EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 736
•27 June 2022
FEDERAL COURT OF AUSTRALIA
EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 736
Appeal from: EIL18 v Minister for Immigration & Anor [2020] FCCA 2675 File number(s): WAD 204 of 2020 Judgment of: KENNY J Date of judgment: 27 June 2022 Catchwords: MIGRATION – leave to raise new grounds of appeal – whether legally unreasonable for Immigration Assessment Authority not to invite the appellant for an interview under s 473DC(3) of the Migration Act 1958 (Cth) – where the appellant’s request to adjourn a telephone interview before the delegate was refused and requests to be interviewed by the Authority were declined – no facility in English language – extended period of detention prior to invitation to interview before delegate – invitation fixed shortly before trial resulting in no penalty for criminal offence – where evident informational deficiencies in the material the basis of adverse findings – appeal allowed Legislation: Federal Court of Australia Act 1976 (Cth) s 27
Migration Act 1958 (Cth) ss 5AA, 5AAA, 5H(1), 5J, 36(2)(a), 36(2)(aa), 36(2A), 473CA, 473CB, 473CC, 473DB, 473DC, 473DD, 473FA(1)
Federal Court Rules 2011 (Cth) r 4.12
Cases cited: Abebe v The Commonwealth of Australia [1999] HCA 14; 197 CLR 510
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407
AQF17 v Minister for Immigration and Border Protection [2018] FCA 966
ATD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 576
BQQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 268
BRF038 v Republic of Nauru [2017] HCA 44; 349 ALR 67
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196
BYR17 v Minister for Immigration & Border Protection [2018] FCA 1324
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76
DFL16 v Minister for Immigration and Border Protection [2021] FCA 936
District Council of Streaky Bay v Wilson [2021] FCAFC 181; 394 ALR 33
DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389
DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222; 267 FCR 69
EEE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 629
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44; 283 FCR 164
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456
Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 1571; 140 FCR 137
Minister for Immigration & Multicultural & Indigenous Affairs v WAAG [2003] FCAFC 60
Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534
Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475
Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49; 269 FCR 70
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; 214 ALR 264
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
NBMB v Minister for Immigration and Citizenship [2008] FCA 149; 100 ALD 118
Northern Land Council v Quall (No 3) [2021] FCAFC 2
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982; 179 ALR 425
SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 120; 129 FCR 137
SZBLY v Minister for Immigration and Citizenship [2007] FCA 765; 96 ALD 70
SZTAD v Minister for Immigration and Border Protection [2014] FCA 1256
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 119 Date of hearing: 15 December 2021 Counsel for the Appellant: Mr M Albert (pro bono) Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
WAD 204 of 2020 BETWEEN: EIL18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
KENNY J
DATE OF ORDER:
27 JUNE 2022
THE COURT ORDERS THAT:
1.The appellant have leave to amend his notice of appeal to replace the grounds of appeal with the two proposed new grounds set out in his proposed amended notice of appeal.
2.The appeal be allowed.
3.Order 1 of the orders of the Federal Circuit Court of Australia made on 18 August 2020 be set aside and in lieu thereof it be ordered that:
(a)a writ of certiorari be issued to the Immigration Assessment Authority quashing the decision made on 20 July 2018 to affirm the decision not to grant the appellant a Safe Haven Enterprise visa;
(b)a writ of mandamus be issued to the Immigration Assessment Authority requiring it to exercise the power under s 473CC of the Migration Act 1958 (Cth) according to law.
4. On or before 4:30 pm on 11 July 2022, the parties file and serve submissions of no more than 3 pages as to the appropriate order as to:
(a)the costs of the appeal; and
(b)if relevant, the costs of the proceeding in the Federal Circuit Court of Australia.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KENNY J:
This is an appeal from a judgment of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) dismissing an application for judicial review of a decision of the Immigration Assessment Authority. By its decision, the Authority affirmed a decision of a delegate of the respondent Minister not to grant the appellant a Safe Haven Enterprise Visa (SHEV).
For the reasons set out below, I would uphold the appeal, on the basis of ground one.
BACKGROUND
The appellant is a citizen of Bangladesh. He is also a Muslim of Bengali ethnicity. He arrived in Australia on 24 March 2013 as an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth) (the Act). An officer of the Minister’s Department interviewed him on 21 April 2013. He was then in his mid-twenties. Some three years later, in March 2016, the Department invited the appellant to lodge a visa application. With the assistance of his migration agent, he lodged an application for a SHEV in May 2016.
In support of his application, the appellant claimed that he had been attacked and abused by supporters of the Awami League (the governing political party in Bangladesh) on account of his affiliation with the Bangladesh National Party (BNP), and that his attackers had stolen money from his father’s shop while he was working there. In a statement accompanying his application, the appellant said:
… Politically, I was not an active person, even though I was supporting Bangladesh National Party (BNP).
… I left Bangladesh, because my life was in danger from political gangsters and local terrorists, who were members of the ‘Awami League’ (who are the current rulers of the country), who were trying to extort money from me.
… I believe that I would continue to be harmed and mistreated by the same or similar people, if I returned to my country. They would continue to abuse, mistreat, beat and torture me. I even fear that they would [] kill me. I believe that my life would be endangered, if I didn’t pay money to those people who would try to extort money from me. …
Also in this statement the appellant claimed that he was attacked about five times between about 2010 and 2012, as a result of which he made the journey from Bangladesh to Australia. The appellant stated that his life would continue to be in danger wherever he went in Bangladesh “because gangsters and terrorists from Awami League could find and harm me everywhere”.
Some two years after filing his visa application and five years after his arrival in Australia, the appellant was invited, by a letter dated 13 March 2018, to attend a telephone interview with a Departmental officer. The interview was fixed for 27 March 2018, and was to proceed with the assistance of a Bengali interpreter. The letter was sent to both the appellant and his migration agent. The letter advised the appellant that if he was unable to attend the interview, he should advise the Department as soon as possible. The letter further advised that he “may be required to provide evidence as to why [he] cannot attend the interview” and that a “rescheduled interview may not be offered”.
Remand
At the time the appellant received the 13 March 2018 letter, he was being held on remand awaiting trial for common assault and assault occasioning actual bodily harm. He had in fact been in remand since 3 November 2016, and the Department had been so advised at the latest by 4 April 2017.
Less than three weeks after the date scheduled for his Departmental interview, the appellant was tried in the Local Court of New South Wales. On 16 April 2018, the Local Court dismissed the more serious charge. The appellant was convicted of common assault, but the Court did not impose a penalty. The Court did, however, impose a two-year apprehended domestic violence order on him.
