DJV17 v Minister for Immigration
[2018] FCCA 2085
•3 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJV17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2085 |
| Catchwords: MIGRATION – Applicant’s adviser made general complaint to IAA regarding “serious concerns” about accuracy of interpretation during SHEV interview – IAA made copy of recording available to Applicant’s adviser – no subsequent reference to “serious concerns” in interpretation in later submissions after the provision of the recording – responsibility on Applicant to provide reasonable information about any “serious concerns” but no particulars provided – no further duty on IAA to make inquiry – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473DC, 473DD, 473DE |
| Cases cited: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 |
| Applicant: | DJV17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 63 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 7 February 2018 |
| Date of Last Submission: | 3 April 2018 |
| Delivered at: | Canberra |
| Delivered on: | 3 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jones |
| Solicitors for the Applicant: | Kikkert Law |
| Counsel for the Respondents: | Ms Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Further Amended Application filed on 15th February 2018 be dismissed.
The Applicant is to pay the First Respondent’s costs as per Schedule 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 63 of 2017
| DJV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a 53 year old gentleman from, and citizen of, Afghanistan. He identifies as being of Hazara ethnicity, and is Shia Muslim. It was accepted by the Delegate and by the Immigration Assessment Authority (“the IAA”) that he had escaped from the Taliban after being in their custody for a period of time. He claimed that he had been beaten with a cable by the Taliban.
The Delegate found that there was a “real chance and real risk” that the Applicant would suffer serious and significant harm if he was to return to his home district of Jaghori in the province of Ghanzi. However, the Delegate found that the real chance of harm did not relate to all areas of Afghanistan and that, on return to that country, it was reasonable for him to relocate to Kabul.[1]
[1] The Decision Record of the IAA is at Court Book (“CB”) 225 – 240. These findings by the Delegate are recorded by the IAA at [2] of its reasons.
The IAA affirmed the decision of the Delegate. It is from that decision that the Applicant seeks relief in this Court pursuant to his Application for Review, filed 27th July 2017.
There were several iterations of the Application for Review, as did the actual grounds of review. Initially, and in general terms, the Applicant contended that the IAA erred by (a) applying a “relative rather than an objective approach” in determining whether the Applicant could safely relocate to Kabul or Mazer-e-Sharif, and (b) in failing to ask the “right questions and or applying the wrong test.” Particulars were provided for each Ground of Review.
On 25th January 2018, the Applicant filed an Amended Application for Review. It is sufficient to note here that the Grounds of Review set out in the Amended Application differed quite markedly from the original Grounds. The Amended Grounds of Review focussed very much, if not exclusively, on what can properly be described as important procedural issues, namely (in very general terms): (a) the quality and or nature of the translation/interpretation given during the hearing before the Delegate, and (b) the duty on the Delegate to make reasonable into the quality of the translation/interpretation.
In the course of the hearing, the Applicant sought leave to amend his already amended Review Application. I granted the Applicant and the First Respondent Minister leave to file written submissions as to whether such leave should be granted, and if so, what should follow.
The Tribunal’s Decision
To save duplication, and because there is no issue raised by either party as to the accuracy or otherwise of the Minister’s Submissions, filed 1st February, 2018, I set out here the following summary of the IAA’s decision:
The IAA decision: the decision under review
7) On 22 June 2017, the IAA affirmed the delegate’s decision. The IAA had regard to the material referred to by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act). The IAA also noted in its Decision Record (DR) that it had obtained updated country information regarding the emergent threat of Islamic State in Afghanistan and the security situation in Balkh province. The IAA considered that the updated country information was significant new information which impacted on its consideration of the Applicant's claims. Pursuant to s 473DC and s 473DD, the IAA found there were exceptional circumstances justifying consideration of the new information: DR at [10].
8) On 1 May 2017, the IAA invited the Applicant, in reliance on s 473DE, to comment on the new information, and on the reasonableness of his relocating to Mazar-e-Sharif: CB 205-210. On 15 May 2017, the Applicant’s representative responded with an attached submission: see CB 211-217.
9) The IAA was satisfied that the further information was not before the Delegate and could not have been provided before the Delegate's decision and was satisfied that there existed exceptional circumstances to justify considering it: DR at [11].
10) The IAA also noted (DR at [6]) that, by email sent by the applicant’s representative on 24 November 2016, the applicant claimed that there had been interpreting errors during the applicant’s SHEV interviews. Having found that this constituted new information (ie, new information that was, inter alia, not before the delegate), the IAA set out (DR at [7]) the limited circumstances in which new information could be considered by reference to Part 7AA of the Act. The IAA was not satisfied that the claim about the quality of the interpreting could not have been provided before the delegate’s decision was made. Nor was the IAA satisfied that it was credible personal information: DR at [8]. Similarly, the IAA did not accept new information put by the applicant’s representative that the applicant had failed to recall information during his SHEV interview, for the same reasons: DR at [9].
11) After considering the Applicant's evidence and the country information, the IAA found that the Applicant did not satisfy the refugee criteria because there was not a real chance of persecution in relation to all areas of Afghanistan. Nor did the IAA find that the applicant satisfied the complementary protection criterion: this was because the IAA considered that the Applicant could relocate to the cities of Kabul and/or Mazar-e-Sharif.
12) The IAA considered the applicant’s case by reference to the following aspects of his claims:
Fear of harm as a Shia Hazara in Jaghori District, Ghazni Province
12.1) The IAA did not accept that the applicant came to the adverse attention of the Taliban under suspicion of transporting government officials and documents, or for any other reason. The IAA considered that the applicant’s evidence in relation to his claimed abduction and escape “lacked detail”, had “changed over time” and was marked by conflicting evidence as to when he was abducted and the period of time he spent in Kabul. Accordingly, the Tribunal was not satisfied the applicant was recalling a genuine personal experience: DR at [18]-[26];
12.2) The IAA also did not accept that, given independent country information pointing to the lack of Taliban penetration into Jaghori province, there was a real chance that the applicant would face harm from the Taliban in Jaghori for reasons of his ethnicity, religion, or any other reason: DR at [27].
