BEL18 v Minister for Home Affairs

Federal Court of Australia|2018-12-21|Before: Murphy J, Middleton J

The appeal be dismissed with costs.
Order 1 made by Justice Murphy on 25 June 2018 be vacated.
The First Respondent, by himself or his Department, officers, delegates or agents be restrained from removing the Appellants from Australia before 4:00pm on 1 February 2019. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 On 24 June 2018, BEL18 (the 'First Appellant') and BEM18 (the 'Second Appellant') (together, the 'Appellants'), appealed to the Federal Court from a judgment delivered by the Federal Circuit Court (the 'FCC') on 21 June 2018. The FCC dismissed the Appellants' application for judicial review of a decision of the Second Respondent (the 'Authority'). The Authority had earlier affirmed a decision of a delegate of the First Respondent (the 'Minister'), not to grant each of the Appellants a Safe Haven Enterprise Visa (subclass 790) ('SHEV'). 2 In this appeal, the Appellants argued that: (1) the FCC erred in finding that: (a) it was not legally unreasonable for the Authority not to exercise, or not to consider exercising, the power in s 473DC(3) of the Migration Act 1958 (Cth) (the 'Act') to get new information from the Appellants; and (b) alternatively, the Authority was not obliged to remit the matter to the Minister to permit the Appellants to put forward further information in support of their claims; and (2) the FCC erred in finding that the Authority did not fail to consider their claims to satisfy the criteria for the grant of SHEVs. 3 The Minister contended the Appellants' arguments were not made out as they had not shown the judgment of the FCC to be affected by appealable error. Among other things, the Appellants had not established that it was legally unreasonable for the Authority not to exercise, or not to consider exercising, the power in s 473DC(3) of the Act to get new information from them, nor had they established any failure by the Authority to consider their claims. 4 In my view, this appeal can be determined by an examination of the precise facts and circumstances that confronted and were known by the Authority and subsequently the FCC, and on that basis, the appeal should be dismissed. Whilst some interesting legal issues were raised by the Appellants relating to the question of remittal and relief, they do not arise when the facts and circumstances confronting the Authority are carefully considered and determined.

RELEVANT BACKGROUND 5 The Appellants are citizens of Sri Lanka. The First Appellant is the mother of the Second Appellant. On 23 November 2016, the Appellants applied for SHEVs. Only the First Appellant made claims to be owed protection obligations; the Second Appellant relied on her membership of the First Appellant's family. For the remainder of these reasons, the First Appellant will be referred to as the 'Appellant'. 6 On 23 November 2016 the Appellant applied for a SHEV. The Appellant's application originally included the husband of the Appellant, but the Appellant was advised by the Minister's delegate that the application for her husband was not valid under s 48A of the Act as he had previously been refused the grant of a protection visa. 7 The Appellant was treated as a "fast track applicant" within the meaning of s 5(1) of the Act. 8 The Appellant applied for a SHEV because if she returned to Sri Lanka in the reasonably foreseeable future, she claimed she would face a real chance of serious or significant harm at the hands of the Sri Lankan authorities on account of her status as, among other things: (1) a Tamil woman whose brother, husband and other relatives had been involved with the Liberation Tigers of Tamil Eelam (the 'LTTE'); and (2) a failed asylum seeker. 9 On 27 February 2017, the Minister's delegate interviewed the Appellant (the 'Interview'). 10 The Interview was conducted by telephone. The Appellant, an Anglicare caseworker (the 'Caseworker'), and Ms Rhonda Western of MDA Ltd were located in Biloela, Queensland. The Minister's delegate and an interpreter were located in Brisbane. And the Appellant's migration agent, Mr Nick Adler of Playfair Migration (the 'Migration Agent'), was located in Sydney. The Interview was conducted by telephone because the Appellant was eight months pregnant at the time and was unable to travel from her residence to Brisbane. There is no suggestion that the Appellant or her representatives requested an adjournment or postponement of the Interview. At the time, no complaint was made about the way in which the Interview was conducted save for some initial difficulties with the interpreter. 11 At the time of the Interview, the Appellant was also suffering a migraine and had an illness for which she had attended hospital the night before. The nature of her illness and the effect of the migraine was unclear. There is no evidence about this before the Court, nor was there before the FCC or the Authority. 12 During the course of the Interview, the phone connection momentarily dropped out and the audio recording malfunctioned temporarily. As a result, part of the Interview in which the Appellant was questioned about her claims was not recorded. The extent of this malfunction is unclear, a matter to which I will return. What is clear is that the Minister's delegate heard all parts of the Interview including the part that was not recorded, and there is no reason to believe that the whole of the Interview was not considered by the Minister's delegate. Significantly, the attack in this appeal is made upon the Authority, not the Minister. 13 On 1 March 2017, the Migration Agent lodged written submissions in support of the Appellant's SHEV application (the 'March submissions'). The March submissions did not contain any complaint about the conduct of the Interview on 27 February 2017. As I have said there was no complaint during the Interview, nor any application for an adjournment or postponement of the Interview. 14 On 9 May 2017, the Minister refused to grant a SHEV to the Appellant (the 'Minister's decision'). The Minister accepted that: (1) the Appellant and her family were adversely affected by the civil war in Sri Lanka and, in particular, the Appellant sustained shrapnel wounds and her parents were seriously mistreated by the authorities; and (2) the Appellant's brother was forced to assist the LTTE. 15 However, the Minister did not accept that the Appellant herself was ever perceived by the Sri Lankan authorities to have had any involvement with the LTTE. Among other things, the Minister did not accept the Appellant's claims about her husband's involvement with the LTTE. Nor did the Minister accept that, at the time of her departure from Sri Lanka, the Appellant had any profile of interest to the authorities. In this regard, the Minister noted that the Appellant and her family had left Sri Lanka in 2001 and travelled to India lawfully with passports and visas. 