FAJ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 662
•25 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FAJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 662
File number: SYG 3514 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 25 July 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision not to grant the applicant a protection visa – where the Secretary did not provide to the Authority, and the Authority therefore did not listen to, an audio recording of the applicant’s entry interview – whether the Secretary’s failure to provide the audio recording to the Authority was a breach of s 473CB of the Migration Act 1958 (Cth) – whether any breach was material – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 5J, 36, 473CA, 473CB, 473DD, 476, 477 Cases cited: BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74
CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367; [2019] FCAFC 61
EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 381; [2020] FCAFC 174
EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299; [2019] FCAFC 20
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 10 July 2024 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Ms N Harendran Solicitor for the Applicant: Justice Law Practice Counsel for the First Respondent: Mr S Knuckey Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 3514 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
25 JULY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a Sri Lankan Tamil who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the delegate’s decision was affirmed by the Immigration Assessment Authority (Authority) on 31 October 2017. The applicant seeks judicial review of the Authority decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant alleges that the Authority decision is affected by jurisdictional error because the Secretary failed to refer to the Authority the recording of the applicant’s Irregular Maritime Arrival Entry Interview (entry interview) with the Department, in breach of s 473CB of the Migration Act. The applicant further alleges that Authority therefore did not listen to the recording of the entry interview, which led to the Authority failing to understand that the applicant claimed to be a member of a particular social group, namely a person who worked for a Non-Governmental Organisation (NGO).
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error. The application to this Court is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia by sea in November 2012 and is an unauthorised maritime arrival within the meaning in s 5AA of the Migration Act.
The applicant attended an entry interview with an officer of the Minister’s Department on 2 January 2013.
On 30 December 2016 the applicant applied for a protection visa. In a statement provided with his protection visa application, the applicant claimed to fear harm in Sri Lanka on the basis of his imputed support for the Liberation Tigers of Tamil Eelam (LTTE) and his failure to comply with reporting obligations imposed by the Tamil Makkal Viduthalai Pulikal (TMVP).
On 31 March 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 6 April 2017 the applicant’s representative provided to the Department further evidentiary documents and indicated in the email that the applicant feared that, if returned to Sri Lanka, he will be taken into custody and tortured as a result of a warrant issued by a Magistrate’s Court.
A delegate of the Minister refused to grant the applicant a protection visa on 7 April 2017. The matter was subsequently referred to the Authority under s 473CA of the Migration Act.
The applicant’s representative provided a written submission to the Authority on 17 May 2017 and the applicant provided the Authority with further material on 14 August 2017.
The Authority affirmed the delegate’s decision not to grant the applicant a protection visa on 31 October 2017.
SUMMARY OF THE AUTHORITY DECISION
The Authority had regard to the material given by the Secretary under s 473CB of the Migration Act. The Authority considered that a letter from the applicant’s lawyer in Sri Lanka and a copy of a warrant for the applicant’s arrest comprised new information and the Authority was satisfied that the requirements of s 473DD were met in respect of this new information.
The Authority accepted that the applicant was a Tamil Christian who resided in the Eastern Province of Sri Lanka.
The Authority considered that the applicant’s evidence as a whole contained inconsistencies that led the Authority to doubt certain key claims and his credibility. The Authority noted that the applicant provided evidence that he had been detained by the Sri Lankan Navy (SLN) and held in custody for a period of 13 days in 2012. The Authority considered that it was implausible that, if the applicant had the adverse profile he claimed, he would be handed over to the civil authorities, without further follow up or questioning, or that he would be released on bail. The Authority also noted the applicant had exited Sri Lanka legally on three occasions without being subjected to questioning, detention or interest of any kind at Colombo airport and considered that the applicant would not have been able to depart Sri Lanka without hindrance on multiple occasions if he had the adverse profile that he claimed to have.
The Authority did not accept the applicant’s claim that his friends were LTTE intelligence operatives, or that the applicant had any adverse security profile, or was of any interest whatsoever to the Sri Lankan authorities or paramilitaries in relation to any links or association with the LTTE. The Authority found that the applicant had fabricated this aspect of his claims to enhance his application for protection.
The Authority did not accept the applicant’s claim to have spent time hiding or living on his uncle’s boat at sea, finding his evidence relating to this claim to be inconsistent and contradictory.