12.3) However, by reference to the relevant country information, the IAA found that the Applicant's home province of Ghazni was one of the most volatile in Afghanistan. Roads linking Kabul and Hazara areas of Ghazni were unsafe, and the Taliban and other anti-government elements carried out attacks and abductions against Hazaras. Given the ongoing security concerns in the province, the IAA accepted that there was a real chance that the Applicant would suffer serious harm as an ethnic Hazara on surrounding roads leading to Jaghori if he were to attempt to return there: DR at [28]-[29].
Fear of harm in relation to other part of Afghanistan
12.4) The IAA did not accept, however, that the applicant as a Shia Hazara faced a well-founded fear of persecution in relation to all areas of Afghanistan other than Ghazni, (cf s 5J(1)(c)). It concluded that the Applicant could safely relocate to the cities of Kabul or Mazar-e-Sharif in Balkh province: DR at [43]-[46].
12.5) The IAA found that, as it had not accepted that the applicant faced a real chance of serious harm in Jaghori District from the Taliban for any reason, it did not accept that he would be personally pursued by the Taliban outside his home area: DR at [31].
12.6) The IAA also noted that Kabul and Mazar-e-Sharif are some of the safest cities in Afghanistan for Hazaras and both provide viable options for people for internal relocation and resettlement: DR at [32], [38] and [40]. While some insurgent attacks do occur in each city, incidents targeting Hazaras are infrequent and the attacks are almost exclusively targeted against the government: DR at [42]. There was nothing before the IAA to indicate the applicant would face a real chance of harm from an insurgent group because of his ethnicity or any other adverse profile: DR at [43].
12.7) The IAA accepted that, as a Shia Hazara, with no familial links in either Kabul or Mazar-e-Sharif, the applicant may be subject to a degree of discrimination. However, the IAA was not satisfied that there was a real chance that the discrimination would rise to the level of serious harm within the meaning of s 5J of the Act. Nor was the IAA satisfied that the applicant's capacity to exist or earn a livelihood would be threatened: DR at [45]; and while there were reports that asylum seekers returned to Afghanistan are targeted due to their perceived pro-Western values or political opinions, the IAA noted, referring to DFAT country information, that none of the reports was from Mazar-e-Sharif and low-profile Hazaras faced a low risk of being targeted. The IAA also noted that the applicant would be returning with no identifiable links to the international community or Afghan government and did not accept that the applicant would be imputed with an adverse political opinion if returned to Mazar-e-Sharif or Kabul: DR at [44]-[45].
13) In light of the foregoing, the IAA was not satisfied that the applicant faced a real chance of persecution relating to all areas of Afghanistan in the reasonably foreseeable future, and so did not meet s36(2)(a) of the Act.
Complementary protection
14) The IAA next considered whether the applicant faced a real risk of significant harm on return to Afghanistan under s 36(2A). It adopted its earlier conclusion that there was a real risk of significant harm if he were to return to Jaghori: DR at [51]. However, after referring to s 36(2B) of the Act and, on the basis of similar reasoning to the refugee decision, the IAA found that it would be reasonable for the Applicant to relocate to Mazar-e-Sharif or Kabul where there would not be a real risk that he would suffer significant harm. Accordingly, the IAA concluded that the Applicant did not meet s 36(2)(aa) of the Act.
Grounds of Review
Pursuant to an Amended Application, filed 25th January 2018, the Applicant’s Grounds of Review were as follows:
Grounds of application
1) The Authority made a jurisdictional error as it was not reasonably open to the Authority to conclude that the information as to errors in interpretation could not have been provided before the delegate’s decision was made.
Particulars
a) There was no evidence before the Authority that either the Applicant or the Applicant’s representative spoke both English and Arabic fluently;
b) The Applicant did not speak English with sufficient competence and required an interpreter;
c) The Applicant’s representative was not the qualified interpreter. An independent interpreter was used;
d) The Applicant and the Applicant’s representative had no way of knowing at the interview whether the interpretation was defective or not;
e) It was legally unreasonable for the Authority to conclude that the Applicant or the Applicant’s representative should have alleged errors in interpretation before the Delegate’s decision.
2) The Authority made a jurisdictional error as it failed to make an obvious inquiry into a critical fact the existence of which was easily ascertainable, namely obtaining an independent evaluation of the audio recording of the interview so as to ascertain whether there were errors in interpretation.
Particulars
a) The words of the Applicant at the interview with the Delegate were material to the Authority’s decision, especially in circumstances where the Authority itself was not itself interviewing the Applicant;
b) The Authority failed to arrange an independent evaluation of the quality of the interpretation at the interview based on the audio recording.
For completeness, I set out below the Grounds of Review contained in the Applicant’s Further Amended Application, filed 15th February 2018:
Grounds of application
1) The Authority made a jurisdictional error as it was not reasonably open to the Authority to conclude that the information as to errors in interpretation could not have been provided before the delegate’s decision was made and was not credible personal information.
Particulars
a) There was no evidence before the Authority that either the Applicant or the Applicant’s representative spoke both English and Arabic fluently;
b) The Applicant did not speak English with sufficient competence and required an interpreter;
c) The Applicant’s representative was not the qualified interpreter. An independent interpreter was used;
d) The Applicant and the Applicant’s representative had no way of knowing at the interview whether the interpretation was defective or not;
e) It was legally unreasonable for the Authority to conclude that the Applicant or the Applicant’s representative should have alleged errors in interpretation before the Delegate’s decision.
f) On the same basis, it was not reasonably open to the Authority to conclude that the new information was not credible personal information.
