BFX17 v Minister for Immigration
[2020] FCCA 2133
•4 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BFX17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2133 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to rely on ground of proposed amended substantive application – whether there was such merit in the proposed ground to warrant leave to amend in the interests of the administration of justice – whether there was a satisfactory explanation for the significant delay to amend – no merit in the proposed ground – no explanation for the delay provided – leave to amend refused. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 56, 57, 58, 425, 473CB, 473DC, 473DD, 476, pt.7AA |
| Cases cited: Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 BEL18 v Minister for Home Affairs [2018] FCA 2103 |
| Applicant: | BFX17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SEVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 866 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 28 May 2020 and 8 July 2020 |
| Date of Last Submission: | 8 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bodisco |
| Solicitors for the Applicant: | Abu Legal |
| Representative for the Respondents: | Mr D. Clarke |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Leave to amend the application of 23 March 2017 is refused.
The application made on 23 March 2017 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 866 of 2017
| BFX17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTUAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 March 2017, seeking review of the decision of the Immigration Assessment Authority (“IAA”) made on 2 March 2017, which affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicant a Safe Haven Enterprise Visa, a protection visa (“the visa”).
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”).
Background
The applicant is a citizen of Lebanon, and a Sunni Muslim (item 18 at CB 46 and item 33 at CB 48). He arrived in Australia on 12 February 2013, as an “unauthorised maritime arrival” (CB 141; see also CB 31). On 22 February 2013, the applicant participated in an entry interview (CB 1–CB 30). His application for the visa was received by the Minister’s department (“the department”) on 13 May 2016 (CB 33–CB 76). Attached to the application was the applicant’s statement of claims, setting out why he feared harm if he were to return to Lebanon (CB 70–CB 72).
The Applicant’s Claims
The applicant claimed that in 2008 he was injured by a bomb explosion in his home city of Tripoli. Following his release from hospital he was approached to join a gang led by a local leader [A] to fight against a gang from Jabal Mohsen. The applicant refused to join (CB 70). After his continued refusal to join the gang, he was kidnapped. He was threatened, beaten and stabbed which affected him psychologically. A bomb went off which allowed him to escape his kidnappers (CB 70). He was later found and hit on the side of his head with a bottle (CB 71).
He later opened a chicken shop. However, the gang members began sending him “hidden messages” such as breaking his windows (CB 71). The applicant felt as though his life was in serious danger as the gang members continued to search for, and locate, him.
In August 2015, (while he was in Australia) the applicant was informed that his father was killed by a gunshot to his head. The applicant’s family believed that the gang member who shot his father was enquiring about the applicant’s whereabouts, but his father would not reveal the applicant’s location (CB 71).
The applicant feared persecution because the “terrorists” who killed his father will “come after” him (CB 71).
The applicant claimed that he could not relocate to another area in Lebanon as “…Alawite Hezbollah controls the area and we all know that they treat us as their enemies.” The applicant further claimed that he would not receive protection from local authorities (CB 71).
The Delegate
The applicant was invited to, and attended, an interview with the delegate on 12 October 2016 (CB 124–CB 126 and CB 144). Following the applicant’s interview his migration agent made written submissions to the delegate (CB 127–CB 132). These submissions included links to various YouTube videos and photographs.
On 18 October 2016, the delegate refused to grant the applicant the visa (CB 138–CB 153).
In his decision record the delegate indicated that he viewed the YouTube video links sent by the applicant’s migration agent, and that they “show clips about the return of [sic: to] Tripoli of Sunni militia leader Saad Masri from Turkey. Other clips dated 2008 show what appears to be militia members fighting in an alleyway and what appear to be bombings in Tripoli.” (CB 144).
The delegate accepted that the applicant was injured in a mortar attack in 2008, and that following this incident a local Sunni militia attempted to recruit him, but the recruitment was unsuccessful (CB 148). Subsequently, he was stabbed during an “altercation with this militia” (CB 148).
The delegate also accepted that the applicant’s chicken shop was vandalised, he had verbal arguments with people between 2009-2013, and in 2012 someone threw a bottle at his head. Further, the delegate found that “the applicant’s father was murdered by an unknown person for an unknown reason. The murder was unrelated to the applicant’s refusal to join the militia.” (CB 148.3). The delegate also found that when the applicant left Lebanon he was “of no adverse interest to anyone.” (CB 148).
The delegate accepted that given the applicant’s past experiences (which it accepted), and the instability of the region, that the applicant “…may have a subjective fear of returning to Tripoli.” (CB 148). However, after taking into account country information, the delegate found that the applicant (CB 151):
“…would not face any real chance of serious harm from Alawite or Salafist/militant Sunni militia or gangs, or anyone else, due [to] having refused to join a militia in 2009, for being a Sunni, a moderate Sunni or any other reason, if he returns to Tripoli in the foreseeable future.”
