did not act legally unreasonably by failing to seek new information from the applicant.
In considering whether the IAA had been unreasonable by not exercising its discretion under s.473DC to obtain new information regarding the applicant’s claims, Counsel for the Minister relied upon the principles summarised in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158.[62] Counsel for the Minister particularly relied upon the following key principles:
Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of power: Li at [105](Gageler J); Stretton at [11] (Allsop CJ).
Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]-[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality by reference of the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependent and require careful attention to the evidence: Singh at [42].[63]
[62] Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, [58]-[65] (Allsop CJ, Griffiths and Wigney JJ)
[63] Ibid [62]-[63]
In considering the legislative framework Counsel for the Minister noted a number of particular features about the fast track review process for protection visa decisions in Part 7AA of the Migration Act.
It was submitted that by s.473DA, Division 3 of Part 7AA, in conjunction with s.473GA and s.473GB are “taken to be an exhaustive statement of the requirements of the natural justice hearing rule”.[64]
[64] Migration Act s.473DA(1)
Pursuant to s.473A the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practical after a decision is made.
When the Minister refers a fast track reviewable decision to the IAA, s.473CB requires that the Secretary of the Department give the IAA “review material”, namely:
a)a statement that sets out the findings of fact made by the decision-maker, referring to the evidence on which those findings were based and giving reasons for the decision;
b)material provided by the “referred applicant” (defined in s.473BB as an applicant for a protection visa to whom a fast track decision is referred under s.473CA) to the decision-maker before the decision was made;
c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review; and
d)the applicant’s contact details.[65]
[65] s.473CB(1)(a)-(d)
Section 473DB(1) provides that the IAA, subject to Part 7AA, must review a fast track reviewable decision referred to it ‘on the papers’, by considering the review material provided to it under s.473CB and “without accepting or requesting new information” and “without interviewing the referred applicant”.
By s.473DC(1) the IAA has statutory discretion to get new information that was not before the Minister when the decision was made and which the IAA considers may be relevant. In submissions Counsel for the Minister emphasised that under s.473DC(2) the IAA does not have a duty to “get, request or accept, any new information whether the [IAA] is requested to do so by a referred applicant or by any other person, or in any other circumstances”.[66]
[66] s.473DC(2)
In relation to the legislative framework by which the IAA conducts a review, Counsel for the Minister relied upon the decision of the plurality of the High Court in Plaintiff M174/2016.[67] Counsel for the Minister emphasised the following features of that legislative framework:
a)as the plurality stated in Plaintiff M174/2016:
Notwithstanding the inability of the IAA to set aside a fast track reviewable decision and to substitute its own decision, the [IAA] when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the IAA under s473CC(1) is to consider the application for a protection visa afresh and determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.[68]
b)if the IAA is not satisfied that the criteria for the grant of a visa has been met, the appropriate order is to affirm the decision under review;[69] and
c)any new information sought by the IAA must be information not before the Minister or Delegate at the time of decision and be considered relevant by the IAA.[70]
[67]Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor (2018) 353 ALR 600 [6]-[18] (Gageler, Keane & Nettle JJ).
[68] Ibid, [17]
[69] Loc. cit.
[70] s.473DC(1); Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, [24]
However, in order to take new information into account, the IAA must comply with s.473DD and, where applicable, s.473DE.[71] Section 473DD provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless:
(a)The [IAA] is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)The referred applicant satisfies the IAA that in relation to any new information given or proposed to be given, to the IAA by the applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
[71] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, [27]
Counsel for the Minister submitted that the applicant took issue with two factual circumstances that went to the unreasonableness of the IAA’s failure to exercise its discretion, these circumstances being:
a)that the IAA was on notice that the recording was incomplete and therefore it could not judge whether the delegate’s reasons were accurate; and
b)that the applicant had complained about the adequacy of the interpretation and this may have had an impact on the Delegate’s reasons (two factual circumstances).
It was submitted that the applicant had stated that the two factual circumstances had an effect on the adequacy and accuracy of the Delegate’s reasons. However it was further submitted that the applicant had not stated what, if any:
a)evidence was mischaracterised by the Delegate;
b)claims were not considered by the Delegate;
c)matters were misinterpreted by the interpreter according to the transcript; or
d)claims had not been considered by the IAA.[72]
[72] First Respondent’s Written Submissions [14].
