AJE17 v Minister for Immigration and Border Protection

The proposed Grounds of Appeal 11 The Application for Leave to Appeal as filed in this Court on 6 July 2017 sets forth as follows (without alteration) the "Grounds" of that Application: 1. The Hon. Federal Circuit Court Judge made legal error not considering Immigration Assessment Authority (AAT) decision which do not accept Appellant request for interview and made legal error. 2. The Hon. Federal Circuit Court Judge made legal error in his judgement by not properly Appling s473DC of the Migration Act - 1958. 3. The Immigration Assessment Authority made legal error by not allowing Appellant an opportunity to attend and clarify submission provided and made legal and jurisdictional error. 4. The Immigration Assessment Authority erred in its judgment by not applying s36 (2) of the Migration Act - 1958. The Authority has not considered serious harm faced by the Appellant if he returned to Nepal. 5. The Hon. Federal Circuit Court Judge made legal error not allowing Appellant an opportunity to provide transcript of arrival interview CD which dose exists and made legal error. 6. The Hon. Federal Circuit Court Judge made legal error that Immigration Assessment Authority decision in considering country information even it is favourable to Appellant rejected the claim of harm by the TT. 12 It is assumed that these "Grounds" would be replicated as the Grounds of Appeal should leave to appeal be granted.

The absence of sufficient doubt 13 None of the proposed "Grounds" now sought to be relied upon in this Court raise any doubt, let alone "sufficient doubt", to warrant leave to appeal being granted. 14 The first Ground relied upon alleges an ill-specified "legal error". Presumably the Ground sought to be relied upon is akin to the argument advanced before the primary Judge, namely (without alteration) that the Authority erred "in its decision that no threat posed and applicant fear for his life and harm the Terai Tiger if he returns to Nepal": [2017] FCCA 1458 at [18]. This Ground was rejected by the primary Judge upon the basis that it sought to impermissibly canvass the merits of the decision made by the Authority: [2017] FCCA 1458 at [27] to [29]. That conclusion was one plainly open to be reached by the primary Judge. 15 The first Ground provides no reason to grant leave to appeal. 16 The second Ground alleges "legal error … by not properly Applying s473DC of the Migration Act". Section 473DC appears within Div 3 to Pt 7AA of the Migration Act. Part 7AA, as s 473BA states, is designed to provide "a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country". 17 Division 3 within Pt 7AA provides for the "[c]onduct of review[s]" undertaken by the Immigration Assessment Authority. Within that Division, s 473DA provides as follows: Exhaustive statement of natural justice hearing rule (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority. (2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65. Section 473DB is in Subdiv B, which provides for "[r]eview on the papers". That section provides as follows: Immigration Assessment Authority to review decisions on the papers (1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. (2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority. Section 473DC provides as follows: Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. The phrase "new information" is defined by s 473DC(1)(a) and (b). Section 473DD places a limitation upon the use of any "new information" unless the two conditions there set forth are satisfied. Section 473DD provides as follows: Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. Those conditions express "cumulative" but to some extent "overlap[ping]" requirements: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [9] per White J. 18 The "new information" the Applicant sought to be put before the Immigration Assessment Authority was characterised by the Authority as "vague". The Authority further considered that there were no "exceptional circumstances" warranting the obtaining of such "new information". In so concluding, the reasons for decision of the Authority state as follows (without alteration): 5. In the IAA submission, the applicant requests I give him an opportunity to clarify the findings of the delegate that he disagrees with and to provide additional information. He also requests I give him procedural fairness to provide additional evidence in relation to the findings of the delegate he disagrees with. He further submits the test in [Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33, (2013) 210 FCR 505] is not correct as it fails to take into account the fear he would have to live with in Nepal (which I consider further when assessing the applicant's claims under complementary protection). 6. I have listened to the SHEV interview. The delegate did discuss the issues the subject of the findings the applicant disagrees with. The delegate checked too whether the applicant whether he had raised all of his claims for protection and told the applicant any additional information he provided to the department prior to a decision being made would be considered. The delegate put the applicant on notice at the commencement of the SHEV interview that the applicant he should provide any supporting evidence and that the IAA will only have regard to new information in exceptional circumstances. The letter inviting the applicant to attend the SHEV interview also provided the same information. The IAA submission is vague as to what additional evidence it is the applicant is requesting he be permitted to provide, however I infer that additional evidence would be new information as defined in s.473DC. I am conducting a fast track review. I do not have a duty