DEO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

the authority's decision 8 The Authority commenced by referring to the information before it. Further information was provided to the Authority by the appellant's representative on 27 November 2017 and 27 March 2018. In relation to that information the Authority: (1) considered the submission provided was not new information but a reiteration of the argument that was before the delegate and thus it had regard to it; (2) did not have regard to a series of photographs. They were not before the delegate and were new information. The Authority was not satisfied that there were exceptional circumstances to justify their consideration; and (3) considered the transcript of the interview of the delegate was not new information but was information given to the delegate and thus had regard to it. In doing so at [6] of its decision record the Authority said: As for the SHEV interview transcript, attached to the transcript is a statutory declaration from a NAATI accredited interpreter declaring that the audio recording was given to him by the applicant's lawyer and that he listened and made the complete and accurate transcript on 25 February 2018. Part of the transcript restates what can be heard on the audio recording of the interview and in part, it contains alternative interpretations to certain questions and answers. I note that neither the applicant nor his appointed representative who attended the interview raised any concerns during the interview, nor at any time before the decision was made and I note that post-interview submissions were made regarding other issues. However having listened to the audio recording myself, I accept there were some difficulties in communication which appear to stem from interpretation issues. In these circumstances although this interpretation was not the version heard by the delegate, I accept it is accurate and as such is information which was, in the ordinary sense, given to the delegate. I therefore find it is not new information and I have had regard to it. 9 The Authority set out the appellant's claims noting that he feared harm from the Taliban and the police (as they work with the Taliban) throughout Afghanistan because he worked for a company associated with the Americans and allied forces and because he would be a returnee from the west and treated as a spy or infidel. 10 The Authority: (1) accepted the appellant worked on a road construction project in Langham province in 2011-2012 but was not satisfied that his role in relation to the project was anything other than low level; (2) accepted the appellant's employment identity card was authentic but had concerns about a letter of reference dated 5 October 2012 and, based on the evidence before it, was satisfied that it was not genuine; (3) accepted the appellant's claim that one evening on return to his base camp he and his co-workers were stopped by the Taliban, his mobile phone was taken and he managed to escape when fighting broke out between the Taliban and the security personnel; (4) found that the appellant had embellished other parts of his claims. This was because of inconsistencies in his evidence given during his arrival interview and in his written application for the SHEV, on the hand, and in his SHEV interview, on the other; (5) noted that the appellant claimed in his arrival interview and in his SHEV application that his mobile phone was taken and that there was no evidence of its return. That being so it doubted the appellant's claims that he received a series of threatening calls on his mobile phone over the next six to seven days; (6) was concerned about the appellant's claims that other employees might have been receiving threatening phone calls but nobody told him about them. This was because, given his claims that he knew others received threatening letters and there was a security team posted at the base camp, it was difficult to accept that the appellant would not know if he was the only one receiving threatening phone calls; and (7) overall given its concerns it did not accept that the appellant and his co-workers were led away towards the mountains by the Taliban or that he received threatening phone calls in the week following the incident. It accepted that the appellant returned to his village and left for Pakistan shortly after but did not accept that he was fearful of remaining in his village because he had been personally threatened by the Taliban. 11 At [26] of its decision record the Authority found that the appellant would not face a real risk of harm from his previous construction work for a private company. In doing so it accepted that the appellant had worked for a private company and that the incident with the Taliban occurred but noted that the appellant's family had continued to live in his village without incident since the appellant's departure from Afghanistan and, while the Taliban had been active in the area, there was no evidence of them approaching the appellant's family looking for him or even questioning them about the appellant's whereabouts. In reaching its conclusion on this aspect of the appellant's claims the Authority said at [26]: … Therefore, while I accept the applicant was once accused by the Taliban in Laghman of working for the Americans, I do not consider that the Laghman Taliban have had any ongoing interest in the applicant and nor do I consider this accusation would be known to the Taliban or any insurgents in Paktiya. I do not consider that now or in the reasonably foreseeable future, the applicant would be perceived of being affiliated with America/the government/the international community on the basis of his construction work in 2011/12 in another part of Afghanistan. … 12 In relation to the appellant's claim to fear harm as a returnee from the west the Authority found that, as the appellant had only spent five of his 30 years in Australia, he would be returning to Afghanistan with knowledge and personal experience of its culture and had not acquired any foreign or western mannerisms that would reveal his residence in a western country or otherwise place him at risk on his return. After referring to relevant country information, at [30] of its decision record, the Authority concluded that: Overall, the country information does not indicate there is systematic targeting of returnees in Afghanistan, including those who return from Australia, those with western clothing or mannerisms or who are failed asylum seekers. It does not indicate they are targeted due a perception that they are infidels or spies. I am not satisfied that the applicant faces a real chance of harm on account of being a returnee asylum seeker from the west- nor for any related opinion or profile. 13 While the Authority considered that the appellant may adjust his behaviour on his return, it did not consider that would amount to a modification that would infringe s 5J(3) of the Act. 14 The Authority concluded that the appellant did not meet the requirements of s 36(2)(a) of the Act and, after separately considering it, found that the appellant did not meet the requirements of s 36(2)(aa) of the Act.