The delegate was not satisfied that the applicant met s.5H(1) of the Act, and therefore found that the applicant was not owed protection under s.36(2)(a) of the Act (CB 151).
The delegate was also not satisfied that there were “…substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Lebanon…” that there was a real risk that the applicant would suffer significant harm. Therefore, the delegate found that the applicant was not owed protection under s.36(2)(aa) of the Act (CB 152).
On 12 October 2016, after the interview, the delegate sought to email a File Note to the applicant’s migration agent (CB 133–CB 137). The File Note was prepared as a summary of the hearing because due to a recording error the “main part” of the interview was not recorded. The email indicates that the applicant’s migration agent was informed of the recording error “…at the end of the interview before the start of the natural justice break” (CB 133).
The IAA
The matter was referred to the IAA for review on 24 October 2016, (CB 156–CB 157). On 2 March 2017, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 158–CB 170).
At [3] of the decision record, the IAA stated: “I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act). This includes inter alia, YouTube clips the applicant referred to the delegate.” (CB 160).
The IAA noted that the applicant did not provide the IAA with any other information, after the decision was referred ([6] at CB 161).
At [5] of the decision record the IAA addressed the failure (due to a technical error) to record the interview with the delegate (at CB 161):
“5. The applicant was interviewed in relation to his protection claims on 12 October 2016 however due to a technical error most of the interview was not recorded. This was disclosed to the applicant’s representative at the end of the interview. A detailed written summary of the interview was completed by the delegate after the interview and was checked and verified by another departmental officer who observed the interview. The delegate sought to send a copy to the representative however I note there is a typographical error in the representative’s email address. Nevertheless, there is no record of the email bouncing back and I cannot be satisfied that the interview summary was not received prior to the decision being made. Notwithstanding this, the delegate’s decision draws certain conclusions based on the applicant’s interview testimony, as per the interview summary and a copy of the decision was provided to the representative with notification of the decision. I am satisfied the applicant was on notice of the issues as discussed at interview and the delegate’s reasoning for the findings made in the decision.”
The IAA accepted the applicant’s claims concerning the psychological effects of the “…2008 and 2009 incidents and the more recent death of his father.” ([7] at CB 161). However, the IAA was not satisfied this affected the applicant’s ability to give evidence.
The IAA accepted that the applicant was injured from a mortar attack, and had been “subsequently approached by a local Sunni militia group [which] was then led by K...” ([10] at CB 162). It also accepted that the Sunni militia group attempted to recruit him, and he refused, which prompted the group to kidnap, stab and hit him over the head ([10] at CB 162).
The IAA accepted that the applicant’s shop was vandalised, he had been followed on occasions, verbally abused, hit with a bottle in mid-2012 and that his father was murdered ([11]-[12] CB 162–CB 163). However, the IAA did not accept that “…these incidents were hidden or overt messages from the [A] gang indicating that they are still coming after him.” ([12] at CB 163; see also [13]-[18] at CB 163–CB 164).
The IAA was not satisfied that the applicant had any interaction with the [A] gang since the 2009 incident, was not of adverse interest to the gang when he left Lebanon and would not be of interest to them or “any other local Sunni extremist or militant groups upon return.” ([22] at CB 164–CB 165).
The IAA considered the risk the applicant would face as “…a moderate Sunni Muslim from [a particular area] in Tripoli, noting that this neighbourhood [is] outside of, but in close proximity to, the flashpoint neighbourhoods of Bab al-Tabbeneh and Jabal Mohsen.” ([23] at CB 165).
After taking into account country information ([24]-[29] at CB 165–CB 166), the IAA concluded that it was not satisfied “…that the applicant face[d] a real chance of harm arising from fighting between Sunni and Alawite militia in his home neighbourhood…or anywhere else in Tripoli outside of Bab al-Tabbeneh and Jabal Mohsen.” ([29] at CB 166).
The IAA also took into account the “…broader risk of harm arising from sectarian and insurgent violence in Lebanon.” ([30] at CB 166). After considering country information ([29]-[31]), the IAA was “…not satisfied that the applicant face[d] a real chance of harm arising from the refugee influx or any armed response from Syria, nor from ISIS, Al-Nusra or other insurgents in the reasonably foreseeable future.” ([31] at CB 166).
The IAA considered the applicant’s mental health. However, it was not satisfied that the applicant would “…face persecution arising from these conditions upon return, nor that they would alter the risk facing the applicant for any other reasons upon return.” ([32] at CB 167).
The IAA was not satisfied that the applicant faced a risk from his father’s killer, or because of his changed role in the family ([33] at CB 167).