In relation to what the IAA was actually on notice of regarding the two factual circumstances, it was submitted by Counsel for the Minister that:
a)On 8 June 2017 the Anglicare Caseworker called the IAA and informed the IAA that she attended the SHEV Interview. She said that the applicant “would like to question some of the responses noted in the [Delegate’s Decision] as they did not believe that these were responses [the applicant] had provided at the interview”.[73] The Anglicare Caseworker stated that they may need to look at whether the interpreter had correctly communicated [the applicant’s] responses.[74] The Anglicare Caseworker was not authorised to be the representative of the applicants at the time,[75] however this information was provided in the context of a request by the applicant to have additional time to prepare a submission to the IAA.
[73] CB 242.
[74] CB 242.
[75] CB 245
b)On 8 June 2017 the Anglicare Caseworker sent an email and a letter to the IAA requesting an extension of time to prepare a submission to the IAA “due to a perceived translation error during her [SHEV Interview]”.[76]
[76] CB243–244
c)By an email from the IAA on 9 June 2017 the applicant was given an extension of time until 31 July 2017 to provide her submission.[77] The email referred to the IAA’s Practice Direction for Applicants, Representatives and Authorised Recipients (Practice Direction).[78] A copy of the Practice Direction was sent to the applicant at the time that the IAA wrote to the applicant on 16 May 2017 notifying her of the referral to the IAA on 16 May 2017.[79] The Practice Direction stated that the written submission should state “why you disagree with the [Delegate’s Decision]” and “any claim or matter that you presented to the [Delegate] that was overlooked”.[80]
[77] CB 251
[78] CB 237-241
[79] CB 232-241
[80] CB 238
d)On 14 July 2017 the Anglicare Caseworker sent an email with the applicant’s July 2017 Submission.[81] The July 2017 Submission was two pages in length and represented the applicant’s concerns. In the July 2017 Submission the applicant raised:
[81] CB 252-254
i)the impact of her pregnancy on her ability to participate in the SHEV interview;
ii)her complaint that she couldn’t fully understand the interpreter, what he was saying and also that she was not sure that what he was interpreting back in English was what she was stating. She said:
I couldn’t fully understand the interpreter, what he was saying and also was not sure what he was interpreting back in English, and whether it was as what I was stating.[82]
iii)that the Delegate had incorrectly stated that because she had little knowledge of her husband’s personal history, little weight should be given to her claims regarding the risk of his return to Sri Lanka. She said:
In the interview, I stated that I knew my husband had been a member of the LTTE and I knew what position he held and the work he carried out for them. I was able to inform them that he had been in positions of political leadership in different areas of the LTTE army.[83]
iv)that she was suffering flashbacks of her trauma and people had no rights in Sri Lanka; and
v)reference to a particular recent incident that the applicant was aware of associated with the severe mistreatment of a woman whose husband had been in the LTTE.
[82] CB 253
[83] CB 253
Counsel for the Minister submitted that the July 2017 Submission directly responded to the issues referred to in the Practice Direction. Consequently, regardless of what the recording of the SHEV Interview showed, the applicant had an opportunity in the July 2017 Submission to:
a)inform the IAA why she disagreed with the Delegate’s Decision; and
b)raise any claim or matter that was overlooked.
Counsel for the Minister submitted that the applicant had not highlighted any specific problem with the recording of the transcript by way of what was not included or what was misinterpreted, other than to make a general allegation that the recording was missing certain elements.
It was submitted that it was important to note the concessions made by Counsel for the applicants. The concessions were that:
a)there was no direct allegation or submission made about what was in fact missing from the recording; and
b)there was no actual evidence of interpreting errors.
Counsel for the Minister submitted that from reading the Interview Transcript[84] there was no suggestion or available inference that the applicant dropped out from the call or that the Delegate did not hear what the applicant was saying. The Migration Agent did drop out of the call and the connection had to be re-established. It was submitted by Counsel for the Minister that there was no suggestion in the Interview Transcript that the Delegate did not hear any evidence given by the applicant. The Interview Transcript suggested that there was some evidence not recorded. It also recorded that the Delegate asked the Migration Agent, if he would like her to conduct the interview again and that the Migration Agent did not take up the opportunity.
[84] Interview Transcript T7:21-8:10
Counsel for the Minister submitted that the applicant had an opportunity by way of submitting the July 2017 Submission to raise concerns in relation to the Delegate’s reasons. The applicant took the opportunity and sent the July 2017 Submission to the IAA. However none of the issues raised in the July 2017 Submission provided a sufficient basis for the IAA to exercise its discretion either individually or cumulatively.