On his release from criminal custody on that day, 16 April 2018, the appellant immediately re-entered immigration detention.
The interview
The appellant attended the scheduled interview on 27 March 2018 while still in remand “via telephone hook-up with the video conference room” at the remand centre. He was assisted by a Bengali interpreter. His migration agent also attended via “telephone hook-up”. What occurred at that interview is set out below in some detail as this is important to assessing part of the appellant’s case on appeal.
The transcript of his interview shows that the appellant informed the case officer at the very outset that he was not willing to participate in the interview prior to his forthcoming trial. The interview commenced at 12.05 pm on the scheduled day as follows:
Applicant:I am not prepared to undertake the interview due to my court case and it should be finalised in the next few months then I will undertake the interview.
Case Officer: Are you unwilling to take part in this interview today?
Applicant:I am asking for more time for this process to go through until the other thing is finalised and I am going through a lot of interview[.] I am not prepared for this process.
…
Case officer: If you want to decline the interview that is up to you and I can make a decision on the information before me or otherwise I intend to continue.
Applicant:Because of being 2 years in prison, I have lost all my memory, I am mentally half dead because of my condition, I could not answer for two years I live in this country.
Case officer: How is your situation going to change after your court case?
Applicant:I am under so much pressure and let that settle down and if you people give me that much pressure and I am going to harm myself[.]
Case officer Can I confirm that if you[r] protection interview is not postponed until after your court case you are threatening self-harm?
Applicant:I am politely asking, lowering myself to you and I cannot take that much stress at this time, I am so down and I cannot do anything at this time.
….
Applicant: Because I cannot handle two matters and the other pressure. I am not in the mental status. I expect that the other matter will come to an end soon …
The case officer informed the appellant that if he did not engage in the interview, the case officer could make “a negative credibility finding” about him and make a decision on his visa application based on the information then before him. The case officer also warned the appellant about the restrictive nature of subsequent processes. The appellant remained adamant, however, that he would “not do the interview until after [his] court case”. At 12:30 pm, the case officer paused the interview for about ten minutes, to allow the appellant to speak with his migration agent.
The appellant did not change his position when the interview resumed at 12.42 pm. The transcript recorded that the appellant’s migration agent asked the appellant: “[i]f we can get the case officer to postpone the interview for a week or two will you engage with the interview then?”. The appellant replied: “I will not do the interview until after my court case or if I get a negative outcome until after I get out of gaol”.
Subsequently and apparently in response to the case officer, the appellant stated that he had a medical condition that prevented him undertaking the interview.
Applicant: I cannot undertake this now as I have a medical condition.
Case officer: What medical condition, I have no information before me of a medical condition?
Applicant:Two times I was attacked in the prison by inmates who were provoked by Blacktown [sic] police and I attend[ed] hospital.
Case officer: I mean any psychological conditions that you are inferring you have?
Applicant:I am not mad that I need … psychological treatment, I am not a mad man.
When the case officer sought the appellant’s consent to make an audio recording of the conversation, the appellant answered, “until my court case, I leave it to my agent until this process finishes and if I am found guilty I will do the immigration process once I have finished gaol”. The case officer warned him that “that it is not going to occur that way”. The appellant responded by saying that “I cannot make a decision and I do not know what yes or no means … you can ask the agent” and “I don’t understand anything, I am not feeling well and you better … talk to my agent about any of your questions”. The case officer made it clear, however, that he was “not going to interview [his] migration agent”.
After this the appellant said that he was not feeling well, as the following exchange shows:
Applicant: I have [a] fever and headache[.]
Case officer: Can I confirm that you do not want to undertake the interview today as you have a fever and [a] headache?
Applicant: Yes
Case officer: Do [you] realise this is inconsistent with the information you have just provided?
Applicant:I have been feeling sick and I don’t have any money to call back home and I cannot eat the food in prison and I don’t have money to buy any food.
Case officer: Did you present to the medical practitioners at the gaol [this morning] for you[r] stated illness?
Applicant: No I didn’t attend but I had [a] Panadol and some creams to heal my injuries but I didn’t attend medical[.]
When the case officer indicated that his intention was to proceed with the interview, the appellant said “[i]f you send me a negative decision you will get my dead body back”. The appellant’s migration agent intervened at about this stage, to ask whether it was “possible to postpone for ten days with all of those reasons so he can prepare”. The case officer declined to do so, saying:
The applicant stated that he would not engage with the process until after his court case so he has stated no reason why this interview should be postponed.
Before the interview concluded at 1:10 pm the case officer made his position clear in the following exchange:
Agent: He has stated the medical condition.
Case officer: He has not presented to the doctors. He is in a prison so he can do this at any time and he has not avail[ed] himself of medical assistance or psychological treatment. He has been inconsistent about why he does not want to proceed and I do not find his claim[] about his headache and fever credible. I intend to now ask him for the last time if he is willing to be interviewed and if he refuses, I will draw the appropriate credibility finding that he is refusing to take part in the process and he is refusing to have his claims tested.
Applicant: I am [a] normal person, what can I do[.]
Case officer: I will ask you for the last time, will you engage with the protection visa interview today?
Applicant: I cannot make a decision, I cannot say yes and I cannot say no.
Case officer: Are you saying I can go ahead with the interview now?
Applicant:I am continue with the interview, I tell Immigration [to] give me more time, I hope that I win my case and I go outside and then I can go to Immigration and have this assessed but not now. I am not ready and I hope my mental situation, my parents and my religious party and I lost my contact telephone and health psychological, my decision, I cannot do anything, please … (Client cannot be understood)
Case officer: You have now clearly stated that you are not willing to continue with the interview until after you[r] court case and if you get a negative outcome, until you get out of gaol?
Applicant: I will cooperate after the outcome, until my other side is finalised[.]
Case officer: I have explained the consequences of you[r] actions so I now will cease the interview and make a decision.
Some two days later, by letter dated 29 March 2018 emailed to the appellant’s migration agent, the Department asked the appellant to provide additional information in support of his application, within 14 days. This deadline was just 18 days before his trial.
By email dated 10 April 2018, the appellant’s migration agent advised:
I would appreciate if you could grant us a further 2 weeks of time as I have not been able to contact my client please.
The Departmental case officer replied by email on 12 April 2018 that:
By regulation I can give you 7 days but I am on leave with my first day back at work being 30 April 2018.
So I will not be able to make a decision about this case until after 29 April 2018.
