FNN17 v Minister for Immigration and Anor (No.2)
[2020] FCCA 1576
•19 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FNN17 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 1576 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – applicant disbelieved in part and other claims found not to be well-founded – whether the Authority breached s.473DD of the Migration Act 1958 (Cth) by considering the applicant’s entry interview, or by not considering the audio recording of that interview or by failing to exercise or consider exercising its power under s.473DC of the Migration Act considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 57, 424A, 425, 430, 473CB, 473DC, 473DD, 473DE, 473FA |
| Cases cited: AVL18 v Minister for Home Affairs [2019] FCA 706 AVQ15 v Minister for Immigration [2018] FCAFC 133 BRE15 v Minister for Immigration & Anor [2019] FCCA 1680 CQG15 v Minister for Immigration (2016) 253 FCR 496 DGZ16 v Minister for Immigration (2018) 258 FCR 551 DPI17 v Minister for Home Affairs (2019) 269 FCR 134 DPT17 v Minister for Home Affairs [2019] FCA 872 DTK17v Minister for Immigration [2018] FCAFC 170 DZU16 v Minister for Immigration (2018) 253 FCR 526 EVS17 v Minister for Immigration [2019] FCAFC 20 FNN17 v Minister for Immigration & Anor [2019] FCCA 1222 FOA18 v Minister for Immigration [2020] FCA 815 Minister for Immigration v Bhardwaj (2002) 209 CLR 597 Minister for Immigration v CLV16 (2018) 260 FCR 482 Minister for Immigration v CPA16 [2019] FCAFC 40 Minister for Immigration v CRY16 [2017] FCAFC 210 Minister for Immigration v Gill [2019] FCAFC 9 Minister for Immigration v SZRKT (2013) 212 FCR 99 Minister for Immigration v SZUXN [2016] FCA 516 Minister for Immigration v SZVFW (2018) 92 ALJR 713 Minister for Immigration v Yusuf (2001) 206 CLR 323 MZZZW v Minister for Immigration (2015) 234 FCR 154 Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16 Sandvik Mining and Construction Australia Pty Ltd v Fisher [2019] WASC 352 SZBYR v Minister for Immigration (2007) 235 ALR 609 SZIFI v Minister for Immigration (2007) 238 ALR 611 |
| Applicant: | FNN17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 334 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 June 2020 |
| Date of Last Submission: | 13 July 2020 |
| Delivered at: | Sydney, by telephone to Perth |
| Delivered on: | 19 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Guo |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondents: | Ms S Oliver |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended by leave granted on 15 June 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 334 of 2019
| FNN17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 31 July 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 19 May 2020.
The applicant, a citizen of Afghanistan, arrived in Australia as an unauthorised maritime arrival on 18 April 2013.[1] On 30 June 2016, the Minister’s Department advised him that it had lifted the bar pursuant to s.46A of the Migration Act 1958 (Cth) (Migration Act) and invited him to apply for the visa.[2] On 28 December 2016, the applicant applied for the visa with the assistance of his legal representative.[3] On 23 March 2017, the delegate interviewed the applicant (delegate interview).[4] On 3 April 2017, the applicant’s representative provided submissions to the delegate (April 2017 submission).[5]
[1] Court Book (CB) 142
[2] CB 16-17
[3] CB 18-90
[4] CB 101
[5] CB 105-138
On 16 May 2017, the delegate refused to grant the visa to the applicant.[6] The delegate reached these conclusions:[7]
a)the applicant faced a real chance of persecution if he returned to his home district in Ghazni;
b)the real risk of persecution did not relate to all areas of Afghanistan because he would not face a real chance of persecution in the reasonably foreseeable future if he returned to Kabul;
c)the applicant would face a real risk of significant harm if he returned to his home district in Ghazni province;
d)he could reasonably relocate to Kabul and that there would not be a real risk that he will suffer significant harm in Kabul.
[6] CB 142-157
[7] CB 148-153
On 19 May 2017, the matter was referred to the Authority for review under Part 7AA of the Migration Act.[8] On 7 December 2017, the Authority affirmed the decision under review on the basis that the applicant could return to Ghazni.[9] On 13 May 2019, this Court remitted the matter to the Authority on the basis that it was unreasonable for the Authority not to invite, or at least consider inviting, the applicant to provide new information under s.473DC(3) of the Migration Act in circumstances where the Authority had exercised its discretion to get the latest DFAT[10] report that was not before the delegate, and where critical information that formed the basis of the Authority’s determination that the applicant was not a risk in travelling around his home area had been taken from that report.[11]
[8] CB 158
[9] CB 161-177
[10] Department of Foreign Affairs and Trade
[11] CB 178, FNN17 v Minister for Immigration & Anor [2019] FCCA 1222 per Judge Lucev
On 11 June 2019, the Authority notified the applicant that it was reconsidering his case.[12] On 12 July 2019, the applicant’s representative provided written submissions to the Authority which annexed approximately 800 pages of country information.[13] On 15 July 2019, the Authority emailed the applicant’s representative and noted that the correspondence of 12 July 2019 referred to a separate submission addressing why the Authority should consider the new country information pursuant to s.473DD of the Migration Act, however, the submission had not been received.[14] The applicant’s representative provided the omitted submission on 15 July 2019.[15] On 18 July 2019, the applicant’s representative provided a statutory declaration of the applicant dated 17 July 2019 which contained new information.[16]
[12] CB 180
[13] CB 187-967
[14] CB 968-969
[15] CB 968, 970-974
[16] CB 975-981
On 31 July 2019, the Authority affirmed the delegate’s decision.[17]
[17] CB 985-1010
The applicant’s claims
The applicant made the following claims in the statutory declaration dated 12 December 2016 that accompanied the visa application:[18]
a)he was a Shia Hazara from Jaghori District, Ghazni Province in Afghanistan;
b)in 2009, his father travelled to the Ghazni province and never returned. The applicant suspected he was killed by the Taliban. The applicant became responsible for his father’s butchery business which required him to travel to the livestock market in Ghazni;
c)when he was travelling to the livestock market in Ghazni in 2010 there was an exchange of fire between authorities and the Taliban (the 2010 event). A roadside bomb exploded near a bazar in 2011 (the 2011 event). In 2012, he was travelling from Ghazni when the vehicle he was in was stopped by Pashtuns, his bags were searched, and his valuables stolen (the 2012 event). He believed the Pashtuns were members of the Taliban;
d)the events led the applicant to form the view that it was becoming extremely dangerous for him to travel between Jaghori district and Ghanzi province. He therefore fled Afghanistan in 2013;
e)he claimed to fear harm from the Taliban, Islamic State and their supporters on the basis of his Hazara ethnicity, his Shia religion, his anti-Taliban, anti-Islamic State and/or pro-Western imputed political opinion and as a failed asylum seeker;
f)he did not believe it was reasonable to relocate within Afghanistan.
[18] CB 58-63
At the delegate interview, the applicant also claimed that when his vehicle was stopped during the 2012 event, his hands were tied and he was physically assaulted and interrogated about a local Afghan National Army commander.[19] He also asserted at the delegate interview that his return to Afghanistan would be televised and this publicity would elevate his risk profile.[20]
[19] CB 163
[20] CB 163
The April 2017 submission contained a new claim, namely, that the applicant had abandoned his Shia faith and would face harm for his lack of religion.[21] He claimed that his non-religious beliefs rendered relocation to any place in Afghanistan unreasonable.[22]
[21] CB 106, [2]
[22] CB 125-138
In the July 2019 statutory declaration, he claimed to now hold westernised views about gender equality.[23] He said he does not participate in Shia festivals in Australia and he has expressed views on gender equality within the Hazara community in Australia that have offended some of the male members. If returned, he would be forced to participate in a religion in which he does not believe, and hide his opinions on religious and political matters in order to avoid harm. This would constitute cruel, inhuman or degrading treatment or punishment.
