Cov17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1076
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
COV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1076
File number(s): MLG 1243 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 23 November 2023 Catchwords: MIGRATION – Application for judicial review of a decision of the Immigration Assessment Authority – where Safe Haven Enterprise visa application refusal was affirmed by the Authority – where Authority rejected a complaint about the quality of the interpreter provided at the delegate’s interview and refused “new information” in form of country information – grounds of judicial review included alleged failure to consider the effect of deficient interpretation and new information and account taken of an irrelevant consideration in assessing Applicant’s credibility – assessment of relevant factors – application dismissed. Legislation: Migration Act 1958 (Cth) ss.36(2), 473DC, 473DD, 473EA
Federal Circuit Court Rules 2001 (Cth) sch.1
Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401
BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
BNB17 v Minister for Immigration and Border Protection [2020] FCA 304
Craig v South Australia (1995) 184 CLR 163, 175
DAO16 v Minister for Immigration, Citizenship and Border Protection [2018] FCAFC 2
Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26
EJK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 50
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
Re MIMA; Ex parte Durairajasingham [2001] HCA 1
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80
SZSZW v Minister for Border Protection [2015] FCA 562
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission/s: 13 September 2023 Date of hearing: 27 September 2023 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1243 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: COV17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
23 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application filed on 13 June 2017 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the scale amount of $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 MANSINI
IN SUMMARY
The Applicant is a citizen of Bangladesh who sought protection in Australia on the basis of claims to fear harm on his return for reasons that included his political opinion and his prior association with the Bangladesh National Party.
The Applicant now seeks judicial review of a decision to affirm an administrative decision to refuse him a protection visa.
For the reasons that follow, the application must be dismissed with costs.
CONTEXT
Application for a protection visa
On 20 January 2013, the Applicant arrived in Australia as an unauthorised maritime arrival. The Applicant attended an arrival entry interview with a staff member of the Department of Immigration and Border Protection (as it then was) (Department).
On 14 November 2016, a lawyer/migration agent on behalf of the Applicant applied for a Safe Haven Enterprise (Class XE) (subclass 790) visa (protection visa).
On 11 January 2017, the Applicant attended an interview with the delegate, with the assistance of his then representative and a Bengali interpreter. On 13 January 2017, the representative lodged a complaint with the Department about the quality of interpretation provided by the interpreter and subsequently on 16 January 2017 the Department confirmed that this complaint had been referred to the delegate for consideration.
On 22 February 2017, a delegate of the First Respondent refused to grant the Applicant a protection visa.
On 27 February 2017, the delegate’s decision was referred to the Immigration Assessment Authority (Authority) for review.
On 19 March 2017, the Applicant’s then legal representative provided the Authority with written submissions.
On 17 May 2017, the Authority affirmed the delegate’s decision to refuse the Applicant’s application for a protection visa. The Authority produced a written record of its decision and reasons (Reasons).
Authority’s Reasons
The Authority’s Reasons commenced with an overview of the Applicant’s claims to fear harm:
(a)from the Awami League (AL) because he is a Bangladesh National Party (BNP) supporter who ran a tea stall in front of his village BNP club house and was considered the face of the BNP; and
(b)from an uncle who is an AL member and his cousin, President of the Student Union of the AL, because of ongoing land disputes,
at [1] of the Reasons, summarised in more detail at [7].
The Authority referred to the written submissions that were submitted after the delegate’s decision had been made, in the course of the review, and considered that the reference to the respective constitutions of the BNP and AL and the assertion that the Applicant’s claims must be assessed in the context of the political landscape of Bangladesh were “new information” but was not satisfied that the statutory criteria were met as to justify its consideration pursuant to s.473DD(b) of the Migration Act 1958 (Cth) (Act): at [6] of the Reasons.
The Authority also considered the fact of a complaint about the quality of the interpreter service at the Applicant’s protection visa interview but noted that this was not “new information” and, in any event, was satisfied that the Applicant was not disadvantaged by the interpreter and was able to present his claims for protection: at [5] of the Reasons.