procEeding before the federal Circuit Court 15 The appellant filed an application for judicial review in the Federal Circuit Court in which he raised the following two grounds: The IAA committed jurisdictional error by not finding that the delegate's decision was vitiated by error of law on grounds that the applicant did not get a fair opportunity to put what he wanted to put, to understand what was being said to him and to participate in the interview in a way from which it can be concluded that the interview was fair. Alternatively the IAA committed jurisdictional error by not giving the applicant a fair opportunity to put what he wanted to put and to participate in the review in a way from which it can be concluded that the review was fair. 16 The appellant was not legally represented in the court below. 17 The primary judge delivered ex tempore reasons and made orders dismissing the application. A transcript of his Honour's reasons marked with a "draft" watermark was available. References to aspects of the primary judge's reasoning are to paragraphs of that transcript. 18 The primary judge recorded the appellant's oral submission that there had been interpretation errors before the delegate and the hearing before the delegate had been unfair and, because of the interpretation problems, the review before the Authority was unfair (at [23]). In relation to that submission the primary judge relevantly said (as recorded at [23]-[24]): 23. … It is apparent from the Authority's reasons that the Authority took into account both the submissions and the corrected transcript of the interview in determining the review. 24. The Authority treated and accepted the transcript with the corrections as correct. The Authority also accepted, having listened to the audio, that there were some difficulties in communication and it is apparent that the Authority took into account the corrected transcript. In circumstances where the Authority has identified and accepted the corrected transcript is accurate and has taken the same into account, the absence of an express consideration of the exercise of the power under section 473DC cannot be said to lack an evident and intelligible justification. 19 The primary judge also found that the areas where there were interpretation problems were not material and that the Authority made favourable findings in relation to the appellant's claims concerning his employment. Upon his own inspection of the alleged interpretation errors, the primary judge found, based on the corrected transcript, that the appellant had a real and meaningful opportunity to address the issues raised by the delegate in relation to his claims: at [25]. 20 The primary judge then addressed the two pleaded grounds of review. In relation to ground 1 and the exercise of power under s 473DC of the Act the primary judge said (as recorded at [31]-[32]): 31. The absence of any express consideration by the Authority or its powers under section 473DC cannot be said to lack an evident and intelligible justification. This is because the Authority did accept the corrected transcript as being correct and also listened to the audio recording and it is apparent that the Authority accepted and took into account that there were interpreter inaccuracies. The Court has also independently looked at the corrected transcript and was not satisfied that any of the alleged errors were material. 32. In these circumstances, it cannot be said that the absence of exercise or the consideration of exercise of the power under section 473DC by the Authority was legally unreasonable. The applicant's contention the interview was unfair does not make out any error by the Authority in the conduct of its review. For the reasons already given, the court does not accept that the applicant did not have a real and meaningful opportunity to engage with the delegate's concerns at the interview. In these circumstances, the Court does not accept that the interview was unfair. No jurisdictional error as alleged in ground 1 is made out. 21 The primary judge found that ground 2 raised much the same issue as ground 1 and for principally the same reasons rejected that ground.