The IAA noted that the applicant left Lebanon through Beirut airport, which was under the control of Hezbollah, using his genuine passport, and that he did not experience any problems ([34] at CB 167). The IAA found the applicant would not face a real chance of harm upon return as an asylum seeker ([35] at CB 167).
The IAA found that the applicant did not meet the requirements of s.5H(1) of the Act and was not owed protection under s.36(2)(a) of the Act ([37] at CB 168).
The IAA also found that the applicant did not face a real risk of significant harm upon return due to him being recruited or harmed by the A gang, or “…any other local Sunni extremist or militant groups upon return.” ([40] at CB 168).
For the same reasons the IAA found that the applicant did not have a real chance of harm in relation to fighting between Sunni and Alawite militia in Tripoli in his local area in Tripoli, or “anywhere else in Tripoli outside of Bab al-Tabbeneh and Jabal Mohsen”, the IAA found that the applicant would not face a real risk of significant harm ([41] at CB 168).
The IAA was also “…not satisfied the applicant face[d] a real risk of significant harm through sectarian and insurgent violence, or armed force responses from Syria in the reasonably foreseeable future.” ([42] at CB 168).
For the same reasons as set out earlier in its decision record, the IAA found that the applicant would not face a real risk of serious harm upon return because of Hezbollah, his status as a returning asylum seeker or his father’s death ([43] at CB 169).
The IAA was satisfied that the applicant would not experience harm in Lebanon that would amount to significant harm because of “his claimed psychological issues.” ([44] at CB 169).
The IAA considered the applicant’s changed role in his family as a result of his father’s death. The IAA was satisfied that the applicant would not suffer significant harm on account of “financial or employment related reasons”, and was not satisfied that the applicant “would be prevented from earning a living or helping to support the family.” ([45] at CB 169).
The IAA considered the applicant’s claims individually and cumulatively, and was not satisfied that there was a real risk that the applicant would face significant harm in the reasonably foreseeable future if he returned to Lebanon ([46] at CB 169). The IAA found that the applicant was not owed protection under s.36(2)(aa) of the Act ([47] at CB 169).
Before the Court
The applicant made his application to the Court on 23 March 2017. When he filed his originating application he was legally unrepresented.
On 6 July 2017, a Registrar of this Court made orders that the applicant have leave to file an amended application by 17 August 2017, and written submissions 14 days before the hearing.
On 17 March 2020, a solicitor filed a notice of appearance indicating that she was representing the applicant. On 14 May 2020, the Court wrote to the parties to advise that the hearing in this matter would occur by telephone due to current (COVID-19) restrictions. The applicant’s then solicitor replied to this correspondence indicating that she had provided her client with a notice of intention to withdraw as his representative. She subsequently filed a notice of withdrawal on 12 June 2020.
At 4:46pm, on 27 May 2020, the day before the final hearing in this matter a solicitor, Mr Abu Siddque, filed a notice of address for service indicating that he was now on the record for the applicant.
At 4:49pm, on 27 May 2020, the applicant filed written submissions prepared by Mr Bodisco of counsel.
At 5:30pm, on 27 May 2020, the applicant emailed an amended application to my chambers.
At the hearing on 28 May 2020, the applicant was represented by Mr Bodisco of counsel, the Minister was represented by a solicitor in the employ of his solicitors.
Before the Court, given the orders referred to at [41] above, the applicant sought leave to rely on his proposed amended application of 27 May 2020, and his written submissions. There was only one ground in the proposed amended application. All other grounds were not pressed. The Minister submitted that the proposed ground did not have merit.
I adjourned the hearing to give the parties time to respond to the following orders made in Court:
“…2.The applicant to file and serve further evidence by way of affidavit in relation to the timing of the filing of the proposed amended application on or before 4 June 2020.
3. The first respondent to file and serve further written submissions on or before 18 June 2020…”
The Minister filed further written submissions on 18 June 2020. The applicant did not file further evidence to explain the late filing of the amended application.
The Applicant’s Application to the Court
The applicant’s proposed amended application sent to Chambers on 27 May 2020 is in the following terms:
“SOLE GROUND:
The IAA had failed to embark on the interview as contemplated by Part 7AA of the Migration Act as a result of a breach by the Secretary of Section 473CB(1)(b) of the Migration Act (Act).
Particulars:
Section 473CB (1) (b) of the Act imposes an obligation on the Secretary to take reasonable steps to forward material provided by the Applicant to the person making the decision and the Secretary breached this obligation. In the circumstance of this case, this had the consequence that the Authority failed to carry out the review required by Part 7 AA of the Act.”