The Authority was prepared to accept that the applicant had some friends who were suspected of being supporters of the LTTE and accepted that in 2005 the applicant was approached by a group of persons who asked about these friends and assaulted him. The Authority considered it was plausible and was prepared to accept that the applicant may have been scared by the incident, but was not satisfied that the applicant’s reason for travelling to Iraq was because of any fear of harm. The Authority accepted that while the applicant was in Iraq, two of his friends were killed and two of his friends had gone missing, but was not satisfied the events were linked or related to each other, or that the applicant had any adverse profile as a result of his association with the victims.
The Authority accepted that unidentified men may have come looking for the applicant in 2008. However, based on its earlier findings that the applicant did not have any adverse profile arising from his association with his friends or the LTTE, or that the TMVP threatened him because of any such association, the Authority was not satisfied of the applicant’s claim that these persons were from the TMVP or other paramilitary organisations, or that the visits were related to the applicant’s claimed LTTE profile. The Authority was not satisfied that the applicant had been of any adverse interest to the TMVP or any other paramilitary organisation since 2007, or that he was now or likely to become a person of adverse interest to the TMVP or any other paramilitary organisation should he return to Sri Lanka. The Authority was also not satisfied that the persons who came looking for the applicant in 2008 had any ongoing interest in the applicant after that time.
The Authority accepted that the applicant attempted to leave Sri Lanka illegally by boat in July 2012 which was intercepted by the SLN, and that the applicant was subject to a warrant for failing to appear in court in relation to his illegal departure attempt. The Authority also accepted the applicant’s claim that he was released on bail and subsequently departed Sri Lanka in breach of that bail. The Authority was prepared to accept that on two occasions the Sri Lankan police visited the applicant’s family home in late 2012 or early 2013 but found that these visits were related to his status as an illegal departee with extant court proceedings, and was not satisfied that the visits were related to any LTTE or other adverse security profile. The Authority was satisfied that the applicant was not of any interest to the Sri Lankan authorities, the TMVP, or any other group or persons arising from any real or imputed associated with the LTTE, including his association with his friends.
The Authority was not satisfied that the applicant faced a real chance of harm on the basis of any real or imputed association with the LTTE, including any association with his friends; for being a Tamil, a young Tamil male from the East, or a Christian; from the 2008 visits; or for being a returned asylum-seeker. The Authority was not satisfied that the applicant faced a real chance of serious harm for having departed Sri Lanka illegally while on bail or for his previous attempt to depart Sri Lanka. The Authority was also satisfied that the applicant’s cumulative circumstances did not give rise to a real chance of serious harm. The Authority concluded that the applicant did not meet the requirements of s 36(2)(a) of the Migration Act.
Taking into account its factual findings made in the course of considering whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act, the Authority also found that the applicant did not face a real risk of significant harm for reasons of any real or imputed association with the LTTE, including any association with his friends, his ethnicity, religion or origins, from the 2008 visits, or as a failed asylum seeker. The Authority also considered the treatment that the applicant may face on account of his illegal departure from Sri Lanka and was not satisfied that such treatment would meet the definition of ‘significant harm’ in s 36(2A) of the Migration Act. The Authority did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Sri Lanka, there was a real risk that he would suffer significant harm. Accordingly, the Authority found that the applicant did not meet the requirements of s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant’s judicial review application was filed on 16 November 2017 and was therefore made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant filed an amended application on 6 June 2024, which contains the following grounds (footnotes omitted):
The authorities review of the delegates decision miscarried because:
1.The authority failed to review the audio of the entry interview, which led it to misunderstand the claim made by the applicant that he was part of NGO and therefore a person from a particular social group.
Particulars: In the Transcript by Aaron Chelliah Line 16 Case Officer: Are you a member of any particular social or religious group?
1.1.1. 17 Interpreter: No. I worked in an NGO in Batticaloa.
It is evident in listening to the audio that the applicant in his language speaks on, however, that does not get translated. Instead the interpreter and the case officer have a conversation of their own, where the interpreter says to the case officer, that it is not a particular social group. This was an independent conversation that the interpreter and the case officer participate in without the applicants knowledge of what was going on. As in craig v South Australia, the authority has fallen into jurisdictional error by not considering the claims that was put by the applicant.
2.The secretary failed to refer the entry interview to the IAA which was in breach of s473CB.