Authority’s decision
[23] CB 977-981
Material considered
The Authority had regard to:
a)the material referred by the Secretary under s.473CB of the Migration Act;[24]
b)the July 2019 submission to the extent that it contained argument responding to the delegate’s decision and reassertions of claims and evidence before the delegate;[25]
c)the country information annexed to the July 2019 submission;[26]
d)the July 2019 statutory declaration.[27]
[24] CB 986, [2]
[25] CB 986, [2]
[26] CB 986-987, [2]-[6]
[27] CB 987, [7]-[8]
Section 473DC(3)
The applicant had asked the Authority to invite him to attend a hearing to “address his claims for protection and adverse information (if any) that arose throughout the review process”.[28] The Authority decided not to exercise its discretion to undertake an interview because:[29]
a)the applicant did not suggest any particular information he sought to provide, nor offer any explanation about why it would be appropriate for the Authority to exercise its discretion, beyond the very general statement set out above;
b)he was assisted by a legal practitioner in preparing the visa application, and at the delegate interview where the legal practitioner gave extensive oral submissions and provided a 33 page written submission afterwards;
c)the applicant provided a substantial amount of new information to the Authority in July 2019, as well as further argument, all of which had been considered by the Authority;
d)the Authority was satisfied that the applicant was given notice of the determinative issues in his case and that he had a meaningful opportunity to address his claims for protection.
[28] CB 193
[29] CB 987-988, [9]
Factual findings
The Authority accepted that the Jaghori District of Ghazni Province is the area to which he would return.[30] It found that the applicant’s mother and four of his six siblings continue to live in the family home in the same village in that district, and that his other two siblings also remain in the district.[31]
[30] CB 989, [14]
[31] CB 989, [14]
The Authority had serious concerns with the credibility of the applicant’s claim that his opinions on religion and gender equality were so essential to his identity that he would either be compelled to express them publicly, or would experience serious or significant harm if he were forced to conceal them.[32] After considering his evidence on those matters in detail,[33] the Authority ultimately accepted that the applicant may sincerely hold these views but found that his claim that he would be compelled to express them publicly had been embellished for the purpose of furthering his claims for protection.[34]
[32] CB 990, [18]
[33] CB 990-991, [19]-[23]
[34] CB 991-992, [24]
The Authority was not satisfied that the applicant would be perceived as having abandoned his religion, or as an apostate, or as an atheist, however, it accepted that he would not engage in daily religious practices and may be perceived by some members of the community as a lapsed or non-observant Muslim.[35]
[35] CB 992, [27]
The Authority accepted that the applicant’s father may have been killed in an incident whilst travelling in Ghazni in 2009.[36] However, considering the country information before it and the limited evidence concerning this event, it was not satisfied that his father was the victim of a targeted attack by the Taliban or any other group for the reason of being a Hazara Shia.[37] The Authority recorded that the applicant had not claimed to fear harm as a result of his father’s disappearance.[38]
[36] CB 993, [29]
[37] CB 993, [29]
[38] CB 993, [29]
The Authority accepted that the 2010 event and the 2011 event occurred but noted that the applicant did not claim to have been personally targeted or harmed in either event and found that there was no other information that indicated that he was.[39]
[39] CB 993, [30]
The Authority was of the view that the applicant’s account of the 2012 event had varied.[40] Given he claimed that it was a key event that led to him leaving Afghanistan, and that significant details were added after his first version, the Authority was not satisfied he was targeted on account of his ethnicity or religion, or that he was personally identified, interrogated or beaten by Taliban militants.[41]
[40] CB 993-994, [31]-[32]
[41] CB 994, [33]
The Authority accepted that the applicant may be readily identifiable as a member of the Hazara community and also be imputed as a Shia Muslim.[42]
[42] CB 994, [34]
Refugee assessment
The Authority did not accept that the applicant faces a real risk of harm in Afghanistan as a result of his father’s disappearance in 2009 or from any of the 2010, 2011, or 2012 events.[43] It also did not accept he would be perceived as an apostate or an atheist, though it did accept that he would be recognisable in Afghanistan as a Hazara and, regardless of his religious or cultural practices or beliefs, may be presumed to be a Shia Muslim on account of his ethnicity.[44]
[43] CB 995, [37]
[44] CB 995, [37]
It accepted that the applicant feared harm from the Taliban and other insurgent groups on the basis of his Hazara ethnicity, his actual or imputed Shia religion, his imputed or actual support of the Afghan government and international community, and as a returnee.[45] However, it was not satisfied that this fear was well-founded.[46]
[45] CB 995, [38]
[46] CB 995, [38]
The Authority concluded that even if it accepted that the applicant faced a real chance of harm in Jaghori, that chance did not extend to all areas of Afghanistan.[47] The Authority recorded that the delegate had identified Kabul as a possible place to which he could relocate and invited the applicant to comment. The applicant’s representative responded that it was not reasonable for the applicant to relocate to Kabul, and also provided argument against the viability of relocating to Herat and Mazar-e-Sharif. The applicant subsequently provided an extensive written submission which included 13 pages of argument regarding the unreasonableness of relocation to Kabul, Mazar-e-Sharif, or Herat.[48] After a detailed review of country information and the applicant’s submissions, the Authority was not satisfied that the applicant would face a real chance of harm in Mazar-e-Sharif as a Hazara or an imputed Shia.[49]
[47] CB 995-997, [39]-[47]
[48] CB 997, [48]
[49] CB 997-999, [49]-[57]
The Authority considered the applicant’s claim that he would be socially ostracised on account of the time he had spent in Australia and for being a failed asylum seeker.[50] Relying on country information, it found that whilst there have been some incidents of returnees being targeted by anti-government elements, most returnees keep a low profile, do not face a significantly higher risk than other Afghans with a similar profile, and there is not widespread or systematic targeting of returnees.[51] The Authority found that the applicant would not publicise his lack of commitment to Islamic principles, and would continue to attend public Shia festivities and religious ceremonies. Combined with the very limited presence of Sunni militant groups in Mazar-e-Sharif, this strongly suggested that the applicant’s risk as a lapsed Shia Muslim was remote.[52] The Authority was satisfied the applicant had retained his cultural identity, and any steps he would need to take to conceal his association with the West would not conflict with a fundamental characteristic of his identity.[53] It was not satisfied that he faced a real chance of harm from anyone on account of being a failed asylum seeker returning from a Western country, or a Hazara who was a lapsed Muslim.[54]
[50] CB 1000, [59]
[51] CB 1000, [59]-[61]
[52] CB 1001, [64]
[53] CB 1002, [66]
[54] CB 1002, [67]
The Authority considered whether the applicant faced a real chance of harm in Mazar-e-Sharif and in accessing Mazar-e-Sharif.[55] Relying on country information, the Authority found that people with the applicant’s profile were not targeted by criminal elements in Mazar-e-Sharif.[56] It found that most returnees are returned to Kabul, and there was no evidence that the applicant could not finance air travel from Kabul to Mazar-e-Sharif.[57] He may briefly need to stay in Kabul, but it is unlikely he would attend Shia sites or religious ceremonies there (where most attacks have occurred).[58] The Authority concluded that the chance of harm during this transit would not rise to a real chance.[59]
[55] CB 1002, [68]
[56] CB 1002 [68]
[57] CB 1002-1003, [69]
[58] CB 1002, [69]
[59] CB 1003, [69]
The Authority was not satisfied the applicant faced a real chance of persecution in Mazar-e-Sharif, and it concluded that s.36(2)(a) of the Migration Act was not met.[60]
[60] CB 1003, [70]
Complementary protection assessment
The Authority relied on its anterior findings in support of its conclusion that it was not satisfied that the applicant faces a real chance of harm in Mazar-e-Sharif for any of the bases claimed.[61] The Authority then assessed whether it would be reasonable for the applicant to relocate to Mazar-e-Sharif. In that regard, the applicant had argued that he would be unable to locate to urban areas such as Mazar-e-Sharif and would be forced into poverty as he would not have any meaningful support networks, and that his experiences adapting to life in Australia were not transferable to relocating in Afghanistan.[62] The Authority accepted that the applicant would face significant challenges in relocating to Mazar-e-Sharif, especially given he may have no family networks to draw from there.[63] However, it did not accept that he would be unable to establish himself or subsist.[64] It also found that his experience in Australia was not irrelevant, and that it in fact demonstrated that he was a resourceful and resilient person.[65] Having considered the applicant’s personal circumstances, the Authority was satisfied he would be able sustain himself and integrate into the local community in Mazar-e-Sharif.[66] The Authority was ultimately satisfied that it was reasonable for the applicant to relocate to Mazar-e-Sharif.[67] It therefore concluded that the applicant did not meet s.36(2)(aa) of the Migration Act.[68]
[61] CB 1003, [73]
[62] CB 1004, [76]-[77]
[63] CB 1005, [79]
[64] CB 1005, [80]
[65] CB 1005, [81]
[66] CB 1005-1006, [82]
[67] CB 1006, [85]
[68] CB 1006, [86]
The current proceedings
These proceedings began with a show cause application filed on 26 August 2019. After obtaining legal representation, the applicant filed an amended application on 2 June 2020. At the trial of this matter on 15 June 2020 the applicant sought leave to rely upon a further amended application. The Minister opposed leave being granted. I granted leave, taking into account that the further amended application raised an additional ground which had already occurred to me and which I proposed to raise in oral argument. The further amended application contains three grounds:
1.The Immigration Assessment Authority (IAA) erred in considering the written record of the entry interview and the audio recording of the entry interview (Entry Interview Information):
a. without the IAA first determining whether it was satisfied that there were exceptional circumstances justifying the consideration of the Entry Interview Information under s 473DD of the Act; and/or
b. without the IAA complying with its obligations under section 473DE of the Act.
