CKV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2024] FedCFamC2G 735

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CKV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 735

File number:

MLG 1965 of 2019

Judgment of:

JUDGE RILEY

Date of judgment:

16 August 2024

Catchwords:

MIGRATION – Immigration Assessment Authority – protection visa – apprehended bias – application convicted of assault and indecent assault of a child under 16 years old – whether the Authority misconstrued s.473DC of the Migration Act 1958

Legislation:

Migration Act 1958 s. 473DC

Cases cited:

CKV16 v Minister for Immigration and Border Protection [2019] FCA 342

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47; [2019] HCA 50

CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568

EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462

FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; [2020] FCAFC 29

Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534; [2017] FCAFC 136

Division:

Division 2 General Federal Law

Number of paragraphs:

68

Date of hearing:

6 May 2024 

Place:

Melbourne

Counsel for the Applicant:

Min Guo

Solicitor for the Applicant:

Bardo Lawyers

Counsel for the First Respondent: 

Jonathan Barrington

Counsel for the Second Respondent:

No appearance

Solicitor for the Respondents:

Mills Oakley

ORDERS

MLG 1965 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CKV16
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	16 AUGUST 2024

THE COURT ORDERS THAT:

1.The decision of the Immigration Assessment Authority made on 23 May 2019 in matter number IAA19/06548 be set aside.

2.The matter be remitted to the Immigration Assessment Authority for determination according to law.

3.The first respondent pay the applicant’s costs of the proceeding.

Note:   The form of the order is subject to the entry in the court’s records.

Note:   This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)..

REASONS FOR JUDGMENT

JUDGE RILEY:

INTRODUCTION

1. In this matter, Besanko J set aside a decision of the Immigration Assessment Authority (“the Authority”) as previously constituted (“the first Authority”), for reasons of apprehended bias: CKV16 v Minister for Immigration and Border Protection [2019] FCA 342. The first Authority had affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. Following Besanko J’s decision, the matter was remitted to the Authority for determination according to law. On 23 May 2019, the Authority as reconstituted (“the second Authority”) again affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

3. The present application concerns the decision of the second Authority.

   BACKGROUND

4. In his written submissions filed on 5 April 2024, the Minister provided the following background to this matter:

   2.… The applicant is a male citizen of Lebanon and [of] Arab Sunni Muslim ethnicity. He arrived in Australia as an unauthorised maritime arrival on 24 March 2013.

   3.On 22 September 2015, the applicant applied for the visa claimed to fear harm from Hezbollah by reason of his Sunni religion and an imputed political opinion as he claimed to support Syrian refugees. And he claimed that he could not seek protection from the Lebanese authorities as the government is controlled by Hezbollah.

   4.The delegate received an email, dated 28 January 2016, which indicated that the applicant had been convicted of an offence of assault of a child under 16 years and indecent assault with a child under 16 years, for which the applicant received a $2,500 fine and was placed on the Sex Offender Register for 8 years. A later email also indicated that the applicant was of interest to Victoria Police, who wanted to investigate his involvement in a criminal offence of attempt to pervert the course of justice, which related to the victim in the criminal matters. Together, this information is the prejudicial information.

   5.On 14 June 2016, the delegate refused to grant the visa.

   6.The matter was referred to the Immigration Assessment Authority, who decided to affirm the decision on 15 August 2016. However, the applicant was subsequently successful on judicial review at the Federal Court, where Besanko J upheld a ground of apprehended bias relating to the prejudicial information.

   7.Upon remittal, the (second) Authority had all the information that was before the (first) Authority. That is, there was no re-provision of the review material to the Authority or any filtering out of the prejudicial information.

   8.After the remittal, the applicant made submissions to the Authority and provided new information. That new information included an annotated transcript which corrected errors in translation at the SHEV interview.

   9.On 23 May 2019, the Authority decided to affirm the delegate’s decision. …

   10.On 24 June 2019, the applicant filed an application for judicial review. The applicant filed an amended application in March 2024, advancing five grounds of judicial review.