At the Resumed Hearing Before the Court
At the resumption of the hearing on 8 July 2020 the applicant appeared through his counsel who had elected to appear by telephone. The Minister was represented by a solicitor who elected to appear physically at the Court room (observing COVID–19 protocols).
The Minister opposed leave being granted on the basis that no satisfactory explanation had been provided for the significant delay in bringing forward the sole ground of the amended application and that, in any event, the proposed ground lacked merit.
The Issues
In the current case, the factors relevantly arising from the circumstances presented in considering the exercise of the discretion appear to be the length of the delay, whether any satisfactory explanation or reasonable explanation has been given for the delay, whether the Minister would suffer any prejudice, and whether the sole proposed ground has such merit as to warrant the grant of the leave sought in the interests of justice.
The Delay
The delay in the current case is significant. It is a period of well over two years and 9 months.
At the initial hearing date for this matter I made the following orders:
“1. The hearing of this matter is adjourned until a date to be administratively advised to the parties.
2. The applicant to file and serve further evidence by way of affidavit in relation to the timing of the filing of the proposed amended application on or before 4 June 2020.
3. The first respondent to file and serve further written submissions on or before 18 June 2020…”
The applicant, and his legal representatives, were therefore on notice that some explanation by way of affidavit evidence was necessary to explain the significant delay in this matter.
No affidavit was filed by the applicant on or before 4 June 2020. Nor had any affidavit been filed at the time of the resumption of the hearing on 8 July 2020. This is also in circumstances where the Minister’s further written submissions (“RS”) (filed on 18 June 2020) made specific reference to this failure by the applicant to comply with the Court’s order (see the RS at [12]).
When he made his submissions to the Court, the applicant’s counsel made no reference to the issue of delay, and no attempt was made to refer to any evidence to explain it. The submissions proceeded only on the issue of whether the proposed ground had requisite merit.
In his submissions before the Court, the Minister’s solicitor made specific reference to the lack of any affidavit evidence. He argued that in that circumstance, and in particular because the applicant was on prior notice of the need to provide an explanation by way of evidence, that that should weigh heavily against the grant of leave even though in the circumstances there was little prejudice suffered by the Minister given the Court’s orders of 28 May 2020.
It was after this submission that the applicant’s counsel intervened to state that the failure to file any affidavit evidence was an “oversight” and that an affidavit could be sent electronically to the Court.
I made clear to the parties that given the circumstances set out above, I would not consider anything sent to the Court, literally, after the Minister had completed his submissions on the question of delay. To do so, potentially, and amongst other things, would have the outcome of further prolonging the disposition of this case.
In any event, the applicant had a fair opportunity to provide this evidence. Even if some “oversight” had occurred his failure to attend to this when he was on clear and specific notice, is not a reasonable or satisfactory explanation for not doing so when he had the benefit of assistance from both a solicitor and counsel.
In all, no satisfactory explanation has been provided for the significant delay. It may be that, in the circumstances, that is sufficient to refuse the leave sought (Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [10] and Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67 at [16]). In any event, for the reasons set out below there is no merit (that is of requisite character) in the sole ground of the proposed amended application such that it is in the interests of justice to grant the leave sought.
The Sole Ground of the Proposed Amended Application
The proposed ground asserts that the Secretary to the Minister’s department (“the Secretary”) failed to take reasonable steps to comply with the obligation in s.473CB(1)(b) of the Act, to forward to the IAA all the material provided to the department by the applicant. The consequence of this failure is said to be that the IAA failed to carry out the review as required by Part 7AA of the Act.
Section 473CB(1) of the Act at the relevant time was in the following terms:
“(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision 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 Authority) to be relevant to the review…”
The relevant part of the applicant’s submissions to the Court explained that due to a technical error the applicant’s interview with the delegate was not recorded. The Secretary’s failure therefore was said to be not giving the audio of the interview to the IAA. In the circumstances this resulted in jurisdictional error by the IAA because it was prevented from conducting the review in the circumstances, amongst others, contemplated by s.473CB(1)(b) of the Act.
The applicant sought to rely on BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 (“BVC20”). In that case the applicant claimed that he had been attacked in Iran (the receiving country). He showed the delegate a scar on his hand which he said was a result of this attack.
The delegate in BVC20 also had evidence that the applicant had been involved in a fight more recently after his arrival in Australia. The applicant showed the delegate a photograph on his mobile phone which he said supported his claim that the scar arose from the attack in Iran.
Before the Federal Court the applicant claimed that the IAA (in that case) acted unreasonably because the IAA failed to consider exercising the discretion under s.473DC of the Act to either obtain a photograph of the scar or to get new information in the form of an explanation of the scarring on the applicant’s hand.