Particulars:
a.If the IAA had reviewed the entry interview, it would have been able to consider that the applicants claims stem from the basis that he was a person who worked in the NGO.
3.The authority’s review of the delegates decision miscarried as the authority in Para 15 states that the applicant left sri lanka legally.
Particulars:
This is in contrary to the claims raised by the applicant in the Shev interview the applicant claims that he applied for this visa through an agent. The authority had misunderstood that to be that the applicant left legally. In making this finding that arose from the material the IAA did not make a factual finding.
4. The decision of the IAA was irrational or Illogical.
Particulars:
In paragraph 14 the reviewer states Furthermore it is implausible that a person with any adverse profile such as the applicant claims to have would be released on bail. AMA16
It seems that the reviewer did not understand the concept of bail or the claims that were made by the applicant. The applicant claimed that he had to bribe the officials to get out on bail and had to pay one lac rupees which is quite a significant amount of money. This was not considered by the reviewer.
5. The authority erred in not considering claims that arose from the material.
Particulars:
The applicant claimed, that he only went once to report and failed to report thereafter. The claims were that he would be penalised if returned due for failing to report as it was part of the condition of his release.
When the matter came before the Court for hearing, Counsel for the applicant advised that the applicant no longer pressed grounds 3, 4 and 5. I therefore do not address those grounds in these reasons.
The evidence before the Court comprises:
(a)the court book filed on 12 January 2018;
(b)an affidavit of Aaron Chelliah filed on behalf of the applicant on 6 June 2024, annexing a partial transcript of the applicant’s entry interview; and
(c)an affidavit of the applicant filed on 6 June 2024.
At the hearing, I raised with Counsel for the applicant that the applicant’s affidavit of 6 June 2024 refers to information that does not appear to be relevant to the grounds in the amended application and in particular to the two grounds that were pressed. This information was that the applicant showed a gesture with his hand at the entry interview, which was not considered by the Authority. Counsel for the applicant confirmed that this information was not relevant to the grounds pressed by the applicant.
CONSIDERATION OF THE APPLICANT’S GROUNDS
It is convenient to address grounds 1 and 2 together because they raise similar issues. Counsel for both parties confirmed at the hearing that in addressing these grounds, they proceed on the basis that:
(a)the audio recording of the applicant’s entry interview was not provided to the Authority by the Secretary when materials were referred under s 473CB of the Migration Act; and
(b)a written record of the entry interview, on a template form, was provided to the Authority, but does not amount to a transcript of the interview.
The issues raised by grounds 1 and 2 are:
(a)whether the Secretary’s failure to provide the audio recording of the entry interview to the Authority amounted to a breach of s 473CB of the Migration Act;
(b)whether the failure of the Secretary to provide the audio recording, and therefore the Authority’s failure to listen to the audio recording, caused the Authority to misunderstand the applicant’s claims for protection and therefore fail to consider a claim put by the applicant; and
(c)whether any error was material.
I address these issues in turn, referring to the parties’ submissions where appropriate.
Did the Secretary’s failure to provide the audio recording of the entry interview to the Authority amount to a breach of s 473CB of the Migration Act?
Section 473CB of the Migration Act sets out the material that the Secretary must provide to the Authority in respect of a fast track reviewable decision. The section provides:
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2)The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.
The question that arises in the present case is whether the Secretary was required to provide the audio recording of the entry interview to the Authority pursuant to s 473CB(1)(c) of the Migration Act.
The Minister submitted that it was not apparent that the audio recording of the entry interview needed to be provided to the Authority because it did not appear relevant to the issues in the review. I do not accept that the audio recording was not relevant. In CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367; [2019] FCAFC 61, Derrington J described relevant material for the purposes of s 473CB(1)(c) as ‘that which is logically probative of the issues which arise on the applicant’s visa application as they appear at the date of referral’: at [107].
The Secretary provided to the Authority a copy of the written record of the entry interview, which indicates that the Secretary considered that document to be relevant to the review. There is no apparent reason why the written record of the entry interview would be relevant but the audio recording would not be relevant. The audio recording of the entry interview, which presumably records every word said at the interview, is a more accurate record of what was said than the written record, which does not purport to be anything more than a summary of responses.