It was submitted by Counsel for the Minister that the issues raised by the applicant regarding interpretation problems did not mean the IAA acted legally unreasonably by failing to seek new information. There were no direct allegations made about how the interpretation affected the Delegate’s decision to the extent that the applicant did not have a meaningful interview before the Delegate. It was submitted that the applicant placed no evidence before the Court and did not place any evidence before the IAA that material errors occurred in the translation.[85] Counsel for the Minister submitted that the applicant in her July 2017 Submission simply made a generic and unparticularised statement that she couldn’t understand the interpreter. The applicant also said that she didn’t know whether what he was interpreting into English was what she was saying. Counsel for the Minister submitted that that could be said for any person speaking a language that is required to be interpreted into a second language in any situation.
[85] SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212, [17] (Allsop J), quoting Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, [18] (Spender, Lee and Tamberlin JJ)
Counsel for the Minister submitted that the Delegate stated to the applicant that if any problems arose with the interpretation, those should be raised during the interview. During the SHEV Interview the Delegate said the following:
[Delegate]: Okay, so, now the other point we make is about the interpreter. The interpreter is bound by a code of ethics not to repeat anything that she hears during the interview and she is not involved in decision-making process. If you have any problem or you’re not sure what’s been said or you have a question and you are confused about the question or you need – just ask the interpreter to repeat.[86]
[86] Interview Transcript, T3:29-T4:6
Counsel for the Minister submitted that no issues were raised during the course of the SHEV Interview. Furthermore, if they were raised during the SHEV Interview, it would have been expected that the applicant would have raised those issues directly with the IAA in the July 2017 Submission. However the applicant did not point to any particular interpretation problems in the July 2017 Submission, other than to suggest that they might have occurred, without particularisation.
In any event, the IAA in fact considered the complaint and found in the IAA Decision that, despite initial difficulties, there was no indication that there was any misunderstanding in the interpreting.[87]
[87] CB 259, [8]
Regarding the complaint that the Delegate had mischaracterised the applicant’s evidence regarding her husband’s knowledge of her husband’s position in the LTTE, Counsel for the Minister submitted:
a)the applicant admitted to the Delegate that she did not know much about her husband’s work history in Sri Lanka as she had only met him in Australia;[88] and
b)the Delegate had in any event considered the position of the applicant’s husband as associated with the LTTE and found he was not a person of interest to the authorities.[89]
[88] Interview Transcript, T11:25-28
[89] CB 262-263, [17]
In relation to the applicant’s trauma and evidence about the situation in Sri Lanka referred to in the July 2017 Submission, the IAA found that this was argument rather than new information.[90]
[90] CB 259, [6]
In relation to the information relating to treatment of the family friend’s wife in the July 2017 Submission, the IAA took the new information into account and had regard to it.[91]
[91] CB 259, [8] and CB 264, [25]
Counsel for the Minister also submitted that any issues raised before the Delegate at the SHEV Interview did not meet the definition of “new information” under the Migration Act because they were matters before the Minister (through his delegate) at the time of the IAA Decision.[92] Counsel submitted that even if some information was not recorded, it did not elevate that information to new information. The applicant’s evidence was before the Delegate, recorded or not.
[92] Migration Act s.473DC(1)(a)
Counsel for the Minister referred to the definition of new information in s.473DC(1). He submitted that Counsel for the applicants was really arguing that the new information was the gap in the review materials that was represented by the incompleteness of the recording. Counsel for the Minister argued that this ground was really a complaint about the information provided by the applicant herself to the Delegate during the SHEV Interview. It was submitted that the applicant’s complaint was about the potential for the information that was given during that part of the interview to have either not been taken into account by the Delegate or misconstrued or misunderstood in some way or to mean that there was something missing for the IAA to consider when it conducted its review. The complaint was therefore attached to the information provided by the applicant herself to the Delegate during the SHEV Interview.
Counsel for the Minister submitted that from reading the Interview Transcript[93] there was no suggestion or available inference that the applicant dropped out from the call. The Delegate heard the evidence of the applicant. The Migration Agent did drop out of the call and the connection had to be re-established. The Interview Transcript indicated that the Delegate asked the Migration Agent if he would like her to conduct the interview again and the Migration Agent did not take up the opportunity.
[93] Interview Transcript T7:2 –8:10.
Consequently the information that the Delegate heard from the applicant during the SHEV Interview that was not recorded cannot become new information pursuant to s.473DC(1) as it was before the Delegate at the time of the Delegate’s Decision.
Counsel for the applicants also submitted that the adequacy of the interpretation could not have been considered by the IAA. This was not new information that was not, or could not have been, provided to the Minister (or his delegate) before the Delegate’s Decision was made.[94] The applicant was told to raise any issues of interpretation or understanding during the interview[95] and did not do so, according to the transcript.