2) The Authority made a jurisdictional error as it failed to make an obvious inquiry into a critical fact the existence of which was easily ascertainable, namely obtaining an independent evaluation of the audio recording of the interview so as to ascertain whether there were errors in interpretation.
Particulars
a) The words of the Applicant at the interview with the Delegate were material to the Authority’s decision, especially in circumstances where the Authority itself was not itself interviewing the Applicant;
b) The Authority failed to arrange an independent evaluation of the quality of the interpretation at the interview based on the audio recording.
Legislative Provisions
The following sections of the Migration Act 1958 (“the Act”) are relevant to the determination of the current Application before the Court: ss.473DC, 473DD(b)(i) & (ii), 473DE
SECTION 473DC
Getting new information
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.
SECTION 473DD
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
…
b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
SECTION 473DE
Certain new information must be given to referred applicant
1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
a) give to the referred applicant particulars of any new information, but only if the new information:
i) has been, or is to be, considered by the Authority under section 473DD; and
ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
b) explain to the referred applicant why the new information is relevant to the review; and
c) invite the referred applicant, orally or in writing, to give comments on the new information:
i) in writing; or
ii) at an interview, whether conducted in person, by telephone or in any other way.
2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
3) Subsection (1) does not apply to new information that:
a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
b) is non-disclosable information; or
c) is prescribed by regulation for the purposes of this paragraph.
The Applicant’s Submissions
The Applicant’s submissions, filed 25th January 2018, were as follows:
1) There is before the Court an application for judicial review of a decision of the Second Respondent (Authority). The Authority affirmed a decision of a delegate of the First Respondent (Minister) not to grant the Applicant a Class XE Subclass 790 Safe Haven Enterprise visa (visa). The Applicant submits that the decision of the Authority involved a jurisdictional error.
Background
2) The following events are critical:
(a) 28 April 2016 – Applicant applies for the visa;
(b) 3 August 2016 – Applicant interviewed by the Delegate;
(c) 4 November 2016 – Delegate decides to refuse the Applicant the visa; and
(d) 22 June 2017 – Authority decides to affirm the Delegate’s decision to refuse the Applicant the visa.
Reasons of Authority
3) The reasons of the Authority, so far as they are relevant to the judicial review, are as follows:
6. On 24 November 2016, the IAA received an email from the applicant’s representative stating that the applicant “had serious concerns about the interpretation service performed by the accredited interpreter” in the SHEV interview. He states there were many occasions where the interpreter did not interpret his words correctly. These concerns with the interpreter were not raised with the delegate.
…
8. The applicant’s claim of interpreting errors during the SHEV interview is new information. The email of 24 November 2016 does not specify the nature of the interpreting errors claimed to have occurred in [the] SHEV interview but does state that an audio copy of the interview has been sought. In a further email of 25 November 2016, the Applicant’s representative confirmed he had in his possession a copy of the SHEV interview. Neither the subsequent email nor the IAA submission makes reference to any interpreting errors nor does it explain why this information could not have been provided to the delegate or why it may be considered credible personal information. I have listened to the recording of the SHEV interview and at no time did the applicant or his representative who was also present indicate concerns with the competence of the interpreter. I am not satisfied that this information could not have been provided before the delegate’s decision was made.
Grounds of judicial review
4) The Applicant seeks leave to amend the application for judicial review so as to press the following grounds of judicial review:
1. The Authority made a jurisdictional error as it was not reasonably open to the Authority to conclude that the information as to errors in interpretation could not have been provided before the delegate’s decision was made.
2. The Authority made a jurisdictional error as it failed to make an obvious inquiry into a critical fact the existence of which was easily ascertainable, namely obtaining an independent evaluation of the audio recording of the interview so as to ascertain whether there were errors in interpretation.
Submissions
Ground 1
5) The Authority rightly accepted that, in order to allow the information as to errors in interpretation as “new information” within the meaning of s 473DC of the Migration Act 1958 (Cth) (Act), it had to be satisfied that the information “was not, and could not have been provided to the Minister before the Minister made the decision” within the meaning of s 473DD(b)(i) of the Act.
6) In Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16), the Full Court of the Federal Court, constituted by Robertson, Murphy and Kerr JJ, held that a decision of the Authority was judicially reviewable for a legally unreasonable failure to consider obtaining new information under s 473DC of the Act (CRY16 at [82]). It is submitted that it equally follows that the Authority’s state of satisfaction under s 473DD(b)(i) of the Act is judicially reviewable for legal unreasonableness.
7) The test for legal unreasonableness is whether the Authority’s state of satisfaction can be impeached on the ground that it “is one at which no rational or logical decision maker could arrive on the same evidence” (Minister for Immigration v SZMDS (2010) 240 CLR 611 (SZMDS) at [130] per Crennan and Bell JJ; SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [10], [59]).
8) It is submitted that the foregoing test is satisfied in the present case. There was no evidence before the Authority that either the Applicant or the Applicant’s representative spoke both English and Arabic fluently. Rather, the Applicant did not speak English with sufficient competence and required an interpreter. The Applicant’s representative was not the qualified interpreter. An independent interpreter was used. The Applicant and the Applicant’s representative had no way of knowing at the interview whether the interpretation was defective or not.