16 Given the findings about the Sri Lankan authorities' lack of interest in the Appellant, the Minister did not accept that, as a failed asylum seeker or as a relative of a person with prior involvement with the LTTE, the Appellant would face a real chance of serious or significant harm in Sri Lanka on any return there in the reasonably foreseeable future. The Minister was therefore not satisfied that the Appellant was, for the purposes of s 36(2) of the Act, a person in respect of whom Australia owed protection obligations. 17 On 12 May 2017, the Migration Agent sent an email to the Authority requesting a transcript of the Interview. The Migration Agent said that the Appellant wanted: the release of the full written and audio transcript of her SHEV interview. … to request an extension on her submission based on the inaccurate information relayed by the interpreter during the [SHEV Interview] which formed the foundation of the refusal of her SHEV application. 18 It was also requested that the full written transcript be emailed and a copy of the audio recording be posted to the Caseworker. 19 On 15 May 2017, the Authority telephoned the Migration Agent regarding the 12 May 2017 correspondence. That conversation was recorded in a case file note dated 16 May 2017. At that point in time, the Migration Agent was not a formally recognised representative of the Appellant. In respect of the request for the transcript and audio of the Interview, the Authority reiterated that such particulars cannot be sent to a third party without the authorisation of the Appellant. The Migration Agent was further advised that if the Appellant sought access to these documents, that request would need to come directly from the Appellant herself. 20 On 8 June 2017, the Caseworker wrote a letter to the Authority on behalf of the Appellant which stated that the Appellant "would like to question some of the responses noted in the [Minister's decision] as they did not believe that these were responses [the Appellant] had provided at the interview". On the same day, the Caseworker also sent a letter by email to the Authority requesting an extension of time to respond to the referral to the Authority and noting that the Appellant wanted to question the Minister's decision "due to a perceived translation error" during the Interview. 21 On 9 July 2017, the Authority responded to the Caseworker and advised that the Authority had refused to extend the time to provide further information but said no decision was anticipated before 31 July 2017 and any submissions should be received by that date. 22 On 14 July 2017, the Caseworker forwarded to the Authority an undated letter from the Appellant (the 'July submissions'). In that letter, the Appellant stated that: At the time of my interview with Department of Immigration and Border Control workers, I was eight months pregnant, with medical issues which were impacting on my personal wellbeing. I was also suffering from migraine and had taken the required medication in aid of this. Because of my state I don't believe that information was fully understood. I couldn't fully understand the interpreter, what he was saying and also was not sure of what he was interpreting back in English, and whether it was as I was stating. 23 The Appellant also claimed that, contrary to what was recorded in the Minister's decision, she had knowledge of her husband's involvement with the LTTE and that: In the interview I stated that I knew my husband had been a member of the LTTE and that I knew what position he held and the work he carried out for them. I was able to inform them that he had been in positions of political leadership in different areas of the LTTE army. I also stated that my brother was also in the LTTE. Because of this family involvement it is not safe for my husband, children and I to return. 24 On 28 August 2017, the Authority affirmed the Minister's decision not to grant the Appellant a SHEV. Like the Minister, the Authority accepted that: (1) the Appellant and her family had suffered harm during the civil war in Sri Lanka and had travelled to India and lived there from 2001 to 2013; and (2) the Appellant's brother was involved with the LTTE. 25 Also like the Minister, the Authority did not accept that the Appellant had, or would have, a profile of interest to the Sri Lankan authorities. The Authority observed that, despite any involvement of her brother and other family members with the LTTE, the Appellant and her family had been able to obtain passports and visas to depart Sri Lanka and travel to India. The Authority also noted that "over 12 years have passed since her brother left the LTTE and departed Sri Lanka". 26 The Authority also did not accept that the Appellant's husband had "LTTE links that were of concern to the authorities, or would be of concern now". The Authority noted that, despite his claimed involvement with the LTTE, the Appellant's husband had "travelled to and from Sri Lanka for work on three occasions, to Qatar in 2004, to Kuwait in 2008 and to Qatar again in 2010" and had been able "to pass security checking at the airport in Colombo … on multiple occasions including during the civil war". The Authority also observed that the family of the Appellant's husband all continued to live openly in Sri Lanka and there was no indication that they had been the subject of adverse attention by the Sri Lankan authorities. 27 The Authority did not therefore accept that the authorities had made inquiries about the whereabouts of the Appellant's husband. Nor did the Authority accept that he would be detained or harmed on return to Sri Lanka. The Authority otherwise referred to country information about the changed circumstances in Sri Lanka since the end of the civil war and, in particular, the treatment of Tamils by the Sri Lankan authorities. 28 In the circumstances, and given the Appellant's ability to depart Sri Lanka lawfully and the passage of time since that departure, the Authority was not satisfied that the Appellant would be of interest to the authorities or would be imputed with a profile of support for the LTTE by reason of any prior involvement of her husband, her brother or other family members with the LTTE. The Authority was not satisfied that the Appellant would face a real chance of harm in Sri Lanka on account of, among other things, her status as a Tamil woman whose family members had had prior involvement with the LTTE. The Authority was also not satisfied that, as a failed asylum seeker, the Appellant would face a real chance of serious or significant harm on any return to Sri Lanka. The Authority therefore found that the Appellant did not satisfy the criteria in s 36(2) of the Act.