the appeal 22 By amended notice of appeal filed on 15 December 2020 the appellant raised two grounds of appeal but only sought to press ground 1 by which he contended that: The primary judge erred in law in failing to hold that the decision of the second respondent (Authority) involved jurisdictional error on the ground that the Authority failed to consider exercising power under s 473DC to get new information from the appellant, and failed to inquire into significant factual matters traversed in those parts of the of the interview conducted with the appellant about his protection visa application (SHEV interview) that had been compromised by interpretation errors, and the Authority's failure to do so was unreasonable. (Underlining omitted.) There are 19 particulars to this ground. In summary, they focus on the alleged interpretation errors in the interview with the delegate and contend that the Authority's decision was vitiated by jurisdictional error because it failed to consider whether to exercise its power under s 473DC of the Act to invite the appellant to an interview. 23 In the course of hearing the appeal it became apparent that the appellant also put an alternate argument, namely that the Authority disposed of the application by relying on an aspect of the appellant's account on which the delegate did not rely. Given the lateness of notification of this alternate ground, after hearing the appellant's submissions, I adjourned the hearing and made an order requiring the appellant to provide a further amended notice of appeal to the Minister. The appellant did so by filing a further amended notice of appeal on 20 April 2023. 24 The further amended notice of appeal: (1) slightly amended the existing ground of appeal, ground 1, as follows: The primary judge erred in law in failing to hold that the decision of the second respondent (Authority) involved jurisdictional error on the ground that the Authority failed to consider exercising power, and in any event did not exercise power, under s 473DC to get new information from the appellant, and failed to inquire into significant factual matters traversed in those parts of the of the interview conducted with the appellant about his protection visa application (SHEV interview) that had been compromised by interpretation errors, and the Authority's failure to do so was unreasonable. Particulars a. The appellant's SHEV interview was compromised by interpretation errors. b. The appellant provided a corrected transcript of the SHEV interview to the Authority to prove that circumstance: AB127-161. c. The Authority listened to the audio recording of the SHEV interview and found that "there were some difficulties in communication which appear to stem from interpretation issues": AB168 [6]. d. The Authority noted that the corrected transcript provided by the appellant "contains alternative interpretations to certain questions and answers": AB168 [6]. e. The Authority accepted that the corrected transcript "is accurate": AB168 [6]. f. Substantial parts of the SHEV interview relating to the appellant's claim to fear harm from the Taliban were compromised by the interpretation errors, including the appellant's lengthy answers to the question "why did the Taliban stopped [sic] you in [sic] that particular day?" and follow-up questions: AB148-156. g. The Authority accepted the appellant's fundamental claim that "he and a group of other construction vehicles were stopped by the Taliban, that they took his mobile and accused them of working for the Americans, and that he managed to escape when the security personnel and the Taliban started fighting": AB170 [16]. h. The Authority did not accept further details of that claim, or that the appellant had been "personally threatened by the Taliban", on the basis of alleged inconsistencies and embellishment arising from things the appellant said about that incident during the SHEV interview: AB170-171 [17]-[19]. i. Part 7AA of the Migration Act 1958 (Cth) (Act) proceeds on the assumption that the delegate complied with the code of procedure in Subdiv AB of Div 3 of Pt 2 of the Act: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [45]. j. The appellant submitted that the interpretation services during the SHEV interview were so flawed that "the applicant's claim has not been assessed in accordance with the Migration Act 1958": AB120, in the sense that the interview conducted by the delegate under ss 56 and 58 of the Act had miscarried resulting in procedural unfairness. k. The appellant submitted that "[t]he inadequacy of interpretation of the delegate's questions also resulted in the applicant not providing proper responses to the questions asked": AB120. l. The appellant submitted that "[h]ad there been capable interpretation, the questions and responses between the delegate and the applicant would have been smooth, which in turn would have assisted the delegate in assessing the applicant's claim thoroughly and in accordance with law": AB120. m. The appellant requested the Authority to "call for an interview of the applicant in the presence of a competent interpreter": AB122. n. In the premises, the appellant requested the Authority to consider exercising power under s 473DC to get new information from the appellant in relation to those parts of the SHEV interview that had been compromised by the interpreter and in particular, the delegate's questioning of the appellant in relation to his claim to fear harm from the Taliban. o. The Authority knew or ought to have known that the interview "was manifestly deficient and a manifestly inadequate basis upon which a 'review' can lawfully be undertaken": DVO16 v Minister for Immigration and Border Protection (2019) 271 FCR 342 at [12]. p. The appellant's claim to fear harm from the Taliban involved "factual matters which can readily be determined and are of critical significance to" the review: Minister for Home Affairs v CHK16 [2020] HCA 46 at [28]-[29]. q. The Authority