CRP17 v Minister for Immigration
[2020] FCCA 3041
•7 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRP17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3041 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – delegate and the Authority making different decisions on the applicant’s home area – applicant not invited to comment on that point of difference – whether the Authority’s failure to invite comment was unreasonable or whether the Authority overlooked a claim considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 473CA |
| Cases cited: ABT17 v Minister for Immigration [2020] HCA 34 Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 AXE16 v Minister for Immigration & Anor (No 2) [2020] FCCA 1761 DBE16 v Minister for Immigration [2017] FCA 942 DGZ16 v Minister for Immigration (2018) 258 FCR 551 Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 Hossain v Minister for Immigration (2018) 264 CLR 123 Htun v Minister for Immigration (2001) 194 ALR 244 Minister for Immigration v BBS16 (2017) 257 FCR 111 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 SZQEN v Minister for Immigration (2012) 202 FCR 514 |
| Applicant: | CRP17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1894 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 November 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Hughes |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 22 May 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1894 of 2017
| CRP17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 22 May 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Afghanistan. He arrived in Australia by boat 11 November 2012. On 23 February 2016, after the statutory bar was lifted, the applicant applied for a protection visa.[1] He claimed to fear harm if returned to Afghanistan on the basis that he was a Hazara Shia and had encountered adverse attention from the Taliban in the past. In particular, the applicant claimed that the Taliban had accused him of reporting two of their men who were apprehended by the National Army (Army) whilst at his tailor shop in a named location (Location A) in Ghazni Province. The applicant further described an occasion when he was stopped at a Taliban checkpoint in a named location and was recognised and detained and beaten up by the Taliban in connection with the incident at his tailor shop and because he was a Hazara Shia.
[1] Court Book (CB) 7
Together with the application, the applicant provided a submission[2] and a statutory declaration.[3] He claimed that he is a Hazara Shia from Ghazni Province.[4] He had a tailoring shop in Location A.[5] The Army arrested members of the Taliban in his shop. The Taliban suspected that the applicant had betrayed them. The applicant was later kidnapped by the Taliban, but managed to escape. He fled to Australia. The applicant claimed, under the refugee criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act) to fear persecution if returned to Afghanistan due to his Hazara ethnicity, his Shia Muslim faith, an imputed political opinion of opposition to the Taliban, and his membership of a particular social group, being returnees from western countries.[6]
[2] CB 7–25
[3] CB 66–71
[4] CB 66 [3]
[5] CB 67 [7]
[6] CB 8
Importantly for Ground 1A in the applicant’s judicial review application, the applicant made an additional claim at CB 22–23, under the complementary protection criterion in s.36(2)(aa) of the Migration Act, that as a Hazara Shia he would suffer “degrading treatment” within the meaning of s.36(2A), because he would be denied his basic needs, through his inability to access, through the state, such services as were necessary for his health and survival, that he would be unable to access shelter, healthcare or state services, and he would be unable to access employment or other means by which he could provide for himself.
On 18 October 2016 the delegate refused to grant the applicant a visa.[7] The delegate had interviewed the applicant. The delegate expressed concern at the interview as to the applicant’s lack of credibility.[8] The delegate did not accept the veracity of the applicant’s abduction claim, by reason of inconsistencies in the account given at different stages of the application process, and due to its concerns about his truthfulness concerning his family composition, his education, and the age he said he came to Australia. The delegate did not accept that the applicant grew up impoverished as he claimed, which led it to doubt the applicant’s claim that he commenced work as a tailor at the age of 12.
[7] CB 524
[8] CB 531
The delegate’s interview with the applicant was recorded. Having regard to the Authority’s consideration of the audio recording, it appears that the interview terminated sooner than the delegate had intended.[9] On 15 June 2016, after he had been interviewed by the delegate, the applicant’s representative made a submission to the delegate.[10]
[9] CB 600 [32] (“the delegate was unable to continue with the interview…”)
[10] CB 97–99
In making a determination about the applicant’s claimed identity, the delegate stated:[11]
At interview the applicant demonstrated local knowledge of [Location A], the goods sold there and the ethnic composition of the people who frequent it. His description of his village as Hazara with Pashtuns living in surrounding areas is consistent with the ethnic composition of [Location A] as discussed below (well-foundedness).