As already noted, the appellant was discharged from remand on 16 April 2018 and re-entered immigration detention the same day. By email dated 1 May 2018 the appellant’s migration agent advised the case officer that:
I tried to contact [the appellant] through Metropolitan Remand & Reception Centre (MRRC), Corrective Services in Silverwater, NSW and finally found out that he is no longer in the custody of the MRRC.
As a result, I will not be able to provide any additional information from him please.
The delegate’s decision
By letter dated 7 June 2018 addressed to the appellant at the remand centre (rather than Department’s own immigration detention facility where he had been detained since he was discharged from remand in April) the Department advised the appellant that his application had been refused and that this decision had been referred to the Authority for review. A copy of this letter was also sent by email to his migration agent. I set out below the delegate’s reasons for decision in some detail as they are also important in assessing part of the appellant’s challenge to the Authority’s decision.
Under the heading “Findings of Fact” the delegate specifically found that certain parts of the appellant’s narrative were implausible. In particular, the delegate found it implausible that the migration agent was unable (as he claimed) to locate the appellant, so that the agent might respond to the Department’s invitation to provide further information after the failed interview. The delegate found that “NSW Corrective Services would have been able to inform him where his client was located”. The delegate added:
Once the applicant was taken to immigration detention the applicant would have been free to call his agent. I find that the applicant refused to take part in the SHEV interview as he did not want … his claims to be scrutinised and I find that he did not respond to the Section 56 invitation for the same reason.
As to the appellant’s claim that he was attacked in his father’s shop because he was a BNP supporter, the delegate did “not find it plausible that the applicant refused to give[] these men money on all five occasions if each time he refused they beat him, took the money and destroyed the shop”. The delegate said:
I do not find it plausible that the applicant would refuse to give five to seven men, one armed with an axe, what they demanded. I also do not find it plausible that the applicant would continue to refuse to give these men money if he knew that it would lead to him being seriously harmed, the money being taken and the shop being destroyed. I also do not find it plausible that once he had been attacked a few times he did not look to change his employment or take other protective action such as relocating.
…
Based on country information, I find it plausible that his father’s business was required to pay some money to the local AL party. I find that the applicant did not refuse these payments and I find that he was not attacked five times by these men. I find that this was generalised extortion on a local business and was not targeted towards the applicant or his family.
The delegate did not accept the appellant’s claims that his family home had been attacked by members of the Awami League in 2013 and found that when the appellant left Bangladesh he was not of adverse interest to any group or individual. The delegate said:
I do not find it plausible that a non-active supporter would be targeted wherever they moved to in Bangladesh. I do not find it plausible that the rest of his family would remain in the same village after there was an attack on their lives and the possessions. The applicant has refused to take part in the application process so he has not submitted any further information about why his family would still be living in the same village. Based on information before me, I find that his family’s house was not attacked by members of the AL in 2013. Therefore, I find that when the applicant left Bangladesh he was not of interest to any group or individual for any reason.
Under the heading “Australia’s protection obligations”, the delegate was not satisfied that the appellant faced a real chance of persecution as a returned failed asylum seeker or on any other basis. The delegate stated:
I do not accept [that] the applicant was of adverse interest to authorities before his departure or that they have developed a profile of interest to them while abroad. On 16 April 2018 the applicant was found guilty of common assault and he was convicted under Section 10A under the Sentencing Procedure Act 1999 with no penalty imposed. A two year apprehended Domestic Violence Order was imposed on the applicant. There is no information before me that the authorities in Bangladesh are aware of his conviction for common assault on 16 April 2018.
The delegate also found that as a non-active supporter of the BNP, the appellant “does not have a profile of interest to the Bangladeshi authorities, the A[wami] L[eague] or any other actor”, and the chance that he would face serious harm on account of his actual or perceived political opinion was remote.
Also under this heading, the delegate found that the appellant’s father’s shop was the subject of “generalised extortion” in the area, and that if the appellant returned to Bangladesh “he would be able to subsist and ... undertake other forms of employment if he was unable or unwilling to pay the extortion required of businesses in his area”. Having made these findings, the delegate held that the appellant did not satisfy ss 5H(1) and 36(2)(a) of the Act.
Under the heading “Complementary protection criteria assessment”, the delegate rejected the proposition that there was a real risk of significant harm to the appellant for the purpose of s 36(2)(aa) of the Act if he returned to Bangladesh as a failed asylum seeker from a western country or on account of extortion. The delegate’s reasons in this regard were much the same as his reasons for rejecting the appellant’s s 36(2)(a) claim.
With respect to s 36(2)(aa) of the Act, the delegate also gave detailed consideration to the appellant’s criminal liability on return to Bangladesh and, in particular, whether the criminal charges laid against him in Australia might give rise to a real risk of significant harm on his return there. The delegate recorded that:
Only limited information could be found on the treatment of criminal returnees. DFAT indicates that most returnees are not subjected to adverse attention but high-profile individuals who have engaged in political activities outside of Bangladesh, [may be] of interest to the authorities. Any crime that may be seen as a political crime may increase their risk of arbitrary detention.
(Citations omitted)
The delegate considered the law of Bangladesh with respect to double jeopardy, noting that “[n]o reports of people being harmed on return to Bangladesh for the crimes that they have committed overseas could be located”. While finding that the death penalty was a part of the law in Bangladesh, the delegate also found that “there is not a real risk [that] the applicant will suffer significant harm in [] the form of the death penalty or any type of other significant harm ... as a necessary and foreseeable consequence of being removed to Bangladesh”. The delegate concluded that:
The applicant’s conviction is of [a] non-political nature. There is no information before me to indicate that the Bangladeshi authorities are aware of the applicant’s conviction. The Bangladeshi government would not have access to the evidence which was used against the applicant at his criminal trial in Australia. There is no evidence before me that Bangladesh [sic] nationals who have committed crimes overseas, which do not involve Bangladeshi law enforcement are prosecuted on return to Bangladesh. Based on the information currently before me, I am not satisfied that there is a real risk of the applicant suffering significant harm as a necessary and foreseeable consequence of being removed to Bangladesh as required by Section 36(2)(aa) for this reason.
Ultimately the delegate concluded that the applicant was unable to satisfy the complementary protection criteria set out in s 36(2)(aa) of the Act.
The Authority’s decision
By letter dated 14 June 2018, the appellant was notified that the delegate’s decision had been referred to the Authority for a review. This letter also informed him that:
The IAA will proceed to make a decision on your case on the basis of the information sent to us by the Department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.
