FLS18 v Immigration Assessment Authority
[2021] FCCA 252
•16 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
FLS18 v IMMIGRATION ASSESSMENT AUTHORITY & ANOR [2021] FCCA 252
Catchwords:
MIGRATION – Safe Haven Enterprise Visa – whether arrival interview (recording and transcript) was “before” the Delegate at time of decision – contentions of inaccurate recording in IAA’s reasons of what was in the transcript of the Applicant’s arrival interview – failure by Minister to adduce evidence from Delegate of what was actually before the Delegate at time of decision – general evidence from Departmental officer – inferences drawn against the IAA and Minister in accordance with principle in Blatch v Archer – failure by IAA properly to discharge its statutory task – relief granted.
Legislation:
Evidence Act 1995 (Cth), s.55(2)
Migration Act 1958 (Cth), Part 7AA, ss.46A, 473DC, 473DD, 473DE.
Cases cited:
Abebe v The Commonwealth (1999) 197 CLR 510
ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928; (2020) 383 ALR 407; [2020] HCA 34Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Attorney-General (NSW) v Quin (1990) 170 CLR 1
AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007; [2020] HCA 37Australian Securities and Investments Commission v Rich (2009) 236 FLR 1
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345
BDR18 v Minister for Home Affairs [2020] FCA 212Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Coshott v Prentice (2014) 221 FCR 450
CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 61
CVV16 v Minister for Home Affairs [2019] FCA 1890
DPI17 v Minister for Home Affairs (2019) 269 FCR 134
DPT17 v Minister for Home Affairs (2019) 166 ALD 208; [2019] FCA 872
DTK17 v Minister for Immigration and Border Protection (2018) 265 FCR 538
EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Applicant: FLS18
First Respondent: IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent: MINISTER FOR HOME AFFAIRS
File Number: CAG 77 of 2018
Judgment of: Judge WJ Neville
Hearing date: 11 October 2019
Date of Last Submission: 3 November 2020
Delivered at: Canberra
Delivered on: 16 February 2021 REPRESENTATION
Counsel for the Applicant: Mr M Guo
Solicitors for the Applicant: Welcome Legal
Counsel for the First Respondent: Mr B D Kaplan
Solicitors for the First Respondent: Clayton Utz ORDERS
(1)The Review Application be allowed.
(2)A writ of certiorari issue, quashing the decision of the First Respondent (Authority) dated 14 September 2018 to affirm the decision of a delegate of the Second Respondent (Minister) to refuse to grant the Applicant a protection visa.
(3)A writ of mandamus issue, remitting the matter to the Authority and requiring it to determine according to law the Application referred to it by the Minister under s473CA of the Migration Act 1958 (Cth) for review of the delegate’s decision.
(4)The Minister pay the Applicant’s costs.
(5)The Minister pay the Applicant’s Counsel’s fees either as agreed or taxed.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRACAG 77 of 2018
FLS18 Applicant
And
IMMIGRATION ASSESSMENT AUTHORITY First Respondent
MINISTER FOR HOME AFFAIRS Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
1.In the recent decision of ABT17 v Minister for Immigration and Border Protection (“ABT17”), the High Court comprehensively detailed relevant principle regarding the proper functioning of Part 7AA of the Migration Act 1958 (Cth) (“the Act”).[1] At [21] of ABT17, the plurality (Kiefel CJ, Bell, Gageler and Keane JJ) referred to the importance of proper “examination of the decision-making pathways reasonably open to the Authority” in a review Application from a Delegate of the Minister.
[1] ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928; (2020) 383 ALR 407.
2.Both parties agree and assert in their further submissions, filed 3rd November 2020, that the decision by the High Court in AUS17 v Minister for Immigration and Border Protection regarding what is, and what is not, “new information” under s.473DD, viewed in the context of Part 7AA of the Act, has no direct application to the present matter.[2]
[2] AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007.
3.Shorn of many other byways, in my view, it is the examination of the “decision-making pathways” of the Immigration Assessment Authority (“the IAA” or “the Authority”) that is at the heart of the current proceeding. For the reasons that follow, in my view, that “decision-making pathway” went awry in a number of respects and ultimately mis-carried in relation to the Applicant and his Application for Review. Accordingly, the relief sought by the Applicant should be granted, together with the usual Order in relation to costs, subject only to issues relating to Counsel’s fees addressed later in these reasons.
Overview
4.On 14th September 2018, the IAA affirmed a decision of a delegate of the Second Respondent, the Minister for Home Affairs (as that ministerial position then was), to refuse to grant the Applicant a Safe Haven Enterprise Visa (“SHEV”). The Applicant is a Persian citizen of Iran who fears for his safety if forced to return to that country.
5.On 17th October 2018, the Applicant filed in this Court an Application to Review the IAA’s decision. An Amended Application was filed on 15th February 2019 pursuant to Orders made by Consent on 26th November 2018. A Further Amended Application was filed on 1st April 2019. A Second Further Amended Application was filed on 28th October 2019.
6.The issue(s) to be determined do not, per se, relate to any particular findings by either the delegate or the IAA regarding the Applicant’s various claims. Rather, the issue(s) before the Court relate specifically to
(a)the processes undertaken by the IAA, and in particular, whether a “representation” (my word) given to the Applicant during his Arrival Interview was (or was not) followed, and/or
(b)whether, what was recorded in the IAA’s reasons did (or did not) accurately record what was actually said to the Applicant in that interview.