[11] CB 242
The delegate accepted that the applicant came from Location A, and considered his claims against that location. The delegate found that the applicant did have a well-founded fear of harm in Location A as a young Hazara male,[12] but found that he would not face a real risk of serious harm in Kabul, which was a location to which he could reasonably relocate.[13]
[12] CB 247
[13] CB 252–258
The applicant’s case was referred to the Authority under s.473CA of the Migration Act. On 15 November 2016 the applicant provided a submission to the Authority.[14] The submission addressed the level of risk in Kabul.[15] On 4 April 2017 the Authority invited the applicant to comment on information, including concerning the threat posed by Islamic State in Afghanistan, and matters relating to whether the applicant would face a risk of harm in Mazar-e-Sharif.[16] On 17 April 2017 the applicant responded.[17] On 27 April 2017 the applicant provided additional submissions to the Authority in response to the Authority’s invitation to comment.[18]
[14] CB 562
[15] CB 566
[16] CB 575
[17] CB 579
[18] CB 587
The Authority’s decision
The Authority accepted that the applicant was a national of Afghanistan.[19] It accepted that he was a Hazara Shia.[20] In considering the applicant’s claim to fear harm as a Hazara Shia, the Authority, unlike the delegate, found that the applicant’s home area was Kabul, and that this was the place to which he would return.[21] Accordingly, the Authority assessed the applicant’s claims on the basis that he would return to Kabul. The Authority found that the applicant would not face a well-founded fear of persecution in Kabul.[22]
[19] CB 597
[20] CB 603 [59]
[21] CB 603 [58]
[22] CB 606 [74]
The Authority considered the complementary protection criterion at CB 607-608. It assessed that criteria against its finding that the applicant’s home area was Kabul.[23] It found at [89] that the applicant did not face a real risk of significant harm on the bases he had advanced in relation to his claim under the refugee criterion. It then considered at [90] the question of generalised violence, but found that the applicant did not face any real risk that was not faced by the population of the country generally.
[23] CB 608 [89]
Curiously, the Authority concluded at [91]:
There are substantial grounds for believing that, as are 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. The applicant does not meet s 36(2)(aa).
If the first sentence of that passage accurately reflected the Authority’s finding, then it ought to have found the applicant is entitled to a protection visa. Given the context of the rest of the decision, however, the applicant accepts that this sentence appears to be a mistake. All the other findings, and the Authority’s ultimate conclusion, are consistent with its finding that the applicant did not meet any of the criteria for a protection visa.
The current proceedings
These proceedings began with a show cause application filed on 19 June 2017. The matter was initially allocated to the docket of Judge Barnes but, at a callover on 15 March 2019, her Honour transferred the matter to my docket.
At the trial of this matter on 3 November 2020 the applicant relied, by leave, on a further amended application containing the following grounds:
Ground 1A
The respondent authority (IAA) failed to consider one of the applicant’s claims.
Particulars
a.The applicant claimed that, by reason of his being a Hazara Shia, he would face discrimination and hardship in Afghanistan that he would be denied social and economic rights to such a degree that would deny him human dignity, that he would be denied basic needs necessary for his health and safety survival, or employment or other means by which to provide for himself. He claimed that by reason of these circumstances, he would face "degrading treatment" and hence "Significant harm" within the meaning of s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
b.Further and alternatively, the applicant's claims at CB 21-23 expressly or squarely raised a claim that the applicant faced 'serious harm' within the meaning of s 5J(5) of the Act. in the manner identified at [10] of the first respondent's written submissions dated 29 October 2020, by reason of his religion and ethnicity, thus raising a claim under s 36(2)(a) of the Act which required consideration.
c.The IAA did not consider this these claims, and so made a jurisdictional error.
Ground 1
The respondent authority (IAA) breached its implied condition that it conduct its review within the bounds of reasonableness by failing to invite the applicant to an interview.
Particulars
d.The delegate's decision dated 18 October 2016 accepted (or alternatively did not doubt) that the applicant's home area in Afghanistan was [Location A].
e.The delegate found, however, that the applicant could relocate to Kabul, where he would not face harm. That finding was based, in part, on the demeanour of the applicant answering questions about [Location A].
f.The interview with the delegate did not conclude because the delegate was unable to continue it: IAA at [32]
g.The IAA did not observe the applicant giving his evidence to the delegate. It listened to an audio recording.
h.On 4 April 2017, the IAA sent the applicant a letter in accordance with s 473DE of the Act drawing new information to the attention of the applicant and inviting the applicant to give comments (473DE letter).
i. The 473DE letter identified that certain information was relevant because it may lead the IAA to conclude that it would be reasonable for the applicant to relocate to Kabul.
j. The IAA decided, contrary to the delegate’s holding, that the applicant’s home area was Kabul and not [Location A]: at [58].
k. In the circumstances, it was legally unreasonable for the IAA to make that decision without inviting the applicant to an interview.