These latter documents apparently accompanied the letter.
On 17 June 2018 the appellant emailed the Authority, relevantly stating that:
[M]y English is very week [sic], I can’t speak as well please could you contact with me an BENGOLI [sic] interpreter, I have need to talk with you …
On 22 June 2018 the appellant, assisted by a Bengali interpreter, had a conversation with an officer of the Authority, in which he requested an interview. A file note of this conversation recorded that:
He stated that he felt he did not have the opportunity to tell his side during his initial application with the Department and wanted to be given that opportunity now. I stated that the review of the protection visa application that occurs with the IAA happens “on the papers”. I explained that this means there is generally not an interview with the IAA, rather the reviewer looks at all the information that the Department refers to us from the original application, and may consider documents the applicant sends to us (submissions or new information).
He repeated the request for an interview on a number of occasions during the phone call, and I repeated that we generally don’t provide interviews and the reasons for this but if he wished to make this request he can send it through in writing, and I provided him with the IAA email address when requested. He asked how long the review would take, and that this was a very stressful, “do or die” situation for him. I told him that whilst we endeavour to finalise cases within six weeks, this depends on the circumstances o[f] the case. ...
The appellant emailed the Authority again on 28 June 2018, stating in part that:
I am sending some documents that is my court released certificate please see that, I let you know something on my protection Visa immigration didn’t take my interview because I was in police custody.
The documents attached to this email included the appellant’s release certificate dated 16 April 2018, the apprehended domestic violence order made by the NSW Local Court that day, and an advice of court result.
On 5 July 2018 the appellant, assisted by an interpreter, made phone contact with the Authority and again requested an interview. A file note dated 6 July 2018 made by the officer who took the call recorded that:
... I further explained that the review with the IAA was for his protection claims only. He repeatedly asked me if he was found not guilty of domestic violence why was the IAA keeping him in detention. I responded that the IAA is only involved in the review of his protection claims and I was unable to answer this question. He then went on to tell me that the Dept had denied him the opportunity to an interview because they thought he was guilty of domestic violence, and he asked me how was it fair that they came to their decision without being given the opportunity to tell his story. ... He then requested that he would be allowed to give his side of the story to the IAA [by] means of an interview. I explained that the IAA typically completed their review without an interview and it would be at the Reviewer discretion if they required an interview, otherwise they would make a decision on the papers. He repeatedly told me that the IAA was unfair and that we were not allowing him a fair opportunity to present his story. ...
By letter dated 20 July 2018, the Authority notified the appellant that it had decided to affirm the delegate’s decision. Under the heading “Information before the IAA”, the Authority stated that it had had regard to the material referred to it by the Secretary under s 473CB of the Act.
Noting that the appellant had requested an interview, the Authority stated that:
[4]The IAA must generally review a fast track reviewable decision without accepting or requesting new information, and without interviewing the applicant. There is no duty to get, request or accept new information. However, the IAA does have the power to get new information, including at an interview, and I have considered whether to exercise that discretion to invite new information from the applicant.
[5]The applicant was invited to attend an interview with the [Department] on 27 March 2018 to discuss his visa application and claims for protection. At that time, the applicant was held on remand in a correctional facility. Before me is a written record of the discussion between the applicant, his migration agent and delegate on 27 March, the applicant having refused consent for an audio recording. This exchange took place with the applicant appearing by video-link from the correctional facility and his migration agent present by telephone. It appears from the record that the applicant essentially indicated he was not prepared to participate in an interview until after his upcoming court case or, in the event of a negative outcome at court, until after he was released from prison. The written record is detailed and written in the style of a transcript and I have no reason to doubt it is an accurate account.
[6]The record indicates that the applicant gave a number of reasons for not being willing to proceed. He referred to needing more time and being unprepared, the impact of having been in prison for two years, including memory loss, being under pressure, unable to take further stress and being down. He made threats of self-harm. The applicant also said that he had a medical condition, that he had been attacked in the prison and attended hospital, was feeling unwell with a fever and headache, was feeling sick and was unable to eat prison food.
[7]The agent twice proposed that the interview be postponed. The first time, the agent made this suggestion to the applicant and the applicant reiterated that he would not participate until after his court case or ultimate release from gaol. Later, the agent requested a postponement of ten days so the applicant could prepare on the basis of the applicant’s medical condition and other reasons he had given. The delegate refused this request, referring to the applicant’s indication he would not engage with the process until after his court case, failure to seek any medical or psychological treatment, inconsistent explanations for not proceeding with the interview and the delegate’s doubt over his claimed headache and fever. After further discussion, the delegate ultimately [indicated] that he would cease the interview.
The Authority referred to the Department’s letter inviting the appellant to provide additional information, his migration agent’s response, the Departmental officer’s reply and the migration agent’s advice that he was unable to contact the appellant: see [18]-[21] above. Respecting the 27 March 2018 interview and the appellant’s subsequent failure to provide any further information, the Authority found that:
[9]In phone conversations between the applicant and the IAA case officers on 22 June and 6 July 2018 the applicant requested an interview. He also referred to the lack of an interview in an email sent to the IAA on 28 June 2018. In his communication with the IAA, the applicant has said that he was not given the opportunity to tell his side during his application with the Department, that he was in a stressful ‘do or die’ situation. He claimed the Department unfairly denied him the opportunity of an interview because they thought he was guilty of domestic violence (of which he said he was found not guilty). He referred to self-harm. In his email of 28 June, he claimed that he had not been interviewed because he was in police custody ...
[10]The invitation to the 27 March interview was sent to the applicant’s migration agent two weeks prior to the interview, and the material before me indicates it was also sent to the correctional facility to be given to the applicant at that time. It is not apparent that either the applicant or his agent attempted to contact the Department prior to the interview to request a postponement. At the time of the interview, when requesting it be rescheduled, the applicant did not indicate when he expected the criminal matters to be resolved, other than saying that it should be ‘finalised in the next few months’ and that he expected it would ‘come to an end soon’, but said that in any event he would be unwilling to participate not only pending the trial, but until his ultimate release from prison. The applicant was advised by the delegate of the consequences of declining the interview. He was told that the delegate would make a decision on the information before him and that he may make a negative credibility finding if the applicant failed to engage in the interview. He was also advised of the limitations of the IAA’s ability to consider new information, in the event his visa was refused. The applicant was given time to confer with his migration agent to consider the situation.
