the appeal
21 On 13 March 2017 the appellant filed an application for an extension of time to appeal the decision of the Federal Circuit Court and an affidavit in support which in turn annexed a draft notice of appeal.
22 On 22 February 2018 the Court made orders by consent, including an order extending the time for filing and serving the notice of appeal to 13 March 2018.
23 The appellant's notice of appeal raises a single ground of appeal (as written):
The Federal Circuit court failed to find, in respect of the IAA (Respondent) that the Respondent declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application.
I have no lawyer to represent me in this court as I am unemployed and I have no money to pay for legal representation.
24 The appellant did not file any written submissions. At the hearing he made oral submissions. The appellant submitted that his application for the Visa had been refused by the delegate and the Authority and that his application for judicial review had been refused by the Federal Circuit Court "very quickly". It was not clear to him why he had been rejected as a refugee. The appellant then made a number of submissions about aspects of the substance of his claims to support his Visa application. He also submitted that he was unable to understand the second interpreter who assisted at the interview with the delegate. As he was not legally represented and had no assistance with transcribing the recordings, the appellant said that he was unable to provide further evidence in relation to the alleged errors.
25 The appellant's ground of appeal alleges that the Authority declined to exercise its jurisdiction. But that is clearly not the case. The Authority considered the delegate's decision as it was required to do pursuant to Pt 7AA of the Act. It did not decline to exercise its jurisdiction.
26 The grounds raised before the primary judge were not particularised and, on their face, do not reveal any jurisdictional error. There is no error in the decision of the primary judge in rejecting those grounds. Insofar as the appellant alleged that there were interpretation errors, he provided no evidence of the alleged errors to support that ground.
27 The appellant's oral submissions did not assist in elucidating the ground of appeal. As I have observed, they raised matters that went to the substance of his claims for the Visa and did not identify any appellable error in the decision of the primary judge. The matters raised by his submissions are not matters which are open to consideration by this Court.
28 During the hearing I raised an issue with the Minister's counsel about the nature of the information provided in the Statutory Declaration in relation to the alleged interpretation issues that arose in the interview with the delegate. In particular, I queried whether the allegation of misinterpretation was "new information" within the meaning of s 473DC of the Act or, perhaps more precisely, the information was such that the Authority needed to consider if it was "new information" under s 473DC. The Minister submitted that it was not new information but rather that the "interpreting issues" raised by the appellant were in the nature of a submission made by him to the Authority about what occurred before the delegate.
29 The term "new information" is defined in s 473DC(1) of the Act as any documents or information that were not before the Minister when the Minister made the decision under s 65 of the Act and that the Authority considers may be relevant. In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16 (M174/2016) at [24] Gageler, Keane, Nettle JJ said:
The term "new information" must be read consistently when used in ss 473DC, 473DD and 473DE as limited to "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.
(footnote omitted)
Also of relevance to the issue identified is the decision in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80. In that case a Full Court of this Court (Flick, Griffiths and Perry JJ) considered two questions, one of which was whether, and in what circumstances, the Authority can receive submissions. In considering that issue at [50] and [54] the Full Court relevantly said:
50 It is concluded that a "submission" which only addresses the information already made available for consideration by the Authority and which contains no additional factual information is neither:
• a "document"; nor
• "information"
for the purposes of the definition of "new information" as set forth in s 473DC.
….
54 The expression "new information" as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of "fast track" decision-making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority - and to have the Authority in fact consider - a submission directed to an established pool of factual information.
(emphasis omitted)
30 I do not accept the Minister's submission that the content of [1]-[7] of the Statutory Declaration under the heading "Interpreting issues during interview" was a submission and not information for the purposes of the Act such that the Authority did not need to consider s 473DC and s 473DD in relation to it.
31 Those paragraphs of the Statutory Declaration were, in my opinion, information in the sense referred to in M174/2016 in that they comprised a communication of knowledge about some particular fact and/or event, namely, the appellant's alleged difficulty understanding one of the interpreters during the interview with the delegate. Paragraphs [1]-[7] of the Statutory Declaration do not address the information already made available to the Authority or an established pool of factual information but contain additional factual information.
32 The Authority did not deal with [1]-[7] of the Statutory Declaration as information. It made no express assessment of that material against s 473DC to determine whether it was "new information" and, if so, against s 473DD to determine whether it should consider that "new information". Rather, the Authority addressed [1]-[7] of the Statutory Declaration under the heading "Information before the IAA" in the manner summarised at [10] above. In doing so, it addressed a number of matters and concluded that the appellant was not prevented from presenting his claims by the interpreter. Thereafter the Authority had no regard to the content of [1]-[7] of the Statutory Declaration in considering the appellant's claims for protection. That suggests that the Authority did not in fact treat [1]-[7] of the Statutory Declaration as a submission. Had the Authority taken those paragraphs to be a submission it would have referred to and considered them in the substantive part of its decision, which it did not.
33 That being so, despite the failure by the Authority to make express reference to s 473DC and s 473DD in assessing the content of [1]-[7] of the Statutory Declaration, I do not consider that there is any relevant error on the part of the Authority. It did not treat those paragraphs as a submission and the steps that the Authority took to reach its conclusion to reject them, in effect, amounted to the type of consideration that would be undertaken for the purposes of an assessment pursuant to s 473DC and s 473DD of the Act.
34 If I am wrong about that, for the same reasons there is, in any event, no practical utility in remitting the matter for reconsideration: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146 and Parmar v Minister for Immigration and Border Protection [2018] FCA 502 at [24]-[25] and the cases cited therein.