The only evidence I have before me is the court book filed on 17 November 2017.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial. I have been assisted by those submissions.
Consideration
Ground 1A – did the Authority fail to consider one of the applicant’s claims?
Applicant’s contentions
As identified above, the applicant made claims that were specific to the complimentary protection criterion, namely that he would face “degrading treatment” and hence “significant harm” within the meaning of s.36(2A) of the Migration Act.[24] The elements of the claim were that the applicant would be subject to discrimination on account of his Shia faith and Hazara ethnicity, that he would be denied social and economic rights to such a degree that would deny him human dignity, that he would be denied basic needs necessary for his health and safety and survival, or employment or other means by which to provide for himself.
[24] at CB 22–23
The applicant submits that none of these claims were considered by the Authority. In its consideration of the refugee criterion, the Authority considered country information in relation to Kabul[25] but did not engage in any consideration that would touch upon, still less subsume, the claims made at CB 22–23. Rather, that consideration focused on violence and attacks.
[25] at CB 603 [59] – [74]
The applicant submits that likewise, and tellingly, in considering the complementary protection criterion, the Authority made no mention of these claims. The only available inference is said to be that the Authority did not consider these claims.
Failure to consider a claim is a “textbook” jurisdictional error.[26]
[26] Minister for Immigration v BBS16 (2017) 257 FCR 111 at [79]; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1; Htun v Minister for Immigration (2001) 194 ALR 244
Minister’s contentions
In this ground the applicant contends that the Authority failed to consider his claims, set out at CB 22-23. Specifically, the applicant claimed that he would be subject to “significant harm” as defined in s.36(2A), in that he would be subject to “degrading treatment” through the denial of social and economic rights. The applicant referred to a denial of “human dignity” and ancillary services, that he would be denied “basic needs”, that he would be unable to access shelter, healthcare, or state services, and that he would be unable to access employment or other means by which he could provide for himself. The applicant in his claims also refers to this “significant harm”, as described, as a form of “discrimination”.
Section 5 of the Migration Act defines “degrading treatment or punishment” to mean:
an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant [International Covenant on Civil and Political Rights]; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The Minister accepts that the Authority did not expressly refer to the applicant’s complementary protection “claim” of “degrading treatment”. However, the Minister submits that by reference to the definition of “degrading treatment or punishment” set out above, the applicant in fact advanced no claim that could succeed under s.36(2)(aa). The Minister submits that such matters cannot have amounted to “significant harm” as defined in s.36(2A). There is said to have been no jurisdictional error in the Authority not addressing these matters under s.36(2)(aa).
The applicant’s claims appeared more directed towards the definition of “serious harm” that appears in s.5J(5) of the Migration Act and includes “significant economic hardship that threatens the person's capacity to subsist”, “denial of access to basic services, where the denial threatens the person's capacity to subsist”, and a “denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist”. However, these claims cannot have succeeded under s.36(2)(a) unless they constituted serious harm directed towards the applicant for a Convention reason.
Even had the applicant’s claims been required to be considered under s.36(2)(a), the Minister submits that the Authority’s findings addressed them, or addressed his claims at such a level of generality that the specific claims were subsumed.[27] The Authority accepted at [59] the applicant was a Hazara Shia. It took into account at [60], by reference to country information, that Kabul (which it found to be the area to which the applicant would return) had been assessed as having better security than in rural areas. It noted at [61] that Kabul was a city with “large ethnic, linguistic and religious communities” and that with 40-50 per cent of its total population comprised of Hazara Shias. Country information at [63] also indicated the declining territorial presence of Islamic State in the country.
[27] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]
By reference to its findings rejecting the applicant’s refugee claims, any claim of discrimination the applicant might face in capacity to subsist, or his capacity to earn a livelihood could not succeed as a claim under s.36(2)(aa). It was implicitly rejected by the Authority that the applicant, as a Hazara Shia returning to Kabul, would be the subject of racial or religious discrimination.