The Authority then gave detailed reasons for why it accepted and rejected certain parts of the Applicant’s claims. In doing so, the Authority made a series of findings adverse to the Applicant’s credibility as set out in the following paragraphs.
The Authority accepted that the Applicant is a national of Bangladesh but pointed to inconsistencies in information he had provided about his family background (specifically in relation to his father and reasons for leaving school in year 10): at [8] and [9] of the Reasons. After outlining the three different family scenarios given by the Applicant at his entry interview in January 2013, his statement of claims on applying for the protection visa in November 2016 and at the delegate’s interview in January 2017, the Authority concluded that the Applicant’s complete turnaround in relation to his family circumstances cast doubt on the Applicant’s general overall credibility: at [10] of the Reasons. A further inconsistency was identified in relation to the Applicant’s claims in his November 2016 statement of claims when compared to his interview with the delegate - about his father’s support of a political party: [11] of the Reasons.
The Authority accepted that the Applicant had been a BNP supporter (not a member) as he had consistently stated and that he had used the BNP club to meet his friends and play cards or cricket. However, the Authority was satisfied that the Applicant had never voted specifically for any BNP office holder and was not satisfied that his association with friends or acquaintances with a stronger BNP association would impute him with a more formal ranking or association with the BNP: at [17] of the Reasons.
The Authority also accepted that the Applicant had run a tea stall in front of the BNP club house. But the Authority considered the Applicant to have embellished his profile and reputation within his community along with his claims that the AL threatened him if he continued to serve BNP supporters in order to strengthen his claims for protection: at [19] of the Reasons.
The Authority was also not persuaded in relation to the Applicant’s claims to have been targeted and attacked by the AL because he conveyed a message to BNP leaders which they ignored and continued to manage a festival in February 2011 or that the Applicant was the face of BNP in his village, again on account of inconsistencies in his entry interview compared to his statement of claims and responses at the delegate’s interview. The Authority did accept that sometime in the past the Applicant may have been involved in an accident or violent incident where he sustained his said injuries. Ultimately, the Authority did not accept that the Applicant left Bangladesh because of the AL and considered it highly likely he sought work opportunities in Malaysia: [20] to [28] of the Reasons.
In relation to the Applicant’s claims to have been threatened by his uncle over a land dispute, the Authority first analysed then considered the Applicant's evidence to be contradictory and concluded that the Applicant had fabricated this claim of an ongoing land dispute and that his uncle K was threatening his family and had grabbed their land or that the uncle K would harm the Applicant on his return to Bangladesh as the oldest son and likely successor to his father’s land: [29] to [32] of the Reasons.
Similarly, in relation to the Applicant’s claims to have been threatened by his cousin over a land dispute, the Authority identified inconsistencies in the Applicant’s accounts given and was not satisfied that there is an ongoing land dispute of more than 15 years with his cousin’s family or that his cousin was attacked by the BNP and that he was hospitalised, or that the cousin seeks to harm the Applicant because of this land dispute or to revenge his own beating for which he allegedly blames the Applicant. Noting that the land dispute and attack on the cousin were alleged to have occurred before the entry interview, but were not mentioned there, the Authority found the Applicant was overall lacking in credibility. The Authority did not find the photographs produced by the Applicant to be persuasive or to lead it to overcome its concerns about the Applicant’s credibility: at [33] to [36] of the Reasons.
Having made the findings summarised above in relation to the Applicant’s claims, the Authority conducted its refugee assessment: at [37] to [43] of its Reasons. There, the Authority considered the country information before it which indicated ongoing problems associated with political violence especially around the time of elections including blockades or hartals as well as internal political fighting within both parties but more so with the AL. Further, that the Department of Foreign Affairs and Trade assessed that BNP supporters or members in rural areas were subjected to a low level of violence associated with AL extortion and the instance of inter-party violence towards members had increased but the number of casualties remained relatively low in proportion to the size of those parties: at [41] of the Reasons. The Authority then reiterated its conclusion that it was not satisfied the Applicant would be imputed as a member or leader of the BNP and, as a mere supporter of the BNP, was not satisfied that the Applicant has a well-founded fear of persecution on that basis or met the definition of “refugee” as to be owed protection pursuant to s.36(2)(a) of the Act: at [42] and [43] of the Reasons.