FEDERAL CIRCUIT COURT 29 On 12 March 2018, the Appellant applied to the FCC for an extension of time in which to seek judicial review of the Authority's decision. The FCC subsequently granted an extension of time in which to apply for judicial review (at [4]). 30 Before the FCC, the Appellant advanced two grounds in support of her claim that the Authority's decision was affected by jurisdictional error. 31 In relation to the first ground, it was argued that: The IAA acted unreasonably in the exercise of its discretion, or alternatively, constructively failed to exercise its jurisdiction, in failing to exercise or failing to consider whether to exercise its discretion under s473DC to get information from the first applicant in circumstances where there were real concerns about the accuracy and adequacy of the interview before the delegate, and the IAA did not have in its possession a complete copy of the audio of the interview. 32 In support of that argument, an affidavit of the Appellant's solicitor dated 27 April 2018 was filed with the Court. Exhibited to that affidavit was a copy of a transcript of the Interview. 33 Also as part of argument on the first ground, it was submitted that: Alternatively to Ground 1, if the IAA could not obtain information from the applicant pursuant to s.473DC, than [sic. "then"] the IAA erred in not remitting the matter to the Minister for further consideration. 34 It was claimed that "the only lawful decision the [Authority] could make would be to remit the matter to the Minister to allow the [Appellant] to provide further information regarding her claims pursuant to s 473CC" of the Act. 35 In relation to the second ground, the Appellant argued that the Authority failed to have regard to the claim that the Appellant's husband "had been targeted by the [Criminal Investigation Department of the Sri Lanka Police ('CID')] and received death threats from them on each occasion when he returned to Sri Lanka from working abroad". 36 The FCC found that none of these grounds were made out and dismissed the application for judicial review. 37 In respect of the first ground, the FCC observed (at [76]) that: Counsel for the applicants at the hearing conceded that: a) there was no evidence put by the applicant as to what was missing from the transcript; b) no submission could therefore be made that the missing information was necessarily a claim that was not considered, such that the applicant met the relevant criteria under the Migration Act for a protection visa; and c) there was no evidence put by the applicant to prove that there were errors in interpretation by the interpreter during the SHEV Interview. 38 The FCC found that those concessions were "significant". The FCC further found (at [164]-[165]) that: [164] The applicant had an opportunity by way of submitting the July 2017 Submission to raise concerns in relation to the Delegate's reasons. … The applicant in her July 2017 submission made a generic and unparticularised statement that she couldn't fully understand the interpreter. The applicant also said that she didn't know what he was interpreting into English was what she was saying. I accept the submission by Counsel for the Minister that this could be said for any person speaking a language that is required to be interpreted into a second language. Further, if there were any specific issues with the interpreter during the SHEV Interview, I would have expected that these would have been raised in the July 2017 Submission. The applicant however did not point to any particular interpretation problem in the July 2017 Submission. [165] The IAA in fact considered the applicant's general complaint about the interpretation and found that despite initial difficulties, there was no indication that that there was any misunderstanding in the interpreting. 39 In those circumstances, and having regard to the statutory context in which the Authority conducted its review, the FCC found that it was not legally unreasonable for the Authority not to exercise, or not to consider exercising, the power in s 473DC of the Act (at [167]). 40 In respect of the alternative argument raised to the first ground, the FCC found that the Act and the Migration Regulations 1994 (Cth) (the 'Regulations'), specifically reg 4.43, did not permit the Authority to remit a matter with a direction of the kind contemplated by the Appellant. 41 In respect of the second ground, the FCC stated that the Appellant's specific claims about the Sri Lankan authorities' targeting of her husband were addressed by the Authority's general finding that he was, and had been, of no adverse interest to the authorities (at [177]). 42 The FCC delivered judgment on the 21 June 2018. On 24 June 2018, the Appellant appealed from the judgment of the FCC to the Federal Court. The grounds of appeal substantially duplicate the grounds of review advanced at first instance.