Alternatively, the Minister submits that the above matters indicate that, even were it to be accepted that the applicant raised a substantial clearly articulated argument, relying on established facts,[28] any failure by the Authority to consider such a claim is not a jurisdictional error because the threshold of materiality that the Migration Act is interpreted as incorporating “would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made”.[29] The Court would, in any event, in the Minister’s submission, even if satisfied jurisdictional error had occurred, refuse to exercise its discretion to grant relief.
[28] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088
[29] Hossain v Minister for Immigration (2018) 264 CLR 123 at [30]
Resolution
Because I have found that jurisdictional error has been established in relation to Ground 1 it is unnecessary to deal with this ground. It is sufficient to note that a claim of inability to subsist, or a claim of demeaning subsistence, may well depend upon the location against which the claim is considered. The Minister concedes that the claim was not considered, at least as a claim to complementary protection. The claim should be considered by reference to the place to which the applicant would return, wherever that might be.
Ground 1 – did the Authority act unreasonably by failing to invite the applicant to an interview?
Applicant’s contentions
The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of legal reasonableness.[30] That condition applies to why, and also how, the decision is made.[31] In ABT17, the majority stated at [25]:
[T]he Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audiorecorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which the account was given.
[30] ABT17 v Minister for Immigration [2020] HCA 34 at [3]
[31] ABT17 at [19]
That principle is said to apply here.
The applicant contends that the delegate, based upon the applicant’s demeanour at the interview, accepted that the applicant was from Location A.[32]
[32] at CB 242
The Authority could not observe the applicant’s demeanour at that interview. It is clear that it only listened to an audio recording.[33]
[33] CB 601 [43] (“I have listened to the interview…”)
In the circumstances, before making a finding that was inconsistent with the delegate’s finding, the applicant submits that the Authority ought to have invited the applicant for an interview in order to ascertain for itself the applicant’s demeanour.
That failure is said to have been exacerbated by the particular circumstances of this case, in which other contextual features also point to a legally unreasonable outcome, namely that the finding was made in a manifestly unfair way, given that the applicant never had an opportunity to respond to the proposition that Kabul was, in truth, his home area. The first time that the applicant could have known that this was a potential issue was when he read the Authority’s reasons. On other issues, the Authority did, in fact, write to the applicant putting certain propositions to him, but omitting to mention this critical issue.[34] The applicant submits that, to that unfair process must be added the incomplete nature of the delegate’s interview. Taken as a whole, the conduct of the review by the Authority is said to have breached the implied condition of reasonableness, resulting in jurisdictional error.
[34] CB 575
Minister’s contentions
The Minister contends that, for the following reasons, the applicant’s argument should not be accepted.
This matter is said to be distinguishable from ABT17. There is no evidence that the delegate, who accepted the applicant had local knowledge of Location A, but otherwise had significant concerns with the credibility of the applicant’s claims, based any of its credit findings (for, or against, the applicant) on the basis of his demeanour at the protection visa interview. All the delegate recorded[35] is that the applicant demonstrated knowledge of Location A. The Authority did not gainsay any of the delegate’s findings in this respect. Rather, the Authority, by reference to inconsistencies in the applicant’s account over time, did not accept at [58] that the applicant had resided in Location A prior to his departure. This is said not to have been a matter in which the Authority’s rejection of a particular issue of fact accepted by the delegate could have been ameliorated by additional oral evidence at an interview.
[35] at CB 242
This is said to follow from the fact that the statutory scheme itself contemplates that the Authority will evaluate for itself the material considered by the delegate.[36] The Authority might make different findings from the delegate, even on questions of credit, but that does not necessitate a conclusion that the Authority failed unreasonably to invite the applicant to an interview. To that end, the majority of the High Court stated in ABT17 at [22]:
The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate". That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
[36] DGZ16 v Minister for Immigration (2018) 258 FCR 551 at [72]
The applicant further submits that the Authority’s failure is “exacerbated by the particular circumstances of this case” and refers to the applicant having not been given an opportunity to respond to the proposition that Kabul was his home area. However, the Minister submits that this suggests that the Authority was under an obligation to afford procedural fairness to the applicant if it intended to depart from the conclusions reached by the delegate. That argument cannot be accepted.[37] Such matters are not pertinent to the question of whether the Authority unreasonably failed to invite the applicant to an interview.