The Authority essentially applied the same reasoning in relation to its complementary protection assessment: at [44] to [48] of the Reasons. The Authority concluded no real risk that the Applicant would suffer significant harm from the Bangladeshi authorities or the AL, or other family members on his return to Bangladesh. It therefore concluded there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the Applicant will suffer significant harm within the bounds of s.36(2)(aa) of the Act: at [48] of the Reasons.
THIS APPLICATION FOR JUDICIAL REVIEW
On 13 June 2017, this application for judicial review (accompanied by an affidavit which annexed the Reasons) was filed and identified 4 grounds of review as follows:
1.The Immigration Assessment Authority failed to properly consider my application and my arguments.
2.The Immigration Assessment Authority did not properly understand and take into account the effect of the deficient interpretation on the credibility of my claims.
3.The Immigration Assessment Authority did not properly take into account the culture of political grassroots involvement and the importance for the major parties in Bangladesh.
4.The Immigration Assessment Authority took into account an irrelevant consideration, making an adverse credibility assessment because I did not disclose all my story at the initial interview upon first entry to Australia.
On 27 June 2017, a response was filed on behalf of the First Respondent contending that the decision of the Authority was not affected by jurisdictional error.
On 7 February 2018, procedural orders were made by a Registrar of this Court listing the matter for a hearing on a date to be advised with some programming orders.
On 7 February 2018, the First Respondent filed a court book.
On 12 March 2019, the Applicant filed a notice of address for service which confirmed he was not represented in these proceedings.
On 6 April 2023, the First Respondent filed a notice of address for service.
On 15 August 2023, procedural orders were made in chambers by which the parties were directed to file and serve: any amended application, additional evidence, any supplementary court book, written submissions and authorities to be relied upon. The matter was listed for final hearing on 27 September 2023.
On 13 September 2023, the First Respondent filed an outline of written submissions and bundle of authorities.
On 27 September 2023, the matter proceeded to hearing as presently constituted. The Applicant attended with the assistance of a Bengali interpreter and the First Respondent was represented by a solicitor advocate. At the hearing, the Applicant confirmed that he had not filed or sought to file any amended application, written submissions or additional evidence in advance of the hearing. However, he sought to hand up a bundle of photographs which he told the Court would support the substance of his claims for protection. Taking the Applicant’s submission at its highest, the photographs related to the reasons why he contends he ought be granted protection. As the Court is not empowered to engage in a merits review, those photographs were not received.
Having regard to the nature of the Applicant’s complaints about his prior experience with an interpreter, at the conclusion of the hearing before the Court, I sought to ensure the Applicant’s satisfaction with the interpreter service. The Applicant (who demonstrated that he had a good understanding of English, albeit an understandable preference to have certain matters translated) confirmed to the Court directly that he was satisfied with the service provided by the interpreter and had not experienced difficulties in the dialect spoken or otherwise on this occasion.
Statutory framework
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163, 175 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].
The Applicant filed his application for a protection visa on 14 November 2016, at which time the applicable legislation was the Migration Act 1958 Act (Cth) No. 62 (as amended on 25 October 2016). The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
Absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied, an administrative decision-maker is required to refuse to issue a visa: s.65 of the Act.
Division 3 of Part 7AA of the Act governs the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, includes a decision to refuse to grant a protection visa to a “fast track applicant”.
By s.473EA of the Act, a decision of the Authority on Part 7AA review must be accompanied by a written statement which sets out both “the decision” on review and “the reasons for the decision”.