9) It was, therefore, legally unreasonable for the Authority to conclude that the Applicant or the Applicant’s representative should have alleged errors in interpretation before the Delegate’s decision. Contrary to the Authority’s reasoning, those errors were not necessarily apparent to the Applicant or his representative at the time of the interview. Rather, it was appropriate to allege error after the Delegate’s decision, by which time it may be inferred errors had become apparent to the Applicant or his representative.
Ground 2
10) The Applicant invokes a duty of inquiry held by the Authority in accordance with the judgment of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (SZIAI). The criteria for the duty is the presence of a fact which is critical and which can easily be ascertained by an obvious inquiry. Of course, the High Court was dealing with an immigration tribunal other than the Authority and subject to statutory provisions different from Part 7AA of the Act.
11) To the extent that SZIAI is distinguishable on this basis, it is noted that the High Court referred to legal unreasonableness as one possible justification for the duty of inquiry in SZIAI (see at [23], [25]). It is submitted that, if this Court does not find SZIAI independently applicable, it is nonetheless open to this Court to combine CRY16 and SZIAI so as to recognise a duty for the Authority to consider obtaining (and to proceed to obtain) new information at least in circumstances where there is a critical fact relevantly ascertainable by an exercise of s 473DC of the Act.
12) Such a fact arose in the present case. The words of the Applicant at the interview with the Delegate were material to the Authority’s decision, especially in circumstances where the Authority itself was not itself interviewing the Applicant. It would be a straightforward exercise for the Authority to arrange an independent evaluation of the quality of the interpretation at the interview based on the audio recording. It was contrary to SZIAI, or legally unreasonable in accordance with CRY16, for the Authority to fail to or to fail to consider doing so.
Conclusion
13) The application should be allowed with costs.
Following the Hearing, the Applicant filed “Supplementary Submissions” in conjunction with a Further Amended Application, as directed by the Orders of 7th February 2018. The Submissions were as follows:
1) On 7 February 2018, this Court heard the Applicant’s amended application for judicial review of a decision of the Authority. The Court granted leave to the Applicant to file a proposed further amended application for judicial review and submissions in support of leave for the proposed further amendment. The Applicant submits that the application for leave ought to be granted and the Authority’s decision quashed with costs.
Reasons of Authority
2) The reasons of the Authority, so far as they are relevant to the application for leave, are as follows (at [8]):
… Neither the subsequent email nor the IAA submission makes reference to any interpreting errors nor does it explain why this information could not have been provided to the delegate or why it may be considered credible personal information. I have listened to the recording of the SHEV interview and at no time did the applicant or his representative who was also present indicate concerns with the competence of the interpreter. In the circumstances, I am not satisfied that this information could not have been provided before the delegate’s decision was made. Nor am I satisfied that the new information is credible personal information.
Proposed further amended ground of judicial review
3) The Applicant seeks leave further to amend the application for judicial review so as to press Ground 1 in the following form:
1. The Authority made a jurisdictional error as it was not reasonably open to the Authority to conclude that the information as to errors in interpretation could not have been provided before the delegate’s decision was made and was not credible personal information.
4) The particulars of the Ground 1 would also be altered so as to include a new particular f in the following terms:
f. On the same basis, it was not reasonably open to the Authority to conclude that the new information was not credible personal information.
Submissions
5) Section 473DD(b)(i) of the Act refers to the information not having been, and being unable to have been, provided before the Delegate’s decision was made. Section 473DD(b)(ii) of the Act refers to whether the information is “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims”.
6) Section 473DD of the Act, as a whole, is a statutory prohibition on the Authority considering new information under s 473DC of the Act. The prohibition is subject to a proviso, so that the prohibition does not apply where the Authority is satisfied that:
(a) there are exceptional circumstances (s 473DD(a) of the Act); and
(b) the information was not / could not have been provided earlier (s 473DD(b)(i) of the Act); or
(c) the information is credible personal information which was not previously known (s 473DD(b)(ii) of the Act).
7) The Applicant concedes that Ground 1, as set out in the further amended application, was effectively confined to challenging the Authority’s state of satisfaction (or, perhaps too precisely, non-satisfaction) for legal unreasonableness with respect to s 473DD(b)(i) of the Act. However, it is apparent from paragraph 8 of the Authority’s decision, that for exactly the same reasons, the Authority reached a corresponding state of satisfaction / non-satisfaction with respect to s 473DD(b)(ii) of Act.
8) The question that arises is whether the Applicant needs to and ought be granted leave to enlarge his challenge to the Authority’s decision to go beyond the Authority’s satisfaction regarding s 473DD(b)(i) of the Act and embrace the Authority’s satisfaction regarding s 473DD(b)(ii) of the Act.
9) The Applicant will begin with the question of necessity. Some brief explanation of the statutory scheme is required. There is no authority directly in point. Sections 473DD(b)(i) of the Act and s 473DD(b)(ii) of the Act are expressed alternatively rather than cumulatively. In other words, the prohibition in s 473DD of the Act would not apply where s 473DD(a) of the Act and s 473DD(b)(i) of the Act or s 473DD(b)(ii) of the Act operates. However, if the Authority finds that is not satisfied with respect to s 473DD(b)(i) of the Act, and that finding is legally unreasonable, then it may still not be enough for the Applicant to obtain relief.
10) This is so because, if the Authority has made a further finding that it is not satisfied with respect to s 473DD(b)(ii) of the Act, and that finding is not legally unreasonable, then the Applicant’s challenge can go nowhere. Even if the Authority’s reasoning with respect to s 473DD(b)(i) of the Act could be assailed, the Authority’s conclusion regarding s 473DD(b)(ii) of the Act would remain and the prohibition in s 473DD of the Act would continue to apply. It follows, for completeness, the Applicant needs leave also to challenge the Authority’s findings regarding s 473DD(b)(ii) of the Act in the present case.