There is no suggestion that the audio recording of the entry interview was not in the Secretary’s possession and control at the time of the referral to the Authority. The present case can therefore be readily distinguished from cases such as EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 381; [2020] FCAFC 174. In that case, the appellant had attended an entry interview in two parts and the audio recording of one part of the entry interview was referred to the Authority but the other was not, with the evidence before the Court suggesting that it was ‘not available’. The Full Court found at [59]-[60] that the appellant had not discharged his onus of establishing that the entry interview recording was in the possession or control of the Secretary, and the Secretary had not given it to the Authority, and therefore the Court was not satisfied that the Secretary had contravened s 473CB(1)(c) of the Migration Act.
In the present case, I find that the audio recording of the entry interview was material that was in the Secretary’s possession and control at the time of the referral and was relevant to the review. It ought to have been provided to the Authority. The Secretary’s failure to provide the audio recording of the entry interview to the Authority amounts to a breach of s 473CB of the Migration Act.
That does not, however, necessarily lead to a finding of jurisdictional error. A failure to comply with s 473CB of the Migration Act might, in some cases, mean that the Authority’s decision is affected by jurisdictional error if the non-provision of information prevented the Authority from conducting the review under Part 7AA of the Migration Act: EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299; [2019] FCAFC 20 (EVS17) at [35]. However, not every instance of non-compliance with s 473CB will have an effect, or possible effect, on the Authority’s performance of its statutory task: BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 at [62].
Whether or not the failure to comply with s 473CB of the Migration Act amounts to jurisdictional error in the Authority decision will turn, in the circumstances of the present case, on the resolution of the other two issues that I have identified above.
Did the failure of the Secretary to provide the audio recording, and therefore the Authority’s failure to listen to the audio recording, cause the Authority to misunderstand the applicant’s claims for protection?
In the written record of the entry interview, which was provided to the Authority, in response to the question, ‘Are you a member of any particular social or religious group?’, the answer ‘No’ is checked.
The affidavit of Mr Chelliah annexes a partial transcript of the entry interview, in which the relevant questions and responses have been transcribed in the following way:
Case officer:
Are you a member of any particular social or religious group?
…
Interpreter:
No. I worked in an NGO in Batticaloa.
[Direct conversation between Interpreter and Case Officer where the Interpreter says]:
Not a member of the social or religious.
It can be readily seen from this that, in addition to responding ‘No’ to the question, ‘Are you a member of a particular social or religious group?’, the applicant also added that he worked for an NGO in Batticaloa. That the applicant said in his entry interview that he worked for an NGO is information that does not appear to have been before the Authority.
Counsel for the applicant submitted that the applicant’s primary claims for protection were related to the applicant belonging to an NGO, and that he said at the entry interview that this was a particular social group. Counsel for the applicant submitted that the applicant claimed he was being targeted by the Criminal Investigation Department for being part of an NGO. Counsel for the applicant also submitted, based on the applicant’s affidavit, that the applicant claimed to belong to a particular social group and did not believe that he needed to make that claim again.
Based on the way that the applicant’s submissions have been advanced, the way in which the ground has been responded to by the Minister, and questions that I asked of the applicant’s Counsel at the hearing, there are a number of issues that need to be considered in determining whether the Authority misunderstood the applicant’s claims for protection.
First, as identified by the Minister in his submissions, the information that the applicant worked for an NGO was before the Authority, because the applicant provided that information in a written statement that accompanied his protection visa application.
In advancing his claims in the statement provided with his protection visa application, the applicant said (emphasis added):
… I was working for a non-government organisation as a driver, and I mostly worked in the undeveloped areas in the middle of a dense forest. One day when I was returning from work, a paramilitary group stopped me and enquired from me about my friends. When I said, I did not know anything about them they started beating me and accused me of lying. I told them: “I honestly don’t have any contact with them and if you think I am lying you can give me any punishment you like because I will be going this way for work every day”. By saying this I escaped from them and in fact never went back to work in that area again.
The Authority was therefore not deprived of the information that the applicant worked for an NGO as a result of the Secretary’s failure to refer the audio recording of the entry interview to the Authority, because the applicant subsequently provided this information to the Department, which the Secretary in turn provided the information to the Authority. The Authority did not make any adverse finding against the applicant on the assumption that he failed to refer to working for an NGO at his entry interview.