Particulars
i. The IAA considered the Entry Interview Information, but it was ‘new information’ as defined by s 473DC.
ii. Section 473DD prohibited the IAA from considering it unless the IAA was satisfied that there were exceptional circumstances justifying their consideration, which was a state of satisfaction the IAA did not reach.
iii. Further, s 473DE required the IAA to give the Applicant particulars of the information, which it did not do.
2. In the alternative to ground 1, the IAA erred by failing to consider the audio recording of the entry interview, or reasoned in a way that was illogical or irrational, in rejecting the Applicant’s claim that he had been interrogated by Taliban and/or Pashtun militants.
Particulars
i. The audio recording of the entry interview, being part of the review material the IAA was required to consider, disclosed that the Applicant was told by the interviewer that when answering questions, the Applicant was to give ‘a few sentences’ and that the interviewer would ask the Applicant ‘for more information if I need it’.
ii. This direction by the interviewer explained the Applicant’s omission from his answers in the entry interview that he had been interrogated by militants.
iii. If the IAA considered the audio recording of the entry interview, it would have been aware of the direction given by the interviewer to the Applicant to be brief, and could not have logically nor rationally rejected the Applicant’s claim that he had been interrogated on the basis that it was not mentioned in the entry interview.
3. In the further alternative to ground 1, if the audio recording of the entry interview was not ‘new information’. then the IAA’s use of it without first exercising its power under s 473DC of the Act, was legally unreasonable.
Particulars
i. The unreasonableness arises because if the recording was not new information, it was therefore before the delegate at the time of her s 65 decision. However, because the recording was not a reason or part of the reason for refusing the application, the delegate was not required to put it to the Applicant for comment under s 57. The Applicant therefore had no notice that the recording was material which the IAA may have relied on as the reason or part of the reason to affirm the refusal.
I have before me as evidence the court book filed on 23 October 2019. I also received two affidavits:
a)the affidavit of Reuben Saul Jahnke made on 1 June 2020, to which is annexed a number of documents including a record of the applicant’s entry interview on 19 May 2013[69] (entry interview transcript) as well as a transcript of the applicant’s SHEV[70] interview on 23 March 2017[71] (SHEV transcript); and
b)the affidavit of Brent Addison made on 10 June 2020, to which is annexed a number of documents bearing on the question of whether the delegate had before her the written record of the entry interview and the audio recording of that interview.
[69] RSJ-3
[70] Safe Haven Enterprise Visa
[71] RSJ-4
Both the applicant and the Minister filed written submissions relating to the first two grounds in the further amended application. The third ground was addressed in oral argument. The representatives sought and were granted the opportunity to file post-hearing written submissions in relation to that ground, augmenting their oral submissions, and directed in particular at the significance of the Authority’s reasoning at [9].[72]
[72] CB 987-988
Further submissions on behalf of the applicant were filed on 29 June 2020. The Minister’s further submissions were filed on 13 July 2020.
Consideration
Ground 1 – did the Authority fail to comply with s.473DD of the Migration Act?
The first ground contends that the Authority erred by considering both the written record of and audio recording of the entry interview conducted with the applicant without considering whether there were exceptional circumstances to justify considering this material (pursuant to s.473DD(a) of the Migration Act), and without giving the applicant particulars of the information (pursuant to s.473DE of the Migration Act).
The first ground fails because the written and audio record of the entry interview were not “new information”. In that regard, I accept from the affidavit of Mr Addison that the written record of the entry interview was plainly “before the delegate” before she made her decision and an inference is available, that having accessed the audio recording prior to her decision, the audio recording was before the delegate as well.
The factual matrix relevant to this proceeding concerns what happened to the applicant in 2012 when he was travelling in a group of five from Jaghori to Ghazni, when their vehicle was stopped by a group of Pashtun militants.
In the entry interview that was administered with the applicant on 19 May 2013 shortly after his arrival in Australia, the applicant gave an account of this incident. The Minister’s Department’s written summary of the interpreted English answers given by the applicant in this entry interview records that the applicant stated: [73]
[73] CB 9
1. Why did you leave your country of nationality (country of residence)?
Because Afghanistan is not safe and secure. One day I was on the way to my village Iodqul, and I was taking some animals for butchering. I saw on the way that some people attacked on some workers on the roads, people building the roads, I saw two dead bodies there on the roads as well. More than 5-10 times these incidences has happened. I have seen these kinds of things with my own eyes.
When I was on the way from Ghazni to Jaghori and we were stopped by the theives and they took my ring and the rings, watches and money form the people in the car. But first they took us to a very narrow valley, asked us to take off any valuables, even they took my shoes as well.
The thieves were Talib/Pashtoon.
(errors in original)
The applicant recounted the 2012 incident in the written statement accompanying his protection visa application as well, in which he wrote:[74]
12. Some time in about 2012, I was travelling from Ghazni province towards my home village. A group of armed Pashtuns stopped our vehicle near the Tangi area of Gelan district. We were then taken to an unknown area (near a mountain). They began searching everyone for valuables including our bags. Once they collected all our valuables, we were ordered to go back in the car. Two of the armed Pashtuns sat in the car with us and another followed us on his motorbike. The armed Pashtuns left us on the main road and left with the motorbike rider. We then immediately travelled towards my home village in Jaghori district. I believe they were members of the Taliban, however, I was shocked that we were freed without being physically harmed.
[74] CB 60
When the delegate conducted the SHEV interview with the applicant, he again gave an account of the 2012 incident: [75]
[75] SHEV transcript, 11.10-12.6
DELEGATE: Okay. Now you also said that you feared harm because you might be targeted by the Taliban or by ISIS. Why do you think you specifically would be targeted?
APPLICANT: As I have experienced myself when I lost my father, [inaudible] on their hand. And myself experienced a lot of torture and trauma at the hand of the Taliban, you know one day we were stopped, five of us, and they searched all our body and they took all our belongings our mobile and everything and then uh, they tied our hands at the back of us, behind our back and they were interrogating us, [inaudible] ten hours from Hotqool and then the next question was do you know Salam that he is another commander in the area. They asked me do you know Salam and I said yes I know Salam and they said what Salam do?
DELEGATE: Who is Salam sorry?
APPLICANT: He is working with the army, he is like a commander
DELEGATE: Which army?
APPLICANT: Afghanistan
DELEGATE: There must be a lot of people with the name Salam.
APPLICANT: Salam from Hotqool yes, only one
DELEGATE: Salam from? Hotqool.
APPLICANT: He said you know what Salam does, and I said I don’t know what he’s is doing. He is in the bazaar he has the car he goes around in the bazaar but I don’t know what he’s doing. And then he had the gun on his hand, he hit with the bottom of his gun on my head and said how you not know what Salam is doing. I said I’m a butcher I don’t know anything about what people does.