11) This leaves the question of whether it is appropriate that the Applicant be granted leave so as to make the additional challenge to the Authority’s conclusions with respect to s 473DD(b)(ii) of the Act. It is so appropriate. The Authority’s reasons with respect to s 473DD(b)(i) of the Act and s 473DD(b)(ii) of the Act are the same. It follows that the Applicant’s challenge to the Authority’s decision, and the legal unreasonableness in the state of satisfaction / non-satisfaction, is also the same. It surely also follows the Minister’s resistance to the Applicant’s challenge is the same.
12) In short, the Applicant ought to be permitted to make an amendment which may be described as consequential, for completeness and, given the identical arguments on either side, without prejudice to the Minister.
Conclusion
13) The Applicant should be granted leave to rely upon the proposed further amended application and the relief sought therein should be granted with costs.
The Applicant filed further supplementary submissions in Reply to the Minister on 3rd April 2018. Those Submissions were as follows:
1) The Applicant makes three points in reply:
(a) the Applicant’s case has always been and remains a case based on s 473DD of the Act. This is why the Court has been called upon to extend the notion of legal unreasonableness in CRY16 from s 473DC to s 473DD. As it happens, the Full Court recognised such an extension on 13 March 2018 in relation to “exceptional circumstances” in s 473DD(a): DYS16 v MIBP [2018] FCAFC 33 at [20]. It is a small step in the present case to accord similar treatment to s 473DD(b);
(b) the Applicant has not failed to put forward a case of legal unreasonableness by reference to s 473DD(b)(ii). The reasons given by the Authority for the non-satisfaction of s 473DD(b)(ii) were exactly the same as the reasons given for the non-satisfaction of s 473DD(b)(i). If the Applicant succeeds in persuading the Court that the Authority’s state of non-satisfaction with respect to s 473DD(b)(i) was legally unreasonable, the same conclusion ought to follow in relation to s 473DD(b)(ii). If the Applicant is correct and a challenge with respect to both s 473DD(b)(i) and s 473DD(b)(ii) is necessary for completeness, the Applicant’s case regarding s 473DD(b)(i) doubles as its case regarding s 473DD(b)(ii);
(c) the Applicant’s submission that s 473DE of the Act, by virtue of the words “any new information … but only if the new information” in s 473DE(1)(a), represents a sub-category of information to which s 473DC and s 473DD of the Act, precluding the direct application in the present case of the concept of “information” in SZBYR, appears consistent with recent authority: MIBP v DZU16 [2018] FCAFC 32 at [78]-[81].
Respondent’s Submissions
The First Respondent’s primary submissions, filed 1st February 2018, were as follows (paragraphs 7-14 have not been reproduced here as they are already excerpted above):
FIRST RESPONDENT’S OUTLINE OF SUBMISSIONS
Background and Introduction
1) By an application lodged on 27 July 2017 (and more recently, an amended application filed on 25 January 2018), the applicant is seeking judicial review of a decision made by the second respondent, the Immigration Assessment Authority (IAA) on 22 June 2017 (see Court Book (CB) 218ff). By that decision, the IAA affirmed a decision made by a delegate on 4 November 2016 (CB 148ff) to refuse the applicant’s application for a Safe Haven Enterprise Visa (SHEV) for which he had applied by application received on 29 April 2016 (CB 40-88).
2) The applicant is an Afghani national. He arrived in Australia as an Irregular Maritime Arrival and participated in an entry interview on 14 February 2013 (CB 1-33).
3) On 24 February 2016, a delegate of the Minister (delegate) advised the applicant that he had lifted the bar under s 46A of the Migration Act 1958 (Cth) (the Act), and invited him to apply for a SHEV (CB34), which he did by application dated 29 April 2016.
4) The applicant was invited to attend an interview with the delegate on 3 August 2016 (CB 118) and his migration agent advised he would attend with his representative: see CB 115. Following the interview, the applicant’s registered migration agent provided some further documents to the delegate (see CB 142). On 4 November 2016, the delegate refused to grant the applicant a SHEV (CB 148ff). Although the delegate accepted that there was a real risk that the applicant would suffer harm should he return to Jaghori district, Ghazni Province, the delegate found that the applicant would not face a real chance of persecution in the reasonably foreseeable future if he were to return to Kabul, and that it would be reasonable for the applicant to relocate to Kabul.
5) The decision was referred to the IAA for review under Part 7AA of the Migration Act 1958 (Cth) (the Act) (CB 168), and the applicant was notified by the IAA on 8 November 2016 that the matter had been referred for review: CB 172.
Applicant’s claims
6) The applicant’s claims were outlined in the statement accompanying his SHEV application (CB 77-79) and further during the SHEV interview (see CB 154-156), and were also summarised by the IAA at CB 227-228 [12]. Those claims may be summarised as follows:
6.1) he is an Afghani citizen of Hazara ethnicity born in Loman village, Jaghori district, Ghazni province and practices Shia Islam
6.2) in late 2012 or early 2013, he was captured by the Taliban while transporting passengers in his taxi between Ghazni and Jaghori. He was blindfolded, taken to a dark shed, and beaten. He was accused of transporting government officials and documents;
6.3) he escaped the Taliban and returned to his village, before heading to Kabul and then fleeing to Australia; and
6.4) if he returns to Afghanistan, he fears being killed by the Taliban on account of his Hazara ethnicity, his Shia Muslim religion, his escape from the Taliban's custody, his imputed association with the Afghan government and opposition to the Taliban, and by reason of his attempts to claim asylum in Australia.