In his submissions before this Court the applicant made specific reference to BVC20 at [78]–[79]:
“78. As for the supposed “practical ramifications” relied on by the Minister, there would in fact be no practical ramifications if decision-makers in the position of the delegate ensured that any material provided to them, including information which is provided in an intangible form, is recorded or retained in some form so that it can subsequently be given to the Authority. Indeed, the fairness of the statutory review scheme pursuant to Pt 7AA very much depends on such steps being taken. If such steps are not taken, the Authority may well end up conducting its review on the basis of incomplete material; that is, otherwise than on the basis of all of the material that was before the original decision-maker. Decision-makers who interview visa applicants in respect of potential fast track decisions should be particularly alive to the difficulties that may be encountered if they don’t take effective steps to record or retain all material that is provided to them during the course of the interview. As the Full Court observed in AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222 at [66], the “nature of the review to be carried out by the Authority underlines the importance of the Authority being provided with all relevant documents”.
79. Decision-makers in respect of fast track decisions appear to take appropriate steps in the case of information which applicants provide orally. As already noted, it would appear that interviews that are conducted with fast track applicants are generally recorded so that a transcript of the interview can be given to the Authority. Such steps should also be taken in the case of all other material which is provided in an intangible form. If, for example, an applicant physically demonstrates something during the interview, the delegate should ensure that the transcript of the interview will contain an accurate record of what has occurred. More significantly, for present purposes at least, if the delegate is shown an image, or a document, during the interview, the delegate should ensure that a record of that image or document is somehow retained. As the events of this proceeding show, problems can arise if the delegate simply suggests to the applicant that they can submit the image or document at a later time.”
The argument therefore was that the audio of the delegate’s interview was not given to the IAA. This was said to be an interview “as per a requirement” by legislation. The Secretary should have taken reasonable steps to provide to the IAA the information given by the applicant to the delegate at the interview.
The applicant’s submissions also raised the following matters.
One, the applicant took the Court to the “entry interview” conducted with the applicant by a Commonwealth official on 22 February 2013 (CB 2) where the applicant first raised the claim to have been attacked in Lebanon (CB 23.2).
Two, the summary of the interview prepared by the delegate (the File Note). The submission was that the summary of the interview was deficient in a number of ways.
First, the use of the third person to refer to the applicant. The complaint was that the summary resulted in “…the material now being filtered through a third pair of eyes… and effectively, the Chinese whisper effect occurring, possibly.”
Second, the general complaint appeared to be that the IAA could not use this summary to make an assessment of the applicant’s credibility.
Third, the summary was “not checked” with the applicant. The delegate attempted to send the summary to the applicant’s representative by email. There was a “typographical error” in the email address used. Therefore, it cannot be assumed that the applicant received this email.
Fourth, the summary was not a contemporaneous note.
Fifth, an interpreter in the Arabic language was present at the interview. The submission was that given that there was only a summary and not the actual recording there is “…no way of assessing whether…that interpreter had done a good job or was able to do anything to assist the applicant…”.
Sixth, the absence of a recording of the audio sent to the IAA meant that there was an absence of non-verbal or “intangible” material (with reference to BVC20 at [78]), before the IAA, in circumstances where it was not possible to provide a transcript of what was said at the interview.
Three, the applicant submitted that the IAA’s capacity to obtain “new information”, and in this context from the applicant, is limited by the provisions of s.473DD of the Act. This meant that the applicant was “precluded…from being able to do much about…this flawed process.” That is, the failure to record the interview.
Consideration
What must immediately be said about the applicant’s submissions is that they strayed from the actual terms of the proposed ground, as pleaded, and did not focus on the fundamental aspects necessary to make out the proposed ground.
The proposed ground contains a simple proposition. That is, the IAA failed to carry out the review required by Part 7AA of the Act, because the Secretary failed to take reasonable steps to give to it material provided by the applicant as required by s.473CB(1)(b) of the Act.
It was not made entirely clear in submissions as to the exact nature of this material. The argument put by the applicant focused on the lack of an audio recording of the interview with the delegate.
That is, that what should have been provided to the IAA by the Secretary was an audio recording of the interview. Given that technical difficulties existed, preventing the recording of the interview, the IAA could not have reasonably embarked on the review in its absence.
Section 473CB(1)(b) provides that the Secretary must give to the IAA material provided to the delegate by an applicant. The audio of the interview arranged by the department, even if one had been produced, does not, and would not, meet that requirement.
The applicant did not give any audio of the hearing to the delegate. The ground as actually pleaded fails at the factual level and cannot, in this light, be said to have merit.
Although it was not by any means made clear in his submissions, what the applicant may have sought to argue, was that the “material” the Secretary should have given to the IAA, was what the applicant told the delegate at the hearing. That is, the “material” that should have been given were the applicant’s statements at the interview with the delegate. If what the applicant stated at the interview could be seen as “material” (in the sense used in s.473CB(1)(b)) then this may fit within the terms of s.473CB(1)(b) of the Act).