DELEGATE: Okay, how many people were detained at that stage when you were robbed.
APPLICANT: The same incident?
DELEGATE: When you were detained that time you were talking about now
APPLICANT: Five of us
DELEGATE: Five. Okay, and were you all from the same district?
APPLICANT: Yes. No sorry, they’re not from the same village
DELEGATE: From the same village?
TRANSLATOR: They’re not
DELEGATE: not from. Okay and where exactly was it that were you detained?
APPLICANT: Pangi
DELEGATE: Right so you were travelling from Ghazni toward your home village. Was it halfway there? Where was it exactly?
APPLICANT: About forty minutes from the area.
As can be seen, the applicant was more expansive in his SHEV interview about the incident. He attributed his fear of being “specifically” targeted to the 2012 event, and gave additional detail about him having been interrogated by his captors about a local army commander. The grounds of judicial review concern the Authority’s reasoning in rejecting that the interrogation described by this additional detail ever occurred.
The applicant made other protection claims, but they are not relevant to this proceeding.
I otherwise accept the Minister’s submissions in relation to Ground 1.
Ground 1 relies on an inference being drawn from the matters referred to in the applicant’s submissions that the entry interview (the written record and/or the audio recording of same) was not “before the Minister” when the delegate made the decision.
It has been held that the words “before the Minister” in s.473DC(1)(a) refer only to material physically before the Minister, not in respect of which the Minister may have constructive knowledge because of the breadth of the material held by the Minister’s Department.[76]
[76] see DTK17v Minister for Immigration [2018] FCAFC 170 at [38] per McKerracher, Gleeson and Burley JJ
A failure to refer to a certain piece of evidence does not give rise to an inference that that piece of evidence was not “before the Minister”. Given that a failure to refer to a piece of evidence does not of itself give rise to an inference that that piece of evidence was not considered,[77] it would be a surprising position if a failure to refer to a piece of evidence of itself could give rise to an inference that that piece of evidence was not “before the Minister”. That is particularly so given that the Secretary’s obligation under s.473CB(1)(a) of the Migration Act is only to provide a statement of reasons that refers to the evidence on which the delegate’s findings of fact were based.
[77] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [10]
In DPT17 v Minister for Home Affairs,[78] her Honour Banks-Smith J considered what was required to raise an inference that certain material was not “before the Minister”. Her Honour said at [37]:
In order to raise an inference of a negative proposition, sufficient evidence of the same needs to be adduced by the party carrying the onus. Evidence merely giving rise to speculation is not adequate: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 616 617 [67] [69]. …
[78] [2019] FCA 872
Her Honour went on to observe at [37] that, where the party who has all the knowledge of the relevant facts fails to adduce evidence contrary to the asserted inference, even somewhat slight evidence may be sufficient to raise the inference.
In the present case, contrary to the applicant’s submissions, the Minister has produced evidence disputing the asserted inference. That is the affidavit of Mr Addison. That evidence establishes that:
a)on 10 April 2016, the applicant made a request to the Minister’s Department for a copy of his first interview. In response to that request, on 14 April 2016, the Minister’s Department released to the applicant copies of the files which included the following:
i)arrival interview transcript – file reference ADD2013/857219;
ii)arrival interview audio recording – file reference ADD2013/851539;
b)copies of the above files were then stored on an FOI[79] file numbered ADF2016/15956. The individual files were renamed as follows:
[79] Freedom of Information
i)ADD2013857219 – OTL046 [applicant’s name] Arrival Interview;
ii)ADD2013851539 – OTL046 [applicant’s name] Interview Recording;
c)the audit records of the Minister’s Department show that the delegate:
i)viewed the written record of the entry interview (file ADD2013/857219) on 21 March 2017 (that is, before she made her decision in this matter on 16 May 2017);
ii)moved a copy (ADD2016/487148) of the written record of the entry interview (file ADD2013/857219) to the file container pertaining to the delegate’s assessment of the applicant’s visa application (BCC2016/2164379) (“the BCC container”) on 16 May 2017 prior to the finalisation of her decision;
d)whilst the audit records are unable to establish if the delegate listened to the audio recording of the entry interview (file ADD2013/851539), they do show that, on 16 May 2017, she moved a copy of the audio recording of the entry interview from the file container holding entry interview audio recordings from those aboard the OTLEY vessel (file ADF2013/18068) into the BCC container. This occurred before the delegate finalised her decision. This evidence indicates that the delegate was, at the very least, conscious and aware of the existence of the audio recording of the entry interview before she made her decision.
Having regard to the evidence of Mr Addison, I do not draw the inference sought by the applicant. Rather, I find that the written record and the audio recording of the entry interview were “before the Minister” at the time the delegate made her decision, and therefore were not “new information” for the purposes of ss.473DC, 473DD and 473DE of the Migration Act.
Ground 2 – did the Authority fail to consider the audio recording of the entry interview?
The second ground contends, in the alternative, that the Authority erred by failing to consider a partial portion of the audio recording of the entry interview, or, in the alternative, by reasoning in a way that was illogical or irrational in rejecting the applicant’s claims that he had been interrogated by the Taliban and/or Pashtun militants.
The short answer to this claim is that if the Authority failed to consider the difference between the audio recording and the written record of the entry interview, it was neither unreasonable or material.
I accept the Minister’s submissions in relation to this ground.
The applicant relies heavily on the following statement made by the interviewer during the entry interview conducted with the applicant on 19 May 2013:[80]
[80] entry interview transcript, 1.22-31
Briefly I just need a few sentences and I’ll ask you for more information if I need it.
It is not correct to say, as the applicant does, that the applicant was, by this statement, directed to omit relevant details of his claims for protection. First, there is no evidence to establish that fact. But in any event, those words do not constitute a direction of the kind asserted. He was being asked to, as succinctly as possible, state the reasons why he left Afghanistan. He was not being directed to exclude from mention any reason he had for leaving Afghanistan.
The Minister observes that the applicant has been selective in the identification of this sentence from the transcript. It is important that the whole of the transcript be examined and not merely one sentence from it.
Significantly, the following occurs at page 1 of the transcript:
INTERVIEWER: This interview is your opportunity to provide any reasons why you should not be removed from Australia.
…
INTERVIEWER: If you do not answer questions a decision may be made on the basis of information we have.
…
INTERVIEWER: You’re expected to give true and correct answers to the questions I ask.
…
INTERVIEWER: You should understand that if information you in any future interviews is different from what you tell me now this could raise doubts about the reliability of what you have said.
Further, after the sentence relied upon by the applicant, the following exchange occurred:[81]
[81] entry interview transcript, 11.22-12.21
APPLICANT: Thief… they stole our car and they took my not only my rings in the car. Sorry people were on the car they took the ring or watches, money but they did not take this stuff when we were on the car, they took us, they stopped the car and took us to one of the valley, very narrow valley and they took our watches, rings, asked us to took off everything. Money. Even, they took my shoes as well.
INTERVIEWER: Okay and did anything else happen to you?
INTERPRETER: [speaking to applicant]
APPLICANT: No
…
INTERVIEWER: Okay, so you’d seen it happen to other people, but did you have any concerns for it happening to you?
INTERPRETER: [speaking to applicant]
APPLICANT: So yeah I think that maybe one day I have to face for the same problems or get if I was in Afghanistan I would face the same problems.
INTERVIEWER: Is there any particular reason…is there any reason why you in particular may face that problem?
INTERPRETER: [speaking to applicant]
APPLICANT: I mentioned before that the thieves they took all of my stuff, my watch, rings, shoes, moneys so it’s after that that I made the decision to leave the country, because it could be possible it’s possible that they do the same thing again with me because I always, you know, do [inaudible] in my village, I mean the animal next time they might kill me [inaudible] so that’s why I left the country.
INTERVIEWER: Why do you think they might kill you?
INTERPRETER: [speaking to applicant]
APPLICANT: So, Afghanistan is not secure. It is not safe.
INTERVIEWER: Any other reasons for leaving Afghanistan?
INTERPRETER: [speaking to applicant]
APPLICANT: Not, not really working, you know, working in Afghanistan and that was my kind of way to work as a butcher and I had to go to Ghazni bring the animals from Ghazni and as I mentioned before about that is that it’s possible that again they start fighting each other and people start losing their life.