   (footnotes omitted)

5. The email dated 28 January 2016 received by the delegate was sent by a senior case manager at the Maribyrnong Immigration Detention Centre.

   MATERIAL RELIED UPON

6. The applicant relied upon:

   (a)his application filed on 24 June 2019 and amended on 18 March 2024 (“the application”);

   (b)the court book;

   (c)his written submissions filed on 18 March 2024;

   (d)his list of authorities filed on 3 May 2024;

   (e)the statement of agreed facts filed on 3 May 2024 (exhibit 1);

   (f)the referrals to the Authority and disclosure checklist (exhibit 2); and

   (g)the identity assessment form (exhibit 3).

7. The Minister relied upon:

   (a)his response filed on 1 August 2019 and amended on 7 February 2024;

   (b)the court book;

   (c)his written submission filed on 5 April 2024;

   (d)his list of authorities filed on 3 May 2024;

   (e)the statement of agreed of facts filed on 3 May 2024 (exhibit 1).

   GROUND 1

8. The first ground of review in the application, is:

   The decision of the IAA was affected by apprehended bias in that a reasonable observer might apprehend that the IAA might have been affected, even if only subconsciously, by prejudicial but irrelevant information relating to the Applicant’s past conviction and being the subject of an investigation for attempting to pervert the course of justice.

9. The test for apprehended bias is whether a fair-minded, fully-informed, lay observer might reasonably think that the Authority might not bring an impartial mind to the determination of the matter.

10. As noted above, Besanko J had quashed the decision of the first Authority for reasons of apprehended bias in CKV16 v Minister for Immigration and Border Protection [2019] FCA 342. It was significant in his Honour’s reasoning that:

    (a)the first Authority had made no reference in its reasons for decision to the proposal by the police to interview the applicant in relation to perverting the course of justice;

    (b)the prejudicial information was irrelevant; and

    (c)the credit of the applicant was a key consideration for the first Authority.

11. The parties filed a statement of agreed facts relevant to ground 1. That statement was as follows:

    1.The material before the Authority on remitter (the ‘second Authority’) included all of the material that the Authority at first instance (the ‘first Authority’) had, because the first Authority did not return the review material to the Secretary.

    2. The second Authority got the reasons for judgment in CKV16 v Minister for Immigration and Border Protection [2019] FCA 342 on its own initiative, for the purpose of conducting its fast track review.

12. In other words, the second Authority had the same prejudicial information before it as the first Authority had had before it. That was because the Authority did not send any material back to the Secretary of the Immigration Department after the first Authority had made its decision, and also because the second Authority, of its own motion, obtained a copy of Besanko J’s decision in CKV16. The email about the prejudicial information was quoted in paragraph 7 of CKV16 as follows:

    “As you can see from the below email, yesterday [name of the appellant and boat identification] received an outcome in relation to his criminal matters. He has been convicted of assault of a child under 16 yrs and Indecent assault with a child under 16 yrs. A fine has been imposed of $2500.00 and he has been placed on the Sex Offender Register for 8 years. Is it appropriate for your team to progress this case or is this a case for CCRS?

    …

    I sent an email to you this morning regarding [name of the appellant] as his criminal case was finalised yesterday. However, Vic Police contacted the ABF today as they now wish to speak to him on 03/02/16 to investigate his involvement in a criminal offence. The offence in question is Attempt to Pervert the Course of Justice, which relates the victim to the matters he appeared at Melbourne Magistrates Court for yesterday. Three people have been charged in relation to making contact with the victim and attempting to get her to change her evidence, and they now wish to interview [name of the appellant] in relation to this matter. Once Vic Police advise if they wish to charge or pursue [name of the appellant] in relation to this matter I will let you know.”

13. In addition to the original email containing the prejudicial information, and the reasons for decision in CKV16, which quoted that email, the second Authority also had before it an identity assessment form for the applicant (exhibit 3) which said in section D:

    … VicPol charged on 18/12/14 indecent assault and committing an indecent act with a child under 16. Offence occurred on 4/12/2014.