did not refer to the appellant's request for an interview, did not refer to s 473DC, and did not consider exercising power under s 473DC to get information from the appellant in relation to the compromised parts of the SHEV interview in the presence of a competent interpreter. r. In the premises, the Authority's failure to consider exercising power, or its failure to exercise its power, under s 473DC to get new information from the appellant, and to inquire into those readily-determinable factual matters of critical significance, was unreasonable. s. The primary judge erred in holding that "[t]he absence of any express consideration by the Authority of its powers under section 473DC cannot be said to lack an evident and intelligible justification", that the errors were not material, and that the appellant had "a real and meaningful opportunity to engage with the delegate's concerns at the interview": AB210 [31]-[32]. (2) added a new ground 2: Further and in the alternative, the primary judge erred in law in failing to hold that the decision of the Authority was vitiated by jurisdictional error on the ground that the Authority failed to consider exercising power, and in any event did not exercise power, under s 473DC to get new information from the appellant, in circumstances where the Authority's failure to do so was unreasonable. (a) On 24 July 2017 a delegate of the first respondent (Delegate) refused to grant the appellant a protection visa (Delegate's Decision). (b) The Delegate rejected the appellant's claims because it considered: (i) the appellant's description of the work he undertook for the Aryob Speenghar Construction Company to be vague and lacking in detail, (ii) the appellant's reason for undertaking work in a dangerous province to not be plausible; (iii) the appellant's description of the Taliban ambush and escape to be implausible and farfetched; and, accordingly (iv) that the appellant had fabricated his claim of working for the company at all to enhance his refugee claims: AB102.7. (c) The Delegate's Decision was vitiated by jurisdictional error because the interpretation errors in the SHEV Interview [including in respect of the appellant's description of the work he undertook (AB142.6-142.7, 143.1-143.4), his reason for undertaking work in a dangerous environment (AB141.4 - 141.5), and his description of the Taliban ambush and escape (AB148.5 - 150.5)] led to the Delegate failing to consider the information in fact given by the appellant at the SHEV interview on the matters of concern to the Delegate, which the Delegate was required to do pursuant to s 56(1) of the Act. (d) The Authority's reasons for affirming the Delegate's Decision were different from that of the Delegate, including in particular that: (i) the appellant's claim that he received a letter from his employer that referred to working for the Americans was inconsistent with the appellant's own purported evidence that he had tried to explain to the Taliban that his employer was a private company in which the Americans were not involved (AB170.5); (ii) there was an inconsistency in the appellant's written claim that security personnel were there when they encountered to Taliban, compared to his statement at the SHEV interview that security personnel were not there at the time but attended after machinery was set on fire (AB 170.7-170.8); (iii) the appellant had not mentioned being taken by the Taliban or of base employees coming to his aid prior to the SHEV interview (AB170.9- 171.1); (iv) that it had concerns about the plausibility of the appellant and his colleagues having set off in a convoy without security personnel (AB171.2); (v) it had concerns about the plausibility of the driver who had been shot, managing to go and get help from the base (AB171.2); (vi) although the appellant had claimed to have received threatening telephone calls, there was no evidence that the appellant's mobile telephone had been returned to the appellant after the incident (AB171.2); (vii) it had concerns about the appellant's statement at the SHEV interview that other employees might have received threatening telephone calls, but nobody told him about it (AB171.3). (e) Further and in the alternative, any or all of the matters identified in subparagraph (d) above were not raised by the Delegate with the appellant at the SHEV interview. (f) The Authority did not consider exercising its power, and in any event did not in fact exercise its power, under s 473DC to get new information from the appellant, including in respect of the matters identified in subparagraph (d) above. (g) In the premises, the Authority breached its implied obligation of reasonableness in respect of the exercise of its powers (particularly in respect of s 473DC) and, accordingly, engaged in jurisdictional error, by determining the review based upon any or all of the matters identified in subparagraph (d) above without first considering exercising its power, or in any event in fact not exercising its power, under s 473DC to get new information from the appellant at an interview or otherwise in respect of the matters identified in subparagraph (d) above. 25 The Minister did not oppose the amendment to ground 1 but did oppose reliance on ground 2 as a new ground raised for the first time on appeal. 26 The principles governing a grant of leave to rely on a new ground on appeal were not in dispute. 27 The Court will grant leave to argue a ground of appeal not raised before the primary judge only if it is expedient in the interests of justice to do so and where: the new points to be advanced have merit; there is no real prejudice to the respondent in permitting the new grounds to be agitated; and there is an explanation for the failure to take the points below: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48]. 28 Here the Minister opposed the grant of leave to rely on ground 2 because, in his submission, it lacks merit. 29 I consider each ground of appeal below.