to obtain new information from the applicant just because he requests I do so. I do have a discretion to receive new information, but I can only consider that new information if there are exceptional circumstances. In these circumstances, I am satisfied it is reasonable for me to make a decision without receiving any new information from the applicant. There was no greater specification before this Court by the Applicant of the "new information" he envisaged should be obtained - and considered by - the Authority. Such further identification before this Court of this "information" was expressed initially as either "nothing" or information as to "warnings" given by the Terai Tigers. All of the "information" which the Applicant sought to place before the Authority was, however, either no information at all or what may be more accurately described as a further claim in respect to the "information" which had already been provided and which was addressed at paras [13] to [16] of the Authority's reasons for decision. Given the terms of s 473DD, there is no self-evident error in the Authority guiding the exercise of the discretionary power to "get" new information by considering that it would only have regard to such information in "exceptional circumstances". 19 As s 473DC(2) makes apparent, the Authority is under no "duty to get, request or accept, any new information": cf. DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [64] per Barker J. In the present case, there is no self-evident failure on the part of the Authority to properly consider and apply s 473DC. Nor is there any self-evident error on the part of the primary Judge as to his consideration of the manner in which the Authority undertook its review process: [2017] FCCA 1458 at [30] to [36]. 20 The second Ground provides no reason to grant leave to appeal. 21 The third Ground, as drafted, does not identify any error on the part of the primary Judge. The error relied upon is a denial of procedural fairness on the part of the Authority. But that deficiency may be left to one side. There is no satisfactory basis upon which any conclusion could be reached that the Authority denied the Applicant procedural fairness or improperly refused the Applicant's request to clarify submissions and attend an interview. Any argument as to a denial of procedural fairness by reason of the Authority not conducting an interview with the Applicant is to be considered by reference to (inter alia): the procedure in fact pursued by the Authority; and the statutory context in which the Authority was proceeding. The procedure in fact pursued by the Authority was to listen to the interview that had been already conducted by the delegate at what was referred to as the "SHEV interview" and to consider the submission provided by the Applicant. The Applicant was thereby given the opportunity to place before the Authority all such information as he wished to rely upon. 22 Given that adverse findings as to credit were made by the Authority, consideration should at least be given by the Authority to itself conducting an interview. As a matter of general principle, procedural fairness does not require a decision-maker to conduct a face-to-face interview with a claimant in all circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte P T [2001] HCA 20 at [27], (2001) 178 ALR 497 at 504 per Kirby J. The prospect of adverse credibility findings being made may suggest that such a course is appropriate: T v Refugee Status Appeals Authority [2004] NZAR 552 at 555 [18] per Miller J. But such matters of general principle have necessarily to be considered by reference to the statutory context in which the Authority in the present case was proceeding, including that: the adverse findings as to credit made by the Authority were based in large part (albeit not exclusively) upon inconsistencies in the account being given by the Applicant rather than an assessment founded merely upon whether the evidence being given should be believed or the weight to be given to such evidence; the review provided for in Pt 7AA is expressly stated to be a "limited form of review" (s 473BA) and one in which there is no right to an interview being conducted before the Authority (s 473DB(1)(b)). An applicant may make a request for an interview and the Authority is given a discretion to conduct an interview (s 473DC(3)(b)). The exercise of that discretion is necessarily one that would have to be exercised in accordance with law. Within that context, and given the extent to which the Applicant was given an opportunity to place "a submission to the IAA" as recorded at para [4] of the Authority's reasons for decision, it was open to the Authority to decline the request for an interview. The circumstances in which the exercise of the discretion conferred by s 473DC(3) may miscarry need not be explored in any great detail. One such circumstance may, perhaps, be provided if a claimant has centrally relevant information which can only be effectively communicated orally. It is sufficient in the present case to conclude that there was no identification on the part of the Applicant of any denial of procedural fairness on the part of the Authority, including the absence of any explanation as to why an interview was the only - or, indeed, a preferable - manner in which he could present his claims for review. He had been extended an opportunity to place before the Authority all such material as he wished to have considered by the Authority. 23 More fundamentally, there is no self-evident error on the part of the primary Judge as to the manner in which he resolved what was presumably a similar argument when the Applicant was before that Court: [2017] FCCA 1458 at [23] to [25]. 