A difficulty for the applicant now however, (beyond whether these oral statements are “material” for the purposes of s.473CB(1)(b)) if this was indeed part of his argument, is that he did not satisfactorily explain how such “material” could only, and must only, have been given by the Secretary to the IAA in the form of an audio recording.
Before disposing of this argument it is necessary to note that the applicant’s submissions before the Court made reference to there being a statutory obligation or requirement that an opportunity for an applicant to attend a “hearing” (interview) be provided to the applicant by the delegate.
That must be rejected. When subsequently asked to explain this the applicant was unable to do so. Before the Court the applicant referred to s.58 of the Act. Section 58 of the Act provides for how an applicant may give information or comments to the delegate. That section contemplates two avenues that are available. The applicant may be invited to give additional information as set out in s.56 (with reference to s.58(1)(a)) or invited to comment on information pursuant to s.57 (with reference to s.58(1)(b)).
The delegate may elect from three options as to how that information or comments may be given. That is, in writing (s.58(1)(c)), or at an interview (s.58(1)(d)), or by telephone (s.58(1)(e)).
In this case, the delegate elected that the applicant be invited to give information and comments at an interview. As the Minister submitted there is no statutory obligation on the Minister (the delegate) to invite an applicant to an interview or a hearing. This is contrary to the situation, say, with the Administrative Appeals Tribunal which is statutorily obliged to invite an applicant to a hearing, other than in certain stated circumstances (see s.425 of the Act).
Nor is there any statutory obligation that the interview be recorded, or if recorded, the way in which this should be done. That is, for example, by audio or in written note form. Nor is there any statutory requirement that a transcript of the interview be made and/or given to the applicant.
To the extent that the applicant’s argument stated, or certainly implied, to the contrary that must be rejected.
The way in which the “material” in this case, which the applicant gave to the delegate at the interview was recorded was in writing by the delegate in the form of the File Note prepared by the delegate after the interview, and endorsed by another departmental officer who was present at the interview (CB 133–CB 137).
That File Note was given by the Secretary to the IAA in compliance with s.473CB of the Act. That is, in particular s.473CB(1)(c) of the Act, given that it was:
“(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 Authority) to be relevant to the review”.
In light of this even if the applicant sought to argue that his statements were “material” for the purposes of s.473CB(1) of the Act, that material was given by the Secretary to the IAA.
As set out above, in his submissions to the Court the applicant sought to impugn the efficacy of the File Note.
The immediate answer to this part of his submissions is that s.473CB(1)(b) of the Act on which his ground relies, or even s.473CB(1)(c), says nothing about the quality or character of that “material”. The only requirement is that it is material provided by the applicant (the File Note itself was not provided by the applicant) or material that the Secretary considered to be material to the review. In the circumstances this may include the File Note.
In the absence of anything to indicate to the contrary, the File Note must have been provided to the IAA because the Secretary considered it to be relevant to the review. The Secretary therefore complied with s.473CB of the Act. Nor has the applicant identified anything else that was not given, that should have been given, to the IAA.
It appeared that the reason the applicant sought to impugn the efficacy of the File Note was to then argue that it was not open to the IAA to assess the applicant’s credibility based on the File Note.
This argument, again, ignored what was actually stated in the proposed ground. That ground asserts a breach of s.473CB of the Act which had consequences for the exercise of the IAA’s conduct of the review. However, if no breach of s.473CB of the Act can be made out then the consequential part of the applicant’s submissions falls away and the ground, again, can be seen to have no merit.
In any event, I do not agree with the applicant’s characterisation of the File Note, and his criticisms of it (See at [75]-[80] above).
First, plainly, in reporting what the applicant said at the interview, the delegate referred to him in the third person. The applicant did not satisfactorily explain before this Court how that affected the efficacy of the File Note.
The File Note was not meant to be a transcript. In the circumstances, given the technical difficulties in recording the interview, the delegate sought to give a detailed report of what was said. In character this is no different to such reports and references routinely seen in delegate’s, and for that matter AAT, decision records, in matters of this type before this Court.
Second, the applicant did not satisfactorily explain before this Court why in the circumstances it was not possible for the IAA to use this summary in the review.
Despite opportunity to do so, the applicant produced no evidence to this Court (for example by way of an affidavit made by him) or, importantly made no satisfactory submission, that the File Note contained factual errors in what the applicant said at the interview. An interview that at which, for the most part, the applicant spoke English.