[11]Information in the delegate’s decision indicates that the applicant was convicted on 16 April 2018 and taken into immigration detention upon his release. Given the applicant was in the correctional facility at the time of the invitation to provide additional information, and on 10 April when his migration agent requested further time to respond, it is not apparent why the migration agent was unable to contact him during that period as he claimed in his email of 10 April. The agent’s email of 1 May 2018 indicating there would be no response to the s.56 invitation is vaguely worded, giving no indication as to when he learnt the applicant was no longer in the correctional facility, if he knew or had made inquiries as to where the applicant was, or if any contact had in fact taken place between them. There is no record before me of the Department receiving any further contact from the applicant or his agent in relation to his protection visa application.
In relation to these matters, the Authority concluded:
[12] In my view the applicant’s claims to the IAA that the Department denied him an interview because he was in police custody or otherwise because of any criminal matters are without basis. Before the delegate, the applicant referred to matters relating to his mental and physical health and upcoming trial and ongoing remand detention as an explanation for his refusal to participate in the scheduled interview. This is one possible explanation. Another explanation, which the delegate found to be the reason for both the decision not to participate in the interview or provide further information in response to the s 56 invitation, is that the applicant was attempting to avoid scrutiny of his claims. There may also be other explanations.
[13] The applicant was put on notice by the delegate of the consequences of failing to participate in the interview. He was represented by a registered migration agent. No medical or other evidence was submitted regarding the applicant’s (in)capacity to engage in the interview either before or after the scheduled interview. The applicant was given a further opportunity to provide evidence relating to his claims in writing. While I take into account that at the time of the invitation and initial response date he was still awaiting his trial, I consider it significant that there was a period of over six weeks between resolution of the criminal matters and the delegate’s decision. It is not apparent that the applicant took any steps in that time to request a rescheduled interview, provide additional information or to otherwise contact the Department about his protection visa application. I am of the view that the applicant was given an opportunity to give evidence to the Department regarding his claims firstly at an interview and later in writing, but chose not to avail himself of that opportunity. Considering the particular circumstances of this case, I have determined not to invite any new information from the applicant at an interview or otherwise.
The Authority referred to the documents regarding the appellant’s trial that had accompanied his 28 June 2018 email, finding that this “new information” was not relevant to his protection claims “except insofar as it relates to consideration of whether there is a risk of the applicant being harmed in Bangladesh because of criminal matters in Australia, an issue not claimed by the applicant but considered by the delegate”; that the information did “not relevantly add” to the material already before the Authority; and that the Authority was “not satisfied there are exceptional circumstances that would justify considering this new information”.
After setting out the appellant’s claims, the Authority addressed the particular claim of extortion by supporters of the Awami League due to the appellant’s support for the BNP. The Authority said:
[21]Country information indicates that the Awami League were in power at the time of the events the applicant describes and remain in power following elections in 2014 and their relationship with the BNP is one of longstanding enmity. Some branches of the league are reported to be involved in violence, extortion and other criminal activities, and while much of their attacks are linked to ‘vested interests’, they have also been reported against ‘ordinary citizens’. In rural areas, members and associates of the Awami League have been reported to have extorted business owners affiliated with the BNP, threatening them with violence if they do not comply with demands for money. They enjoy impunity from their crimes due to political influence.
[22] On his own claims, the applicant’s support for the BNP was non-active and, according to his evidence at the arrival interview, did not include any association or involvement with them. It is not apparent from the evidence that the persons who attacked the applicant made any reference to his support for the BNP. The extortion demands on the applicant at his business are said to have occurred on five occasions over a period of around three years, from 2010 until 2012. They were irregular, the first occurring in August 2010, the second in November or December 2010, two attacks in June or July 2011, and one at some point in 2012. The attack at the home was in March 2013. The intermittent nature of these events suggests to me that they were random, opportunistic and criminal and did not reflect a particular interest in the applicant or his family. While I consider the applicant’s claims to have been extorted and attacked plausible in the context of the above country information, I am not satisfied on the evidence that the persons who demanded money and attacked the applicant and, on one occasion, his mother, did so because of his real or imputed political views or because his father was a refugee from India, or for any reasons other [than] criminal motives such as to obtain money.
[23] These events were now over five years ago. The applicant has not claimed that there have been any similar incidents more recently or that he would return to work in his family shop if he returned to Bangladesh and I consider the chance of the applicant being extorted and seriously harmed in the reasonably foreseeable future to be less than a real one. Furthermore, even if the applicant were to again experience such harm, I am not satisfied on the evidence that it would be anything other than purely random, opportunistic and criminal. It would not be essentially and significantly for any of the reasons specified in s.5J(1)(a), including membership of a particular social group relating to the applicant having a business or working in a shop (even if this could be considered a ‘characteristic’ of one of the types required by s 5L, which I do not accept). The applicant has said that the police did not assist him because they were under pressure from the Awami League and are under their control and I accept that may again occur. However, although occurring in the context of the impunity afforded to the Awami League, as mentioned in the country information above, I am not satisfied it is a persecutory selective and discriminatory withholding of protection from the applicant for reasons of race, religion, nationality, membership of a particular social group or political opinion in the sense identified by the High Court. I am not satisfied there is a real chance of the applicant being persecuted for any of the reasons in s 5J(1)(a).
(Citations omitted)
The Authority accepted that the appellant would continue to support the BNP in the future, and referred to country information which indicated that “the political atmosphere in Bangladesh is violent”. Nonetheless, the decision-maker said that:
[26] I do not accept that the past harm the applicant experienced was directed at him because of his real or imputed support for the BNP and am not satisfied on the evidence he has otherwise been harmed for that reason. The applicant is not a member of the BNP, was not active in his support and has not claimed to have been involved in any political demonstrations, meetings or other such activities. I find the prospect of the applicant being targeted for or otherwise caught up in political violence to be no more than remote. There is not a real chance of the applicant being harmed by persons associated with the Awami League or any other persons for reasons of his support for the BNP.
While the Authority accepted that the derogatory remarks about the Indian background of the appellant’s father would be upsetting to the appellant, the decision-maker did not accept that this amounted to serious harm. The decision-maker was not satisfied that there was a real chance that the appellant would be “otherwise harmed by persons associated with the Awami League or other persons because of his father’s background”.
Under the heading “Departure from Bangladesh, criminal matters in Australia, return to Bangladesh as a failed asylum seeker”, the Authority noted that the delegate had addressed whether: (1) the appellant’s conviction in Australia would expose him to criminal liability in Bangladesh; and (2) he would be harmed as a failed asylum seeker returning from a western country, even though the appellant had not raised these issues.