When the transcript is reviewed in its entirety, it is clear the interviewer prompted the applicant with further questions and gave him the opportunity to expand upon his reasons for leaving Afghanistan. Significantly (as can be seen from the above extract), the interviewer asked the applicant for more details about the incident where he said he was stopped and robbed, and then later also asked, “Any other reasons for leaving Afghanistan?” At no time did the applicant say he had been interrogated by militants during the relevant incident and asked specific questions about a local Afghan army commander. This is despite further questioning and prompting from the interviewer, which also included the following:[82]
[82] entry interview transcript, 13.16-30
INTERVIEWER: Were there any armed groups operating in the area that you lived?
…
APPLICANT: So, not [inaudible] but we are neighbour we’re on the border with Pashtun peoples.
INTERVIEWER: And do you have any difficulties because of that?
INTERPRETER: [speaking to applicant]
APPLICANT: Yeah, sometimes you just, we don’t know who they are they just sometimes get out of their house and they kill you and sometimes they, they block the door and kill people, they shoot, they see someone [inaudible]
INTERVIEWER: And have you had any interactions have you ever come across then?
INTERPRETER: [speaking to applicant]
APPLICANT: Yeah, when they, when the thieves took my all stuff so yeah, it’s because they are from same area.
I also accept that the material before this Court does not support an inference that the Authority did not have regard to the audio recording of the entry interview, and in particular to the impugned sentence, for the following reasons:
a)the absence of any express reference to the impugned sentence in the audio recording in the Authority’s decision is not significant. For the reasons given above, it would have been entirely open for the Authority not to take the impugned sentence as having constituted any direction that the applicant exclude detail from his claims for protection;
b)further, in this regard, it is relevant that the applicant did not claim in his statutory declarations provided with the visa application that he did not provide full details of his claims for protection at the entry interview because he was directed to be brief by the interviewer;
c)it is well settled that the absence of an express reference to particular evidence of itself does not give rise to an inference that the evidence was not considered; and
d)in discussing the applicant’s entry interview, the Authority referred to it as the applicant’s “oral account”.[83] This is consistent with the Authority having reviewed the audio recording of the entry interview.
[83] CB 993, [31]
In relation to the alternative argument that the Authority’s rejection of the applicant’s claims that he was specifically interrogated in 2012 on the basis that it was not mentioned in the entry interview was illogical or irrational, I accept that the present case is factually distinguishable from AVQ15 v Minister for Immigration.[84]
[84] [2018] FCAFC 133
The Full Federal Court in AVQ15 considered the legal principles guiding judicial review of adverse credibility findings, some of which were set out in [40] of its decision. The Full Federal Court then summarised those principles as follows, at [41]:
a)the issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations;
b)while findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction;
c)whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error;
d)even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision);
e)merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Administrative Appeals Tribunal, which is required by s.430 of the Migration Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making;[85]
f)considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.
[85] see Yusuf at [10] per Gleeson CJ
In AVQ15 the jurisdictional error arose from a failure to consider evidence that would have materially affected the assessment of the applicant’s credibility. The Court found at [47] that the Tribunal had erred by failing to have regard to what the applicant had said during his Departmental interview on topics in relation to which the Tribunal made findings of inconsistency. This is a different situation to the present case. In the present case, the Authority did have regard to all versions of the relevant incident that the applicant had given. In the circumstances, the present case is distinguishable from AVQ15.
Further, in the present case, the Authority did not make an adverse credibility finding and then reject the applicant’s claims as a result. Instead the Authority referred to the various versions the applicant had given of the relevant incident, and determined it would prefer the versions given by the applicant of that incident in his entry interview and in the statutory declaration provided with his visa application (which were generally consistent),[86] rather than the version given at the visa interview.[87] In doing so, the Authority took into account “the circumstances and purpose of the Entry Interview, and that the passage of time can affect a person’s ability to consistently recall details about an event that took place some time earlier”.[88] It was open for the Authority to make the findings it did in the factual circumstances of this case.
[86] CB 993, [31]
[87] CB 993-994, [31]-[32]
[88] CB 993, [32]
For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, extreme illogicality or irrationality must be shown.[89]
[89] Minister for Immigration v SZRKT (2013) 212 FCR 99 at [148] (Robertson J); Minister for Immigration v SZUXN [2016] FCA 516 at [52] (Wigney J), approved in CQG15 v Minister for Immigration (2016) 253 FCR 496 at [60] (McKerracher, Griffiths and Rangiah JJ). See also Minister for Immigration v SZVFW (2018) 92 ALJR 713 at [53]-[54] (Gageler J), [79] (Nettle and Gordon JJ), [131], [133]-[135] (Edelman J); Minister for Immigration v Gill [2019] FCAFC 9 at [8] (Moshinsky, Charlesworth and Lee JJ)
In Minister for Immigration v SZMDS,[90] Crennan and Bell JJ set out the test for irrationality or illogicality at [131] as follows:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[90] (2010) 240 CLR 611
This is not a case where it can be said that:
a)there was only one conclusion open on the evidence before the Authority and the Authority did not come to that conclusion;
b)the decision to which the Authority came simply was not open on the evidence;
c)there was no logical connection between the evidence and the findings made by the Authority;
d)the Authority’s reasons were unintelligible; or
e)there was an absence of logical connection between the evidence as a whole and the Authority’s reasons for decision,
thereby rendering the Authority’s decision “illogical” or “irrational”.[91] “Emphatic disagreement” with the Authority’s reasoning is not sufficient to make out illogicality.[92] If reasonable minds could differ about the assessment of evidence, that assessment cannot be said to be illogical or irrational.[93]
Ground 3 – did the Authority act unreasonably in failing to exercise its power under s.473DC of the Migration Act in relation to its use of the entry interview?
[91] SZMDS at [135]
[92] SZMDS at [124]
[93] SZMDS at [131]
At [9] of its reasons the Authority stated:[94]
The applicant has requested that the IAA "utilises its discretion pursuant to s.473DC(3) of the Act to invite him to attend a hearing to address his claims for protection and adverse information (if any) that arises throughout the review process". He has not suggested, beyond this very general statement, that there is any particular information he is seeking to give, nor offered any reason as to why he considers it would be appropriate for the IAA to exercise this discretion in this particular instance. I note the applicant has had assistance from a legal practitioner in preparing the SHEV application and also participated in an interview with the delegate in March 2017. The applicant's legal practitioner provided the delegate with extensive oral submissions as well as a 33 page written submission that covered at length the circumstances in Jaghori, and also put forward detailed arguments as to why it would not be safe or reasonable for him to relocate within Afghanistan, including to the cities of Kabul, Mazar-e-Sharif (also known as Mazar) or Herat. Whilst I take into consideration in this context that a lengthy period of time has now elapsed since the delegate's decision, I note that the applicant has provided the IAA in July 2019 with a substantial amount of new information which, for the reasons given earlier, I have considered. The submission to the IAA has also presented further argument responding to the delegate's decision and has reiterated his claims for protection. I note the role of s. 473DC is not, in the sense contemplated by s.425, a right to give evidence and present arguments to the IAA relating to the issues arising in relation to the decision under review. I am satisfied that the applicant was given notice of the key determinative issues in his case, and that he has had a meaningful opportunity to address his claims for protection. In light of these matters I have decided not to exercise my discretion under s.473DC of the Act, to obtain further information from the applicant.
[94] CB 987-988
Applicant’s contentions
The applicant asked the Authority to exercise its discretion in s.473DC so that he could “address his claims for protection and adverse information (if any) that arises throughout the review process”.[95] The Authority (as reconstituted following previous remittal from this Court) recognised at [9] of its reasons that this request had been made. However, the Authority refused the request, reasoning that “the role of s.473DC is not, in the sense contemplated by s.425, a right to give evidence and present arguments to the IAA relating to the issues arising in relation to the decision under review”, and that the Authority considered the applicant “was given notice of the key determinative issues in his case and that he has had a meaningful opportunity to address his claims for protection”.