7.As set out below, the IAA said (at par.11) that it had “listened to the arrival interview recording.” Much turns on this paragraph of the IAA’s reasons and its accuracy compared to the transcript and audio recording of the interview with the Applicant.[3]
[3] The Transcript of the Applicant’s Arrival Interview is Annexure LHB-1 to the Affidavit of Ms Elizabeth Hughes-Brown, dated 15th February 2019. His SHEV interview, held on 20th April 2018, is Annexure LHB – 2 to the same Affidavit.
8.It is as well to set out here what is recorded in the Transcript of the Applicant’s Arrival Interview, dated 3rd July 2013 (emphasis added):[4]
The Department is careful to protect the privacy of all information given by you during this interview. The information will not be made available to authorities in the country of your habitual (indistinct). The exception to this is that if a determination is made that you have no lawful basis to remain in Australia. In this situation personal information may be provided to authorities of a foreign government where disclosure is necessary for your removal from Australia. The information you provide at this and any future interview may be used or disclosed as the basis for checks with authorities in countries through which you have passed or which you have resided since you left your country (indistinct.)
[4] Transcript, p.2.
9.It is important to note at the outset that, at the date of the Applicant’s arrival interview, he was precluded from making a protection visa Application because he had arrived in Australia by boat. It was not until the Minister lifted this bar that the Applicant made a protection visa Application.[5] This significant fact appears nowhere in the IAA’s reasons. Therefore, on its face, it is erroneous for the IAA to compare and contrast, in the way that it does, the distinctions and omissions between (i) the arrival interview (where there was no Application for a protection visa on foot, and which perhaps explains why no claims were formally made in 2013) and (ii) the SHEV interview (where there was an Application for a protection visa), which occurred some 5 years or thereabouts after the arrival interview.[6]
[5] See s.46A of the Act, and Court Book (“CB”) at 1 – 5.
[6] The Applicant’s Arrival Interview occurred on 3rd July 2013. His SHEV interview took place on 20th April 2018.
10.Although it is set out later in these reasons, notably in written submissions, it is also best to record here par.11 from the reasons of the IAA (emphasis added):
11. As indicated above the Applicant’s claims for protection and fear of harm from the authorities were made in his SHEV application and interview. Having listened to the arrival interview recording, the Applicant confirmed that he understood the interpreter and answered all questions without hesitation. He was put on notice that the interview was his opportunity to provide reasons why he should not be removed from Australia; that he is expected to give true and correct answers to questions asked; that if the information he gives at any further interview is different from what he provides at the arrival interview, this could raise doubts about the reliability of what he has said; and that the information he provides will not be relayed to Iran. The fact that he did not mention any of the claims made at his SHEV application raises significant doubts as to the credibility of his claims and his claimed fear of harm on return to Iran….
11.Respectfully, precision and accuracy in dialogue and narrative report work both ways. This is to say, the IAA effectively called the Applicant to account for what it said were his errors and omissions in his narrative of reasons for seeking a protection visa. Yet in its reasons, the IAA did not accurately record or detail what was in fact said to the Applicant at his arrival interview, notably for example, whether any information will (or would) be passed on to authorities in Iran.
12.As the extract set out above makes plain, the Applicant was assured that nothing would be conveyed to Iran, except in certain circumstances that were explained via an interpreter. Who knows what impact this information may have had on the Applicant, newly arrived by boat to Australia, including whether he perhaps reasonably harboured concerns about what might be conveyed to Iranian authorities about his claims.
13.In this regard I note the important and well-known comments by Gummow and Hayne JJ in Abebe v The Commonwealth regarding (a) possible embroidery of an Applicant’s remarks, and (b) the role of Courts in reviews from decisions by a Tribunal or similar body.[7] At [191], their Honours’ said:
… the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.
[7] Abebe v The Commonwealth (1999) 197 CLR 510.
14.The IAA did not accurately record, at par.11 of its reasons, the significant qualifications advised to the Applicant at his Arrival Interview regarding the circumstances if and when his information may (or would) be passed back to Iran. Yet at par.38 of its reasons, the IAA stated that there was no credible evidence by the Applicant that details of his claims had been provided to the Iranian authorities. This assertion simply ignores the qualification given at the arrival interview that such information would be provided in certain circumstances. The “credible evidence” was in plain sight in the transcript of the arrival interview, but ignored by the IAA, and inaccurately recorded in its reasons. The issue was not only whether any of the Applicant’s had been provided to Iranian authorities but the fact that the Applicant had been told at his Arrival Interview that such information could/would be provided to them in certain circumstances.
15.Unsurprisingly then, one of the Applicant’s contentions was that what is recorded in the IAA’s reasons does not accurately, or fairly, record what was stated at the arrival interview. According to Ground 2 of the Applicant’s Second Further Amended Application, the IAA’s decision was thereby “affected [sic] by jurisdictional error in that [the] decision was unreasonable, irrational, or illogical, or based on a finding that was not open on the evidence.”
Procedural History
16.Some procedural, and other, history is important to give context to the relief sought by the parties and how the matter ultimately was conducted.
17.This matter was first heard on 11th October 2019. The hearing involved some oral evidence given by a Senior Legal Officer (Mr Wickham) from the First Respondent Department. At the conclusion of that hearing, it was contemplated that further oral evidence would be required, which related to, among other things, the audio recording of the Applicant’s arrival interview.
18.Orders were made on 17th January 2020 regarding the filing of further material. In the event, however, the parties later notified the Court (on 2nd April 2020) that the proposed further hearing time was no longer required and that the matter could proceed by way of written submissions.[8]
[8] Should it be necessary to record, there were a range of difficulties in allocating additional hearing dates, among other things, because of the impact of the COVID-19 pandemic.