When I invited Counsel for the applicant to comment on this at the hearing, I understood her response to be that the fact the applicant worked for an NGO was part of him being a member of a particular social group, which he raised at the entry interview. That raises the second issue for the Court’s consideration in determining whether the Authority has misunderstood the applicant’s claims, namely, whether there is any significance to the applicant suggesting that working for an NGO made him a member of a particular social group.
It is difficult to see how claiming to be of a particular social group of itself gives rise to a claim for protection that the Authority was required to consider. While membership of a particular social group is one of the five reasons identified in s 5J(1)(a) of the Migration Act upon which a ‘well-founded fear of persecution’ may be based, the simple fact that a person may be a member of a group that could be identified as a particular social group does not indicate that a person fears being persecuted for that reason or that the person claims the persecution would amount to serious harm.
When I invited Counsel for the applicant to explain why the information provided to the entry interview would give rise to a claim for protection, she submitted that country information at the time showed, and it was widely known, that people who belonged to NGOs were being targeted by the authorities for having an affiliation with the LTTE because those were the people being used by the LTTE to further their cause. Counsel for the applicant did not identify any country information that was before the delegate or the Authority to support her submission that a claim arose on the materials. In the absence of any country information or other evidence being identified to show that an unarticulated claim arose on the materials that the applicant may face a real chance of serious harm on account of being a member of an NGO, I cannot accept that such a claim arose. In any event, such a claim, if it did arise, would arise based on the information that the applicant was a member of an NGO, which was before the Authority in any event, not that he identified his work with an NGO as giving rise to membership of a particular social group.
I do not accept that any characterisation by the applicant of his work for an NGO amounting to membership of a particular social group gave rise to any claim for protection. I also do not accept that there was any express or implied claim before the Authority, or which would have been before the Authority if the audio recording of the entry interview had been provided to it, that the applicant feared harm form the CID because he belonged to an NGO. It therefore could not be said that the failure of the Secretary to provide the audio recording of the entry interview to the Authority caused the Authority to misunderstand the applicant’s claim in this regard.
The third issue that arises for consideration relates to submissions advanced on behalf of the applicant about the conduct of the interpreter. At one point in the hearing, Counsel for the applicant submitted that the interpreter had exceeded his functions as an interpreter by having a discussion with the interviewer about whether working for an NGO amounted to membership of a particular social group. I am unable to make any finding as to whether the interpreter exceeded his functions based on the limited evidence before the Court, noting that the extract of the entry interview that is annexed to Mr Chelliah’s affidavit does not transcribe the whole of that exchange and instead refers to one sentence only. An issue arose before the Court at the hearing as to whether the applicant should be afforded an opportunity to provide an audio recording of the entry interview to the Court. I declined to allow this. In addition to considerations such as the applicant already having an opportunity to file relevant evidence with the Court and making a forensic decision to present the transcript in the way that it was presented, I do not consider that I need access to the audio file to resolve this ground. That is because I do not consider that it is necessary to make any finding as to whether or not the interpreter exceeded his functions to determine the applicant’s grounds. It should be recalled that the grounds relate to whether the Secretary breached s 473CB of the Migration Act by failing to provide the audio recording of the entry interview, and whether this caused the Authority to misunderstand or misinterpret the applicant’s claims. I accept that when asked if he was a member of any social or religious group, the applicant referred to his work for an NGO. That is the information that is relevant to this ground. Whether or not the interviewer at the entry interview or the interpreter considered this to be membership of a particular social group is largely irrelevant.
Counsel for the applicant submitted that, as a result of the interviewer and the interpreter deciding that the applicant working for an NGO did not amount to membership of a particular social group, the applicant was deprived of an opportunity to elaborate on his claims in this regard. Even if this were the case, I do not consider that this amounts to the Authority misinterpreting the applicant’s claims. I make no finding as to whether the applicant was deprived of an opportunity at the entry interview to give more information about his work for an NGO. Such a finding would require consideration of matters that the parties simply did not address in their submissions, including whether the applicant had an opportunity to address such matters in response to questions relating to the reasons he left Sri Lanka and, at the end of the interview, whether there was any further information he wished to provide. Even if I were to assume, for the sake of argument, that the determination by the interviewer and the interpreter at the entry interview that the fact that the applicant worked for an NGO did not give rise to membership of a particular social group, meant that the applicant did not, at the entry interview, have an opportunity to provide more relevant information, it is unclear how this would cause jurisdictional error in the Authority’s decision based on the Secretary’s failure to provide the audio recording of the entry interview.