[95] CB 193
It is said to be significant that the Authority’s refusal to exercise the s.473DC power was expressly tied to this reasoning and nothing else. The applicant contends that any other reason that might be suggested as justifying the refusal, as may now be put against the applicant, is necessarily an impermissible reformulation of the merits for that refusal.
The applicant submits that if the Court finds that the audio recording of the entry interview was not new information,[96] and also finds that the recording was sufficiently considered by the Authority,[97] then it was legally unreasonable for the Authority to have failed to exercise the s.473DC discretion (or to have failed to consider its exercise) in the context of the Authority’s reasons at [9].[98]
[96] cf Ground 1
[97] cf Ground 2
[98] Ground 3
There are said to be two principal difficulties with [9] of the Authority’s reasons. The first is that comparing s.473DC with s.425 is beside the point: a reasonable exercise[99] of the Authority’s powers required a more nuanced analysis, and one done in the context of the facts of this case. A comparison of s.473DC with s.425 could never have been a complete answer to the inquiry, because it is too abstracted, and would point against any consideration of s 473DC, defeating the object of the power being conferred on the Authority in the first place.
[99] or consideration of exercise
The second difficulty with the Authority’s reasons is said to be that it was not the case that the applicant “was given notice of the key determinative issues in his case”. The Authority regarded as the (or a) determinative issue whether the applicant had been specifically interrogated and assaulted by the Taliban, as the applicant had said in his SHEV interview.[100] As set out in previous submissions, the essence of the relevant part of the Authority’s reasoning was that the applicant suffered from credibility problems, including because this was a recent invention. However, the delegate did not make a similar conclusion of recent invention. Indeed the delegate’s reasons make no reference to the additional detail provided by the applicant in his SHEV interview at all. The delegate’s reasons simply did not give the applicant any notice of what the second Authority selected as the (or a) determinative issue.
[100] SHEV transcript, 11.17-11.30
It may be accepted that the first Authority decision, later set aside by this Court, did include in its reasons a rejection of the applicant’s claim that he had been assaulted by the Taliban, on similar “inconsistency” in reasoning as employed in the second Authority decision.[101] The applicant submits, however, that it does not follow that he was on notice that this was an issue for the second Authority. Further, he submits that it does follow that even if he was on notice by these means, it was nevertheless reasonable for the Authority to refuse to exercise (or consider whether to exercise) the s.473DC discretion on the basis the Authority identified in its reasons at [9].
[101] CB 164 [13]
The applicant submits that he was not “on notice” of what the second Authority might have regarded as the determinative issues on remittal, because the Authority’s statutory task is to review the decision of the delegate, not a decision of itself as differently constituted. The correct focus of the enquiry is what the delegate’s reasons exposed as the issues. That focus did not change following this Court’s quashing of the first Authority decision.[102] Having been quashed, the decision was “no decision at all” and nothing in the Migration Act either “require[d] (or permit[ted]) the conclusion that despite the jurisdictional error” infecting the first decision, that quashed decision nevertheless should still have any “relevant legal consequence … attributed to” it.[103] In the context of Part 7AA specifically, the Full Federal Court confirmed in Minister for Immigration v CLV16[104] at [88] that the Part:
does not “attribute” any “legal consequence” to the earlier decision made by the Authority in each proceeding in circumstances where the Authority has not conducted the “review” which it was required to undertake but which was not initially undertaken.
[102] CB 178
[103] Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at [51], [153]. See also the cases cited in Sandvik Mining and Construction Australia Pty Ltd v Fisher [2019] WASC 352 at [35]
[104] (2018) 260 FCR 482
The applicant submits that, consistently with this consequence of the first Authority decision not having any legal consequence after it was quashed, the Authority Practice Direction that was operative at the time did not contain any provision contemplating how a review on remittal would be conducted,[105] in contrast to the present Practice Direction which does shape the conduct of a review on remittal.[106] That is, the circumstances arising from the former Practice Direction meant there was no occasion to give the quashed decision and its reasons any continuing legal consequence.
[105] “Practice Direction for Applicants, Representatives and Authorised Recipients” dated 17 December 2018
[106] “Practice Direction for Applicants, Representatives and Authorised Recipients” dated 1 May 2020, [29], [38]
Further, the applicant submits that the Practice Direction at the time (and as it still does now) required the applicant’s submissions be directed to any disagreement with the delegate’s reasoning. The Practice Direction warned that the Authority may return submissions that did not comply with that requirement.[107] The Practice Direction did not contemplate that a submission could address any issue the applicant wanted, including any issue not arising from the delegate’s reasoning, and the Authority was statutorily empowered to reject such a “non-compliant” submission.[108] Equally important in understanding the extent of any implication that the applicant could put in a pre-emptive submission on an issue the delegate never identified was that the Direction expressly contemplated that the Authority itself might invite the applicant to provide rebutting information or comment.[109] That is, the Practice Direction meant that the applicant could only address an issue not identified in the delegate’s reasons at the invitation of the Authority, and not pre-emptively. The applicant submits that, had he sought to put in a pre-emptive submission, he ran the risk of the Authority rejecting his submission in its entirety.
[107] “Practice Direction for Applicants, Representatives and Authorised Recipients” dated 17 December 2018, [23]-[25]
[108] See also s.473FB(5) of the Migration Act (“…not required to accept … documents”)
[109] “Practice Direction for Applicants, Representatives and Authorised Recipients” dated 17 December 2018, [34]
The applicant contends that another reason why the first Authority’s reasons do not provide a basis to infer that the applicant was put on notice of what became determinative for the second Authority, was that the first Authority’s reasons were also affected by the same “new information” and failure-to-consider issues as is alleged in this proceeding. The applicant was not required to proceed on the basis that the reconstituted Authority would (and as it turned out, did) make these errors again.[110]
[110] That is, the applicant was not required to assume that the second Authority might, like the first Authority, fail to appreciate that the entry interview was “new information”, or that the Authority might, like the first Authority, fail to consider the direction in the entry interview to refrain from providing detail
The applicant submits that this case has some similarities with DPI17 v Minister for Home Affairs[111] in which the Full Federal Court found that the Authority’s reversal of a factual finding of the delegate without an exercise of the power in s.473DC, was legally unreasonable. DPI17 shows that legal unreasonableness may arise from a failure to exercise or consider the exercise of s.473DC in relation to the reversal of a fact found by the delegate. In other words, unreasonableness arising from a failure in respect of s.473DC is not confined just to those cases where the Authority determines the matter on a new issue not traversed by the delegate.[112]
[111] (2019) 269 FCR 134
[112] cf Minister for Immigration v CRY16 [2017] FCAFC 210
DPI17 is also said to be relevant because it shows the kinds of facts that have given rise to unreasonableness associated with a failure to exercise s.473DC. That is notwithstanding that unreasonableness is not assessed in a rigid “checklist” or comparative exercise. Equally however, DPI17 is not a threshold for unreasonableness; each claim of unreasonableness is to be resolved on its facts.[113]
[113] DPI17 at [42]
The relevant claim in DPI17 was that the appellant had been sexually assaulted by authorities. The delegate interviewed the appellant, gave indications in the interview consistent with acceptance of the claim, and ultimately did accept the claim. However, the Authority rejected the claim, and did so without exercising its s.473DC power. The Full Federal Court found that this was unreasonable. Justices Griffiths and Steward arrived at this conclusion including because of their finding that the Authority had listened to a recording of the delegate interview and therefore became aware that the delegate had regarded certain inconsistencies as inconsequential.[114]
[114] [46](5), [47](2)
The applicant contends that the same observation can be made of his case. The Authority stated it listened to the delegate interview at [15], and so must have known that she did not express any concern about “recent invention” arising from supposed inconsistency between the additional detail in the delegate interview and the lack of detail in the written statement (and entry interview). The Authority also had the delegate’s reasons, and so must have known that the delegate said nothing in them either about “recent invention”. All of this is said to be consistent with the delegate treating the difference as “inconsequential”, and the Authority knowing that that was the impression left by the delegate.