[94] S.473DD(a)(i) Migration Act.
[95] Interview Transcript, T3:29–4:6.
If any such issues were raised while the interview was not being recorded, the applicant did not state this explicitly in the July 2017 Submission to the IAA. Counsel for the Minister submitted that in any event, the IAA took into account the applicant’s July 2017 Submission regarding interpretation problems but made an explicit finding that, despite initial difficulties, no other problems of interpretation presented themselves.[96] Counsel for the Minister submitted that this was an entirely reasonable conclusion.
[96] CB 259 [8].
Counsel for the Minister also submitted that to the extent that the applicants sought to rely on the decision in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, the decision was clearly distinguishable. It was submitted that in that case an entirely new issue of relocation was considered by the IAA in circumstances where the Delegate had not raised that issue. Accordingly, seeking new information was the only way the authority could hear from the applicant on that issue.
Counsel for the Minister submitted that the First Ground should be dismissed.
Third Ground
Applicants’ Submissions
Counsel for the applicants submitted that the Third Ground pleaded in the Further Amended Application was an alternative to the First Ground.
The allegations made in the Third Ground of the Substantive Application as pleaded in the Further Amended Application are set out in paragraphs 67 and 68 above.
The Applicants Amended Contentions of Fact and Law submitted that Third Ground would only be relevant if in relation to the First Ground it is accepted that:
a)information provided by the applicant regarding her claims would not have been new information under s.473DC because she had already provided information regarding her claims to the Delegate; and
b)therefore the IAA could not have exercised its discretion to get new information pursuant to s.473DC.
It was submitted in the Applicants’ Amended Contentions of Fact and Law that if the IAA was prohibited from obtaining information under s.473DC about the applicant’s claims, then it had no means of ensuring if the applicant’s claims made in the SHEV Interview had been considered. It could not therefore reach a conclusion as to whether the applicant did or did not meet the refugee or complimentary protection criteria.
It was further submitted in the Applicants’ Amended Contentions of Fact and Law that if the IAA had no power to obtain new information, then it should have pursuant to s.473CC(2)(a) remitted the matter for further consideration.[97]
[97] Applicants’ Amended Contentions of Fact and Law [43]-[45]
At the hearing Counsel for the applicants conceded that these submissions had an “obvious difficulty” because the Migration Regulations do not permit the IAA to make such a direction.[98]
[98] Migration Regulations, reg.4.43.
Counsel for the applicant otherwise relied upon the comments of Edelman J in obiter in Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor (2018) 353 ALR 600 at [98] and [99] where his Honour said:
[98]There are other circumstances in which the statutory conditions regulating the decision making processes by the Authority may need to be construed so as not to permit or require the Authority to incorporate a jurisdictional error by the Minister or delegate. It is unnecessary to reach a concluded view about those circumstances...
[99]The Regulations make various directions or recommendations impermissible.[99] If the power to remit were constrained by the Regulations[100] then the Authority might be required to affirm the decision despite (i) a jurisdictional error on the face of the delegate’s reasons for decision, and (ii) the obligation upon the Authority to consider those reasons.[101] However, this result might be avoided by a construction of s 473CC(2)(a) requiring that (i) in deciding whether to affirm, the Authority has “such powers as are necessary to determine that an essential criterion [for the grant of the visa] is not fulfilled”,[102] and (ii) in deciding whether to remit, the Authority has such powers as are necessary to determine that all essential criteria for the grant of the visa have been fulfilled, irrespective of the scope of its powers to give directions or recommendations.
Minister’s Submissions
[99] Migration Regulations, reg.4.43(3)
[100] BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169, [16] and [32]
[101] Migration Act, s.473CB(1)(a)(iii) and s.473DB(1)
[102] BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 at [94].
Counsel for the Minister submitted that there was no basis for the applicants’ argument that being statutorily barred from requesting new information, the appropriate order for the IAA to have made was to remit the matter to the Minister.
It was submitted that there was no basis for the IAA to consider the exercise of its discretion to seek new information in the first place.
Counsel for the Minister then submitted that the proper test was whether the IAA was satisfied that the criteria for the grant of the visa were met, rather than being concerned with the correction of error on the part of the Delegate: Plaintiff M174/2016.[103] Counsel relied upon the following from Plaintiff M174/2016:[104]
If the Authority is not satisfied that the criteria for the grant of the visa have been met the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority’s determination.
[103] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, [17] (Gageler, Keane and Nettle JJ).
[104] Loc. cit.