Applicable legal principles
By the grounds of review, the Applicant contended two broad categories of jurisdictional error:
(a)a failure on the part of the Authority to consider his claims and information; and
(b)that the Authority took into account an irrelevant consideration.
The requirement to consider
The Authority must consider each necessary and relevant consideration and integer of the claim, and must consider each material question of fact squarely raised by the materials before it. A failure to address a particular claim, expressly or impliedly made, is an error of jurisdiction: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 (Peko-Wallsend) [at [19]]; NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263 [at [58]].
It is not contentious that such consideration must be within the bounds of legal reasonableness and must be proper, genuine and realistic: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25]-[27].
Consideration of “new information”
The Authority must not consider “new information” within the bounds of s.473DD unless certain cumulative and alternative requirements of the section are satisfied.
In EJK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 50 at [72]-[73], the meaning of the phrase “new information” together with the principles to be applied for the purposes of ss.473DC and 473DD were described as follows:
For the purposes of Pt 7AA, the phrase ‘new information’ means, subject to that Part, any document or information of an evidentiary nature that was not before the Minister when the decision was made under s 65 to refuse the application and which the Authority considers may be relevant: s 473DC(1); AUS17, [3]; DUA16 (2020) 95 ALJR 54, [25]. In AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 at [33], Allsop CJ observed that “information will be relevant if it is capable of rationally affecting the IAA’s assessment of the probability of the existence of some fact about which the IAA might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met.” The Chief Justice noted ‘information’ could not “sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature”: [2021] FCA 407, [33]; see also DPI17 v Minister for Immigration and Border Protection, (2019) 336 ALR 665, at [35] (Griffiths and Steward JJ); Plaintiff M174/2016, (2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ, Gordon and Edelman JJ agreeing); AWT19 [2021] FCAFC 58, [60]-[63], [67], [76].
Ultimately, the power to ‘consider’ new information is not available unless the criteria for doing so are met. To this end, s 473DD imposes a duty to assess such new information in making a decision whether it may proceed to ‘consider’ it. In AUS17, the plurality held at [6]:
. . . s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.
In BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401, Kenny J held at [64]:
To meet the requirement in s 473DD(b)(ii), the IAA must be satisfied that the information is new information given, or proposed to be given, by the referred applicant, which: (1) is credible information about an identified individual, or an individual who is reasonably identifiable; (2) was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims: see Plaintiff M174 at [34].
See also AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (AUS17) [2]-[12], [23]-[24]; DVO16 v Minister for Immigration and Border Protection [2021] 95 ALJR 375 at [16]-[21].
An irrelevant consideration
A decision-maker will fall into error by taking into account an irrelevant consideration only if the decision-maker was forbidden from doing so. This is an assessment conducted by reference to the bounds of the statutory power conferred on the Authority: Peko-Wallsend at [39]-[40].
GROUND 2
By ground 2, the Applicant contended that the Authority did not properly understand and take into account the effect of the deficient interpretation on the credibility of his claims.
The Reasons disclose that the Authority had before it, and considered, that the Applicant’s then representative had complained about the quality of the interpreter service that had been provided at the delegate’s interview: at paragraph [5] of its Reasons.
The original complaint by the Applicant’s then representative (as made to the delegate, after the delegate’s interview) raised that: the interpreter was sometimes unintelligible with poor English syntax despite the Applicant speaking in a clear way; and there was an incident wherein the interpreter twice interrupted the Applicant’s responses to a question which resulted in the delegate explaining the question to the interpreter before the Applicant could answer (the question related to what the BNP stood for). On the face of the complaint, the delegate explained the question was about BNP policies and the Applicant then responded and the issue was “sorted out” with the delegate. But, by reference to this incident and subsequent interaction with the interpreter about the incident, the then representative expressed concern about the interpreter’s behaviour and a lack of confidence in their interpretation.