24 The third proposed Ground provides no reason to grant leave to appeal. 25 The fourth proposed Ground again asserts error on the part of the Authority rather than any error on the part of the Federal Circuit Court Judge. But, again, that deficiency can be left to one side. The reasons for decision of the Authority expose consideration in fact being given by the Authority to the claims made by the Applicant and that adverse findings were made as to his credit. When considering the same argument, the primary Judge concluded: [29] … Having found the applicant's claims were not credible, it was plainly open to the Authority to reject those claims, and in the absence of other evidence in support of the claims, to find the criteria in s.36(2)(a) and (aa) of the Migration Act were not met. (Footnote omitted.) That was a conclusion open to be reached by the primary Judge. 26 The fourth proposed Ground provides no reason to grant leave to appeal. 27 The fifth proposed Ground asserts error on the part of the primary Judge in not allowing the Applicant the opportunity to provide a transcript of an "arrival interview". This interview, it was understood, was not the "SHEV interview" which was the subject of the recording the Authority had considered but rather the initial interview conducted by the delegate upon the Applicant's first arrival in Australia. The relevance of the transcript was that the Applicant apparently sought to challenge submissions made by the Respondent Minister as to an inconsistency in the accounts of events previously provided by the Applicant. Recourse to the transcript, it was said, would establish the lack of inconsistency. The difficulty with this proposed Ground, and as found by the primary Judge, was at least twofold, namely: the Applicant had been afforded an opportunity to file a transcript and had failed to do so; and the account of events sought to be advanced by the Applicant was consistent with the Authority's statement as to what had been said. There is no self-evident error and no "sufficient doubt" as to the conclusions reached by the primary Judge: [2017] FCCA 1458 at [20] to [22]. 28 The fifth proposed Ground provides no reason to grant leave to appeal. 29 The final proposed Ground asserts error on the part of the primary Judge as to the manner in which his Honour resolved a submission as to country information. The proposed Ground fails, however, to identify with any satisfactory precision the error relied upon. Indeed, any challenge to the manner in which the Authority made reference to "country information" is puzzling in circumstances where the Authority concluded that such information was "broadly supportive" of the claims being made. The Authority's reasons thus state in part as follows (without alteration): [10] The applicant has consistently claimed he was extorted in the past by the Terai Tigers. I note the country information quoted by the delegate the Terai Tigers are a small, militant group in Terai region of Nepal and that group does engage in criminal activities, such as extortion. I note too the information in the DFAT report regarding the culture of forced political donations in Nepal. That country information is broadly supportive of the applicant's claims. The primary Judge resolved the same argument when it presented below as follows: [37] Ground 4 alleges that the Authority erred in that it accepted that the [Terai Tigers] existed and country information supported the applicant's claim they were engaged in criminal activity, however it found that the applicant did not meet s.36(2)(a) of the Migration Act. [38] This ground misunderstands the Authority's statement at [10] of its decision to be a finding accepting the applicant's protection claims, as opposed to an acknowledgement that the applicable country information was "broadly supportive of the applicant's claims" about the [Terai Tigers]. [39] Despite such an acknowledgement statement, it remained for the Authority to be persuaded that his individual claim of harm should be accepted. The Authority rejected the applicant's claims that he and his family were extorted by the [Terai Tigers], at [13]-[15]. It further rejected that he escaped to Kathmandu or Malaysia to avoid harm and he complained to police about the [Terai Tigers], at [16]. No error is apparent in the manner in which the Authority made use of the country information before it. 30 The final proposed Ground provides no reason to grant leave to appeal. CONCLUSIONS 31 Although each of the Grounds sought to be relied upon by the Applicant has been considered, it should be constantly borne in mind that the Application that is currently before this Court is not the hearing of an appeal; it is the hearing of an application for leave to appeal from a discretionary decision made by the primary Judge. In seeking leave, it is thus necessary to establish some potential error of the kind described in House v The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ. 32 No such error in the exercise of the discretion to dismiss the proceeding pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules has been established. Nor have any of the Grounds sought to be relied upon exposed any reason to doubt the basis upon which the primary Judge proceeded. Separate from any consideration as to the absence of any error of the kind described in House v The King, there is no sufficient reason to doubt any of the conclusions reached by the primary Judge. 33 The Application for Leave to Appeal is to be dismissed. 34 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. The Application for Leave to Appeal is dismissed.
2. The proceeding is dismissed.
3. The Applicant is to pay the costs of the First Respondent. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.