ADG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The hearing of the appeal be adjourned to 27 October 2021 at 10:15 am.
2. The first respondent prepare a transcript of the appellant's protection visa interview on 26 April 2016 and file and serve the transcript by 29 September 2021.
3. The appellant file and serve written submissions in support of the appeal by 13 October 2021, such submissions not to exceed 10 pages including any annexures and be easily legible using a font size of at least 12 points and one and a half line spacing throughout.
4. The first respondent file and serve any written submissions in reply by 20 October 2021, such submissions not to exceed 10 pages including any annexures and be easily legible using a font size of at least 12 points and one and a half line spacing throughout. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

STEWART J: 1 The appellant's application for a protection visa was refused by a delegate of the Minister for Immigration and Border Protection in November 2016 and then on review by the Immigration Assessment Authority in December 2016. The appellant sought judicial review of that decision in the Federal Circuit Court, but his application was dismissed. That was in December 2020. He now appeals from the decision of the Circuit Court. 2 One of the grounds of review before the Circuit Court, where the appellant was self-represented as he is before me, was that the Authority failed to find that the appellant "will be imputed with LTTE profile and suffer harm". That acronym is a reference to the Liberation Tigers of Tamil Eelam, a Tamil liberation movement in Sri Lanka. The appellant's claim to protection is that Sri Lankan authorities associate him with the LTTE which, taken with his Tamil ethnicity, is a basis for him to fear harm from the Sri Lankan authorities if he were returned to Sri Lanka. 3 On the ground of review identified in the preceding paragraph, the Circuit Court reasoned as follows: 11. As formulated, ground 1 goes no further than expressing disagreement with the Authority's conclusion that it was not satisfied the applicant might be imputed to have links with the LTTE. This ground could conceivably disclose jurisdictional error if, on the material that was before it, the only reasonably or rational finding that could have been made is that there is a real chance that the applicant would be perceived to have links with the LTTE. The material that was before the Authority, however, is not of such a quality. It was therefore open to the Authority, on the material that was before it, not to be satisfied the applicant might be imputed to have links with the LTTE. 4 The appellant's single ground of appeal in this Court is expressed as follows: The Federal Circuit Court erred when it held "The material that was before the Authority, however, was not of such a quality. It was therefore open to the Authority, on the material before it, not to be satisfied the applicant might be imputed to have links with the LTTE." 5 Several particulars to that ground of appeal are set out. Their principal thrust is to criticise the Authority's fact-finding process by which it reached the conclusion that "the last adverse interaction the [appellant] had with the authorities was in March 2007". The Authority therefore rejected the appellant's claims that he was detained and tortured by the Sri Lankan army in 2012 and that in 2016, when he was in Australia, the Sri Lankan Criminal Investigation Department visited his father and asked after him. That rejection formed the basis to the Authority not being satisfied that the appellant has any present well-founded fear of persecution if he returned to Sri Lanka. 6 The Authority's rejection of the appellant's contentions that the Sri Lankan authorities continued to show interest in him as someone they see to be aligned or associated with the LTTE in 2012 and 2016 is based on a number of inconsistencies that the Authority found in the appellant's accounts of the relevant events. There were three such accounts, namely the appellant's irregular maritime arrival entry interview in January 2013, a written statement by him that accompanied his protection visa application in October 2013 and his protection visa interview (also referred to as the SHEV interview) conducted by a delegate of the Minister in April 2016. 7 It is apparent from the reasons of the delegate and of the Authority that the appellant's account in his protection visa interview was significant. The delegate summarised that account in six dot-points in its reasons. The Authority naturally had access to that summary, but it appears from its reasons that it also either listened to a recording of the interview or had access to a transcript of it. It would seem that it is more likely that it was the former because the index to the court book before the Circuit Court (and the appeal book before me) refers to an audio recording of the interview (in two places) but does not refer to any transcript. Critically, though, the audio recording is indicated as "NR" in the index reflecting that it was "not reproduced" in the court book. 8 It is thus apparent that the protection visa interview was not before the primary judge when his Honour concluded that it was open to the Authority on the material before it to conclude as it did. 9 Although it is by no means easy, it is not impossible to find jurisdictional error in the fact-finding process of a decision-maker. In that