14. The prejudicial information had two components as follows:

    (a)the convictions for assault of a child under 16 years old and indecent assault of a child under 16 years old; and

    (b)the proposal by VicPol to interview the applicant for attempting to pervert the course of justice.

15. The first Authority addressed the first component of the prejudicial information in paragraph 28 of its reasons for decision as follows:

    I note that on 27 January 2016 the applicant was convicted at a Melbourne Magistrates’ Court of the indecent assault of a child under 16 years. He was fined $2500.00 and placed on the Sex Offender Register requiring him to report to police for 8 years. The applicant does not claim to fear harm on this basis and there is no information before me to indicate that the applicant would be harmed for this reason upon return to Lebanon. I am not satisfied that the applicant would face a real chance of harm on this basis.

16. The first Authority did not say that it disregarded the first component of the prejudicial information. On the contrary, the first Authority actively considered the first component of the prejudicial information, and assessed whether it gave rise to a chance of harm.

17. The first Authority did not allude in its reasons for decision to the second component of the prejudicial information, being the proposal by VicPol to interview the applicant in relation to attempting to pervert the course of justice.

18. The Minister submitted that there were significant differences between the decision of the first Authority and the decision of the second Authority in relation to the prejudicial information.

19. The first difference identified by the Minister was that the applicant knew that the perverting the course of justice information was known to the second Authority, whereas the first Authority had been completely silent about that information. In fact, the applicant made written submissions to the second Authority about the attempting to pervert the course of justice information.

20. A related point is that, by the time of the decision of the second Authority, the question of whether the police were intending to interview the applicant in relation to possible charges of attempting to pervert the course of justice had been resolved in the applicant’s favour. The second Authority expressly stated at paragraph 49 of its reasons for decision that it accepted that the applicant was not charged with, and not involved in, such a crime. That was very different to the position before the first Authority, when there was a live possibility that the applicant had indeed attempted to pervert the course of justice.

21. By its nature, an attempt to pervert the course of justice could easily have an impact on a credibility assessment, because perverting the course of justice can undermine the judicial process, as can lying to the court. Assaults are in a different category, and, as the second Authority found at paragraph 48 of its reasons for decision, are not relevant to an assessment of credibility.

22. The second difference identified by the Minister was that Besanko J emphasised in CKV16 that the prejudicial information was given to the Authority in circumstances where credibility was a key consideration, whereas the second Authority said at paragraph 49 of its reasons for decision that the prejudicial information had no bearing on the assessment of the credibility of the applicant’s claims. That was a significant difference, for the reasons just discussed.

23. The Minister also argued that the prejudicial information in the present case, which in the second Authority’s decision was, in effect, confined to the assaults, was not so prejudicial that the second Authority could not put it out of its mind. For that proposition, the Minister relied on FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; [2020] FCAFC 29.

24. In FSG17, the allegation was of persistent sexual abuse of a 13 year old girl over a period of three years. The Minister relied on paragraph 42 of FSG17 where the Full Court said that:

    In the present case, we consider that the information is of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind in determining whether to grant a visa. In other words, a fair-minded lay observer might reasonably consider that the information is of a kind that might subconsciously affect the Authority’s approach to the decision, notwithstanding that the Authority consciously endeavoured to disregard the information.

25. The use of the phrase “such a prejudicial kind” was interpreted by the Minister as meaning that the court could engage in a gradation of sexual assaults, and decide that some were so prejudicial that a decision-maker could not put them out of his or her mind, and others were less prejudicial such that a decision-maker could put them out of his or her mind.

26. I accept that the persistent sexual assault of a 13 year old girl over a period of three years is somewhat more prejudicial than an assault and an indecent assault of a child under the age of 16 years. However, the assault and indecent assault of a child under the age of 16 years is still very prejudicial.

27. It is not the case that, simply because the second Authority dealt with the prejudicial information differently to the first Authority, the second Authority’s decision was free from a reasonable apprehension of bias. It is necessary for this court to look at the circumstances of this matter, in the light of all the relevant authorities.