The attack now on the File Note was general, and it must be said, speculative. That is, for example, because the File Note was not a transcript there might have been some errors in what was reported. If there were such errors than the applicant, who spoke in English and who at the time was represented by a registered migration agent who was present at the interview (CB 134.2), has not identified even one in his submissions before the Court.
Third, as set out above, the complaint is that the File Note was not “checked” with the applicant. As also set out above, there appeared to have been some error in the email address used by the delegate to send the File Note to the applicant’s representative.
Before the Court, the applicant used this circumstance to criticise the IAA’s finding that: “…there is no record of the email bouncing back and I cannot be satisfied that the interview summary was not received prior to the decision being made.” ([5] at CB 161).
The difficulty for the applicant now in the context of establishing an arguable case, or a case with some merit, or even to indicate such a case, is that he has provided no evidence from which to draw a conclusion that the IAA’s finding was not reasonably open to it on what was before it.
On the evidence that is available, the applicant made no complaint to the IAA that he did not receive the File Note prior to the delegate making his decision. Nor has he provided evidence (for example by way of affidavit) now to that effect.
In any event, the IAA’s relevant reasoning was not limited to the matter of the email address. As set out at [5] of its decision record (CB 161):
“…Notwithstanding this, the delegate’s decision draws certain conclusions based on the applicant’s interview testimony, as per the interview summary and a copy of the decision was provided to the representative with notification of the decision. I am satisfied the applicant was on notice of the issues as discussed at interview and the delegate’s reasoning for the findings made in the decision.”
It was reasonably open to the IAA to find that the applicant would have been on notice, as a result of the delegate’s decision, of the issues arising from the delegate’s decision which was based on his “testimony” at the interview. On referral to the IAA the applicant could have made submissions to the IAA if he had not received the File Note and/or he believed that there was some misunderstanding of what he had said. He did not do so.
Fourth, the applicant complained before the Court that the summary in the File Note was not a contemporaneous record.
I do not agree. On the evidence, the interview took place on 12 October 2016. It commenced at 9:15 AM (CB 134.2). The interview was suspended at 10:20 AM to allow the applicant to speak to his agent (the “natural justice break”). (CB 137.4 and CB 133). The File Note was drafted on the same day (CB 137.4). The time of the email transmission of the File Note to the agent was 1:05 PM on the same day (CB 133.2).
Obviously the File Note was not contemporaneous in the sense of being drafted while the applicant and the delegate were speaking to each other. However, it followed immediately upon the interview so as to have been drafted not only on the same day, but immediately on cessation of the interview.
The summary was also checked and endorsed by another officer of the department who was present at the interview (CB 133 and CB 137). In all, this complaint also lacks merit.
Fifth, the complaint arising from the presence of an interpreter at the interview overlooks one, at least, important factor. That is that the applicant elected not to use the services of the interpreter. At the applicant’s initiative the interview was conducted in large part in English with the interpreter kept in reserve if needed (CB 134.2). The File Note indicates that the interpreter was “utilised…various times during the interview when needed for short periods.” (CB 134.3).
For those parts of the interview at which the applicant spoke in English he must have known what was being communicated by him to the delegate.
For those “short periods” when the interpreter spoke, the applicant was obviously at the interview and would have known at the time, and subsequently, what he said in his own language. How this was interpreted, if material to the outcome of the IAA’s decision, would be known to him as this was reported in the delegate’s decision (which was given to him on 18 October 2016, and in respect of which there is no dispute that the correct email address was used (CB 138).
Further, there was no attempt by the applicant before the Court to provide any evidence (say by way of affidavit) as to what errors were made by the interpreter, as what was said was reproduced in the delegate’s decision record, or in the File Note itself which was certainly available to the applicant during the current proceedings.
Sixth, the complaint regarding “intangible” material (see also [80] above) can only, in the circumstances, be an attempt now by the applicant to seek to draw on what was said in BVC20 (see [70] above).
Before the Court, the applicant’s explanation of this complaint was that the File Note, being a summary, would not capture conduct, as in BVC20 (the photograph on the mobile phone of the scar), which would be captured by a transcript made from an audio recording.
This argument obviously lacks merit.
One, the contention, as a general proposition, that a transcript would capture “intangible” conduct must be rejected. I do not accept that a photograph, as such, would be reproduced in any such transcript.
Two, the applicant has not identified with the necessary precision exactly what “intangible” matter was not reported, or could not be reported, in the File Note. At best the submission was speculative.
If this submission was meant to be a reference to the scars that he showed the delegate, than this was reported in the File Note (see CB 135.2 and CB 135.4). The audio recording would not have captured a photograph of his scars and would have done no more than what was reported in the File Note.
In all, the applicant’s various criticisms of the File Note do not assist in revealing merit in the proposed ground.