It may be accepted that the Applicant’s complaint about the interpreter service could conceivably take on some significance in the present case where the Authority made numerous adverse credibility findings on account of differences in the Applicant’s accounts given at the entry interview, when compared with his written claims and those made at the delegate’s interview. That possibility exists even though the Authority identified inconsistencies in other parts of the Applicant’s evidence (ie. between the entry interview responses and the written claims prepared with the assistance of a representative) – such that it is at least possible that the credibility findings may have differed if it were established that the interpreter incorrectly translated the Applicant’s statements at the delegate’s interview.
However, it is clear from the Reasons that the Authority considered the complaint, listened to the audio recording of the delegate’s interview and did not discern any disadvantage to the Applicant. The Authority’s Reasons describe that the decision-maker had listened to the recording of the delegate’s interview and accepted that the interpreter’s English was somewhat challenging and at times would have to repeat himself but noted that the delegate did not express any confusion as to what was being interpreted and there were no specific misunderstandings. The Authority did not agree that the interpreter was “unintelligible” as the Applicant had complained. Essentially, the Authority found that the Applicant’s complaint was unsubstantiated and did not accept that the interpretation was “deficient” as is now alleged by this ground 2.
It falls to address the Applicant’s contention, made orally at the hearing before the Court, that the interpreter at the delegate’s interview spoke a different dialect. Specifically, at the hearing before the Court, the Applicant alleged that the interpreter appointed to assist him at the delegate’s interview spoke a different language or dialect such that they could not understand each other. He said there are around 66 different dialects and certain words can take on an entirely different meaning.
On the materials before the Court, at no time before the delegate or the Authority did the Applicant contend that the interpreter spoke the wrong language or was entirely incorrect in their translation. In this way, it would appear that this ground 2 is an attempt to have the Court revisit the Authority’s findings in this respect, with reference to a new claim made for the first time at the hearing before this Court. Even if it were permissible to take that new claim into account on judicial review and at such a late stage of the proceedings, the Applicant did not at any stage point to a passage of evidence or finding that the Authority made that was in error on account of the alleged incorrect or mis-translation.
For completeness, the circumstances of the present case as relates to ground 2 before the Court also falls short of the standard of legal unreasonableness. The assessment of legal unreasonableness in this context involves two key considerations: the zone of the Authority’s statutory decisional freedom and the significance of alleged misinterpretations: BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 (BNB17) at [53]-[57], [58]-[64]. In BNB17, there was a question about whether the Authority acted with legal unreasonableness by determining not to invite the appellant to give new information at a further interview, following receipt of a complaint about the interpreter’s translation during the protection visa interview. There, the Court held that the Authority’s decision not to seek new information via further interview was not legally unreasonable. At [66]:
the zone of decisional freedom in which the Authority may legally operate in exercising s 473DC of the Act is particularly broad. The task of establishing legal unreasonableness in respect of a decision under that provision is accordingly a demanding one. Moreover, in relation to the facts of the present case, the alleged mistranslations raised by the appellant’s solicitors were not so material, either in isolation or in aggregate, such that it was legally unreasonable for the Authority not to invite a further interview.
That consideration is analogous to the present case. The Applicant here has not pointed to any specific misunderstandings or findings on which a mis-translation was based such that a finding could be made that the translation was in error or material. The Authority was entitled to make findings as to the Applicant’s credit and, without even an identification of an issue said to materially affect the interpretation of his responses at interview, the Authority did not act in a legally unreasonable way by proceeding to decide the matter without, inviting “new information” at a further interview.
For the above reasons, no error of jurisdiction is established in respect of ground 2.
GROUND 4
By this fourth ground, the Applicant contended that the Authority took an irrelevant consideration into account when it made adverse credibility findings because he did not disclose all of his story at the entry interview. At the hearing before the Court, the Applicant orally elaborated by explaining that the questions asked on arrival were put differently and by a different person to those asked at interview before the delegate. He said he was at times asked the same question in many different ways and this added to the confusion in analysing his responses at various times.