19.Accordingly, Orders were made on 3rd April 2020, by consent, which provided a time-table for the filing of additional submissions.
20.While these reasons were in preparation, the High Court handed down two decisions (noted above) which, on their face, were directly relevant to the issues in dispute in the current proceeding regarding the application of certain sections of Part 7AA of the Act to the facts of this matter.[9] Accordingly, provision was made for the filing of further submissions in relation to the recent High Court judgments. Those submissions are set out later in these reasons, together with other, earlier filed, materials.
[9] ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; AUS17 v Minister for Immigration and Border Protection [2020] HCA 37. See also the recent Full Federal Court of Australia decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159.
Evidentiary issues
21.In addition to the formal Grounds of Review noted below, evidentiary matters of some significance arose in the course of the litigation. Briefly stated, they concerned:
(a)whether the audio recording of the Applicant’s “arrival interview” was, as asserted by the Delegate, actually “before” the Delegate “when” the decision was made;
(b)the relevance (if any) of the Minister’s refusal to call the Delegate in relation to this issue, in circumstances where a Departmental officer (Mr Wickham)[10] gave evidence (by Affidavit and in cross examination) regarding the usual and general procedure of a Delegate (as opposed to the actual procedure undertaken by the Delegate in this case); and
(c)the implication or import (if any) of the Minister not calling any other evidence in circumstances where these issues of procedure and evidence (and the consequences thereof) were specifically raised by the Applicant.
[10] Mr Wickham’s Affidavit was affirmed 9th April 2019. His oral evidence was given on 11th October 2019. The Transcript of that evidence was annexed to the Applicant’s Submissions, filed 10th April 2020.
22.In relation to this latter point, the Applicant argued that the principle from Blatch v Archer (and to some degree from Jones v Dunkel) relevantly applied in the Applicant’s favour.[11] The principle articulated by Lord Mansfield in Blatch v Archer stated: “It is certainly a maxim that all evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted.”
[11] Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970; Jones v Dunkel (1959) 101 CLR 298. There are many recent discussions of the former, older, case of Blatch v Archer. See, for example, Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 at [438] – [440]; Coshott v Prentice (2014) 221 FCR 450 at [80] – [82] (Full Federal Court); and DPT17 v Minister for Home Affairs [2019] FCA 872 at [37] – [38]. In relation to Jones v Dunkel, where there is a rich and abundant body of jurisprudence, it is sufficient simply to note the following recent discussions by the High Court in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [63]; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 at [166] – [170]. Generally, although not referred to by either party, see also s.55(2) of the Evidence Act 1995 (Cth), which refers to “relevant evidence” including the “failure to adduce evidence.”
23.These “evidentiary issues” and matters arising from them are dealt with later in these reasons.
Grounds of Review
24.Pursuant to the Second Further Amended Application, filed 25th October 2019, the Applicant’s Grounds of Review were as follows:
Ground of application
1. The Authority constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by failing lawfully to consider (including by giving proper, genuine and realistic consideration to the country information and evidence before the Authority) the Applicant’s claim that he feared harm upon any return to Iran arising from being issued three court summonses in relation to an altercation with the Basiji Iranian militia in or about March or April 2013.
Particulars
a) The Applicant made a claim that he would be at risk of harm from the fact he had received three summonses to appear before the Iranian court, issued on 3 April 2013, 9 June 2013 and 31 July 2013 respectively.
b) The Applicant claimed that he would not receive a fair trial and would suffer physical harm, imprisonment or be killed. c) The Applicant provided country information and evidence to support his claim, including in his written application, during his SHEV interview on 20 April 2018 and in post-interview submissions of 4 May 2018.
d) The Authority failed to engage with the country information and evidence provided by the Applicant and thereby made a jurisdictional error by failing to consider the claim as it had been articulated by the Applicant.
e) The Authority was obliged under s 473DB(1) to review the fast track reviewable decision by considering the review material provided to the Authority under s 473CB.
f) The review material included the information in a) to c).
2. The IAA’s decision is affected by jurisdictional error in that the IAA’s decision was
irrational, unreasonable, irrational, or illogical,or lacked an intelligible justification, or based on a finding that was not open on the evidencebecause of the way the IAA used the fact that the applicant had not made his protection claims in the entry interview to make negative credit findings against him.
Particulars
Part of the reason the IAA rejected the applicant’s claims as not being credible was because he had not disclosed them
itat his arrival interview. The IAA found at [11] that in his arrival interview the applicant was told, inter alia, that “the information he provides will not be relayed to Iran”. That finding is contrary to what was actually said in theentryarrival interview. That finding is also unreasonable, irrational or illogical in relation to two claims which did not arise until after the arrival interview had occurred.
The applicant will rely on a transcript of the arrival interview in evidence on this judicial review application.
3. The IAA failed to consider whether there were ‘exceptional circumstances’ justifying consideration of the new information constituted by the arrival interview.
Particulars
(a) The arrival interview considered by the IAA was comprised of both the audio recording and the written record (at CB 371-390) of it.
(b) The new information that the IAA considered was both the whole of the arrival interview recording, and the information in the recording that the applicant ‘answered all questions without any hesitation’.
The IAA’s Decision
25.A summary of the reasons of the IAA’s decision, delivered on 14th September 2018, is as follows.