regard, there are several judgments of the Full Court that caution decision-makers against too readily rejecting a claim on the basis of identified inconsistencies, particularly when several accounts have been given over a protracted period of time. The need for caution is heightened when those accounts have been given through an interpreter, as in this case, and in circumstances of disruption and distress such as an asylum seeker fleeing claimed persecution at home. See, for example, W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]-[19] per Lee, Carr and Finkelstein JJ; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [22]-[28] per Kenny, Griffiths and Mortimer JJ and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]-[45] per Griffiths, Mortimer and Steward JJ. 10 However, in order to properly assess the fact-finding process embarked on by, in this case, the Authority it is necessary to have access to the evidential material that the Authority relied on. Notably, that means access to each of the accounts given by the appellant in respect of which the Authority found inconsistencies. As indicated, neither a recording nor a transcript of the appellant's protection visa interview is in the appeal book. 11 The other ground of review before the Circuit Court was that the Authority committed jurisdictional error by failing to consider all the claims made by the appellant. The primary judge rejected that ground on the basis that "[t]here is nothing in the material before me that suggests the Authority did not identify and consider all claims that were expressly made and which reasonably arose from the materials that was before it." Given that a transcript of the protection visa interview was not before the primary judge, it is difficult to understand how it could have been concluded that there was no claim made by the appellant that was not dealt with by the Authority save, as explained by the primary judge, on the basis that the appellant failed to identify any claim that he made which the Authority failed to consider. 12 That in turn raises the responsibility of a trial judge to a self-represented litigant to ensure that the hearing is fair, and whether in the circumstances the primary judge should have called for the transcript of the protection visa interview in order to be able to decide the grounds of review, or at least to have informed the appellant that he could have insisted on a recording or transcript of the interview being produced. See, for example, Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] per Beazley JA (Giles and Whealy JA agreeing); SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [37]-[44] per Robertson J (with whom Allsop CJ and Mortimer J agreed), [52]-[55] per Allsop CJ and [59]-[60] per Mortimer J; SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; 238 FCR 15 at [38] per Kenny, Robertson and Griffiths JJ; Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; 372 ALR 401 at [103]-[106] per Murphy and Rangiah JJ. It is not necessary to decide that question. 13 In my view, a transcript of the protection visa interview is required as new evidence on the appeal. An alternative approach would be to allow the appeal and remit the matter to the primary judge to decide it on the basis of the material that was before the Authority. Without deciding this point, I observe that that approach might be justified on the basis of the insufficiency or inadequacy of the reasoning of the primary judge who on both grounds of review made conclusions on the basis of the material before the Authority when that material was not before the primary judge, or on the basis of the failure of the primary judge to ensure that the hearing was fair for the self-represented litigant. Ultimately, I was persuaded by Ms Given, who appeared for the Minister, that the proper course would be for me to determine the appeal with reference to the transcript because it may be that a remittal to the primary judge will ultimately be unnecessary and therefore wasteful - because I may be able to either dismiss the appeal or allow it and set aside the decision of the Authority without the need for any remittal to the primary judge. 14 For the reasons I have given, it is necessary to adjourn the appeal hearing to enable the transcript to be prepared and made available to the appellant and to the Court. 15 I mention also that a on the Friday before the hearing of the appeal the appellant indicated by email to the Court that he would seek an adjournment of the appeal hearing. That application was renewed orally before me through an interpreter. The appellant appeared by telephone. It is not necessary to go into the details of the basis for that adjournment save to say that it is said to be because the appellant was recently exposed to co-workers who tested positive for COVID-19 with the result that the appellant has had to take a COVID-19 test and to self-isolate. The appellant explained that he is feeling unwell and is appearing from his bed. He also said that he would use the opportunity of the adjournment to try and appoint a lawyer. 16 Given the need to adjourn the appeal hearing for the transcript to be prepared as explained, it is not necessary to deal further with the appellant's application. 17 It does not seem to me to be necessary or appropriate to make any costs order in relation to the adjournment. Neither side of the case spoke against that course. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.