The Reasons reflect that the Authority had regard to the Applicant’s entry interview in assessing the Applicant’s general and overall credibility when compared with his other evidence in the original application and given at the delegate’s interview. At [10], the Authority:
(a)acknowledged that the purpose of the entry interview is to illicit an applicant’s reasons for leaving his home country and not an opportunity to put their claims in full; yet
(b)considered it relevant that, in the Applicant’s case, he was not rushed by the interviewing officer and was given ample time to speak about his fears in Bangladesh.
As earlier referenced, the Authority is entitled to make adverse findings as to credit, albeit is bound to do so reasonably and with a logical, rational and probative basis: Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [43]. See also DAO16 v Minister for Immigration, Citizenship and Border Protection [2018] FCAFC 2 at [30]; BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 at [34].
The series of adverse credibility findings are detailed in the summary of Reasons above. Also as earlier referenced, the adverse credibility findings were not limited to a comparison with the Applicant’s responses at the entry interview and extended to other claims and responses given at the delegate’s interview and in writing. It is apparent that, in the present case, where the Authority made an adverse credibility finding due to an inconsistency in responses, it also detailed the differences between responses and logically reasoned why it did not consider those differences reasonably or acceptably explained.
In the present case, the Applicant’s credibility was a relevant consideration for the Authority to take into account and I do not discern any irrelevant consideration on the face of the Reasons.
GROUND 3
By the third ground of the application, the Applicant contended that the Authority did not properly take into account the culture of political grassroots involvement and the importance of the major parties in Bangladesh. This information was included in the written submissions of the Applicant’s representative as made to the Authority after the delegate’s decision and so was not before the delegate.
As paragraphs [4] to [6] of the Reasons disclose, the Authority considered this to be “new information” but was not satisfied that it was and could not have been provided before the delegate’s decision was made under s.65 of the Act or that it was “credible personal information” which was not previously known and had it been known may have affected the consideration of the Applicant’s claims: s.473DD(b)(i) and (ii) of the Act.
As enunciated by the High Court of Australia in AUS17, the proper approach is to determine whether either of the limbs to s.473DD(b) are engaged and only in the event of an affirmative engagement may the Authority consider whether it is satisfied there are “exceptional circumstances” to justify its consideration of the “new information”.
The Authority adopted the correct approach in considering the limbs of s.473DD(b)(i) and (ii) and was not then required to consider the application of s.473DD(a). Accordingly, the Authority was not able to consider the “new information” about the culture of political grassroots involvement and the importance of the major parties in Bangladesh. There is no articulation of legal unreasonableness nor is such argument identifiable on the materials before the Court. There is no error disclosed by this third ground.
GROUND 1
The first ground is fairly characterised as a general and unparticularised claim that the Authority failed to consider the Applicant’s application and arguments.
At the hearing, the Applicant confirmed that the outcome of the Authority’s decision was not satisfactory or acceptable to him and that it considered his claims lightly. However, beyond the information about grassroots political involvement and credibility findings (addressed at Grounds 2, 3 and 4 above), the Applicant did not identify any particular part(s) of the decision which were affected by error.
On review of the Authority’s Reasons, it is apparent that the Authority gave consideration to the Applicant’s responses given at his entry interview, his statement of claims with the original protection visa application, and his responses given at the interview with the delegate. The Authority did not expressly indicate in its Reasons whether greater or lesser weight was attributed to certain evidence. In any event, the weight attributed to the evidence was entirely a matter for the Authority and does not disclose error in the present case.
In relation to the Authority’s complementary protection assessment, the Authority’s consideration proceeded on the basis of the earlier findings of fact and is found at [44] to [48]. There is no error in this approach.
This first ground may be understood as a preliminary or introductory paragraph which did not of itself contend any particular error or otherwise invited an impermissible overall merits review. This first ground does not succeed.
CONCLUSION
For the above reasons, the application must be dismissed. I will order accordingly and that costs be paid to the First Respondent as sought in the amount at item 3, Division 1, Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as at 26 September 2020, being $7,467.00.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 23 November 2023
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