26.The Applicant’s claims in support of his SHEV Application are summarised in paragraphs 5 – 7 of the IAA’s reasons. Without going through all of them, it is sufficient to note the following claims raised by the Applicant:
a)A number of the Applicant’s claims relate to encounters with the Basij (part of the Islamic Revolutionary Guards). For example he said that in 2003 he was chased by the Basij which caused him to crash his motorbike and injure his leg. He further claimed that in 2004 his brother, GRG, was beaten by the Basij for drinking alcohol and died a few days later from his injuries. The date of his brother’s death was later amended to March 2002;
b)In 2009 the Applicant participated in demonstrations. He was imprisoned for a number of nights, fined and threatened that if he continued with such conduct he would not see his family. As explained later in the IAA’s reasons, the Applicant also claimed that he received 30 lashes on this occasion;
c)In April 2013 the Applicant was involved in an altercation with the Basij and later falsely accused of assaulting two of its members. He said that his parents received a summons requiring him to attend Court. He left Iran on 9th May 2013 because he feared that he would not receive a fair hearing and would be imprisoned, tortured and killed;
d)The Applicant maintained that since his departure two further summonses requiring him to attend Court have issued and been served on his family;
e)He maintained that the Basij are still looking for him and that on 27th January 2014 his brother, RG, was chased by the Basij, his family home raided, and sister injured;
f)In July 2017 the Applicant’s brother, MG, was imprisoned. At his SHEV interview the Applicant said that his brother was held in prison for 6 months;
g)Since arriving in Australia the Applicant said he has not strictly followed his Islamic religion. He said that he wears western style clothes, is studying English, and has attended Christmas service in a [Christian] Church, and music concerts;
h)The Applicant said that he feared on return to Iran he would be interrogated by authorities and that, if they found out that he told the Australian Government bad things about what the Basij do in Iran, he would be imprisoned or executed;
i)For reasons explained later it is of some significance that the Applicant used the services of an interpreter in Australia in preparation of his Application and translation of summons. He learned later that the interpreter’s Husband worked for the Iranian Embassy in Canberra. In this regard, the IAA’s reasons recorded the Applicant’s view (par.5): “it is likely that the Applicant’s information has been passed onto Iranian authorities.” At par.39 the IAA rejected this concern, on the basis that “this claim is purely speculative and I find it highly unlikely that persons working in Australia as accredited interpreters would relay information about applicants in course [sic] of undertaking their duties to others.” The IAA also said that there was “no credible information” before it to support that this had occurred.
j)The Applicant suffered a workplace injury in February 2015 and experiences chronic pain and depression as a result. He takes painkillers and anti-depressants to manage his condition and requires further medical treatment. As a consequence, the Applicant said he was not fit to be removed from Australia; he contended that it is unlikely he would be provided with appropriate care in Iran.
k)The IAA then said (par. 6) that the Applicant was interviewed by the Department on 3rd July 2013 (“the Arrival Interview”), less than 2 months after his departure from Iran. In the same place (par. 6) the IAA said: “the Applicant did not mention any of the claims made in his SHEV Application at the arrival interview.”
l)The IAA continued (par.7) that at his Arrival Interview, the Applicant expressly stated that he had come to Australia to live and work. He said that he was unable to work in Iran without having connections with the Basij and that there was no other reason why he left Iran. He denied that he or any other member of his family had been associated or involved with any political group, activities, or protests. He also denied that there were any armed groups, political or religious groups operating in the area where he lived.
27.At paragraphs 9 – 13 the IAA commented on what constituted a “well-founded fear of persecution” under the Act (section 5J) and some factual matters in relation to it.
28.First, the IAA accepted that the Applicant was a national of Iran and that Iran is a receiving country for the purposes of the review.
29.Earlier in these reasons I set out the central paragraph 11; I need not refer to it here.
30.At par.12, the IAA noted that during the Applicant’s SHEV interview, the Applicant was notified that all information provided to the Department would be considered in assessing his claims and some inconsistencies between his arrival and SHEV interviews in relation to his passport were discussed with the Applicant.
31.Essentially, the remainder of the IAA’s reasons explain approximately eight areas from the Applicant’s claims and evidence in support of his SHEV Application that, in the IAA’s view (par.13), gave rise to “numerous and other significant concerns as to the Applicant’s evidence and credibility of some of his claims.”
32.A first and almost preliminary concern expressed by the IAA (pars.14 – 17) related to the Applicant’s capacity to give evidence at his SHEV interview. Shortly stated, the Applicant claimed that as a result of his workplace injury to his left thumb and consequent chronic pain and depression, such matters were likely to impair his ability to recall dates and events during the interview.
33.The IAA said (par.17) that having listened to the SHEV interview recording, the Applicant effectively participated in the interview, and provided answers and explanations to all questions asked. It also noted that the Applicant had the benefit of his representative during the interview and that submissions were not only made at the interview but also post-interview.
34.The next area that occupied the IAA related to the death of the Applicant’s brother in 2002. Again shortly stated, the IAA noted that a letter from the hospital to which this brother was taken indicated that the deceased was suffering from kidney disease, had been receiving treatment, and had died from cardiac arrest while admitted into emergency. This led the IAA to conclude that the evidence did not support the Applicant’s claim that this brother’s death was a result of any injuries inflicted by the Basij. The IAA further concluded that it was not satisfied that the Applicant was of any adverse interest to the authorities as a result of his brother’s death in 2002, or that he was at any risk of harm for this reason at any time in the future.
35.A second area of focus of the IAA related to the Applicant’s claim that he was chased by the Basij in 2003. In a somewhat cursory review of this claim, the IAA concluded (par.19) that there was no credible information to support that the Applicant was chased by the Basij as claimed. It further concluded that the Applicant’s evidence did not indicate why the Basij was targeting or chasing him in 2003.