PRINCIPLES APPLICABLE 43 The relevant legislative scheme was described in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481; [2018] HCA 16 ('Plaintiff M174/2016') at [6]-[38] (Gageler, Keane and Nettle JJ). The FCC set out in detail the relevant provisions. No useful purpose would be served by a repetition of those provisions in these reasons. 44 However, it is important to recall that in considering whether or not an administrative decision is affected by jurisdictional error, 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 is required. 45 The High Court in Plaintiff M174/2016 conveniently set out the statutory context: [17] Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority's determination. … [21] There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review. [22] Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship. 46 In DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 ('DYK16') at [62] and [74], the Full Court made the following comments on the issue of reasonableness and the issue of credibility: 62 The concept of unreasonableness in the exercise of a discretion was explained by the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (and recently reiterated by the Full Court of this Court in Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486 at [36]) in the following terms: 44. In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court's supervisory powers over executive or administrative decision-making. In Li [[2013] HCA 18; (2013) 249 CLR 332], the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls "an area of decisional freedom": it has the character of a choice that is arbitrary, capricious or without "common sense". See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking "an evident and intelligible justification". Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]): "It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason": Giris Pty Ltd v FCT [1969] HCA 5; (1969) 119 CLR 365 at 383-384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47]." … [74] Finally, we note the appellant's criticisms of the IAA's findings in respect of credibility. However we endorse the observation of Lee J in DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580 at [17] that if the IAA were compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be that the IAA would generally come under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. That would not only be inconsistent with the text of s 473DC(2), but would also defeat the purpose of the fast track review process. 47 In CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [50]-[51], Thawley J made the following comments in relation to unreasonableness: [50] In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained that the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation: … [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. … [51] In determining whether an established failure to consider exercising a discretionary power was legally unreasonable, it is necessary to: (1) identify the failure with precision; (2) examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and (3) evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.

OUTLINE OF ARGUMENTS OF APPELLANT 48 As stated earlier, the Appellant advanced two grounds in support of her claim that the Authority's decision was affected by jurisdictional error.

Ground 1 49 It was submitted that the FCC erred in its conclusion that it was not legally unreasonable for the Authority not to exercise, or not to consider exercising, the power in s 473DC(3) of the Act to get new information from the Appellant. Alternatively, it was submitted that the FCC erred in its conclusion that the Authority was not obliged to remit the matter to the Minister to permit the Appellant to put forward further information in support of the claim. 50 The Appellant submitted that the Authority was provided with the "review material" pursuant to s 473CB of the Act. The review material included the incomplete audio recording of the Interview. The Appellant submitted the Authority was obligated to review a fast track decision by considering the review material provided to it under s 473CB of the Act. If the Authority had carried out its mandatory statutory task of reviewing the fast track decision by considering the review material it had received, then on the Appellant's submission, the Authority would have noticed that the audio recording contained a significant gap. 51 The Appellant submitted the Authority failed to observe that the audio recording had that gap, and that therefore, the Authority's decision was affected by error because it had failed to carry out its mandatory statutory task under the Act, which was to review the fast track decision by considering the review material it had received. 52 Consequently, the Appellant submitted that the Authority failed to comply with a statutory precondition (mandatory review of the review material) to the extent that the decision lacked the characteristics necessary for it to be given force and effect by the Act pursuant to which the Authority purported to make its decision. The error was submitted to be of sufficient gravity to be jurisdictional: Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34 at [24]-[26]. 53 The Appellant further submitted the Authority's decision was affected by jurisdictional error because the ultimate course taken by the Authority - to embark on its purported review in reliance on the incomplete audio recording without inviting the Appellant to a further interview or sending the matter back to the Minister - was unreasonable. 54 The Appellant relied upon Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 ('CRY16'). In this decision, the Full Court considered s 473DC of the Act in circumstances where the Authority had found an applicant could relocate to avoid harm but where the Minister's delegate had not raised the issue of relocation. The Full Court observed (at [66]) that an assessment of the reasonableness of relocation required consideration of the applicant's personal circumstances. It was confirmed here that the Authority could only obtain information about the applicant's personal circumstances from the applicant. By not exercising its discretion to seek new information, the Full Court stated the Authority "disabled itself" from considering whether it was reasonable for the applicant to relocate (at [82]). In the absence of any intelligible reason for not considering exercising the power, the Authority's non-exercise of the discretion in those circumstances was unreasonable (at [83]). 55 The Appellant also referred to the recent observations of Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30 at [83], to the effect that part of the lens for assessing unreasonableness is observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances. Justices Nettle and Gordon at [82] also observed that the abuse of statutory power is not limited to a decision which may be described as "manifestly unreasonable", or to what might be described as "an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it". Rather, a conclusion of legal unreasonableness may be outcome focused - where, for instance, there is no "evident and intelligible justification" for the decision (at [10]). 56 With this in mind, the Appellant submitted that the Authority unreasonably did not "fashion its procedure" (as mentioned in Plaintiff M174/2016) to deal with the problem that the audio recording of the Interview was incomplete or that the Appellant had been practically unable to put her testimony to the Minister. 57 It was then submitted that Pt 7AA of the Act is framed on the assumption that an applicant's application will be dealt by the Minister or his delegate in compliance with the code of procedure in Div 3 of Pt 2, as referred to in Plaintiff M174/2016 at [45] per Gageler, Keane, and Nettle JJ. It was submitted that the decision of the Minister was beset by a failure to afford the Appellant natural justice. After exercising the invitation in accordance with s 56 of the Act, the Appellant submitted that the Minister lost the opportunity to be impressed by the Appellant's arguments in person, to clarify any area of confusion or misunderstanding, and to form an opinion based on observation because of her ill health, late pregnancy, the translation issues and the fact the Migration Agent had dropped out of the Interview. In these circumstances, where the decision not to grant the visa was predicated on not accepting the Appellant's claims, it was submitted that the denial of natural justice by the failure to conduct a useful interview was manifest. 58 It was submitted that as the Authority's role was to conduct a de novo review of the Minister's decision. Without curing the defective interview below by inviting the Appellant to an interview with the Authority, or alternatively sending the matter back so the Minister could re-interview the Appellant, the Authority constructively failed to carry out its statutory task. 59 It was submitted that without a complete record of the Interview, the Authority could not: (1) determine if the Minister had mischaracterised the Appellant's evidence; (2) determine if the Minister had failed to consider any of the Appellant's claims or evidence made in the Interview; (3) make a complete assessment of whether the Appellant understood the interpreter during the Interview; or (4) assess whether the Appellant's claims for protection should be accepted. 60 If the Authority had no power to invite the Appellant to give new information to fill the gap in the audio recording of the Interview - on the premise that because it was information that the Minister's delegate had at the time of the Minister's decision it was not "new information" within the meaning of s 473DC(1) of the Act - the Appellant submitted that the Authority ought to have remitted the matter to the Minister for reconsideration.