Counsel for the Minister submitted that the state of satisfaction was the core issue by which the IAA must consider whether to affirm or to remit to the Minister. As the IAA could not be satisfied on the basis of the evidence and claims before it that the applicant met the criteria for the protection visa, the IAA was bound to affirm the Delegate’s Decision.
In relation to the obiter comments of Edelman J in Plaintiff M174/2016 at [98] and [99] relied upon by the applicant, Counsel for the Minister argued that they were not relevant to this case. This was because his Honour said:
There are other circumstances in which the statutory conditions regulating the decision making processes by the Authority may need to be construed so as not to permit or require the Authority to incorporate a jurisdictional error by the Minister or delegate.[105]
[105] Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor (2018) 353 ALR 600, [98].
Counsel for the Minister submitted that Edelman J appeared to be concerned about where there was jurisdictional error by the Minister or delegate. Counsel submitted that in this case the applicants were unable to specify the jurisdictional error made by the Delegate that would lead the IAA to doubt its ability to reach a state of satisfaction under the Migration Act. In submissions Counsel for the Minister further noted that Counsel for the applicants had stated that he didn’t rely on particular jurisdictional error in the IAA Decision in any event. Counsel for the Minister submitted that therefore this case was consequently significantly different from the circumstances that Edelman J was concerned about.
Counsel for the Minister submitted that the third ground should be dismissed.
Second Ground
Applicants’ Submissions
The allegations made in the Second Ground of the Substantive Application as pleaded in the Further Amended Application are set out in paragraphs 69 and 70 above.
Counsel for the applicants submitted that the applicant claimed that she would be at risk of harm due to her husband’s LTTE connections. The IAA found that the applicant’s husband was not of interest to the CID due to his ability to travel in and out of Sri Lanka without incident in 2004, 2008 and 2010.[106] The IAA however made no express finding in relation to the claim in the Husband’s Statement that the CID would make inquiries of him every time he returned from overseas to Sri Lanka between 2004 and 2010.[107] Further, the IAA made no express finding in relation to the claim in the Husband’s Statement that the CID harassment of him intensified in 2011 due to official fear that the LTTE may regroup and it was only then that the CID prohibited him from leaving the country legally.[108]
[106] CB 262, [17]
[107] CB 130, [28]
[108] Ibid, [29]-[30]
Counsel for the applicants submitted that the husband’s evidence was an “integer” of the applicant’s claim to fear harm due to her husband’s profile as an LTTE supporter. It was submitted that the material was so central to the claim that the IAA had to make a finding in relation to it in order to find the applicant did not face harm due to her husband’s profile.
It was submitted that the evidence of the CID enquiries from 2004-2010 ran counter to the evidence that the applicant was not of interest because he could leave Sri Lanka legally. It was contended that to find the applicant was of no interest to Sri Lankan authorities the IAA needed to reject the evidence of CID inquiries, give it less weight or find that it did not indicate that the applicant was of ongoing interest in the foreseeable future.
Counsel for the applicants further submitted that the husband’s evidence that CID interest escalated in 2011 and it was only then that he was told that he could not leave the country was consistent with him being able to depart legally prior to 2011. It was submitted that the IAA therefore needed to consider if the applicant’s husband had a more significant adverse profile with the CID after 2011. The IAA analysis of the applicant’s husband’s profile from 2004 to 2010 did not adequately address the applicant’s claim. It was contended that the IAA’s failure to refer to the husband’s evidence suggested that it either misconstrued the actual claim made, or did not consider the material at all.
Counsel for the applicants submitted that the IAA by not considering the evidence in the applicant’s Husband’s Statement regarding the CID enquiries[109] constructively failed to consider the applicant’s claim to fear harm for reason of her husband’s involvement in the LTTE.
Minister’s Submissions
[109] CB 130, 128-[130].
Counsel for the Minister submitted that as a preliminary issue in relation to the Second Ground, it was important to take into account the fact that the IAA was dealing with the question of whether the applicant had a well-founded fear of persecution, rather than whether the applicant’s husband had a well-founded fear of persecution. It was submitted that it was important to read the IAA Decision as a whole in light of the fact that the IAA was dealing with the applicant’s claims rather than the claims of her husband, notwithstanding that the applicant did make claims associated with her connection with her husband and his membership of the LTTE.