36.A third area of interest and concern to both the Applicant and the IAA related to the Applicant’s claim that there were attempts by Basij operatives between 2009 and 2013 to recruit him as an informer. Between 2004 and 2013 the Applicant was working as a mechanic in the Arab district in Ahvaz. He became the owner of the business in 2009. The Applicant contended that, because he had access to vehicles owned by members of the Arab community, and that most of his clients were Arab, the Basij had approached him to hire Basij members “so that they could monitor and check vehicles owned by Arabs for incriminating material such as signs of political activity or weapons” (par.20). The Applicant said that he declined to hire any Basij operatives.
37.Ultimately, (at par.21) the IAA said that it found no relevant evidence that there was any interest in the Applicant for any imputed political views in support of Arab independence. The IAA also said that it was not satisfied that the Applicant was approached by the Basij to hire some of its members to gain access to vehicles owned by Arabs.
38.The next area of interested related to the 2009 demonstration in which the Applicant took part. These demonstrations were by supporters of Mousavi, a reformist politician. The Applicant claimed that as a result of his participation in those demonstrations he was imprisoned for 3 nights, fined and given thirty lashes.
39.The IAA said (par.24) that in the light of country information it accepted that the Applicant participated in the large 2009 demonstrations. These demonstrations were more generally known as “the Green Movement.” This information confirmed, and the IAA accepted, that “thousands of Green Movement demonstrators were detained, beaten and harassed by security forces.”[12]
[12] In this section of the IAA’s reasons it provides two footnotes in relation to the Green Movement, protests and the detention and punishment of protestors. Unfortunately the two citations here simply state, for example “Ibid at 3.65”. Given that this is footnote 1 of the reasons, plainly there is no earlier reference that the IAA purports to rely upon. Therefore anyone reading its reasons has no idea what report, country information or otherwise the IAA actually relied upon in its first two citations at footnotes 1 and 2 in paragraph 24 of its reasons.
40.Somewhat curiously, there seems to have been little consideration of the connection and relevance of (a) the Applicant’s claim to have received 30 lashes after being detained, and (b) the IAA’s apparent acceptance that “thousands of Green Movement demonstrators were detained, beaten and harassed.” It might be contended that the lack of comment by the IAA could indicate that a certain number of lashes (in this instance 30), amidst the beatings of other demonstrators, was both unexceptional and unexceptionable. However, no such argument was put before this Court.
41.The IAA concluded (par.25), that nothing had happened to the Applicant after his release in 2009 until an altercation in 2013 just prior to his departure from Iran. On the information before the IAA, it determined that the Applicant did not have the profile of a political activist with the Iranian authorities due to his attendance at the 2009 demonstrations such that there was any real chance he would be harmed in the reasonably foreseeable future.
42.The next area of concern to the IAA related to the Applicant’s claims that he was assaulted, received various Court summonses, and continued to receive threats of harm to family members (pars.26 – 30).
43.The Applicant claimed that, on or around 22nd March 2013, he and a friend were travelling by motorbike to buy spare parts. The friend was driving. He said that they were stopped by the Basij to check documents and driver’s licence. He said there was a scuffle that took place after the Basij tried to take his ID card and motorbike. The Applicant said that, as a result of the fight, he was beaten [again] and his motorbike confiscated.
44.The Applicant then claimed (par.27) that on 3rd April 2013 he received a summons, which was served on his parents, requiring him to attend Ahvaz District Court on 7th April 2013. He confirmed that he did not attend the Court pursuant to the summons but instead stayed in Eslamabad with his Aunt and other family members. He said that it was this incident with the Basij that led to his decision to depart Iran on 9th May 2013. Subsequent to this he said that two further summonses were issued that required him to attend Court in June and August 2013.
45.At pars.28 – 29 (with significant internal detail in separate paragraphs) the IAA set out the reasons why it had reservations about the Applicant’s evidence in relation to this incident of physical contest with the Basij in March 2013. The matters that caused the IAA concern were that:
a)The Applicant was able to leave Iran using his own passport. The IAA said it was highly unlikely that the authorities would have issued summonses in June and August 2013 without investigating the Applicant’s whereabouts. Those inquires would have shown the authorities that the Applicant had left Iran in May 2013;
b)Based on country information, the IAA expressed significant concerns about the reliability and veracity of the summonses produced by the Applicant. Amongst other things, it noted that some were handwritten. This was in circumstances where country information confirmed that all legal documents had been produced in an electronic format since 2005/2006. The IAA also noted that there was a degree of variation in the format of the template of the document produced by the Applicant. These variations cast further doubts on the authenticity of the documents produced.
46.In the same place the IAA noted claims in relation to the Applicant’s brothers (RG and MG), both of whom were said to have had difficult encounters with the Basij in 2014 and 2017 respectively. The IAA said that it doubted that the Iranian authorities, as well as the Basij, would retain interest in the Applicant four years after his departure from Iran. Accordingly, at par.29, the IAA concluded that it was not satisfied that the Applicant would face any chance of harm on return to Iran for reasons of his political opinion or any outstanding criminal charges connected to these claimed events.
47.The penultimate area of interest of the IAA with the Applicant’s claims related to him being a non-practicing Muslim, his lifestyle in Australia, and being a failed asylum seeker (pars.31 – 40).
48.The Applicant claimed that since arriving in Australia he had not strictly followed his religion because he wears western style clothes, is studying English and has attended Christmas services in Church and music concerts. The Applicant also said that he does not pray or fast but still calls himself a Muslim. He said he considers himself a moderate Muslim and that his family are not strict Muslims.