[29]Country information cited by the delegate indicates that the law of Bangladesh extends extra-territorial jurisdiction to crimes committed by a citizen of Bangladesh which are punishable under Bangladesh law. While there is a prohibition on double jeopardy, a judgment of the Bangladesh Supreme Court cited by the delegate suggests this does not apply to offences prosecuted overseas. In my view the case cited by the delegate, while indicating it is legally possible for a person to be prosecuted for an offence for which they have already been punished overseas, is not indicative of any practice on the part of Bangladesh authorities to investigate and prosecute returning citizens for crimes committed abroad. ... There is no evidence before me that Bangladesh authorities routinely investigate and prosecute citizens over offences committed abroad. DFAT states that authorities may take an interest in returnees to Bangladesh who have engaged in political activities outside Bangladesh or been convicted of war crimes in absentia, but does not suggest any interest in returnees who have committed or been accused of crimes while abroad.
[30]Regarding returning asylum seekers more generally, DFAT states that Bangladesh accepts both voluntary and involuntary returnees ... DFAT has no evidence to suggest that returnees have received adverse attention from authorities or others. I note that DFAT further indicates it is an offence under the law of Bangladesh to depart Bangladesh other than in accordance with the procedures laid down in the law, relevant here because the applicant has said he departed Bangladesh unlawfully without a passport. However, DFAT has previously reported that it is not aware of any cases where those provisions have been enforced, and its more recent report does not refer to any such cases. Other material cited by the delegate suggests that Bangladesh authorities are generally sympathetic to irregular migrants.
[31]There is no evidence before me to suggest that the Bangladesh authorities are aware of the applicant’s conviction, history and circumstances in Australia and considering the information set out above I find there is no more than a remote prospect they would prosecute or otherwise harm the applicant because of these matters even if they were aware of them. The applicant has not claimed to fear harm from other persons because of his criminal matters in Australia and there is no evidence to suggest that these matters have come to adverse attention in Bangladesh. Having regard to this and the above country information, I consider it remote that the applicant would be prosecuted, punished or otherwise harmed because of convictions, offences or alleged conduct in Australia. I am also not satisfied on the information set out above that there is anything but a very remote chance of the applicant being harmed because he departed Bangladesh illegally and/or claimed asylum in Australia. I find there is not a real chance of the applicant being harmed in connection with his time in Australia including his criminal history, because he departed Bangladesh illegally or claimed asylum, or any combination of these matters.
(Citations omitted)
The Authority concluded that the appellant did not have a well-founded fear of persecution within the meaning of s 5J of the Act; was not a “refugee” within s 5H(1) of the Act; and therefore did not meet the criterion for a protection visa in s 36(2)(a) of the Act. For much the same reasons, the Authority found that the risk of harm to the appellant did not meet the definition of “significant harm” in s 36(2A) of the Act and therefore he did not meet the criterion in s 36(2)(aa) of the Act. Accordingly, the Authority affirmed the delegate’s decision not to grant the appellant a protection visa.
Federal Circuit Court proceeding
The appellant filed an application, subsequently amended, for judicial review in the Federal Circuit Court. Amongst other things, the amended application sought a declaration that the appellant was not an “unauthorised maritime arrival” within the meaning of s 5AA of the Act. The appellant’s case was that, in this event, the delegate’s decision would not have been a “fast track decision” and that the Authority would not have had jurisdiction to conduct a review. A judge of the Federal Circuit Court dismissed the application on 18 August 2020.
The reasons of the primary judge indicate that, besides relying on his notice of appeal ground, the appellant, who was unrepresented at the hearing, also made some other submissions, including, relevantly, that “because of the visa cancellation and his imprisonment, he was deprived of the contact that he had had with his immigration lawyer”: see EIL18 v Minister for Immigration & Anor [2020] FCCA 2675 (PJ) at [40]). His Honour continued:
He said that since that time, he has been under pressure, he has been attacked in prison by other prisoners, he now has chronic illness and high blood pressure, and he has not had the opportunity to express himself as he would have liked to have done. One of his complaints is that he was not given the opportunity to be interviewed by the Delegate who was assisting [sic] his SHEV application.
The primary judge observed that “the Applicant’s criminal matters were finalised on 18 April [sic] 2018, which was some five or six weeks before … the Delegate made the decision”, during which time there appeared to be no contact between him and the Department (PJ [44]). Respecting the appellant’s subsequent requests for an interview with the Authority, the primary judge stated (PJ [49]):
The decision as to whether the IAA should interview an Applicant is very much a discretionary one. The IAA in this case looked at all of the circumstances and came to the decision that considering what the Applicant had done with regard to his interview with the Delegate, that in those circumstances the IAA would not invite any new information from the Applicant.
The primary judge held that this exercise of discretion by the IAA was not affected by jurisdictional error (PJ [50]). His Honour rejected some further submissions made by the appellant, none of which are presently relevant, and dismissed his application with costs (PJ [57]).
THIS APPEAL
Leave to amend proposed amended grounds of appeal
The appellant filed a notice of appeal against this judgment without legal assistance. There were four grounds of appeal, all challenging the primary judge’s conclusion that the Authority’s decision was not affected by jurisdictional error. Mr Matthew Albert of the Victorian Bar subsequently accepted a referral under r 4.12 of the Federal Court Rules 2011 (Cth) and thereafter he represented the appellant on a pro bono basis. The Court is indebted to him for his assistance in this regard.
Application was made on the appellant’s behalf for leave to amend the notice of appeal, to replace his original grounds with the following:
1.The Second Respondent’s decision was infected by jurisdictional error by reason that it was legally unreasonable not to invite the Appellant to an interview under s 473DC(3) of the Migration Act 1958 (Cth) in all the circumstances of this case.
2.The Second Respondent’s decision was infected by jurisdictional error by reason that it was legally unreasonable or was infected by a reasonable apprehension of bias by reason that the Second Respondent regarded as relevant and then determined a protection claim not raised by the Appellant relying on information which was highly prejudicial to the Appellant, in circumstances where he was never asked whether, and never indicated that, he wanted to pursue such a claim under s 36 of the Act.