There were two main contentions argued by Counsel for the Minister. The first was that the IAA did not misunderstand or misconstrue the applicant’s claims to fear harm due to her husband’s association with the LTTE. It was submitted that the IAA did not accept that the applicant’s husband was a person of interest because he was able to safely return to Sri Lanka on three occasions from 2004 to 2010, at the height of the civil war and despite security checking at Colombo airport. The IAA decision stated:
The SHEV application included information that indicates that the husband of [the applicant] travelled to and from Sri Lanka for work on three occasions, to Qatar in 2004, to Kuwait in 2008 and to Qatar again in 2010. In between these periods overseas her husband returned to Sri Lanka on each occasion. Noting the requirement to pass security checking at the airport at Colombo, and his ability to do so on multiple occasions including during the civil war, I find that he was not of adverse interest to authorities. I note the letters of support and references to concerns for his safety but I am not satisfied that her husband would have been able to enter and exit Sri Lanka on each of those occasions if he was of interest to the authorities because of any LTTE association.[110]
[110] CB 262-263, [17], footnotes omitted.
Consequently it was submitted by Counsel for the Minister there was no need to make a specific finding relating to the applicant’s husband’s evidence regarding what occurred to him upon return from overseas on three occasions between 2004 and 2010. Such a specific finding was subsumed in the general finding that as he was able to pass security checking at the airport in Colombo several times during the civil war, he was not of adverse interest to the authorities.[111] On the basis of that factual finding, it was submitted that it was not necessary for the IAA to consider the applicant’s husband’s evidence on the actions of the CID after he returned to Sri Lanka.
[111] Loc. cit.
Counsel for the Minister relied upon Applicant WAEE v Minister for Immigration and Indigenous Affairs (2003) 236 FCR 593, where the Court said:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons…The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications …
The Inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too easily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.[112]
[112] ApplicantWAEE v Minister for Immigration and Indigenous Affairs (2003) 236 FCR 593, [46]-[47]; [2003] FCAFC 184, [46]-[47] (French, Sackville and Hely JJ)
The second alternative submission by Counsel for the Minister was that the substantive finding that the applicant’s husband was not a person of interest was not a dispositive issue such that it would have changed the decision of the IAA. It was argued that this was because there were independent grounds for rejecting that the applicant would fear harm associated with her husband. These grounds were:
a)The fact that the applicant’s husband was able to return to Sri Lanka on three occasions during the civil war;[113]
b)That the IAA found that the husband’s family continued to live openly in Sri Lanka and there was no evidence to suggest that they had attracted adverse attention from the authorities;[114]
c)That the IAA significantly stated “[m]oreover” to the reason for rejecting that the husband’s LTTE association had led to a fear of harm, was the fact that the risk profile of persons of adverse interest had changed and was focused on those who advocated Tamil separatism (among other things).[115] Neither the applicant’s husband or the applicant fitted any of those risk categories on the evidence before the IAA; and
d)The passage of time since the civil war.[116]
[113] CB 263, [17]
[114] Loc. cit.
[115] CB 263, [18]
[116] CB 263, [20]
Counsel for the Minister submitted that accordingly, dealing with the applicant’s husband’s evidence of the occasions when he returned to Sri Lanka from 2004 to 2011 would not have been dispositive such that a failure to consider it would lead the IAA into jurisdictional error.
Counsel for the Minister submitted that the Second Ground should be dismissed.
Consideration of Substantive Application
First Ground
The allegations made in the First Ground of the Substantive Application as pleaded in the Further Amended Application, are set out in paragraphs 65 and 66 above.
The submissions made on behalf of the applicants and the Minister in relation to the First Ground are summarised in the paragraphs above. I accept the submissions made by Counsel for the Minister that the IAA did not act legally unreasonably by failing to seek new information from the applicant.
In relation to the incomplete copy of the Interview Transcript, all that has been demonstrated by the applicants is that the Migration Agent dropped out of the telephone call, that the connection had to be re-established and that some of the applicant’s evidence was not recorded, as set is set out in the extract from the Interview Transcript in paragraph 76 above. There is no suggestion or available inference from the Interview Transcript that the applicant or the Delegate dropped out from the call. Consequently the information that the Delegate heard from the applicant during the SHEV Interview that was not recorded cannot become new information pursuant to s.473DC(1) of the Migration Act, as it was before the Delegate at the time of the Delegate’s Decision: s.473DC(1)(a).
In relation to the adequacy of the interpretation, this was also not new information that was not, or could not have been, provided to the Minister (or his delegate) before the Delegate’s Decision was made, as required by s.473DC(1)(a). The applicant was requested to raise any issues of interpretation or understanding during the SHEV Interview, as set out in paragraph 113 above and did not do so, according to the Interview Transcript.