Appellant's submissions 30 By this ground the appellant contends that there was inadequate interpretation at an interview before the delegate and that the question that arises is the potential impact on the fairness of the process conducted by the Authority under Pt 7AA of the Act, and whether the Authority's response, in the knowledge of the issues, complied with its obligations. 31 The appellant submits that its primary position is that the Authority was obliged at least to consider exercising its power under s 473DC(1) of the Act to conduct an interview and that it failed at the "starting gate" in that it overlooked or ignored the request that was made. He contends that the Authority did not refer to the request nor give any reasons for not exercising its power under s 473DC(1) of the Act. The appellant submits that it should be inferred from that omission, on the balance of probabilities, that it did not do so. The appellant notes that the Authority took care to document its other decisions under s 473DC(1) of the Act and thus, if it had considered the request, it would likely have recorded its reasons for refusing to do so. 32 In the alternative, the appellant submits that if the request was implicitly considered, as a matter of legal reasonableness, the Authority was obliged to exercise its power under s 473DC(1) of the Act to conduct a further review. He contends that, as DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 demonstrates, there are multiple ways in which a mistranslation at a SHEV interview can lead to jurisdictional error on the part of the Authority, even if it is aware of the misinterpretation. The appellant submits that, having accepted the misinterpretation issues he raised, the Authority failed to comply with the reasonableness condition implied into its statutory duties and powers by failing to exercise its powers under s 473DC(1) of the Act. 33 The appellant drew attention to the following factors which he said were particularly significant in demonstrating that it was legally unreasonable for the Authority not to have exercised its power under s 473DC of the Act to invite him to an interview: (1) his express request to the authority to interview him as a solution to the interpretation problems; (2) his submission that the standard of interpretation affected the quality of the hearing more broadly, resulting in the wrong choices of words, improper construction of sentences and bad grammar. While he accepted that the correcting transcript might remedy specific misinterpretations, he noted that it would not remedy the broader difficulties; (3) the Authority's acceptance of both the specific and broader complaints in relation to the translation; (4) the established law that a causal connection between a specific misinterpretation and the reasoning of the decision maker is not required. The question is whether the misinterpretation could have affected the decision. From the point of view of the Authority considering the exercise of its power before making the decision, the question would be whether the power under s 473DC should be exercised to address the potential of the interpretation issues affecting its decision; and (5) the appellant did not have the opportunity that the Act and Code of Procedure envisaged with the consequence that the Authority, acting reasonably, should have remedied the situation by exercising its power under s 473DC to invite him to an interview so as to restore the position as envisaged by the Act. 34 The appellant set out five reasons why the primary judge's reasons for concluding that there was no jurisdictional error on the part of the Authority in not holding an interview could not withstand analysis. They are: (1) the primary judge's reasons conflate several different questions and reasons; (2) the primary judge reasoned that because the appellant had provided a corrected transcript the request did not have to be considered or reasons for not exercising the power did not need to be given; (3) the primary judge relied on the Authority's finding that the interpretations were not on their face material; (4) while the primary judge stated that the Authority "does not accept that the applicant was not on notice of those issues on a fair reading of the transcript as a whole", that diverts attention away from the real issues being whether the Authority in fact considered the exercise of its powers and its reasonableness in not exercising the power; and (5) the primary judge's reliance on the Authority having accepted the appellant's claims in relation to his employment is a non sequitur. That the Authority accepted some parts of the appellant's claims did not relieve it of its obligation to either consider exercising the power in s 473DC or, if it had considered it, to establish the reasonableness of it not doing so.