28. In summary, the second Authority had information before it that the applicant had been convicted of assaulting and indecently assaulting a child under the age of 16 years. The applicant can be taken to have known that the Authority had the information about the convictions, because that information was reproduced in the decision of Besanko J which remitted the matter to the Authority. The second Authority said that the information about the convictions was irrelevant to the assessment of credibility.

29. The Authority also said that the information about attempting to pervert the course of justice was irrelevant to the assessment of credibility. That was because the second Authority accepted that the police were not pursuing that issue and the second Authority accepted that the applicant had never been involved in such a crime. There is no reason to doubt that the second Authority’s acceptance of these matters was genuine.

30. The second Authority did not actually disclose to the applicant its knowledge of the information about the convictions for assault and indecent assault of a child under 16 years. However, as mentioned above, the applicant can be taken to have been aware that the second Authority had that information. That is because it was contained in the decision of the first Authority, and the decision of Besanko J. The applicant can be taken to have expected that the second Authority would familiarise itself with both of those decisions, in an effort to avoid the error made by the first Authority.

31. However, the fact that the applicant was aware that the second Authority had the information about the convictions does not necessarily mean that a reasonable apprehension of bias could not have arisen. That is because, in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [100], Charlesworth J, sitting in the Full Court of the Federal Court said:

    … I would add that it is not to be assumed that an apprehension of bias would have been avoided had disclosure been made. Generally speaking, upon learning that the reviewer is in possession of irrelevant and prejudicial material, a referred applicant may well raise and maintain an objection to the reviewer exercising any powers on the review on the ground of apprehended bias and may well seek to obtain orders restraining the anticipated exercise of the IAA’s powers. Whether or not disclosure by the IAA of its possession of irrelevant and prejudicial material would avoid an apprehension of bias arising must depend on the facts of the particular case.

32. The present case is somewhat like AMA16 in that, in both cases, there was a charge of indecent assault. However, in AMA16, the alleged indecent assault was of a woman, whereas, in the present case, the indecent assault was of a child under the age of 16 years. Additionally, in the present case, there was a second conviction of assault of a child under the age of 16 years.

33. Another significant distinction from AMA16 is that, in the present case, the applicant had not only been charged with offences, he had been convicted. On the other hand, in AMA16, when the matter was before the Authority, the charge against the applicant had not been determined by a court. Indeed, after the Authority made its decision, the charge against the applicant in AMA16 was dismissed. Obviously, a conviction is much more prejudicial than a charge, because it is always possible that a charge will be dismissed.

34. On the other hand, the present case is also different from AMA16 in that, in the present case, the second Authority expressly stated at paragraph 49 of its reasons for decision that the prejudicial information had no bearing on the assessment of credibility, whereas, in AMA16, the Authority was silent on that issue.

1. In AMA16, Griffiths J found at [77] that it was unnecessary to consider the effect of the Authority saying that the prejudicial material played no part in its decision because the Authority in AMA16 was silent on that issue.

2. Similarly, in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47; [2019] HCA 50, Nettle and Gordon JJ noted at [99] that, in that case, the Authority had not said that it had put the prejudicial material to one side. However, their Honours did not expressly state that such an assertion would have been sufficient to dispel a reasonable apprehension of bias.

3. CNY17’s matter was remitted to the Authority for redetermination following the High Court’s decision. The Authority again rejected CNY17’s claims. CNY17 sought judicial review in this court, which again dismissed his application. CNY17 then appealed to the Federal Court, where a single judge, Jagot J, dismissed the appeal in CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568.

4. Jagot J, sitting in the Federal Court, said at [29] that a statement by the Authority that it had disregarded the prejudicial information could be taken into account when deciding what the fair-minded, fully-informed lay observer might have reasonably thought.