Ground 2 61 On this ground, the Appellant submitted that the FCC erred in finding that the Authority did not fail to consider her claims to satisfy the criteria for the grant of a SHEV. 62 The Appellant made the claim of risk of harm due to her husband's LTTE connections. The Authority found the Appellant's husband was not of interest to the CID due to his ability to travel in and out of Sri Lanka without incident in 2004, 2008, and 2010. The Authority made no express finding in relation to evidence given by the husband that the CID would threaten him when he returned from overseas to Sri Lanka between 2004 and 2010. In addition, the Authority made no express finding in relation to the claim made by the husband that the CID harassment of him intensified in 2011 due to fear the LTTE may regroup, and it was only then that the CID prohibited him from leaving the country legally. It was submitted that the husband's evidence was an "integer" of the Appellant's claim to fear harm due to her husband's profile as an LTTE supporter. The Appellant submitted that this material was so central to the claim that the Authority had to make a finding in relation to it: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [98]. 63 The Appellant submitted that the following statement from her husband's evidence was significant: I would return to Sri Lanka for brief periods of time but whenever I came home the CID would begin targeting me again. They wanted to know where I had been and if I had been continuing to work for the LTTE. They didn't physically hurt me but they threatened me if I didn't tell them what they wanted to know about the LTTE they would shoot me and not return my body to my family. I was in constant fear of them. I never knew when they would actually carry out their threats. 64 It was submitted that this claim ran counter to the evidence that the Appellant's husband was not of interest to the CID because he could leave Sri Lanka legally. It was then submitted that in order for the Authority to find that the Appellant's husband was of no interest to the Sri Lankan authorities, the Authority needed to reject this evidence, give it less weight, or find that it did not indicate he was of ongoing interest in the foreseeable future. 65 The husband further claimed that after May 2011, "the authorities increased their harassment of me". The husband's evidence that the CID's interest escalated in 2011 and that it was only then he was told he could not leave the country, was said to be consistent with him being able to depart Sri Lanka legally prior 2011. The Appellant submitted that the Authority needed to consider if the husband had a more significant adverse profile with CID after 2011. It was submitted that the Authority's analysis of the husband's profile from 2004 to 2010 did not adequately address the claim. On the Appellant's submission, the Authority's failure to refer to her husband's evidence suggested that the Authority either misconstrued the actual claim made, or did not consider the material at all. 66 In respect of this, the Appellant submitted that the Authority, by not considering the husband's evidence regarding CID inquiries as to his whereabouts, constructively failed to consider the Appellant's claim to fearing harm for reason of her husband's involvement in the LTTE. The Appellant submitted, contrary to the reasoning of the FCC, there were no independent grounds for the Authority to reject the claim. The Appellant claimed that the Authority's only reasons for rejecting the claim that the husband attracted adverse interest from the Sri Lankan authorities were that (a) he travelled in and out of Sri Lanka; and (b) his family had continued to live openly in Sri Lanka and had not attracted adverse interest. It was submitted that the Authority failed to carry out its statutory task because it did not consider this part of the review material referred to it, and as part of the review material, it was a mandatory consideration.