49.The IAA determined that, based on country information, it doubted that the Applicant was likely to come to the attention of relevant Iranian authorities for not practicing Iran’s official religion or considered an apostate or atheistic by the authorities. The IAA said that it was not satisfied that the authorities in Iran are aware of his lifestyle in Australia.
50.The IAA said (par.33) that it considered his attendance at Christmas services and music concerts, among other things, were more a statement of him demonstrating his assimilation within the Australian community and way of life rather than an interest in Christianity. It also said that country information from DFAT had indicated that premarital and extra-marital relations were common, and that authorities were generally turning a blind eye to such things. In the result, the IAA said that it concluded that the chances of the Applicant coming to the adverse attention of the authorities, or suffering harm on the basis of the wearing of western style clothing, to be remote.
51.
The IAA also noted that there had been limited social media postings by the Applicant; the last time he made a post was approximately 3 years ago. The IAA said (at par.34) that there was no credible evidence that the Applicant’s Facebook posts came to the attention of the Iranian authorities or that he would otherwise be imputed with any other “anti- regime or anti-Islamic views
as a result of these posts”.
52.The IAA accepted that the Applicant would be returning to Iran as a failed asylum seeker from Australia. However it said that on the basis of the evidence before it the Applicant did not have a pre-existing adverse profile in Iran. It also said that country information provided by DFAT indicated that “voluntary returnees” do not attract much interest amongst the large international movements of Iranians and that they will generally move quickly through airports. Should it need to be said, the Applicant is clearly not, and would not be, “a voluntary returnee.”
53.At par.38, the IAA noted the Applicant’s claim that the Iranian authorities were likely to interrogate him about being in Australia and that they would more likely be interested in him having been living in Canberra. The IAA then said: “There is no credible evidence before me to suggest that details of the Applicant’s claim has been provided to the Iranian authorities, or that the Applicant’s family has been questioned in relation to the Applicant’s claim or information provided to the Australian authorities”
54.The IAA noted again, as it had done earlier in its reasons, the Applicant’s concern about information being passed to Iranian authorities because the interpreter is the Wife of a worker at the Iranian Embassy in Canberra. Again the IAA said there was no credible evidence to support that this had actually occurred, notwithstanding the Applicant’s earlier comments (at par.5) where it recorded, by reference to the Applicant’s concerns, that “it is likely that the Applicant’s information has been passed on to the Iranian authorities.”
55.The final matter set out in the IAA’s reasons related to the Applicant’s claim that he would not be provided with appropriate medical care in Iran in relation to his injured thumb and other matters previously noted. At par.42, the IAA said that country information indicated that notwithstanding various deficiencies and high levels of income inequality, poverty and unemployment, Iran is advanced in terms of health, education and national health insurance. In such circumstances the IAA said it was satisfied that the Applicant would be able to access medical care for his physical and mental impairments.
Legislative Provisions
56.Unless otherwise specified in these reasons, the most directly relevant provisions of the Act relevant to the current matter are ss.473DC, 473DD, and 473 DE. These sections are set out below:
Section 473DC – Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give newinformation:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD – Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies that Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Section 473DE – Certain new information must be given to referred applicant
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non-disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.
Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Primary Submissions on behalf of the Applicant
57.The Applicant’s outline of submissions, filed 22nd March 2019, were as follows (footnotes omitted):
APPLICANT’S OUTLINE OF SUBMISSIONS
Background
1. The Applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA) dated 14 September 2018, affirming the refusal of his application for a protection visa.
2. He relies on the two grounds in the draft Further Amended Application annexed to these submissions. The draft deletes the first but retains in substantially the same form the second of the two grounds in his Amended Application filed on 15 February 2019, and includes an additional ground. Leave should be granted to rely on the draft Further Amended Application: there is no prejudice to the Minister, the ground has reasonable prospects of success, and the ground goes towards the real issue in dispute (whether the IAA’s decision was affected by jurisdictional error).
Relevant chronology
Application for protection visa
3. The Applicant, a Persian Iranian man, arrived in Australia in May 2013 after fleeing Iran. A few months after his arrival, in July 2013, he was interviewed by Departmental officers in a process known as an ‘arrival interview’. Much of this arrival interview focussed on ‘people smuggling’, although some questions were asked of the Applicant about his reasons for coming to Australia. The interview was audio recorded. However, the interview did not form part of any protection visa application; the Applicant was barred from making an application for a protection visa because he arrived by boat until such time as the Minister decided to lift the bar.
4. The Applicant was eventually permitted in August 2016 to apply for a protection visa, and he did so on 11 September 2017. Accompanying his application was a statement setting out his claims for protection. In summary, he applied for protection because he feared harm from Iranian authorities because of:
(a) his support for the Arab community in his home town of Ahvaz;
(b) his past persecution by the Iranian basij, a part of the Iranian police and security apparatus;
(c) having been ‘westernised’ since arriving in Australia in 2013, being a ‘lapsed Muslim’, and being a ‘failed asylum seeker from the West’.
5. He also later added, in separate written submissions to the Department, two further claims. The first was a claim that he feared harm because he later learnt that the translator who assisted him with his protection visa application is married to the Executive Assistant of the Iranian Ambassador to Australia. The second was fear of harm upon detention arising from the fact he had psychological and physical injuries arising from a 2015 workplace injury; he said that in Iranian detention, he would be deprived of the necessary medical care.
6. The Applicant’s narrative about the basij, was in brief, that in around 2003, he was riding a motorcycle when he was chased by them, causing a leg injury which left scars. The basij also assaulted the Applicant’s cousin for drinking alcohol, who died several days later from his injuries. The basij also pressured the Applicant to hire people who he feared would spy on his Arab customers, and pressured the Applicant to act as an informant in relation to these customers. The Applicant refused, and the basij threatened him as a result.