5. Having said that, the Full Court of the Federal Court found in FSG17 at [42] that the prejudicial information in that case was so prejudicial that even an express assertion by the Authority that it had disregarded it was not sufficient to dispel a reasonable apprehension that the prejudicial information might have subconsciously affected the Authority’s decision.

6. Jagot J noted in her decision in CNY17 at [35] that the Secretary of the Immigration Department had given the Authority, for the purposes of the remittal, a copy of the High Court’s decision in CNY17, which included a summary of the prejudicial material. Her Honour noted that it was fundamental to the rule of law that the Authority complied with the law as stated by the High Court in CNY17, and that the fair-minded lay observer would know that the High Court’s reasons for judgment were relevant to ensure that the Authority did not make the same error again. However, Jagot J said at [37-38] that, whether the provision of a judgment remitting a matter to the Authority could itself create a reasonable apprehension of bias would depend on the facts of each particular case.

7. In the present case, the second Authority obtained of its own volition a copy of Besanko J’s reasons for judgment, which contained the prejudicial information. From an administration of justice point of view, that was the right thing to do. However, that is not to say that being in possession of those reasons for judgment could not have given rise to a reasonable apprehension of bias.

8. Ultimately, in CNY17, Jagot J did not find that a reasonable apprehension of bias arose. That seems to have been because:

   (a)the High Court characterised the prejudicial information as “assertions”, “prejudicial opinion, innuendo and tacit suggestion”, and “vague suggestions and opinions”: [52];

   (b)the Authority disclosed that it had been given the High Court’s judgment by the Secretary and the Authority immediately identified it as irrelevant;

   (c)the Authority gave the applicant an opportunity to comment; and

   (d)the Authority only had a summary of the prejudicial information, contained in the High Court’s judgment, and not the prejudicial information itself.

9. The present case is materially different. As to paragraph (a), in the present case, the applicant was actually convicted of two offences, consisting of an assault and sexual assault of a child under 16 years. It was not a matter of assertions, innuendo and so on. There were convictions.

10. As to paragraph (b), the second Authority did not positively disclose the prejudicial information to the applicant, though the applicant can be taken to have known that the Authority would have had that information.

11. As to paragraph (c), the second Authority did not specifically invite the applicant to comment on the prejudicial information, though the applicant did lodge a submission on the attempt to pervert the course of justice issue.

12. As to paragraph (d), the second Authority had the actual prejudicial information rather than a more anodyne summary.

13. Weighing up all of these matters, I consider that a fair-minded, fully-informed lay observer might reasonably have thought that the second Authority might not have brought an impartial mind to this matter. The allegations of attempting to pervert the course of justice can be disregarded, because, by the time of the second Authority’s decision, they had been resolved in the applicant’s favour. The Authority said it accepted that, and this court can take that acceptance as not having had even a subconscious bearing on the Authority’s deliberations.

14. However, the second Authority had information that the applicant had been convicted of an assault of a child under 16 years and the sexual assault of a child under 16 years. This is very prejudicial information, which could have a subconscious effect on the Authority’s deliberations. The fact that the applicant was actually convicted of these offences, rather than there being mere allegations of offences, is significant.

15. Moreover, although the applicant can be taken to have known that the second Authority knew about the convictions, the fact that the second Authority did not positively disclose that information, did not invite the applicant to comment on it and did not expressly disavow any reliance on it in an invitation to comment, compounds the issue.

16. Ground 1 is made out.

    GROUND 2

17. The applicant withdrew ground 2 of the application at the final hearing.

    GROUND 3

18. The third ground of review in the application is:

    The IAA misconstrued s.473DC in deciding not to get further new information from the Applicant by interview, by interpreting the provision as if there was a precondition that the IAA had to first form a state of satisfaction that getting new information was ‘necessary’.

19. This ground concerns the applicant’s request in a submission to the second Authority to invite the applicant to an interview to provide further information about the attempting to pervert the course of justice issue.