[37] DBE16 v Minister for Immigration [2017] FCA 942 at [59]; DGZ16 at [69]
Both the delegate and the Authority had significant credibility concerns with the applicant’s central claims of having been abducted by the Taliban. The only significant point of difference between the delegate’s findings and the Authority’s findings, was that the Authority considered that the applicant would return to Kabul, rather than Location A. The Authority’s conclusions on this matter were not inconsistent with the delegate’s findings, but did involve a different approach to the consideration of the material before it. In any event, the Minister submits that both the delegate and the Authority focussed upon the applicant’s ability to return safely to Kabul; the delegate as a question of relocation, the Authority as a question of return to the applicant’s home area. The question of the applicant’s home area is said to have been a factual matter for the Authority to determine.[38] No error is said to be made out.
[38] SZQEN v Minister for Immigration (2012) 202 FCR 514 at [38] Yates J
Resolution
In this ground the applicant asserts that the Authority fell into error in failing to invite the applicant to an interview, resulting in a conclusion that the Authority did not conduct the review within the bounds of reasonableness.
As the course of oral argument at the trial made clear, the issue in this ground is not strictly whether the Authority acted unreasonably in failing to invite the applicant to an oral hearing but, rather, whether the Authority acted unreasonably in failing to obtain or invite new information from the applicant which might have been obtained orally or in writing.
In ABT17, in the joint judgment of Kiefel CJ, Bell, Gageler and Keane JJ at [18]-[19] and at [21] their Honours stated:
The Authority being able to exercise its powers to get and consider new information to bridge an informational gap in the review material by inviting a referred applicant to an interview in order to gauge and consider his or her demeanour for itself, the question becomes as to when if at all compliance with the implied condition of reasonableness in the conduct of the review or in the consideration and exercise of those powers might compel the Authority to adopt that course. Contrary to the urging of the appellant, answering that question is not assisted by seeking to infuse the implied condition of reasonableness with notions of procedural fairness, separate implication of which is expressly excluded from the scheme of Pt 7A.
The answer is to be found in recognising that "[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made" such that "[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course"
…
Answering the question therefore requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.
In the present matter, the following facts and circumstances persuade me that the Authority fell into jurisdictional error by acting unreasonably. First, the Authority actively misled the applicant (no doubt unintentionally) when it invited the applicant to comment on information concerning a hypothetical relocation of the applicant from Location A to Mazar-e-Sharif.[39] This step taken by the Authority was, in itself, reasonable in that it recognised that there are differences of view as to whether it is both safe and reasonable for an applicant to relocate to Kabul from another area, as the delegate had found.[40] The mischief created by the letter was, however, that it led the applicant to believe that the Authority would approach the case on the same basis as the delegate, namely that his home district was Location A and that, while he faced a real risk of serious harm there as a young Hazara male, he may be able to relocate. The applicant was thus deprived of the opportunity of providing further information or comment to the Authority on the completely different question upon which the review ultimately turned: namely, whether the applicant was actually from Kabul, so that the Authority did not need to consider the reasonableness of the applicant relocating there.[41]
[39] CB 575-578
[40] See in this connection AXE16 v Minister for Immigration & Anor (No 2) [2020] FCCA 1761 at [37]
[41] at least in relation to the complementary protection criterion
Secondly, at [57] the Authority based its decision on Facebook posts apparently by the applicant which had been before the delegate but which did not figure in the delegate’s decision. If the Authority had invited comment from the applicant on the real intended basis of its decision, this would have provided the applicant with the opportunity to comment upon that evidence, which was being given close attention by the Authority for the first time.
Thirdly, the Authority’s decision was coloured by its adverse credibility conclusions concerning the applicant’s claims,[42] based upon what occurred at the applicant’s interview with the delegate. That approach was flawed in at least two respects: the Authority made no allowance for the fact that it had access to only the audio recording of the interview and hence that record was incomplete and, perhaps more importantly, the interview was itself truncated as the delegate was forced to terminate it. The applicant made a post hearing submission to the delegate which appears to have had some impact on the delegate’s decision but does not appear to have been given any credence by the Authority.
[42] see for example CB 601 [39]
Finally, the Authority gave no weight to the Taskera provided by the applicant, which placed him at Location A, in circumstances where the delegate had accepted it, along with the applicant’s knowledge of Location A explained at interview.
Considered in combination, these circumstances lead me to accept the applicant’s contention that it was unreasonable for the Authority not to invite further comment or information from the applicant.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. He should receive relief in the form of writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 7 December 2020
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