Ground 1 67 I can find no appealable error attending to the FCC's finding that it was not legally unreasonable for the Authority not to exercise, or not to consider exercising, the power in s 473DC(3) to get new information from or re-interview the Appellant or alternatively remit the matter (if empowered) to the Minister. In my view, the alleged failures of the Authority do not have the character of being legally unreasonable, of lacking a rational foundation, of lacking an evident and intelligible justification, or of being plainly unjust, arbitrary, capricious or lacking in common sense. I also do not consider that the Authority failed to carry out its statutory task, or failed to accord natural justice. All the matters raised by the Appellant under this ground of appeal interrelate. 68 As I have indicated, the facts and circumstances confronting and known by the Authority need to be carefully addressed in determining the reasonableness of its decision not to get new information from or re-interview the Appellant and in concordance, whether the Authority fulfilled its statutory responsibilities and accorded natural justice. 69 At the outset it is important to recall that the very nature of the fast track process - which is essentially a process undertaken 'on the papers' before the Authority, subject to well-defined exceptions - does not entail an oral hearing, or necessarily involve an applicant being given an opportunity to present their case again. Here, the de novo hearing did not exist to give the Authority an opportunity to be impressed by the Appellant's arguments in person, to clarify any area of confusion or misunderstanding, or form an opinion based on observation because of the Appellant's ill health, late pregnancy, and the translation issues. Whilst it is a de novo hearing, it is subject to the limitations imposed by the legislature. Those limitations require the Authority to consider the reasons for the Minister's decision and make an assessment based upon those reasons and any other 'review material' provided to the Authority pursuant to s 473CB(1) of the Act. 70 With this statutory context in mind, the failures complained of are essentially failures to exercise the discretionary power to invite the Appellant to explain the evidence she gave to the Minister (including as to the translation errors) and fill the gap in the audio recording provided to the Authority. 71 The Authority knew of the Appellant's circumstances before the Minister's delegate as relied upon by the Appellant before the FCC and this Court. There is no dispute that the Authority (by being given the audio recording of the Interview which it had regard to) knew of the difficulties facing the Appellant at the Interview, namely the Appellant's medical issues and the initial issues with the interpreter. The Authority (in the context of allowing some new information to be considered) made reference to the Appellant's condition and the initial difficulties with the interpreter at [8] of its reasons: There is no explanation in the submission as to why the above information could not have been made available to the Minister. However I give considerable weight to the comments of Applicant 1 in her IAA statement in which she advises that at the time of her SHEV interview she was eight month's pregnant and had medical issues which impacted on her wellbeing and she could not fully understand the interpreter. I have had regard to the audio recording of the SHEV interview and I note that this was conducted by telephone and both the interpreter and Applicant 1 initially complained about difficulty hearing each other and noted the need to speak more loudly, however despite this initial difficulty there is no indication that there any misunderstanding in the interpreting. Nevertheless, I note Applicant 1 advised the delegate that she had been unwell prior to the interview and had attended a hospital the previous evening and I am willing to accept that her medical condition may have affected her ability to advance this information to the Minister. Considering the circumstances I am satisfied that this information was not and could not have been provided to the Minister and I am further satisfied that there are exceptional circumstances that justify the IAA considering the new information and I have had regard to it. 72 There was no medical evidence or material before the Minister's delegate or the Authority relating to the extent of the migraine or the nature of the illness affecting the Appellant, or how this impacted on her ability to give information during the Interview. The Authority knew that (a) the Appellant was assisted in the Interview as indicated at [10] of these reasons; (b) no application was made for an adjournment or postponement of the Interview; and (c) no complaint had been made at the Interview of the Appellant's condition in the sense of her not being able to participate meaningfully at the Interview. 73 I interpolate that before the FCC no evidence was led, or sought to be led, on these matters to demonstrate the "unreasonableness" of the Authority as now alleged by the Appellant. 74 The Authority had the audio recording of the Interview which indicated a gap in the recording as follows: [Delegate]: Right, okay, and when did your family decide to go to India? ---February we came to India in 2001, February 16. [Delegate]: Right, okay. Nick, are you there? I have a feeling that your representative has dropped out. Do you want me to try and contact him again? ---Okay. [Delegate]: Okay, just hold - I'm just going to ask him if I need to connect with him if it drops out again. I don't know (indistinct) why it would have dropped out. (Temporary sound interruption) [Migration Agent]: So it dropped out just at the point where you were saying, "what do you mean torture?" Then I didn't hear any more after that. [Delegate]: Right, well, we can repeat the whole interview if you like. [Migration Agent]: Rather not. [Delegate]: Right, okay, so I believe she said that they were being questioned and beaten up about her brother. That was the response. I'll just check again. So when you said that you were tortured, what did you mean? ---Yes, so they beat us, they speak to us in bad language and treat us in bad way. [Delegate]: Okay, all right, so the last time this happened was in December 2000, just to confirm that? ---We were going through that kind of experience until 2000 December. 75 Just because the Authority did not specifically refer to the gap does not mean that the Authority was not aware of it from its own examination of the audio recording. Whether this is an important gap in the audio recording (in the form of a transcript before the FCC and this Court) is difficult to conclusively determine. However, it seems probable that the gap in the audio recording was not of any significance. The above excerpt from the Interview transcript seems to indicate that the information provided in the gap was repeated. In any event, the Appellant has not demonstrated the significance of the gap, or perhaps more importantly, that the gap was such as to impact upon the Authority's statutory task or ultimate decision. 