I find that these issues raised before the Delegate at the SHEV Interview did not meet the definition of new information under s.473DC(1) of the Migration Act because they were matters before the Minister (through his delegate) at the time of the Delegate’s Decision: s.473DC(1)(a).
Further, in coming to the conclusion that the IAA has not been legally unreasonable I have considered the principles summarised in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158[117] and in particular the following:
The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality by reference of the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependent and require careful attention to the evidence: Singh at [42].[118]
[117] Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, [58]-[65] (Allsop CJ, Griffiths and Wigney JJ)
[118] Ibid [63]
I have taken into account the legislative framework within which the IAA conducts the fast track review process for protection visas under Part 7AA of the Migration Act. It is significant that s.473DB(1)(a) and (b) require that the review take place without accepting or requesting new information and without interviewing the referred applicant. It is also significant that pursuant to s473DC(2) the IAA does not have a duty to get, request or accept, any new information. Whilst the IAA does have a discretion to obtain new information pursuant to s.473DC(1), it must not do so unless there exists the exceptional circumstances required by s.473DD.
The High Court in Plaintiff M174/2016 emphasised that the task of the IAA was “not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it”.[119]
[119] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, [17] (Gageler, Keane and Nettle JJ)
The applicants in this raise concerns about two factual circumstances that went to the unreasonableness of the IAA’s failure to exercise its discretion to seek new information from the applicant. These circumstances are firstly that the IAA was on notice that the recording of the SHEV Interview was incomplete, and therefore it could not determine whether the Delegate’s reasons were accurate. Secondly, that the applicant had raised concerns the adequacy of the interpretation and that this may have had an impact on the Delegate’s reasons. The applicant has not however stated what evidence was mischaracterised by the Delegate, what claims were not considered by the Delegate, what matters were misinterpreted by the interpreter according to the Interview transcript, or what claims have not been considered by the IAA.
Counsel for the applicants made significant concessions. The concessions were that there was no evidence put by the applicant as to what was missing from the Interview Transcript. No submission could therefore be made that the information that was missing was necessarily a claim that was not considered, so that the applicant met the relevant criteria for a protection visa. There was no evidence put by the applicant to prove that there were errors in the interpretation.
The applicant had an opportunity by way of submitting the July 2017 Submission to raise concerns in relation to the Delegate’s reasons. The applicant was referred to the Practice Direction that had been sent to her when she was notified of the Delegate’s decision. The Practice Direction stated that the written submission should state “why you disagree with the [Delegate’s Decision]” and “any claim or matter that you presented to the [Delegate] that was overlooked”.[120] The applicant in her July 2017 submission made a generic and unparticularised statement that she couldn’t fully understand the interpreter. The applicant also said that she didn’t know what he was interpreting into English was what she was saying. I accept the submission by Counsel for the Minister that this could be said for any person speaking a language that is required to be interpreted into a second language. Further, if there were any specific issues with the interpreter during the SHEV Interview, I would have expected that these would have been raised in the July 2017 Submission. The applicant however did not point to any particular interpretation problem in the July 2017 Submission.
[120] CB 238
The IAA in fact considered the applicant’s general complaint about the interpretation and found that despite initial difficulties, there was no indication that that there was any misunderstanding in the interpreting.[121]
[121] CB 259, [8]
To the extent that the applicants’ sought to rely on the decision of Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 2010, that case is distinguishable from the present case. In that case an entirely new issue of relocation was considered by the IAA in circumstances where the Delegate had not raised the issue. Therefore, seeking new information from the applicant was the only way the IAA could hear from the applicant on that matter.
I therefore find that the IAA did not act legally unreasonably in the circumstances. For the foregoing reasons I reject each of the particular allegations made in the First Ground.
I find that the First Ground should be dismissed.
Third Ground
Counsel for the applicants submitted that the Third Ground was an alternative to the First Ground. The allegations made in the Third Ground of the Substantive Application as pleaded in the Further Amended Application, are set out in paragraphs 67 and 68 above.
The submissions made on behalf of the applicants and the Minister in relation to the Third Ground are summarised in the paragraphs above.
Counsel for the applicants conceded that the Migration Regulations do not permit the IAA to make the direction sought in the Third Ground.[122] In relation to the submission by Counsel for the applicants concerning the obiter of Edelman J in Plaintiff M174/2016,[123] in my view the obiter comments are not relevant to this case. Edelman J appeared to be concerned about where there was jurisdictional error made by the Delegate. In this case the applicants have been unable to specify the jurisdictional error made by the Delegate that would lead the IAA to doubt its ability to reach a state of satisfaction under the Migration Act. Consequently the circumstances that Edelman J addressed in his obiter comments were significantly different from this case.