The applicant submits that, importantly, unreasonableness was found in DPI17 at [23] despite an implication from the transcript of the delegate interview that the delegate had actually raised inconsistencies about the appellant’s narrative as to the assault. The Minister relied on this to unsuccessfully contend that the appellant was “on notice” that the credibility of his narrative about his claimed assault was an issue.[115] (Of course, in the present case, there was never any discussion at all between the applicant and the delegate from which it might be inferred that the delegate had reservations about the applicant’s narrative: the delegate appears to have had at least an acquiescing acceptance of the additional detail provided by the applicant).[116]
[115] [33]
[116] The delegate asked for some further details, and then simply moved on: entry interview transcript 11.11-12.7. In the rest of the interview, the delegate was specifically asked by the applicant and his representative whether she had any reservations, and she did not express any. See eg T12.30-35, 15.21-25, 16.29-32.
Finally, the applicant submits that if, despite his submissions above, the Court finds that he was “on notice” through the first Authority’s reasons, that was no more notice than what was insufficient in DPI17. The applicant specifically asked for an opportunity to respond to “any” adverse information that arose in the review process,[117] and any notice in the first Authority’s reasons of an issue that might have been relied on by the second Authority came about so indirectly so as to have made it unreasonable to fail to exercise the s.473DC power.
[117] CB 193
Resolution
I prefer and accept the Minister’s supplementary submissions on this ground.
At the heart of Ground 3 is the question whether the Authority erred in failing to exercise (or consider exercising) its discretionary power under s.473DC to invite the applicant to provide any comments he wished to make in relation to an inconsistency in his entry interview to information given in his visa interview, where the Authority relied on that inconsistency but the delegate had not.
The Minister’s submissions assume (correctly) that this Court has accepted the Minister’s evidence and submissions, and is satisfied that the applicant’s entry interview (both written and audio-recorded versions) were “before the Minister” at the time the delegate made her decision, and therefore were not “new information” for the purposes of Part 7AA (Ground 1); and that the Authority properly considered the interview (Ground 2).
The claim to which this ground relates is a claim made by the applicant that, in 2012 when he was travelling between Ghazni and Jaghori, the vehicle he was in was stopped by Pashtuns/the Taliban, his bags were searched and his valuables stolen. This claim was made by the applicant:
a)in his entry interview:
i)at CB 9, Q1:
When I was on the way from Ghazni to Jaghori and we were stopped by the thieves and they took my ring and the rings, watches and money form [sic] the people in the car. But first they took us to a very narrow valley, asked us to take off any valuables, even they took my shoes as well;
ii)at page 11 of the entry interview transcript:
INTERVIEWER: [inaudible]
INTERPRETER: [speaking to applicant]
APPLICANT: Thief … they stole our car and they took my not only my rings in the car. Sorry people were on the car they took the ring or watches, money but they did not take this stuff when we were on the car, they took us, they stopped the car and took us to one of the valley, very narrow valley and they took our watches, rings, asked us to took off everything. Money. Even, they took my shoes as well.
INTERVIEWER: Okay and did anything else happen to you?
INTERPRETER: [speaking to applicant]
APPLICANT: No.
b)in his statement of protection claims provided with the visa application. At [12], the applicant states:[118]
Sometime in about 2012, I was travelling from Ghazni province towards my home village. A group of armed Pashtuns stopped our vehicle near the Tangi area of Gelan district. We were then taken to an unknown area (near a mountain). They began searching everyone for valuables including our bags. Once they collected all our valuables, we were ordered to go back in the car. Two of the armed Pashtuns sat in the car with us and another followed us on his motorbike. The armed Pashtuns left us on the main road and left with the motorbike rider. We then immediately travelled towards my home village in Jaghuri district. I believe they were members of the Taliban, however, I was shocked that we were freed without being physically harmed.
[118] CB 60
However, in the interview with the delegate, the applicant provided a different version of what had occurred in 2012 when he was stopped travelling between Ghazni and Jaghori. The applicant said:[119]
[119] SHEV transcript, 11.11-30
DELEGATE: Okay. Now you also said that you feared harm because you might be targeted by the Taliban or by ISIS. Why do you think you specifically would be targeted?
APPLICANT: As I have experienced myself when I lost my father, [inaudible] on their hand. And myself experienced a lot of torture and trauma from the hand of the Taliban, you know one day we were stopped, five of us, and they searched all our body and they took all our belongings our mobile and everything and then uh, they tied our hands at the back of us, behind our back and they were interrogating us,[inaudible] ten hours from Hotqool and then the next question was do you know Salam that he is another commander in the area. They asked me do you know Salam and I said yes I know Salam and they said what Salam do?
DELEGATE: Who is Salam sorry?
APPLICANT: He is working with the army, he is like a commander
DELEGATE: Which army?
APPLICANT: Afghanistan
DELEGATE: There must be a lot of people with the name Salam.
APPLICANT: Salam from Hotqool yes, only one
DELEGATE: Salam from? Hotqool.
APPLICANT: He said you know what Salam does, and I said I don't know what he's is doing. He is in the bazaar he has the car he goes around in the bazaar but I don't know what he's doing. And then he had the gun on his hand, he hit with the bottom of his gun on my head and said how you not know what Salam is doing. I said I'm a butcher I don't know anything about what people does.
The delegate did not specifically refer to the applicant having changed his version of the 2012 event in her decision. Rather, in considering whether the applicant faced harm on the basis of being imputed with anti-Taliban views (which she found he did not), the delegate stated:[120]
When asked why he thought he would be targeted by the Taliban or ISIS he responded that he has experienced it with the loss of his father. He experienced a lot of torture and trauma in 2012 when they took their belongings and tied their hands behind them and interrogated them. He was hit on the head with the bottom of a gun.
[120] CB 146-147
In the first decision by the Authority, reference is made to the change in version in relation to the 2012 incident given by the applicant in the visa interview.[121] The Authority considered this claim further at [13],[122] and stated:
In his SHEV statement, the applicant claimed that in 2012 he was travelling with others through Gelan District when the vehicle was stopped by persons he suspected of being Taliban. He claimed everyone’s bag was searched and their valuables were stolen. I note this was consistent with the applicant’s evidence in an earlier interview with the department on 19 May 2013 (entry interview). However, in the SHEV interview, he also claimed that during this same incident he and four others were tied and bound by the Taliban, that he was interrogated about his knowledge of a local army commander, and that he was struck in the head with the butt of a gun. The applicant did not advise the delegate why this additional information had been omitted from his otherwise detailed written claims. Country information indicates that in 2012 there was a significant Taliban and criminal presence on the roads within and around Gelan District. I am prepared to accept the applicant’s consistent evidence that he had his personal effects stolen by armed criminals during this incident. However, due to the unexplained inconsistency, I do not accept the applicant’s claims, first raised in the SHEV interview, that he was bound, interrogated, and assaulted during this incident.
(emphasis added)
[121] CB 163, [6]
[122] CB 164-165
Paragraph [9] of the present Authority’s decision is reproduced above at [64].
Having regard to the above, it is clear that the inconsistency between the version of the 2012 incident given by the applicant in his entry interview and visa statement, versus the version given in the interview with the delegate, was a matter that was relevant to the first Authority’s decision not to accept the interrogation claims made in the visa interview. It was, therefore, a key determinative issue that the applicant in fact had notice of (for the purposes of [9] of the present Authority’s decision).
I accept the parties’ submissions that the quashing of the first Authority’s decision had the consequence that the decision had no legal effect. However, the quashing of the decision did not operate to, in effect, erase the content of that decision from the applicant’s mind, such that he was no longer on notice of a determinative issue in his case. The applicant being in fact on notice of the relevance of the inconsistency in his versions of the 2012 incident to the assessment of his claims is a factual consequence of the first Authority’s decision, not a legal one.
Following remittal of the matter to the Authority, on 12 July 2019, the applicant’s representative provided submissions to the Authority.[123] Included in those submissions was the request for an opportunity for the applicant to be interviewed in relation to his protection claims,[124] which the Authority dealt with in [9] of its decision. The request for an opportunity to be interviewed was in the following terms:[125]
In DZU16 v Minister for Immigration & Anor [2017] FCCA 851, [Judge] Driver stated that ‘the discretion in s.473DC(3) exists to be exercised in an appropriate case, in aid of the objective of making the correct or preferable decision’. The Applicant requests the opportunity to be heard by the IAA in relation to his claims for protection. Specifically, the Applicant requests the IAA utilise its discretion pursuant to s.473DC(3) of the Act to invite him to attend a hearing to address his claims for protection and adverse information (if any) that arises throughout the review process.