76 In relation to the incompleteness of the audio recording, the main point made by the Appellant is that the Authority simply could not carry out its task with the incomplete audio recording. 77 There is a difficulty with that threshold submission. Presumably the audio recording was 'review material' within the meaning of s 473CB(1)(c), that is, material considered relevant by the Secretary of the Minister's Department to the review and so provided to the Authority. In itself, this must mean the review material given to the Authority included the audio recording as it existed, gaps and all. However, the statutory task of the Authority also involves reviewing all the review material, including importantly the statement of the Minister referred to in s 473CB(1)(a). 78 The Authority took into account all of the review material, including the audio recording with the gap as described above. The mere fact of there being a gap in the audio recording does not mean the Authority did not undertake its statutory task. The Authority was still able to conduct its review taking into account the statement of the Minister referred to in s 473CB(1)(a). 79 In other words, the Authority had the reasons of the Minister's decision, which covered all the contents of the Interview. As is to be recalled, there was never a suggestion that the Minister's delegate did not hear the evidence given by the Appellant during the period in which the audio recording malfunctioned. Further, as I have mentioned, there is no attack upon the Minister's decision, or any indication by the Appellant as to the Minister's statement being in some way inaccurate or incomplete. The submission of the Appellant that the failure of the Minister to conduct a useful interview was manifest, must relate to the issue concerning the health of the Appellant and the alleged issue with the interpreter (to which I will return). Whether or not the audio recording malfunctioned did not impact on the Minister's delegate hearing and considering the information given by the Appellant at the Interview. 80 Further, even now, the Appellant does not identify what information was omitted from the audio recording and the significance of that information. To say that this could not have been done before the FCC due to the lack of information is not a sustainable proposition: the information that was said to have been provided in the period of the gap was within the Appellant's knowledge. The Appellant, without the aid of the audio recording, should be able to say precisely what was not covered adequately by the statement of facts, evidence and reasons of the Minister. I should stress that the nature of the information that it is suggested the Authority should have requested, and the information provided in the gap, has never been properly particularised by the Appellant. I accept that the Appellant did not have the opportunity to hear the audio recording until after the assessment of the Authority. However, the evidence before the FCC of the Appellant's solicitor is only to the effect that the audio recording was not complete; it goes no further as to what information was missing and what was not covered in the reasons for the Minister's decision which was before the Authority. 81 Another way of looking at the question of the gap in the audio recording is to consider it in the context of the fast track process. There could be no suggestion that if no audio recording of the Interview was made that the Authority would be unable to undertake its statutory task. The Authority would have the reasons of the Minister and the other review material as described in s 473CB of the Act. The Authority would assess that review material and undertake its de novo review as contemplated by the legislative scheme. Where there is a gap in the audio recording of the Interview, the Authority can still undertake its task, but will simply need to undertake it on the available review material before it. In this sense, the Authority did consider the review material provided to it and which it received being, among other things, the audio recording of the Interview with the gap. 82 The Appellant claims that the incompleteness of the audio recording, especially when combined with other factors such as the Appellant's health condition at the time of the Interview (being both her pregnancy and migraine) and the issues with the interpreter present on the telephone for the Interview, meant that the Authority could not properly carry out its statutory task. In my view, no one factor is decisive, but that even when considered in combination with one another, the Appellant's case is not made out. Indeed, in my view, none of the three factors referred to by the Appellant vitiated the exercise of the Authority's statutory task. I address each factor in turn. 83 First, and as I have said above, the health concerns (whilst stated) were not of a nature such that the Authority knew or ought to have known would impact upon the conduct of Interview. The Appellant did not raise this as an issue at the Interview as a basis for seeking an adjournment or postponement of the Interview. There is also no evidence to support to extent of the health issues and whether or not they impacted on the conduct of the Interview. 84 Second, the gap in the audio recording has not been demonstrated to be of significance when one recalls that the Authority knew the Minister's delegate at the Interview had heard all the information given by the Appellant. In addition, the Authority knew the Migration Agent was content not to have the Interview repeated, and the answer to the question "what do you mean, torture?" was in fact repeated (see [74] of these reasons). The answer to this question was also referred to at page 6 of the Minister's decision. Even if credibility was in issue before the Minister, the Authority would not, by those circumstances alone, be unreasonable in refusing to grant an interview: see DYK16 at [74]. 85 And third, as to the alleged problems with the interpreter, the Authority could be satisfied that there was no real concern about this matter - there was no substantive complaint at the Interview by any representative of the Appellant or the Appellant herself, and no complaint was made in the March submissions. The complaint only emerged for the first time in the July submissions. The Authority, with the aid of the audio recording, putting aside the gap, could assess for itself (with the other review material available to it) whether there was indeed a real problem with the interpretation and understanding of the Appellant. Otherwise, the Authority was not informed by the Appellant about the extent of the difficulty with the interpretation so as to be informed of possible real and significant difficulties with the process of the Interview itself. Again, even now the Appellant does not descend into providing any particulars as to the issues with the interpreter at the Interview. It has not been shown that the Minister or the Authority misunderstood or failed to consider the Appellant's claims and evidence.