Legislation and applicable principles 35 Sections 473DC(1) of the Act empowers the Authority to get any documents or information that was not before the Minister when the Minister made the decision under s 65 of the Act (referred to as new information) the Authority considers may be relevant. Section 473DC(2) and (3) of the Act provide: (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. 36 In DVO16 the High Court considered the effect on a review by the Authority under Pt 7AA of the Act of errors in translation at an interview between a referred applicant and a delegate of the Minister conducted after the applicant applied for a protection visa and before the delegate's refusal of that application. 37 At [8] Kiefel CJ, Gageler, Gordon and Steward JJ observed in relation to the effect of mistranslation on an administrative decision generally that: Whether and if so in what circumstances mistranslation might result in invalidity of an administrative decision turns necessarily on whether and if so in what circumstances mistranslation might result in non-compliance with a condition expressed in or implied into the statute which authorises the decision-making process and sets the limits of decision-making authority. In a decision-making process conditioned by a requirement to afford procedural fairness the content of which is implied by the common law, the effect of mistranslation on the resultant decision will turn on whether the mistranslation has resulted in "unfairness" in the decision-making process amounting to "practical injustice". In a decision-making process in which procedural fairness is excluded or is sufficiently provided if specific statutory requirements are met, the effect of a mistranslation on the resultant decision will turn on the "blunter question" of whether the mistranslation has resulted in one or more specific statutory requirements not being met. (Footnotes omitted.) 38 After referring to the statutory scheme in Pt 7AA of the Act, at [19]-[23] their Honours identified exhaustively the two ways in which translation errors in a recording of a protection interview provided to the Authority by the Secretary as part of the review material may result in jurisdictional error: [19] The first arises from the condition of reasonableness implied into the procedural duty of the Authority to review the referred decision by considering the review material and implied as well into the procedural powers of the Authority to get new information at an interview with the referred applicant and then to consider that new information if the Authority is satisfied that specified conditions are met. The conditions for the consideration of new information are met if the Authority is satisfied, relevantly, that it is credible information about the referred applicant not previously known to the Minister which may have affected consideration of the referred applicant's claims had the new information been known to the Minister and that "exceptional circumstances" justify its consideration. Where the referred applicant's testimony as given at a protection interview was incorrectly translated, testimony able to be given by the referred applicant at an interview with the Authority as correctly translated would amount to new information which might well meet those conditions for consideration by the Authority. [20] Faced with translation errors in a recording of a protection interview revealed or suggested by the review material provided by the Secretary, considered alone or in light of such submissions as might be made on behalf of the referred applicant during the course of the review, the Authority would have the potential to breach the reasonableness condition implied into its powers to get and consider new information were it to fail to exercise those powers to interview the referred applicant and then to consider the referred applicant's testimony as correctly translated. Equally, the Authority would have the potential to breach the reasonableness condition implied into its duty to review the referred decision by considering the review material were it to make findings adverse to the referred applicant with knowledge of translation errors without having exercised its procedural powers to get and consider new information which might address those errors. [21] Whether or not the decision of the Authority was reached in breach of the reasonableness condition implied into its procedural duty and powers would turn, on either analysis, on whether the decision-making course in fact adopted by the Authority in the circumstances known to it was open to a reasonable member of the Authority cognisant of the statutory obligation of the Authority ordinarily to conduct its reviews without accepting or requesting new information or interviewing the referred applicant, cognisant of its powers to get new information in an interview with the referred applicant and to consider that information, and mindful of the statutory exhortation to the Authority to pursue the objective of providing a mechanism of limited review that is both "efficient" and "quick". [22] The second way in which translation errors in a recording of a protection interview provided to the Authority by the Secretary as part of the review material could result in non-compliance with Pt 7AA is through non-compliance with the overriding duty of the Authority to "review" the referred decision. That overriding duty of the Authority is to engage in a de novo assessment of the merits of the decision in fact made by the delegate: "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 Authority's de novo assessment of the merits is not of a lesser standard than that required of the delegate in making the referred decision. ... [23] Just as mistranslation of words spoken during a protection interview has the potential to result in the delegate failing to understand and therefore to consider the substance of a claim in fact raised by the applicant in his or her own language, so the same mistranslation has the potential to result in the Authority failing to understand and therefore to consider the substance of the same claim. Mistranslation in that way has the potential to result in the Authority failing to discharge the core element of its overriding duty, namely to assess the claims to protection in fact made by the applicant against the criteria for the grant of the visa in determining for itself whether or not it is satisfied that the criteria for the grant of a visa have been met. (Footnotes omitted.) 