[123] CB 189-193
[124] CB 193
[125] CB 193
Despite referring to “adverse information (if any) that arises throughout the review process” (which would be broad enough to be a reference to inconsistency in the applicant’s versions of the 2012 incident), the applicant’s submissions to the Authority did not seek to address the inconsistency between the version of the 2012 incident given in the applicant’s entry interview and his visa statement, as against the version of the incident given by the applicant in his visa interview with the delegate.
Further, on 18 July 2019, the applicant’s representative provided the Authority with further material, including a statutory declaration made by the applicant.[126] That statutory declaration also did not address the inconsistency in the versions of the 2012 incident that had been given in the entry interview and visa application, versus the interview with the delegate. This is despite the fact that the applicant was in fact on notice that that inconsistency was a matter that was relevant to the credibility and the assessment of his claim for protection, by virtue of the first Authority’s invalid decision.
[126] CB 977-981
In any event, as the inconsistency was in the versions given by the applicant (rather than any inconsistency between the applicant’s evidence and another source of information, such as country information), the applicant knew that he had given different versions of the 2012 incident to the Minister’s Department, and that he had given those different versions before the delegate made a decision in the case. The present case can be contrasted to, and is distinguishable from, cases such as DZU16 v Minister for Immigration[127] and CRY16, where the determinative issue for the Authority was reasonableness of relocation, being an issue that was not considered by the delegate and being a matter on which there was no relevant evidence from the visa applicants.
[127] (2018) 253 FCR 526
Further, I accept that the present case is distinguishable from DPI17 and FOA18 v Minister for Immigration[128]. In both of those cases, the Authority had rejected claims made by the visa applicants that the delegates had accepted. In both of those cases, the delegate had accepted the relevant claims, despite inconsistencies in the evidence, because of a positive assessment of the visa applicant’s demeanour and credibility in the interview conducted with the delegate.[129] In those cases, the Court found it was unreasonable for the Authority not to consider exercising the discretion to invite the visa applicant to attend an interview, in circumstances where the Authority rejected the claims based on the inconsistencies, without having had the benefit of observing the visa applicant, unlike the delegate in each case. That factual scenario does not arise on the facts of the present case.
[128] [2020] FCA 815
[129] see DPI17 at [46](i) and (ii); and FOA18 at [34]
Insofar as the particulars of Ground 3 refer to the delegate having not put the inconsistency between the entry interview and visa statement as against the interview with the delegate in relation to the 2012 incident to the applicant pursuant to s.57 of the Migration Act, the Minister notes that s.57 would not have applied to this information. I accept that submission. The delegate’s consideration and assessment of the applicant’s claims is not “information” for the purposes of s.57(1) of the Migration Act. In SZBYR v Minister for Immigration,[130] the Court considered the similarly worded s.424A(1) of the Migration Act, and found at [18] that the term “information” does not extend to the decision-maker’s “subjective appraisals, thought processes or determinations” or the “existence of doubts, inconsistencies or the absence of evidence”. The same reasoning would apply to s.57 of the Migration Act.[131]
[130] (2007) 235 ALR 609
[131] In Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16, Gageler, Keane and Nettle JJ commented with approval on other aspects of the reasoning in SZBYR in relation to the proper interpretation of the similarly worded s.424A of the Migration Act
Further, in conducting its review, the Authority is to conduct a de novo review by having regard to the “review material”.[132] The Authority is not bound by the reasons given by the delegate, and must conduct its own review of the material.[133] The Authority is required to undertake an undistracted, focused and deliberative assessment of the relevant facts and circumstances.[134] As explained in DGZ16 v Minister for Immigration[135] at [72]:
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
[132] section 473DB(1) of the Migration Act
[133] Minister for Immigration v CPA16 [2019] FCAFC 40 at [32]; EVS17 v Minister for Immigration [2019] FCAFC 20 [32]-[34]; MZZZW v Minister for Immigration (2015) 234 FCR 154 at [34]-[35]
[134] SZIFI v Minister for Immigration (2007) 238 ALR 611 at [44] per Greenwood J; referred to in BRE15 v Minister for Immigration & Anor [2019] FCCA 1680 at [76]
[135] (2018) 258 FCR 551
Given the nature of the review to be undertaken by the Authority, there is nothing wrong in principle with the Authority making a different decision or making different findings of fact than the delegate made, as it is within the fact-finding jurisdiction of the Authority to make its own assessment of the evidence and the weight to be given to it. As Colvin J said in AVL18 v Minister for Home Affairs[136] at [9]:
… the Authority, when undertaking a review, has been entrusted with the statutory task of evaluating the factual basis for the appellant's claim. Therefore, it does not exceed its authority if it makes a factual finding with which others may disagree. Rather, it must be shown that by reason of unreasonableness, illogicality or a failure to engage properly with the fact-finding task or a failure to address an important claim or some other reason, the approach to fact-finding lacked the character or quality of decision that the Authority had been authorised to make. Further, unreasonableness in this context has a particular meaning. It means a decision where there is a grave factual error that has materially affected the decision. The test has been described as stringent or expressed in strong terms and the circumstances in which it might be met have been said to be extremely confined or in the realm of the extraordinary: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11] (Kiefel CJ), [52], [70] (Gageler J), [135] (Edelman J). A difference in views as to the factual conclusions that might be reached on the basis of the material before the Authority is not enough. In particular, it is for the Authority to form a view as to the country information.
[136] [2019] FCA 706
In addition, the Authority conducts its review in the context of the Part 7AA framework where it 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.[137] The Authority is also directed, when carrying out its functions under the Migration Act, to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 of Part 7AA of the Migration Act.[138] It is against this framework that any assessment is to be undertaken of the reasonableness of the Authority’s decision not to exercise (or consider exercising) its discretion under s.473DC to invite the applicant to attend an interview or to provide comments is to be assessed.
[137] subsection 473DC(2)
[138] subsection 473FA(1)
The present Authority considered the claims in relation to the 2012 incident at [31]-[33].[139] The Authority found at [32]-[33]:
…I consider the evidence he has added during the SHEV interview; that he was personally identified by the Taliban, interrogated and beaten; is significant. When compared with his earlier descriptions, these additional details contradict and materially change the nature of the event and its personal impact on him; to the extent that it cannot be explained away merely as an expansion of his earlier accounts, or an inconsistent recollection of minor detail.
I am willing to accept that the applicant was one of five people robbed whilst driving in Ghazni in 2012. As noted earlier, country information from 2012 confirms armed groups targeting people travelling on the rural roads in Ghazni were common and that such crimes were committed by multiple groups and for a variety of reasons. On the evidence he has given, I am not satisfied that the applicant was targeted on account of his ethnicity or religion, or that he was personally identified, interrogated or beaten by Taliban militants. The applicant has not claimed that, if he returned to Afghanistan, he faces a risk of harm as a result of having previously been robbed, and there is no other information before me that indicates this is the case.
[139] CB 993-994
Those findings were open to the Authority on its assessment of the evidence and material before it, and the findings are not affected by jurisdictional error. Those findings are based on the “review material”. A decision maker is entitled to rely upon inconsistencies in the review material in assessing a visa applicant’s evidence and their claims. In the absence of some unusual feature (such as the issues that arose in DZU17, CRY16, DPI17 and FOA18), the Authority is not required to consider inviting, or to invite, a visa applicant to comment on its assessment of the evidence.
Finally, in relation to the applicant’s further written submissions referred to at [68] above, the Minister’s observes and I accept that there is simply no basis to infer, from the reference to s.425 of the Migration Act by the Authority that the Authority in any way misunderstood the requirements of s.473DC or failed to give any consideration to s.473DC. On the contrary, at [9] of its reasons, the Authority expressly considered exercising its discretion to invite the applicant to a hearing. Its decision to decline the applicant’s request was open to the Authority on the material before it. Its decision in that regard was not unreasonable.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 August 2020
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