[122] Migration Regulations, reg.4.43
[123] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 253 ALR 600, [98]-[99] (Gageler, Keane and Nettle JJ)
I accept the submissions of Counsel for the First Respondent that the proper test was whether the IAA was satisfied that the criteria for the grant of the visa were met, rather than being concerned with the correction of error on the part of the Delegate: Plaintiff M174/2016.[124]
[124] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, [17] (Gageler, Keane and Nettle JJ)
I therefore find that the Third Ground should be dismissed.
Second Ground
The allegations made in the Second Ground of the Substantive Application as pleaded in the Further Amended Application, are set out in paragraphs 69 and 70 above.
The submissions made on behalf of the applicants and the Minister in relation to the Second Ground are summarised in the paragraphs above. I agree with the two contentions argued for by Counsel for the applicants in relation to the Second Ground.
In relation to the first contention, I agree that in the IAA Decision it was noted that the applicant’s husband had travelled to and from Sri Lanka for work on three occasions, being Qatar in 2004, Kuwait in 2008 and Qatar again in 2010. The IAA said:
In between these periods overseas her husband returned to Sri Lanka on each occasion. Noting the requirement to pass security checking at the airport at Colombo, and his ability to do so on multiple occasions including during the civil war, I find that he was not of adverse interest to authorities.[125]
[125] CB 262-263, [17]
The IAA did not accept that the applicant’s husband was a person of interest because he was able to safely return to Sri Lanka on three occasions from 2004 to 2010, during the civil war and despite security checking at Colombo airport. As a result I find that there was no need for the IAA to then make a specific finding relating to the applicant’s husband’s evidence concerning what happened to him when he returned on the three occasions between 2004 and 2010. Such a specific finding was subsumed into the general finding that as he was able to pass security checking at the airport in Colombo on a number of occasions during the civil war, he was not of adverse interest to the authorities.[126] I therefore conclude that it was not necessary for the IAA to consider the applicant’s husband’s evidence on the actions of the CID after he returned to Sri Lanka.
[126] Loc. Cit.
In arriving at this conclusion I have had regard to the decision of Applicant WAEE v Minister for Immigration and Indigenous Affairs (2003) FCR 593, where the Federal Court said:
The Inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too easily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.[127]
[127] ApplicantWAEE v Minister for Immigration and Indigenous Affairs (2003) 236 FCR 593, [46]-[47]; [2003] FCAFC 184, [46]-[47] (French, Sackville and Hely JJ)
Further, in relation to the second contention advanced by Counsel for the applicants, I agree that the substantive finding that the applicant’s husband was not a person of interest was not a dispositive issue to the extent that it would have changed the decision of the IAA.
I am persuaded that there were independent grounds for the IAA rejecting that the applicant would fear harm, these being:
a)The fact that the applicant’s husband was able to return to Sri Lanka on three occasions during the civil war;[128]
b)That the IAA found that the husband’s family continued to live openly in Sri Lanka and that there was no evidence to suggest that they had attracted adverse attention from the authorities;[129]
c)That the IAA connected the reason for rejecting the husband’s claim to be of adverse interest to the authorities with the fact that the risk profile of persons of adverse interest had changed in Sri Lanka and was focused on those who advocated Tamil separatism (among other things),[130] when neither the applicant’s husband or the applicant fitted any of those risk categories on the evidence before the IAA; and
d)The passage of time since the civil war.[131]
[128] CB 263, [17]
[129] Loc. cit.
[130] CB 263, [17]-[18]
[131] CB 263, [20]
I therefore find that the IAA in not dealing specifically with the evidence referred to in the Second Ground and the particulars to the Second Ground would not have been dispositive such that a failure to consider it would lead the IAA into jurisdictional error.
By reason of the foregoing, I do not agree with Counsel for the applicants’ submission that the IAA’s failure to refer to the husband’s evidence suggests that it either misconstrued the actual claim made or did not consider the material at all.
I therefore find that the IAA did not fail to have regard to material evidence before it and/or an integer of the applicant’s claim, namely the evidence that the applicant’s husband had been targeted by the CID and received death threats from them on each occasion when he returned to Sri Lanka from working overseas. For the foregoing reasons I reject each of the particular allegations made in the Second Ground.
I therefore find that the Second Ground should be dismissed.
Conclusion Substantive Application
For the foregoing reasons I will dismiss the First, Second and Third Grounds of the Substantive Application.
The Application will be dismissed and the applicant will be ordered to pay the First Respondent’s costs.
I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 21 June 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Appeal
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Statutory Construction
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