20. The second Authority addressed this request as follows:

    New information – Victorian Police Investigation

    10.Included in the review material are documents indicating that in 2016 Victorian Police were investigating and seeking to interview the applicant in relation to his possible involvement in an offence - attempting to pervert the course of justice. The representative asserts that this is adverse information on which the applicant has not had the opportunity to comment. He asserts that the IAA should consider new information – that the applicant never committed nor had involvement in the commission of such crime and was not charged by the police over it. He also asserts that the IAA should invite the applicant to an interview to obtain further information regarding the police investigation.

    11.I accept that this matter was not previously raised with the applicant and the applicant had not previously had the opportunity to comment. I also accept the applicant’s response regarding having no involvement in the alleged crime and the update indicating the police laid no charges in this respect. I also accept this information necessarily informs other information in the applicant’s file. Taking this and all the circumstances into account, and noting that they are unusual, I accept there are exceptional circumstances to justify considering this new information.

    12.However, contrary to the representative’s suggestion, I do not consider it is necessary to interview the applicant, to obtain further information regarding the police investigation. The submission gives no indication as to the further information the applicant would wish to provide in an interview setting with the IAA, nor why this information could not be provided in writing or as part of the information already given. There is also no suggestion that the applicant’s fear of returning to Lebanon is impacted by the police investigation and as noted below I have difficulty seeing the relevance of this to any claim for protection. I have had regard to the claims, submissions, and the legislative framework within which the IAA operates, and also to the Federal Court judgment pertaining to the information relating to the investigation which ultimately led the case to be remitted for the IAA’s reconsideration. However considering all the relevant circumstances, I am not satisfied that the circumstances warrant an interview.

21. Section 473DC of the Migration Act 1958 (“the Act”) provided that:

    (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.

22. The applicant submitted that the Authority had erred by misconstruing s.473DC of the Act by considering that it could only conduct an interview to get new information if it considered it was “necessary”. The applicant argued that, by forming that view, the second Authority imposed an unwarranted limitation on the provision.

23. The Minster referred to EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 where Thawley J said:

    60. The statutory scheme so far as it concerns getting (s 473DC) and considering (s 473DD) “new information” can, for present purposes, be summarised as follows:

    (1)Section 473DC(1) gives the Authority a discretion to get “new information” which it considers “may be relevant” and which was not before the Minister when the s 65 decision was made.

    (2)In considering whether the documents “may be relevant”, the Authority is necessarily engaged in an exercise which is speculative to some degree.

    (3)Section 473DD prevents the Authority from considering any new information unless satisfied that there are “exceptional circumstances” in accordance with the terms of the provision. The Authority can only consider new information if it has first got it.

    (4)The discretion to get new information under s 473DC(1) does not expressly turn on whether there are “exceptional circumstances” within the meaning of s 473DD(a). The requirement for there to be “exceptional circumstances” only arises when the Authority addresses whether it is prevented by s 473DD from considering the “new information” it has got.

    (5)The nature and content of the “new information” would ordinarily, or at the least may, be relevant to whether there are “exceptional circumstances” under s 473DD(a) justifying considering the “new information” - see, or example: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [59].

    (6)The discretion to get new information under s 473DC(1) is only confined by the terms of the section read in its statutory context, in particular the context of Part 7AA as a whole. That context includes that there is no duty to get information in any circumstance: s 473DC(2).

    (7)The discretion in s 473DC(1) is to be exercised having regard to the particular circumstances of the case. It may well be permissible, having regard to s 473DC(2) and the statutory scheme more generally, to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional, so long as it was understood that the section did not necessarily require that there be “exceptional circumstances” within the meaning of s 473DD before the discretion to get new information was exercised.

    …

    62.The Authority's reasons are to be read in a practical common-sense manner and not be construed with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. The last sentence of A[7] indicates that the Authority approached the task of whether to get new information under s 473DC on the basis that it was required to be satisfied there were “exceptional circumstances” within the meaning of s 473DD. That was erroneous. Whether “exceptional circumstances” exist for the purposes of s 473DD may depend in part on the nature and content of the new information which has been obtained; the question whether to get new information arises before the information has been obtained.