The appellant submitted that the Court should grant leave to the extent necessary. The appellant acknowledged that the proposed grounds were not included in the grounds set out in his judicial review application in the Federal Circuit Court, but relied on the fact that the primary judge in his reasons for judgment specifically considered whether the Authority’s decision not to interview the appellant gave rise to jurisdictional error: PJ at [49]-[50]. The appellant also referred to the fact that, in the proceedings below, he had only had the benefit of legal assistance briefly and had no legal representation at the hearing before the primary judge. The appellant also referred to the fact that the new grounds did not involve consideration of any new facts or evidence (although he went on to say that the documents constituting “GRE-1”, which were not before the primary judge, strengthened his case under ground 2: see [57]-[58] below); and that there could be no relevant prejudice to the respondents if leave were granted. Referring to SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 120; 129 FCR 137 at [42] (Finkelstein J), the appellant further submitted that, in a case of this kind, the Court would not prevent him from raising “a legitimate argument”.
Noting that the appellant had the benefit of legal assistance in the Federal Circuit Court, the Minister opposed the grant of leave, referring to the need to protect the appeal process and the statutory scheme for the hearing and determination of applications for judicial review of decisions under the Act.
It is well-established that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the primary judge implicitly recognised, whether it was open to the Authority to refuse to interview the appellant in the circumstances before it is a clear and significant issue in this case. So too is the question of whether there was relevant error in the Authority’s consideration of the potential significance of his criminal conviction in Australia for his return to Bangladesh. It is not suggested that the appellant failed to raise his proposed new grounds to obtain some strategic advantage. Nor does the Minister claim that he will suffer any particular prejudice if the appellant is permitted to raise the new grounds. The Full Court said in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], “[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated”. This proposition has been regularly applied in this Court in circumstances like the present. The fact that the appellant had legal assistance at some point prior to the hearing should not prevent him from raising grounds that evidently merit consideration. I would therefore grant the appellant leave to amend the notice of appeal so as to substitute the two proposed new grounds for his original grounds.
Additional evidence
At the hearing of the appeal, the Minister sought leave to read the affidavit of Georgina Roberta Ellis affirmed on 7 December 2021, to which was annexed “GRE-1”. Counsel for the Minister, Mr G J Johnson, explained that the documents in this annexure were part of the Departmental file, which would have been part of the review material provided to the Authority by the Secretary under s 473CB of the Act and, save for their accidental omission, would have been included in the material placed before the primary judge in the proceeding below. Mr Johnson explained that the Minister sought to place the documents annexed to Ms Ellis’ affidavit before this Court only to “correct the record”. He also noted that it might be relevant to the second of the appellant’s new grounds.
At the hearing, the parties were ordered to confer about the reception of this evidence. After conferring, the parties agreed that only the documents constituting “GRE-1” should be received into evidence on the basis that these documents were before the Authority at the time it made its decision. Bearing in mind that this latter fact was not in dispute, it seems to me appropriate to exercise the discretion conferred on the Court by s 27 of the Federal Court of Australia Act 1976 (Cth) to receive annexure “GRE-1” as further evidence on the appeal. In so concluding, I have had regard to the principles set out in District Council of Streaky Bay v Wilson [2021] FCAFC 181; 394 ALR 33 at [149], citing Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16], where the Full Court noted, “[t]he power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry”.
The parties’ submissions on new ground 1 – invitation to an interview
The appellant submitted that in the circumstances of his case it was legally unreasonable for the Authority not to have exercised its power under s 473DC(3) of the Act to invite him to an interview. He added that since there had been no interview at which information could have been received, no question arose as to the application of s 473DD of the Act.
The circumstances to which he referred in written submissions were said to be the following:
[23]The Appellant waited five years and three days to be heard by a delegate of the Minister in respect of his protection claims.
[24]When the hearing was scheduled, it came just days before he was due to have a series of criminal charges determined at a trial. From gaol, in repeated and increasingly distressed terms, he made the simple request for an adjournment ‘politely asking, lowering myself to you’. He expressly sought only an adjournment until his trial was over ‘soon’.
[25]The delegate refused. His parting words to the Appellant were: ‘I have explained the consequences of you[r] actions so I now will cease the interview and make a decision’.
[26]As it turned out, that was not what occurred. It then took a further 10 weeks before an adverse decision arrived.
[27]In the meantime, an invitation for more information was sent to the email address of the Appellant’s migration agent. That migration agent later told the delegate that he had lost contact with the Appellant after he was discharged from remand immediately following his trial.
[28]That refusal to adjourn or reconvene the interview by the delegate with the Appellant, and the discussion preceding the refusal were before the IAA. By the time the matter reached the IAA, it was plain that the reason that the adjournment had been sought – the pending trial – had passed by months. Indeed, the IAA received and refused to consider material indicating when exactly that pressure on the Appellant had lifted.
[29]The Appellant made repeated, direct requests for a hearing before the IAA.
(Citations omitted)
According to the written record of the failed interview, the Authority was incorrect to state that the delegate and the appellant spoke “by video-link”: see reasons at [5]. The written record of that interview stated that the delegate and the appellant spoke only by telephone and not “by video-link” contrary to the Authority’s understanding: cf ABT17 at [31]. This was consistent with the Department’s 13 March 2018 letter requesting that the appellant attend an interview “via telephone”.
There was little, if anything, to support for delegate’s finding that the appellant did not take part in the interview before him or provide further information because “he did not want … his claims to be scrutinised”. Similarly, there was also no objective basis for the suggestion, at [12] of the Authority’s reasons, referencing the delegate’s reasons, that the appellant may have been “attempting to avoid scrutiny of his claims”. In fact, this was inconsistent with the appellant’s repeated requests to the Authority that the Authority interview him about his protection claims. Similarly, as we have seen, there is no objective basis for the finding, at [13] of the Authority’s reasons, that the appellant “was given a further opportunity to provide evidence relating to his claims in writing”, when there was no evidence before the Authority that the letter ever reached the appellant.
It is worth recalling in this context that the appellant emailed the Authority on 17 June 2018 to ask the Authority to contact him “with ... an BENGOLI [sic] interpreter” as he had a “need to talk with you”. The appellant, with the assistance of an interpreter, then telephoned the Authority on 22 June 2018, and a file note recorded that the appellant “repeated the request for an interview on a number of occasions during the phone call”. The appellant subsequently contacted the Authority again by way of email on 28 June 2018 and by telephone on 5 July 2018 where he is recorded to have “requested that he would be allowed to give his side of the story to the IAA in [sic] means of an interview”. The Authority would have known about the appellant’s repeated requests. This case is therefore relevantly different from those where the referred applicant did not in fact seek an interview from the Authority, and complained of the lack of opportunity thereafter: cf BQQ19 at [79]; EEE16 at [50].