39 In CJB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 44 at [26] Burley J relevantly said: The basis upon which an error of translation may be taken into account in the context of judicial review of a decision of the IAA was considered recently in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 388 ALR 389 at [4]-[23] (Kiefel CJ, Gageler, Gordon and Steward JJ). Two limited circumstances in which a misinterpretation during the course of a protection interview may give rise to jurisdictional error were identified. The first arises from the condition of reasonableness implied into the procedural duty of the IAA to review the referred decision. The conditions for the consideration of new information under s 473DD(b)(ii) of the Migration Act may be met if the IAA is satisfied, relevantly, that there is credible information about the referred applicant not previously known to the Minister, which may have affected consideration of the claims had the new information been known to the Minister, and "exceptional circumstances" justify its consideration: s 473DD(a); DVO16 at [19]. That is not the case advanced. The second, which is apposite in the present circumstances, arises if there may be non-compliance with the overriding duty of the IAA to conduct a de novo "review" of the referred decision pursuant to s 473CC of the Migration Act. His Honour then set out DVO16 at [23] (see [38] above).

Consideration 40 The question before the Court is whether there is evidence to demonstrate that mistranslation of the interview with the delegate disabled the Authority from conducting a review as contemplated by the Act. Relevantly, the Authority is required "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": see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17]. 41 The appellant's primary contention is that the Authority was "obliged to at least consider exercising its power under s 473DC(1) to conduct an interview". The appellant asks the Court to infer that it failed to do so because it did not give any reasons for not exercising its power. That argument fails for two reasons. 42 First, no occasion or obligation arose for the Authority to consider exercising its power under s 473DC(1) of the Act. 43 Before the Authority the appellant relied on a corrected transcript which was annexed to a statutory declaration made by a NAATI accredited interpreter in which the interpreter, among other things, stated that "[t]he transcript was made in good faith and is an accurate and complete transcription of the contents of the recording except as stated under paragraph 3".1 In paragraph 3 the interpreter noted any "indistinct" or "inaudible" or other notations indicated difficulty with the transcription and "refers to those parts of the proceedings that could not be accurately transcribed due to speech clarity". The Authority found that the transcript was not new information and had regard to it (see [8(1)] above). 44 In DVO16 the majority identified two ways in which translation errors in a recording of a protection interview provided to the Authority by the Secretary as part of the review material may result in non-compliance with any condition of a decision of the Authority expressed, or implied, Pt 7AA of the Act. Only the first, identified at [19]-[20] (see [38] above), is relevant here. 45 That is, where faced with translation errors in a recording of a protection interview, the Authority would have the potential to breach the reasonableness condition implied into its powers in s 473DC if it failed to exercise those powers to interview the referred applicant and to consider the referred applicant's evidence as correctly translated. The Authority would equally breach the reasonableness condition implied into its duty to review the referred decision by considering the review material if it made findings adverse to the applicant knowing of translation errors without exercising its procedural powers to get and consider new information which might address those errors. 46 However, here the Authority had before it a transcript provided by the appellant which corrected the translation errors. In those circumstances, the occasion for the Authority to consider whether to exercise its procedural powers under s 473DC of the Act did not arise. 47 Further, having regard to the test articulated at [21] of DVO16, it could not be said that the Authority acted unreasonably in not exercising its powers under s 473DC to interview the appellant. Adopting that articulation, the question is "whether the decision-making course in fact adopted by the Authority in the circumstances known to it was open to a reasonable member of the Authority cognisant of the statutory obligation of the Authority ordinarily to conduct its reviews without accepting or requesting new information or interviewing the referred applicant, cognisant of its powers to get new information in an interview with the referred applicant and to consider that information, and mindful of the statutory exhortation to the Authority to pursue the objective of providing a mechanism of limited review that is both 'efficient' and 'quick'". 