The IAA decision: the decision under review
…
The application for judicial review
15) The applicant now seeks to rely on an amended application filed, with supporting submissions, on 25 January 2018. The grounds are (in summary):
15.1) Ground 1: The authority made a jurisdictional error as it was not reasonably open to the Authority to conclude that the information as to errors in interpretation could have been provided before the delegate’s decision was made.
15.2) Ground 2: the authority made a jurisdictional error by failing to make an “obvious inquiry into a critical fact the existence of which was easily ascertainable”, namely obtaining an independent evaluation of the audio recording of the interview so as to ascertain whether there were errors in interpretation.
16) Both grounds appear to relate to an email sent by the applicant’s representative on 24 November 2017 (CB 186) to which the IAA responded at DR [6]-[8]. In his submissions (and in the particulars provided), the applicant focuses on the IAA’s finding that it was not satisfied that the information could not have been provided before the delegate’s decision (DR at 8).
17) The IAA at [7] summarised, by way of paraphrase, the requirements of s 473DD which provides as follows:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
18) This provision provides an exception (note the use of the term “exceptional circumstances” in the heading) to the general manner in which reviews by the IAA are to be conducted. As provided for by s 473DB, the IAA is to review the decision “by considering the review material provided to the Authority under section 473CB”
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
19) That is, the review is to be conducted on the papers that have been referred, other than in exceptional circumstances that meet the statutory test in s 473DD. Nothing in the Full Court’s decision in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16), to which the applicant refers in the applicant’s submissions (AS) at para 6, imposes an obligation on the IAA independently to investigate every claim made by an applicant. Moreover, the facts and circumstances of CRY16 (in relation to which the Minister has applied for special leave to appeal to the High Court by application filed on 11 January 2018), are entirely distinguishable. The factual substratum there was that the IAA knew that it did not have information concerning the respondent's relocation to Beirut and that the respondent was likely to have such information. Relocation had not been considered by the delegate in CRY16 at all; there was therefore no information or evidence before the IAA on that question. It was this context that allowed the Full Court to conclude that the IAA in CRY16 had "disabled itself" from considering what was reasonable, in the sense of “practicable”, in terms of relocation” (precisely because, on the facts of the case, it knew that the respondent was likely to have information that would illuminate consideration of that question and, by extension, the IAA's discharge of its review function). That is not this case, as the following contextual summary makes clear.
19.1) The claim about interpretation was made before the IAA in an email dated 24 November 2016 by the applicant’s adviser: it was unparticularised and did not refer to any finding that was said to be affected by the claimed issue (CB 186).
19.2) On the following day (25 November 2016), the IAA provided the applicant’s adviser with the recording of the SHEV interview (CB 188).
19.3) On 30 November 2016, the applicant’s adviser provided a detailed written submission to the IAA, after having had the opportunity to review the interview recording (CB 189).
19.4) A corrected copy of the submission was sent later on 30 November 2016 (CB 196).
19.5) A further submission was provided by the applicant’s adviser by covering email of 15 May 2017 (albeit dated 29 November 2016) (CB 211).
19.6) No further reference was made in any of the subsequent communications by the adviser, following the initial email of 24 November 2016, to the issue raised on that date concerning the interpretation.
19.7) At no time has there been any particularisation of that claim, nor any evidence provided in support of it.
20) After setting out that background, the IAA explained in some detail (particularly at DR [7]-[8]) why it was unable to find that either of s 473DD(b)(i) or (ii) was satisfied. And it will be recalled that, while the applicant focuses on one part only of the IAA’s written reasons, the IAA is not required to give reasons as to why it is, or is not, satisfied of the matters described in s 473DD. While both s 473EA(1)(b) of the Act and s 25D of the Acts Interpretation Act 1901 (Cth) operate, respectively, to require the Authority to “se[t] out the reasons for the decision” and to “se[t] out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”, that obligation applies only with respect to the IAA’s ultimate decision on the review, not to procedural or antecedent decisions made throughout the review.
Ground 1:
21) By Ground 1, the applicant appears to take issue with the IAA’s finding in relation to s 473DD(b)(i) of the Act, namely that it was not satisfied that the new information (being the claim that there had been errors in interpretation in the delegate’s interview) could not have been provided before the delegate’s decision was made. The applicant claims that this finding was “legally unreasonable”.
22) In a recent decision of the Full Court of the Federal Court, Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172, that Court considered the bases upon which legal unreasonableness might be found to arise. At [34]-[36] the Court summarised the principles (and leading case law) as follows:
34 To discern irrationality or illogicality in the Tribunal’s reasoning, more must be shown than simply the fact that the decision is one upon which reasonable minds may differ: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84]–[85] citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 [SZMDS] at [131] per Crennan and Bell JJ. As Crennan and Bell JJ stated in SZMDS at [135]:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
35 Moreover, illogicality must be shown to have affected the decision in question: SZOOR at [85].
36 As to unreasonableness, the applicable standard was summarised by the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] as follows:
In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li [Minister for Immigration and Citizenship v Li (2013 249 CLR 332; [2013] HCA 18], the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: … at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li … at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification” …
23) The applicant has not identified the basis upon which he claims that it was not open to the IAA to make the impugned finding, particularly in the circumstances set out above at 19-19.7. This is clearly a case that falls squarely within what Justices Crennan and Bell JJ were referring to in SZMDS at [131], ie, one where if “logical or rational or reasonable minds might adopt different reasoning … [or] might differ in respect of the conclusions to be drawn from th[e] evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion”.
24) As the impugned finding was one that was clearly available to be made by the IAA, Ground 1 cannot succeed.