Having regard to the above matters, the Authority’s reasons for not inviting the appellant to an interview in exercise of its power under s 473DC(3) of the Act cannot be characterised as “reasonable and rational” as was the case in DPI17. Examination of other aspects of the Authority’s reasons confirms the impression that the Authority’s determination in this particular case not to invite the appellant to an interview was unreasonable in the legal sense. This decision had no sufficient rational foundation, and it was plainly unjust. No decision-maker, acting reasonably, could have exercised the power under s 473DC(3) in this way, having regard to the statutory context and the attendant factual circumstances.
First, it must be borne in mind that to assess a claim for protection (or for complementary protection) properly, the facts must be ascertained, bearing in mind that the existence of a well-founded fear of persecution depends on “questions of fact and degree”, as indeed does the availability of complementary protection: compare Republic of Nauru at [43]. We must keep in mind that the appellant was not interviewed about his protection claims by either the delegate or the Authority.
Second, the Authority’s reasons disclose the likelihood that the appellant would have been able to provide “new information” within the meaning of s 473DC of the Act had it invited him to an interview, and that some, if not all, of this information would have satisfied the conditions for its receipt in s 437DD of the Act. This is because the delegate’s decision in the appellant’s case was made on the basis of extremely limited information. This case can be contrasted with the more usual case where a referred decision is made after a Departmental interview and following the provision of further information at the delegate’s request. As already stated, in this case, the appellant had not provided information about his protection claim at an interview before the delegate, through an interpreter; and had apparently not known of the opportunity to provide further information.
Apart from the brief record of his entry interview, the appellant’s account of the events that led him to leave Bangladesh and claim protection in Australia was contained in the statement accompanying his visa application lodged in May 2016. The appellant could not reasonably have anticipated at that point all the pertinent information a decision-maker might subsequently consider relevant to deciding his claim. This does not usually matter because, at an interview, Departmental officers (usually delegates) can acquire relevant personal or other information that they consider relevant to the proper assessment of protection claims and also evaluate an applicant’s credibility, often on the basis of an assessment of the manner in which the applicant gives an account. The information acquired at an interview can therefore be crucial to the success or failure of an application. The High Court recognised this in ABT17 where the plurality held, at [25], that the 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 a referred applicant in an audio recorded 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 that account was given”.
In considering the appellant’s narrative as set out in his May 2016 statement, which had not been augmented by an interview before the delegate, the Authority drew attention in its reasons to matters that the appellant had not addressed. For example, at [22], the Authority stated that “[i]t was not apparent from the evidence that the persons who attacked the applicant made any reference to his support for the BNP”, concluding that it was not satisfied that the appellant was attacked “because of his real or imputed political views”. The Authority also recorded, at [23], that the appellant had not claimed similar events had occurred “more recently”; or that, if returned to Bangladesh, he would take up working in his father’s shop once more. These matters demonstrate the serious lack of information before the Authority (see [105] above). This information deficit was attributable wholly or in large part to the absence of an interview at which the appellant would have had the opportunity to explain his protection claim and answer relevant questions about his explanation.
The delegate also noted numerous informational deficiencies in the material, including about the circumstances of the appellant and his family. For example, the delegate noted that the appellant had not submitted “any further information about why his family would still be living in the same village” after the claimed attack on them. Such deficiencies were, however, virtually inevitable in the circumstances of this case. Because of these deficiencies, the delegate made findings adverse to the appellant; and, as we have seen, so did the Authority, notwithstanding the appellant apparently sought to do everything within his capability to rectify the situation before the Authority.
Considering the appellant’s case as a whole, acting reasonably, the Authority could not disregard the fact that there were significant deficiencies in the information before it as a consequence of the fact that, save perhaps for his entry interview prior to his visa application, the appellant had never been interviewed about his protection claims.
In most cases, where a decision is referred to the Authority under s 473CA of the Act, a delegate of the Minister has previously interviewed the applicant; and, having regard to s 473DB of the Act, it may be presumed that the efficiency of the Authority’s review is therefore not imperilled by a review “on the papers”. In this particular case, however, there was no interview at which the delegate invited the applicant to give an account of his claims and asked him questions by way of clarification, to test his credibility or otherwise to assist in evaluating his account. In consequence, the material before the delegate left some significant factual deficiencies. These included factual questions that the appellant could presumably have answered, one way or another. They also included some significant credibility issues, since the plausibility of numerous of his claims was called into question.
Further, respecting credibility issues, it should be borne in mind that insofar as the delegate made assessments of credibility, the delegate had little, if anything, on which reliably to base them, since the failed interview of 27 March 2018 proceeded by telephone only and the material before the delegate on the appellant’s protection claims was slight. I interpolate here that this is not an “information gap” case of the kind considered in ABT17 and, more recently in this Court, in ATD19. Rather, this case concerned the absence of information before the delegate due to disabling circumstances affecting the appellant at the time of the delegate’s decision-making.
To proceed without an interview in the circumstances of this case when the applicant was persistently seeking to be interviewed and an interview in some form could readily be given was not efficient: cf. s 473FA(1) of the Act. In the particular circumstances of this case, it was plainly unjust. No decision-maker, acting reasonably, could have exercised the power under s 473DC(3) in this way, having regard to the statutory context and the attendant factual circumstances. Notwithstanding s 473DB(1), it should have been apparent to the Authority, acting reasonably, that in this particular case an interview with the appellant was necessary to ensure that his claim for protection was efficiently determined consistently with Division 3 of Part 7AA, as required by s 473FA(1).
For these reasons, I would conclude that ground one of this appeal should be upheld and that there is jurisdictional error shown in the Authority’s decision in this case.
As indicated earlier in these reasons, whenever a question arises as to whether the Authority has failed to comply with the implied condition of reasonableness in the exercise of a power affecting its review, the answer largely depends on the particular facts of the case, having regard to the statutory context in which the exercise or non-exercise of power falls to be considered. Consistently with this, I would emphasise that this particular case turns almost entirely on its own facts, and in consequence analogical reasoning by reference to other cases is unhelpful.
Ground 2
In view of the conclusion I have reached on ground one, it is unnecessary to discuss the appellant’s second ground. I note, however, that the questions that this second ground presented would not have arisen if the Authority had invited the appellant to an interview at which the relevance of his conviction and related matters if returned to Bangladesh could have been discussed.
DISPOSITION
For the reasons stated, the appeal should be allowed and orders made accordingly. The parties will be given an opportunity to make submissions as to the costs of the appeal and, if relevant, of the proceeding below.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny. Associate:
Dated: 27 June 2022
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