7. The Applicant was also arrested by the basij in 2009 for taking part in a demonstration in support of a moderate reformist presidential candidate. He was fined about 500,000 rials, imprisoned for 3 nights and received 30 lashes, and warned that if he were to take part in similar demonstrations in the future his ‘family would not see [him] anymore’.
8. Then, in 2013, the basij stopped the Applicant while he was riding on the street, assaulted him and confiscated his motorcycle. There was no apparent reason why the basij did this. In the course of the assault, the Applicant tried to defend himself, however, a member of the basij as well as the Applicant and his friend with which he was riding all got injured. As a result of this incident, the Applicant’s parents received a summons requiring him to attend court and answer the allegations from the basij that he had committed ‘Intentional Assault and Battery’. The Applicant then fled the country, knowing that he would not get a fair hearing, because it would have been his word against that of the basij, and that he would be imprisoned, tortured and killed over the incident.
9. After the Applicant’s departure, his parents received two further summonses over the incident. In addition, the basij also injured his sister and chased his brother who has a physical resemblance to him. A other brother was, more recently, stopped by the basij and taken to prison because of some documents he was carrying.
10. On 20 April 2018, the Applicant attended an interview with an officer of the Department, together with his migration agent, at which further evidence was given in support of his application. This interview was also recorded.
Delegate’s decision
11. On 1 June 2018, the interviewing officer, who was also a delegate of the Minister, refused the protection visa application. She accepted some but not all of the Applicant’s claims. For present purposes it is unnecessary to address her reasons any further.
IAA’s decision
12. Thereafter, the Applicant’s matter was referred to the IAA.
13. The IAA affirmed the refusal, but for different reasons to the delegate. The IAA began by explaining that it ‘had regard to the material given by the Secretary under s.473CB of the Migration Act’. This included an audio recording of the arrival interview.
14. The IAA rejected most of the Applicant’s version of events, and rejected all of the claims for fear of persecution. The rejection was on the basis that the IAA did not consider the Applicant to be credible. A significant factor in the formation of this adverse credibility finding was that the Applicant had failed to mention any of the persecution claims in his arrival interview in 2013. In particular, at [11] of its reasons (CB 420), the IAA stated:
… Having listened to the arrival interview recording, the applicant confirmed that he understood the interpreter and answered all questions without any hesitation. He was put on notice that the interview was his opportunity to provide reasons why he should not be removed from Australia; that he is expected to give true and correct answers to questions asked; that if the information he gives at any further interview is different from what he provide at the arrival interview, this could raise doubts about the reliability of what he has said; and that the information he provides will not be relayed to Iran. The fact that he did not mention any of the claims made at his SHEV application raises significant doubts as to the credibility of his claims and his claimed fear of harm on return to Iran. This is even more concerning given that the applicant is claiming harm to his family, at the hands of the Basij as far back as 2002, and that the most recent altercation with the Basij occurred just three months prior to his arrival interview.
15. As will be seen, these proceedings put in issue the correctness of the assertion that at the arrival interview the Applicant was told that he should speak freely, openly and in detail because ‘the information he provides will not be relayed to Iran’ (ground 2). The proceedings also put in issue whether the IAA was entitled to have regard to the audio recording of the arrival interview at all (ground 3).
Ground 2: Unreasonable, irrational or illogical decision, or finding of fact not open on the evidence
16. Decisions of the IAA will be affected by jurisdictional error if they are unreasonable, irrational or illogical. The various separate judgments in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 explain that these labels overlap. However, regardless of the precise content of these labels, examples of illogicality and irrationality are established as including ones where:
only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn
17. The particular species of illogicality here is the making of a finding that is ‘not open on the evidence’.
18. The IAA summarised the Applicant’s claims at [5] of its reasons. Then, as set out above, the IAA rejected the Applicant’s claims by focussing on the Applicant’s failure to have mentioned them in 2013 when he was first interviewed by Department officers. After making this observation at [6]-[7] of its reasons, the IAA asserted at [11] that the Applicant was told that ‘the information he provides will not be relayed to Iran’.
19. What the Applicant was actually told at his arrival interview was not at all what the IAA asserted he was told. Rather, the Applicant was told by the interviewing officer:
The Department is careful to protect the privacy of all information given by you during this interview. The information will not be made available to authorities in the country of your habitual (indistinct). The exception to this is that if a determination is made that you have no lawful basis to remain in Australia. In this situation personal information may be provided to authorities of a foreign government where disclosure is necessary for your removal from Australia. The information you provide at this and any future interview may be used or disclosed as the basis for checks with authorities in countries through which you have passed or which you have resided since you left your country (indistinct).
20. This is far from the unconditional assurance that the IAA asserted the Applicant was given: that the information he was to provide in the arrival interview ‘will not be relayed to Iran’.