However, even if the applicant had been able to establish each of the items with which he sought to impugn the File Note, or even just one, this would still not give merit to the proposed ground.
A significant flaw in the applicant’s approach to this case, that is his election to frame the proposed ground as he did, is that he focused his assertion of error on the Secretary of the department, rather than as did the applicant in BVC20, on the IAA.
In BVC20 the applicant in that case framed his appeal on the basis that the IAA acted unreasonably in not exercising the discretion in s.473DC of the Act to obtain the photograph of the scarred hand from the applicant’s mobile phone (see BVC20 at [88]).
That is not how the applicant in the current case has framed, or pleaded, the proposed ground. The proposed ground asserts that the Secretary, not the IAA, acted unreasonably.
In that light, the applicant’s references in written submissions to s.473DD and s.473CB of the Act do not derive from, or relate to, the ground as pleaded. If the applicant wanted to argue that the IAA acted unreasonably he could have stated this in his ground.
It would appear that these references were a belated attempt to bring the argument in this case closer to what were the circumstances as found in BVC20.
In any event, it would have been impossible, in the circumstances of this case, for the IAA to have considered obtaining “new information” in the form of audio of the interview or a transcript, when no such audio existed.
I agree with the Minister that, given the terms of the proposed ground, the approach taken in BEL18v Minister for Home Affairs [2018] FCA 2103 (“BEL18”) provides a more relevant example, and direction, to this Court in the assessment of the merits of the applicant’s proposed ground.
In that case, the Court was concerned with the question of whether the IAA was able to properly conduct the review in circumstances where there was a “gap” in the audio recording in the delegate’s interview with the applicant.
At [81] the Court stated:
“81. Another way of looking at the question of the gap in the audio recording is to consider it in the context of the fast track process. There could be no suggestion that if no audio recording of the Interview was made that the Authority would be unable to undertake its statutory task. The Authority would have the reasons of the Minister and the other review material as described in s 473CB of the Act. The Authority would assess that review material and undertake its de novo review as contemplated by the legislative scheme. Where there is a gap in the audio recording of the Interview, the Authority can still undertake its task, but will simply need to undertake it on the available review material before it. In this sense, the Authority did consider the review material provided to it and which it received being, among other things, the audio recording of the Interview with the gap.”
The circumstances in BEL18 are closer to the relevant circumstances in the current case and therefore the legal principles set out in that case are more readily amenable to be applied to the current circumstances.
As in this case the focus of the issue before the Court (in BEL18) was the audio of the delegate’s interview. While the “gap” in the audio in BEL18 was a gap in a part of the audio recording, in a practical sense the only difference with the current case is that the “gap” here was the whole of the interview.
What the Court said about the “gap” in BEL18, in my respectful view, applies equally to the current case. In the current case, the IAA was able to complete its statutory task on the material that was referred to it pursuant to s.473CB of the Act.
In the current case, the applicant was unable to point to any material, in existence before the delegate, that was caught by s.473CB of the Act, and was not referred to the IAA by the Secretary.
As in BEL18 at [78] the IAA in the current case “…was still able to conduct its review taking into account the statement of the Minister referred to in s.473CB(1)(a)”, and further in this case, the File Note.
In all, there is no statutory obligation on the delegate to record the interview. The applicant was unable to satisfactorily identify where that obligation existed. The Secretary referred all of the material, in existence, which satisfied the requirements of s.473CB of the Act.
The Secretary could not have referred material (in the form of an audio recording or a transcript) which simply did not exist. What the applicant told the delegate was reproduced in the File Note, which was referred to the IAA thus, satisfying any statutory obligation said to arise from treating the applicant’s statements at the interview as “material” given by the applicant to the delegate.
In the circumstances, the IAA was able to conduct the review on the material referred to it.
For the sake of completeness I note that the applicant’s reference in submissions before the Court to the entry interview (see [73] above) was not relevant to the proposed ground as pleaded, nor to the applicant’s subsequent attempts at explaining the proposed ground.
Conclusion
The proposed ground particularly lacks merit because, ultimately, and on a factual basis, the Secretary could not have referred to the IAA something which did not exist, and for which there was no statutory obligation to have been brought into existence in the first place. The Secretary did comply with the requirements of s.473CB of the Act.
Leave to amend the application is to be refused. The applicant has provided no explanation, let alone a satisfactory explanation, for the significant delay in bringing forward the proposed ground. Further, there is no merit in the proposed ground such as to warrant the leave in the interests of justice. I will make the appropriate order.
The grounds of the originating application were not pressed. No reference is made to them in submissions. In his “Amended Application” the applicant made plain that he wished to proceed on the basis of the “Sole Ground” set out there. In the circumstances the originating application is to be dismissed.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 4 August 2020
0