25) Ground 2: The applicant claims that the IAA was required to “inquire” into the assertion that there were errors in interpretation, relying on obiter remarks of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. There the High Court suggested at [25] that, while the duty of a tribunal is a duty to review:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
26) The first respondent submits that to the extent that there is any such “duty to inquire”, its application must be considered in the context of the detailed statutory scheme created by Part 7AA, which establishes a limited fast track review process, as summarised by the Full Court in AMA16 v Minister for Immigration and Border Protection [2017] FCAFC 136 at [12]-[27] and BBS16 v Minister for Immigration and Border Protection [2017] FCAFC 176 at [30]-[32].
27) Under that statutory scheme, the nature of the review conducted by the IAA and the information that can be considered by the IAA are clearly circumscribed. The review is to be conducted by reference to the material provided by the Secretary under s 473CB without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1)(a) and (b)).
28) While s 473DC(1) allows the IAA to get any document or information that was not before the Minister (or delegate) at the time of the visa refusal decision, s 473DC(2) provides that the IAA does not have a duty to do so, whether requested to do so by the referred applicant or any other person, or in any other circumstances (see also CMR16 v Minister for Immigration [2017] FCCA 1715 at [13]; [20]).
29) It follows that, having regard to the statutory scheme of review under Part 7AA, the IAA could not have been under a duty to obtain an independent evaluation of the audio recording of the delegate’s interview so as to ascertain whether there were errors in interpretation.
30) Further, and in any event, no duty to inquire arose on the facts in this case. As the circumstances set out above at paras 19-19.7 demonstrate:
30.1) The claim about the alleged errors in interpretation was never particularised;
30.2) The claim was made before the applicant’s adviser had a copy of the recording of the hearing (that recording was not requested until 24 November 2016, while the decision was made on 4 November 2016), and thus before the applicant or his adviser had the opportunity to review the recording;
30.3) The claim was not repeated once the applicant’s adviser had had that opportunity; and
30.4) The claim was not referred to in any of the three submission documents provided on the applicant’s behalf to the IAA.
31) In those circumstances, there could have been no proper basis for the IAA to consider it appropriate to exercise a discretionary power that would involve going to the expense of commissioning an independent evaluation of the quality of the translation. In the absence of any particularisation of the claimed errors, any such “independent evaluation” would have been entirely open-ended.
32) Further, contrary to the applicant’s reliance on SZIAI, the applicant has identified no “obvious inquiry” that could have been made about a “critical fact”, the existence of which was “easily ascertained”. It is well established, outside the context of Part 7AA, that any duty to inquire will arise only in “certain rare or exceptional circumstances” – see Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60] and see more generally Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [26]-[49]. An “independent evaluation” of the quality of translation services is not an “obvious inquiry” about a “critical fact”, much less “easily ascertained”.
33) For that reason, this ground must also be rejected.
Conclusion
34) For the reasons set out above, the application should be dismissed and the applicant should pay the costs of the first respondent.
The Respondent filed the following submissions entitled “in response to the Applicant’s application for leave to amend application for judicial review” on 26th March 2018. Those submissions were as follows:
1) During the course of the hearing that took place in this matter on 7 February 2018, the first respondent submitted that the applicant's case was departing from that which had been pleaded in his amended judicial review application. That concern was specifically raised about a claim that the IAA had "unreasonably refused to exercise the power under s 473DC" of the Migration Act 1958 (the Act). As a consequence, the applicant sought leave to amend his application. His Honour Judge Neville set a timetable for the applicant to file a proposed amended application and submissions in support of any new ground raised in it, and for a response from the first respondent.
2) On 15 February 2018, the applicant filed a proposed further amended application and submissions. For the reasons set out below, the first respondent submits that the applicant ought not be granted leave to rely on that further amended application.
The proposed amendment
3) As noted above, the first respondent understood at the hearing that the applicant intended to seek leave to include in his pleaded case the claim that the IAA had "unreasonably refused to exercise the power under s 473DC". As no such claim is included in the proposed further amended application, the first respondent submits that the Court should disregard any submissions to that effect that were made at the hearing.
4) The ground as now sought to be pleaded adds the text of s 473DD(b )(ii) to what had been Ground 1. As amended, this ground appears to suggest that the two findings sought to be impugned are cumulative (but cf applicant's further submissions at 9). Instead, the two paragraphs of subsection (b) are alternatives. Section 473DD precludes an IAA from considering new information unless there are exceptional circumstances AND the IAA is satisfied of EITHER (b)(i) OR (b)(ii).
5) As for the additional particular, the proposed text asserts that it was not reasonably open to the IAA to conclude that the new information was not "credible personal information". No argument is presented in these submissions, nor was any presented in the applicant's primary submissions: see first respondent submissions at paras 23- 24, nor at hearing, as to why that finding is said not to have been open to the IAA. It would appear, however, that the applicant seeks to rely on particulars (a) to (e) of ground 1 in his further amended application in support of this argument.
6) The first respondent notes that at the hearing on 7 February 2018, his Honour questioned whether the claim made by the applicant in relation to the quality of the interpretation (which, it will be recalled, was not re-agitated by the applicant at any time after receipt of the hearing recording, despite there having been a number of further submissions made by his adviser) enlivened s 473DD at all. This is because his Honour expressed some reservation about whether, in light of what the High Court had said in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 (SZBYR) at [18], a claim about perceived failings in the process falls within what is envisaged by s.473DC(1) as "new information". In SZBYR, the High Court said at (18], (albeit in the context of s 424A which, while broader than s 473DE, is somewhat analogous to the latter provision):
However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
7) This passage in SZBYR was referring to the Tribunal's subjective appraisal of identified gaps, defects or lack of detail or specificity in the evidence presented by the applicant. Here by contrast, the claim that was put (albeit the first respondent reiterates that this claim was not pressed after first being raised), did not concern the assessment by the IAA. Rather, it was, in effect, a new claim and thus it arguably constituted "new information" within the meaning of s 473DC: see CVK16 v MIBP [2017] FCCA 235, affirmed by the Federal Court in CVK16 v MIBP [2017] FCA 1434. This was certainly the approach taken by the IAA, and the applicant's challenge in this Court is to the bases upon which the IAA decided that it was precluded from considering the new information.