Ground 2 86 As to this ground, the FCC was correct to find that the Authority addressed the claims advanced by the Appellant and, in particular, the claims relating to her husband. 87 Claims of harassment of and threats to the Appellant's husband by the Sri Lankan authorities on his return to Sri Lanka from working overseas depended on him first being of some adverse interest to the authorities. In finding that the Appellant's husband was not of adverse interest to the authorities, the Authority rejected the factual premise on which those claims rested or otherwise made a finding of greater generality within which those claims were subsumed. Put another way, whilst there was no specific mention of the husband's evidence, the Authority did look at other materials to consider the very issue that needed to be addressed. At [16]-[18] and [20] of the Authority's reasons, after finding in favour of the Appellant on many issues, it was concluded: [16] However, I take into account that the LTTE profile of her brother, cousins and fiancé did not prevent Applicant 1 from obtaining a passport and being able to legally leave Sri Lanka in 2001. I also take into account that over 12 years have passed since her brother left the LTTE and departed Sri Lanka. I note that her brother lived in the community with his family in India after departing Sri Lanka. [17] I have considered whether the LTTE links of her husband would attract adverse attention for her husband or Applicant 1, however I am not satisfied that her husband has LTTE links that were of concern to the authorities, or would be of concern now. The SHEV application included information that indicates that the husband of Applicant 1 travelled to and from Sri Lanka for work on three occasions, to Qatar in 2004, to Kuwait in 2008 and to Qatar again in 2010. In between these periods overseas her husband returned to Sri Lanka on each occasion. Noting the requirement to pass security checking at the airport in Colombo, and his ability to do so on multiple occasions including during the civil war, I find that he was not of adverse interest to the authorities. I note the letters of support and references to concerns for his safety but I am not satisfied that her husband would have been able to enter and exit Sri Lanka on each of these occasions if he was of interest to the authorities because of any LTTE association. I note that his immediate family all continue to live openly in Sri Lanka and the evidence before me does not indicate that they have attracted adverse attention. I find that the husband of Applicant 1 was not of adverse interest to the Sri Lankan authorities. As I have not accepted that the husband of Applicant 1 was of adverse interest to the Sri Lankan authorities it follows that I do not accept that the authorities continue to make enquiries about him with his family. [18] Moreover, I note that the UK Home Office reporting in 2016 noted that the Sri Lankan government's concern has changed since the civil war ended and the government's present objective is to identify Tamil activists who are working for Tamil separatism and to destabilise the unitary Sri Lankan state. The UK Home Office reported the Upper Tribunal in 2013 recognised four categories of persons at risk; those with a significant role in post-conflict Tamil separatism, journalists/human rights activists, people who gave evidence to the Reconciliation Commission implicating the Sri Lankan security forces and those whose name appears on a "stop" list of those against whom there is an extant court order or arrest warrant. I am not satisfied that Applicant 1 falls within one of these categories of persons. … [20] Considering the ability of Applicant 1 to depart Sri Lanka, and the passage of time, I am not convinced that Applicant 1 would be of interest to the authorities now. I do not accept that Applicant 1 would be imputed with an LTTE profile because of her husband, and the LTTE links of her brother, cousins and fiancé. Nor do I accept that there is a real chance that the husband of Applicant 1 would be killed on return to Sri Lanka and that as a result Applicant 1 would be a single parent to their two children. 88 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]-[47], the Full Court said: [46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 89 The issue of the necessity of an express reference to evidence has been recently considered by the High Court in ETA067 v Republic of Nauru (2018) 92 ALJR 1003; [2018] HCA 46 in which Bell, Keane and Gordon JJ stated (at [13]-[14]): [13] The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons which, here, included referring to the findings on any "material questions of fact" and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it. [14] Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim, or that would be dispositive of the review. (citations omitted) 90 It is important to appreciate the fact that the Authority in this case was dealing with the question of whether the Appellant had a well-founded fear of persecution, and not whether the Appellant's husband had a well-founded fear of persecution. The Authority's decision must be read as a whole in light of the fact that the Authority was dealing with the Appellant's claims, rather than the claims of her husband, notwithstanding that the Appellant did make claims that were associated with her husband and his involvement with the LTTE. 91 The Authority did not misunderstand or misconstrue the Appellant's claims to fear harm due to her husband's involvement with the LTTE. The Authority did not accept that the Appellant's husband was a person of interest because he was able to safely leave and return to Sri Lanka on three occasions from 2004 to 2010, at the height of the civil war and despite security checking at Colombo airport. The Authority's decision stated (at [17]): The SHEV application included information that indicates that the husband of [the Appellant] travelled to and from Sri Lanka for work on three occasions, to Qatar in 2004, to Kuwait in 2008 and to Qatar again in 2010. In between these periods overseas her husband returned to Sri Lanka on each occasion. Noting the requirement to pass security checking at the airport at Colombo, and his ability to do so on multiple occasions including during the civil war, I find that he was not of adverse interest to authorities. I note the letters of support and references to concerns for his safety but I am not satisfied that her husband would have been able to enter and exit Sri Lanka on each of those occasions if he was of interest to the authorities because of any LTTE association. 92 There was no need to make a specific finding in relation to the Appellant's husband's evidence regarding what occurred to him upon his return from overseas on three occasions between 2004 and 2010. Such a specific finding was subsumed in the general finding that as he was able to pass security checking at the airport in Colombo several times during the civil war, he was not of adverse interest to the Sri Lankan authorities. On the basis of that factual finding, it was not necessary for the Authority to consider the Appellant's husband's evidence on the actions of the CID after he returned to Sri Lanka. 93 Further, the substantive finding that the Appellant's husband was not a person of interest was not a dispositive issue such that it would have changed the decision of the Authority. There were independent grounds for rejecting that the Appellant would fear harm associated with her husband. These grounds were: (1) the fact that the Appellant's husband was able to return to Sri Lanka on three occasions during the civil war (see [17]); (2) that the Authority found that the husband's family continued to live openly in Sri Lanka and there was no evidence to suggest that they had attracted adverse attention from the authorities (see [17]); (3) that the Authority stated "[m]oreover" to the reason for rejecting that the husband's LTTE association had led to a fear of harm, was the fact that the risk profile of persons of adverse interest had changed and was focused on those who advocated Tamil separatism (among other things) (see [18]) - neither the Appellant's husband nor the Appellant herself fitted any of those risk categories on the evidence before the Authority; and (4) finally, the passage of time since the civil war had ended (see [20]).

CONCLUSION 94 For the foregoing reasons, the appeal should be dismissed with costs. 95 I will frame orders to effectively continue the current restraining order of Justice Murphy made on 25 June 2018 to 1 February 2019. I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Migration Act 1958(Cth)ss 36(2), 48A, 473CB, 473CC, 473DC

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