At most, had the audio recording of the entry interview been before the Authority and listened to by the Authority, and had the Authority interpreted whatever exchange took place between the interviewer and the interpreter in the same manner in which the applicant’s Counsel has interpreted it, the Authority might have wondered whether the applicant could have been asked other questions at that point in time. However, even if the applicant was not given a further opportunity to elaborate on his NGO work at the entry interview (and I make no such finding), that does not lead to any finding that the Authority misinterpreted his claims for protection. I have found above that the evidence the applicant gave at the entry interview did not result in the Authority misinterpreting his claims for protection. There is no basis for finding that information that the applicant might have provided, but did not in fact provide, at the entry interview, caused the Authority to misinterpret his claims. Even if the audio recording of the entry interview had been before the Authority, the Authority’s interpretation of the applicant’s claims at that interview could only be based on the information that he in fact gave, and not on any additional information that Counsel for the applicant speculated that the applicant might have given at the entry interview.
To the extent that Counsel for the applicant submitted that the entry interview is one of several opportunities that the applicant has to raise claims and that he should not have to repeat claims made in the entry interview for them to be considered, such a submission is not directly relevant to the grounds under consideration. The applicant had other opportunities, in making a claim for a protection visa and at his protection visa interview, to give evidence about the reasons he claimed to engage Australia’s protection obligations. If there was something that he did not have an opportunity to say at the entry interview, he certainly had opportunities to say it at a later stage.
The fourth issue for consideration is that, in the ground as pleaded, the applicant asserts that it is evident from listening to the audio of the interview that the applicant spoke on in his language, but his words were not interpreted. This was not addressed in the applicant’s submissions to the Court. I have no evidence of what it is that the applicant said, if anything. However, and in any event, the applicant has not explained how this would cause the failure of the Secretary to provide the audio recording to the Authority to in turn result in jurisdictional error in the Authority decision. Even if the Authority had the audio recording of the entry interview, there is no basis to assume that the Authority would have understood any words said by the applicant in a language other than English that were not interpreted. While the pleaded ground asserts that the Authority failed to consider claims that were put by the applicant, the only identification of any such claims in the ground or in the applicant’s oral submissions are that he worked for an NGO, which was information that was before the Authority in any event, and that the applicant may have seen his work for an NGO as amounting to membership of a particular social group. For the reasons explained above, these pieces of information do not, without more, amount to claims for protection.
I am unable to identify any way in which the failure of the Secretary to provide an audio recording of the entry interview to the Authority caused the Authority to misunderstand or misinterpret the applicant’s claims.
Did the Secretary’s breach of s 473CB of the Migration Act give rise to a material jurisdictional error in the Authority decision?
The failure of the Secretary to provide a copy of the audio recording of the applicant’s entry interview to the Authority, which I have found above amounts to a breach of s 473CB of the Migration Act, will only amount to jurisdictional error in the Authority decision if there is a realistic possibility that the Authority decision could have been different if the breach had not occurred: EVS17 at [42]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [7]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45].
Many of the considerations that would be relevant to an assessment of materiality in the present case have already been addressed above in considering whether the Authority misinterpreted or misunderstood the applicant’s claims.
As is evident from the discussion above, as a result of the Secretary’s failure to provide the audio recording of the interview, the Authority did not have before it the applicant’s complete answer to whether he was a member of a particular social or religious group. While the Authority had before information of the applicant’s initial answer of ‘No’, it did not have access to the further information he provided to the effect that he worked for an NGO.
In circumstances where the information that the applicant worked for an NGO was otherwise before the Authority as it was referred to in the applicant’s statement outlining his claims for protection, and there was nothing in the audio recording of the entry interview or other information before the Authority to suggest that the applicant claimed to fear harm as a result of working for an NGO, irrespective of whether or not that might give rise to membership of a particular social group, there is no realistic possibility that the Authority could have reached a different decision if it had before it had the full information from the audio recording of the entry interview.
The Secretary’s breach of s 473CB of the Migration Act therefore is not material and does not give rise to jurisdictional error in the Authority decision.
CONCLUSION
As I have found that there is no jurisdictional error in the Authority decision, it follows that the application for judicial review must be dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 25 July 2024
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