21. Understandably, a person seeking asylum will harbour reluctance to give information to an official if his or her experience of officialdom in his or her home country is not a positive one. On the Applicant’s account, his interactions with Iranian authorities have been anything other than positive. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224, Kirby J stated at [73]:
(7) Remembering the purpose of credibility:Credibility is often seen as the crucial issue in tribunal determinations of refugee status. The references in the Refugees Convention to the existence of “fear”, and to the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. As I said in Minister for Immigration and Multicultural Affairs v Rajamanikkam, “[m]any, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility”. There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; … the effects of fear; … poor experience elsewhere with governmental officials; ... The tribunal must be firmly told — if necessary by this court — that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so. (emphasis added, citations omitted)
22. More recently, similar observations were made in the specific context of ‘entry interviews’ (the terms ‘arrival interview’ and ‘entry interview’ appear to be used interchangeably, as they were by the IAA in this case). In MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [56] the Full Federal Court said:
… some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile. (emphasis added)
23. These observations apply directly to the circumstances of the Applicant. At the arrival interview, he was given a highly conditional statement the effect of which was that his information might nonetheless be relayed back to Iran. The finding of fact that the IAA made, that the Applicant was told in his arrival interview that ‘the information he provides will not be relayed to Iran’, was not open on the evidence. He was told no such thing.
24. It also means that for the IAA to have decided the case by rejecting the Applicant’s credibility by relying upon the claimed but non-existent assurance was a finding of credibility that was also not open on the evidence. Using the more general descriptors discussed in SZMDS, the decision can also properly be understood unreasonable, irrational or illogical. No reasonable decision-maker would have asserted, in the face of what was actually said at the arrival interview, that the Applicant was told ‘the information he provides will not be relayed to Iran’, and then rely on the supposed making of this assurance to reject all of his claims. There ‘is no room for a logical or rational person to reach the same decision’ on the actual material that was before the IAA, rather than what the IAA incorrectly asserted was before it. It might even also be possible, if unnecessary, to describe the IAA’s approach of asserting a false circumstance and then using that to justify a broad adverse credibility finding, as "clearly unjust" or "arbitrary" or "capricious".
25. It is well-established that the assessment of credibility is not a process which lends itself to neat compartmentalisation or ready reverse-engineering. For example, in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562, Lee J said at [45]:
To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at 23 [81]:
...decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.
26. Thus, even though the IAA also appeared to reject the Applicant’s general credibility on bases other than the arrival interview, it cannot be said that the IAA’s error made no difference to the outcome. There is a possibility that if the IAA appreciated that the Applicant was not in fact told that ‘the information he provides will not be relayed to Iran’, then (and for the reasons explained by Kirby J in SGLB and the Full Federal Court in MZZJO) it could have given little weight to the fact that the Applicant did not raise the claims in his arrival interview. It could have realistically resulted in a different conclusion (and whether it would have in fact resulted in a different conclusion is a merits question for the IAA upon which this Court should not speculate).
117.It follows from the application of the principles in DPT17, and in the light of the principles set out by the High Court in ABT17, notably at [17] of its reasons, that the submissions of the Applicant regarding how the audio recording should be treated – as “new information” – should be accepted.
118.I also recall in particular also the following comments by the High Court in ABT17 at [29] – [31] (internal citations omitted; emphasis added):
[29] Had the Authority acted reasonably in performing its duty to review the decision of the delegate cognisant of its informational disadvantage in assessing the credibility of the appellant when compared with the delegate, the Authority would not have rejected the appellant's account of having been detained and beaten and sexually tortured on the basis of how he sounded on the audio recording without inviting him to a further interview so as to see him as well as hear him. By failing to invite the appellant to a further interview, the Authority transgressed the reasonableness condition implied into both the imposition of its duty to conduct a review and the conferral of its powers to get and consider new information in conducting a review.
[30] To be clear, the breach of the reasonableness condition by the Authority lay not in evaluating the review material for itself to arrive at a different assessment of credibility than did the delegate, but in failing in the circumstances to use the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position to assess credibility as had been the delegate.
[31] And notwithstanding the repetition, it seems necessary in light of alternative views now expressed in this Court to spell out that the failure of the review material to place the Authority in as good a position to assess credibility as had been the delegate arose not from some latent defect in the legislative scheme of Pt 7AA rendering it incapable of fulfilling its legislative purpose and resulting in a cataclysmic breakdown in the capacity of the Authority to rise to the legislative exhortation of "providing a mechanism of limited review that is efficient [and] quick". The failure arose from an administrative practice within the Department. In particular, the failure arose from the circumstance that the delegate rather than some other officer interviewed the appellant combined with the circumstance that the interview was audio recorded but not video recorded. To the extent that the circumstances of this case throw up a systemic problem, the problem has arisen administratively and can readily be remedied administratively.
119.What was outlined here by the High Court is precisely what happened in the current matter. Moreover, it was in fact compounded here because of the Minister’s failure to adduce direct evidence from the Delegate, and to adduce and rely upon evidence of the most general kind from Mr Wickham. This failure has only compounded the evidentiary and procedural deficiencies evident in this matter.
120.Otherwise, I accept the Applicant’s Submissions generally in relation to Ground 3, including the serious question marks over whether the Applicant’s Arrival Interview was relevantly before the Delegate at the time when the decision, adverse to the Applicant, was made. The consequential submissions regarding the proper treatment of the Arrival Interview (including the audio recording) by the IAA, under s.473DC, 473DD and 473DE, should also be accepted.
121.For the reason given, and having accepted the Applicant’s submissions, Ground 3 is relevantly established.
122.Writs should issue as sought by the Applicant. The Applicant should also have an Order for costs in his favour in accordance with the relevant Schedule to this Court’s Rules. Further, given how many times the matter was before the Court, and perhaps more importantly, how many sets of written submissions were filed, to the degree necessary, an Order should also be made in the Applicant’s favour in relation to Counsel’s fees, either as agreed or taxed.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville
Associate:
Date: 16 February 2021
Corrections (16 March 2021)
1. Paragraph 114 – delete references to “IAA” and insert “Delegate”.
2. Paragraph 115 – delete references to “IAA” and insert “Delegate”
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