    63.If the Authority had taken the view that the circumstances were not sufficiently unusual or exceptional to warrant getting the information, that may not have been erroneous (it is strictly unnecessary to decide that question) - the error lies in the Authority thinking the discretion in s 473DC(1) was confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information under s 473DC(1), “exceptional circumstances” within the meaning of s 473DD(a) which would justify the Authority later considering the new information. That issue only arises once the Authority has got the “new information”. The determination of that issue might depend in part on the nature and content of the material so obtained. It is not known what approach the Authority would have taken if it had not thought there was a requirement for it to be satisfied that, at the time it considered its discretion under s 473DC(1), there then existed “exceptional circumstances” within the meaning of s 473DD(a).

24. However, it seems to me that, in saying that it was not necessary to interview the applicant, the second Authority simply meant that it would not be helpful to interview the applicant. The second Authority was not imposing an unwarranted limitation on the exercise of its discretion. The second Authority was just saying that it did not see any benefit in exercising its discretion to get new information from the applicant.

25. Obviously, it would not have been helpful to interview the applicant, because the second Authority accepted what he had said in his submission, namely, that he had not been charged with attempting to pervert the course of justice and he had not in fact attempted to pervert the course of justice. In those circumstances, there was nothing to be gained by interviewing the applicant on that issue.

26. This ground is not made out.

    GROUND 4

27. The fourth ground of review in the application is:

    The IAA’s decision is affected by jurisdictional error as it failed to exercise its power in accordance with 473CC of the Migration Act 1958, by failing to consider the SHEV interview insofar as it contained evidence concerning [Mr X] which meant that a conclusion of the IAA could not be supported:

    Particulars

    a.In conducting its review of the Delegate’s decision, the IAA was required to review the fast track reviewable decision.

    b.In paragraph [9], the IAA was satisfied that section 473DD was met in respect of the annotated transcript provided to the IAA. The IAA concluded that the consequences the Applicant claimed, because of the humanitarian assistance that he provided, were not credible. A reason for such conclusion was the Applicant’s differing evidence and timing of [Mr X’s] capture:

    a.At paragraph [27], the IAA stated: ‘in the SHEV interview, the Applicant stated that ‘Hezbollah had found “the main source” ([Mr X]), and taken him and some other men to find out who else has been helping. … At one point in the SHEV interview, he indicated that he didn’t come to Hezbollah’s attention until after [Mr X] was captured but he later indicated Hezbollah were already visiting his home “nearly every day” when they went to [Mr X’s] place to find him. He also indicated that [Mr X] had evaded capture and run away, undermining his claim that the capture of [Mr X] and the other men had led Hezbollah to find out about the Applicant.’

    b.However, as is clear from the following extract from the annotated transcript, the Applicant did not state that Hezbollah had taken [Mr X]:

    [at CB 305 T37.7] HEARING OFFICER: So how did you come to the attention of Hezbollah?

    APPLICANT: Because they found out that we are helping the Syrian refugees because they found out the main source where we’re bringing this stuff, the food and beverage, and they came and took him and they want to take us off.

    HEARING OFFICER: So they took who?

    INTERPRETER: The men

    …

    [at CB 306 T36.12] APPLICANT: That’s why they didn’t want – they didn’t like what we were doing, so they came. They took the men and they want to find out about who else is helping them.

    …

    [at CB 312 T42.7] HEARING OFFICER: But the first time, would you say that that’s what triggered your decision to leave?

    …

    APPLICANT: No, when they used to come nearly every day or second day, ask about me and they put me in their mind, then I decided and when they went to this man- they call him [Y] [[Mr X]] – and then when they went to this place ---

    HEARING OFFICER: So he was the boss of this?

    APPLICANT: The boss, yeah.

    HEARING OFFICER: And what’s happened to him?

    APPLICANT: He’s scared.

    APPLICANT: (through interpreter) Well, he ran away and he told them there is no way that we could continue this, so what are you going to do? And they said they are serious about this and they told my cousin, “You better leave” because they are – yes, they are serious about this.