8) The first respondent submits that the IAA did not err in approaching the matter on the basis that the claim was new information. The applicant has provided no substantive argument in support of its assertion that the finding on s 4730D(b)(ii) was not open. Therefore, as the proposed new ground has no merit (and is not elaborated upon other than by mere assertion), leave should be refused to rely on it.
Conclusion
9) For the reasons set out above, the application should be dismissed and the applicant should pay the costs of the first respondent.
Consideration & Disposition
The primary and fundamental concern I have with the Applicant’s Grounds of Review is the evidentiary basis for them, or rather the lack thereof. Put another way: is it sufficient to trigger (so to speak) the requirement, let alone any such duty, to make reasonable inquiry if, as is the case here, (a) the issue that might lead to or require an inquiry, is not particularised, (b) the issue was raised only once and was not repeated in later submissions, and or (c) the Applicant himself has been given the relevant opportunity to check his claim and has not subsequently repeated or particularised his “serious concerns”?
In Minister for Immigration and Citizenship v SZIAI (“SZIAI”), the High Court said, at [25] (internal citations omitted):[2]
The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[2] Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 259 ALR 429.
In SZIAI, the High Court found that there was no factual basis for making such inquiry. In my view, such is the case here also, for the following reasons.
In Minister for Immigration and Citizenship v Li, the High Court (Hayne, Kiefel and Bell JJ) said, at [66], [76] and [82], (the latter being referred to in Minister for Immigration and Border Protection v CRY16 at [67]) (internal citations omitted; emphasis added)):[3]
[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
[82] It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that "enough is enough"…
[3] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (“CRY16”).
Here, the Applicant’s “serious concerns” about the “interpretation service performed by a NAATI accredited interpreter” were raised, for the first, and only time, via email to the IAA on 24th November 2018. The following day, the IAA provided the Applicant’s adviser with a copy of the recording of the SHEV (Safe Haven Enterprise Visa) interview. Various submissions were made post the IAA providing the copy of the recording. Those submissions made no reference to, or mention of, the “serious concerns” as alleged in the email of 24th November 2016.
In my view, in providing the Applicant’s adviser with a copy of the recording of the SHEV interview, the IAA gave the Applicant the appropriate and relevant opportunity to consider the detail of the interview and to make submissions on any matter of concern that arose in it. No such concerns were subsequently made by or on behalf of the Applicant. To claim now that the IAA should have made due or proper inquiry, pursuant to the comments of the High Court in SZIAI, in my view would place an improper and further requirement on the IAA. In my view, rather than make its own inquiry, which perhaps it could have done, instead the IAA chose to provide the relevant material to the Applicant. In doing so it gave him the opportunity, and importantly the relevant means, to identify any specific “serious concerns” he had with the interpretation provided, rather than simply to leave the Applicant’s concerns at such a level of generality as to provide no meaningful detail.
In my view, in providing the information directly to the Applicant, the IAA did what it was required to do and absolved itself from needing to do anything more. Having provided the Applicant with the SHEV recording, it could have reasonably expected to be advised by him of relevant details of his “serious concerns” regarding the interpretation. Not only were no such details provided; the allegation of “serious concerns” was never repeated. In these circumstances, there is no factual basis for the IAA to have made any further inquiry. The comments of the High Court in SZIAI do not assist the Applicant here.
Further, for the same reasons, the comments by the High Court in Li do not assist the Applicant. Not only is the pathway of reasoning of the IAA reasonably disclosed, as already mentioned, but further the IAA gave the Applicant a proper opportunity, together with the relevant material, to outline or to detail what his “serious concerns” were. He did not do so.
There is nothing in CRY16 identified by the Applicant, in the light of the provision of the SHEV interview recording by the IAA to him, which would indicate that the IAA has not relevantly, or unreasonably, discharged its statutory power or exercised its conferred discretions.
In the light of the conclusion I have reached, and the factual basis for it, it is unnecessary to address the further arguments advanced by the Applicant regarding the operation of s.473DD(b).
Moreover, I note, as I did during the hearing, that the comments by the High Court in SZBYR v Minister for Immigration and Citizenship regarding what does, or might, constitute “new information” for the purposes of Part 7AA of the Act, seem to me to be relevant to the current matter.[4] At [18] the High Court said:
… However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
[4] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.
On the facts here, the Applicant expressed “serious concerns” to the IAA about the interpretation service provided. “Serious concerns” might readily come within what was comprehended by the High Court in SZBYR as “doubts”, or even “inconsistencies.” The IAA provided him with the relevant means to check and to identify in detail what those unparticularised concerns were. He did not do so in correspondence or submissions subsequent to the hearing. Having provided all relevant means to the Applicant to identify what his “serious concerns” were, in my view, there was no further duty, or need for the IAA to exercise its discretion, to make inquiry itself as to what may have constituted the Applicant’s “serious concerns”, in circumstances where he did not do so himself, even after having been provided with material to double check his concerns. The fact that he did not make any further expression of concern – serious or otherwise – to the IAA subsequent to receiving the recording of the hearing would, in my view, be ground enough for the IAA to believe that his concerns had been resolved or otherwise appeased.
Otherwise, I prefer and accept the submissions on behalf of the Minister.
For these reasons, the Application must be dismissed with costs in accordance with Schedule 1 of this Court’s Rules.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Neville J
Date: 3 August 2018
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