    …

    c.Such incorrect conclusion drawn by the delegate was relied upon by the IAA in making an adverse credibility finding against the Applicant. The IAA’s failure to review the Applicant’s claim materially affected the IAA’s decision in concluding that the Applicant’s claims were not credible. But for this error, the IAA’s decision may have been different.

28. However, the second Authority did consider the SHEV interview, both the audio recording and the transcript of it. The second Authority said in its reasons for decision:

    Interview transcript and interpreter’s affidavit

    7. The representative asserts that there were serious interpreting errors made during the SHEV interview which prevented the delegate from hearing the applicant’s true responses and ultimately affected the delegate’s view of the applicant’s credibility. The representative has now provided the IAA with what is purportedly an accurate transcript of the SHEV interview prepared by a different interpreter, and an affidavit from this interpreter.

    8. The affidavit and the concerns now being raised about the quality of interpreting is new information. Having listened to the audio recording and reviewed the submitted transcript, I accept there are variances between the interpreters’ interpretations, including some nuances on potentially relevant points. I accept the new information is credible personal information which, had it been known, may have affected consideration of the applicant’s claims. I accept s.473DD(b)(ii) is met. I am also satisfied there are exceptional circumstances to justify considering this new information.

29. It is apparent from those paragraphs that the second Authority compared the audio recording of the SHEV interview with the transcript of it. The second Authority also referred to the content of the applicant’s SHEV interview at paragraphs 22, 24, 25, 27, 28, 31, 35 and 38 of its reasons for decision. It is beyond doubt that the second Authority considered the SHEV interview.

1. To the extent that the applicant might have meant that the second Authority did not consider a particular aspect of his SHEV interview, being the part about Mr X, the second Authority said at paragraph 27 of its reasons for decision that:

   The applicant’s evidence how he came to Hezbollah’s attention and how he learned of this and realised he needed to leave Lebanon has been vague and inconsistent. In the SHEV interview he stated Hezbollah had found “the main source” ([Mr X]), and taken him and some other men to find out who else had been helping. However later in the interview he gave a more speculative and uncertain answer, that Hezbollah send spies and people tell them but he didn’t know how they had found out what he was doing. He stated someone had warned his cousin that Hezbollah was serious and they should leave. And in his Entry interview he had indicated that it was a relative of his aunts (a Hezbollah member based in nearby [Place X]) that had warned him to leave the country after telling him Hezbollah were looking for him because they knew he was supporting the Syrian revolution. The applicant’s differing evidence on these matters is a concern, as is his differing evidence about the circumstances and timing of [Mr X’s] capture. At one point in the SHEV interview he indicated that he didn’t come to Hezbollah’s attention until after [Mr X] was captured but he later indicated Hezbollah were already visiting his home looking for him “nearly every day” when they went to [Mr X’] place to find him. He also indicated [Mr X] had evaded capture and run away, undermining his claim that the capture of [Mr X] and the other men had led Hezbollah to find out about the applicant.

2. Again, it is clear that the second Authority considered the SHEV interview insofar as it concerned Mr X. The second Authority noted that the applicant’s evidence in relation to how he came to Hezbollah’s attention differed during the SHEV interview itself, and also differed between the SHEV interview and his entry interview. It was open to the second Authority to rely on these differences. It was also open to the second Authority to draw adverse inferences against the applicant because of the differences in his evidence. Making assessments of this type is the task the Authority is entrusted with. Such assessments are not amenable to judicial review.

3. With this ground, the applicant is essentially saying that the second Authority erred because it did not accept the first version of events that the applicant gave in his SHEV interview. That is essentially seeking merits review, which this court is not permitted to provide in matters such as this.

   GROUND 5

4. The fifth ground of review in the application was withdrawn at the final hearing.

   CONCLUSION

5. As one of the applicant’s grounds has been made out, the application will be allowed with costs. I will hear the parties on the quantum of costs.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated:       16 August 2024