48 As set out above, the circumstances known to the Authority in this case were that the appellant contended that there were translation errors in the interview but provided a transcript prepared by a NAATI certified interpreter which he said corrected those errors and to which the Authority had regard. Given those facts and the statutory context in which the Authority undertakes its task, including its obligation ordinarily to conduct its reviews without accepting or requesting new information or interviewing the referred applicant, the course adopted by the Authority was open to it and was not unreasonable. Indeed, as was the case in DVO16 (at [43]), the errors in the transcription to which I was taken by the appellant in argument were not so "grave or extensive as to compel the Authority to the conclusion that it was incapable of assessing the appellant's claims by reference to", in this case, the corrected transcript and the recording. 49 Secondly, the Authority was not under any obligation to give reasons for its exercise or non-exercise of the power in s 473DC(1). This is because s 473DC of the Act confers a procedural power. That the Authority provided reasons for the exercise of its power to receive other categories of information does not mean that it failed to consider the exercise of another statutory power in relation to a different category of information: see BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [40] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). 50 In CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 the appellant contended that the Authority had denied him natural justice by failing to put to him the country information that it relied upon. He submitted that the error was one of legal unreasonableness in failing to consider inviting the appellant to "comment" on the new country information under s 473DC of the Act: at [35]. In considering that contention at [38]-[41] Thawley J said: 38 There may be circumstances in which it would be legally unreasonable to fail to consider exercising the discretion under s 473DC: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82]; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [70]; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 at [80], [81]. In this regard, the appellant bears the onus of establishing: (1) the factual foundation for the conclusion that the Authority did fail to consider exercising the discretion: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45] (Hill, Sundberg and Stone JJ); (2) that there was jurisdictional error in failing to consider exercising the discretion: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] (Gummow J). 39 Section 473EA(1) does not require the Authority's written statement of decision to include a statement as to the exercise of a procedural decision in the course of review: BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [45], [49], [50]; BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [42] (both cases concerning s 473GB). The absence of a reference to the consideration or exercise of a discretion does not of itself give rise to an inference that its exercise was not considered: SZGUR at [31] (French CJ and Kiefel J); BVD17 at [49]. That is not to deny that there may be circumstances where the lack of any information in the reasons as to, or reference to consideration of, the exercise of the discretion supports an inference that the discretion was not considered: BCQ16 at [50]; BVD17 at [50]. 40 The appellant submitted that it should be inferred that the Authority failed to consider exercising the discretion under s 473DC. 41 It is unnecessary to decide whether or not that is the case. Even if the Authority failed to consider exercising the discretion under s 473DC in the present case, the circumstances were not such that any such failure was legally unreasonable with the consequence that the decision was vitiated by jurisdictional error. 51 The Authority was not required to give reasons for its procedural decision. In any event, I would not infer that, because of an absence of reasons, it failed to consider whether it should exercise its power under s 473DC(1) of the Act to invite the appellant to an interview. The Authority considered its power under s 473DC of the Act and whether it should have regard to the information provided by the appellant including the corrected transcript of the interview. In those circumstances I would not infer that an absence of reasons about whether the Authority should invite the appellant to an interview means that it failed to consider whether it should do so. I would draw the contrary conclusion, particularly given the evident care taken by the Authority in considering the corrected transcript and whether it was new information. 52 Putting that to one side, the appellant has not established the matters for which he bears the onus identified at [38] of CQQ17 and, for the reasons set out above, the circumstances were not such that any failure to consider the exercise of the power in s 473DC of the Act was legally unreasonable. 53 The appellant's submissions made in the alternative do not assist. The relevant inquiry concerns the "claims" which the Authority is required to assess as part of its review under s 473CC of the Act. Relevantly, the appellant bears the onus of establishing that a particular interpretation error, referrable to a particular claim, is "so extreme" that it "deprive[s] the assessment by the Authority of its required character as a 'review' under s 473CC of the [Act]": see DVO16 at [47] (Edelman J). Contrary to the appellant's submission recorded at [30(4)] above, a causal connection between a specific misinterpretation and the decision maker's reasoning is required. The appellant has not identified how any particular translation error disabled the Authority from considering his claims, nor has he challenged the Authority's finding at [6] of its decision record that the transcript provided by the appellant contained a "complete and accurate transcript" of the interview. 54 For those reasons, ground 1 is not made out.

Proposed ground 2 55 By proposed ground 2 the appellant contends that the issues of concern for the Authority were different to those of concern for the delegate and, in particular, the issues of concern to the former were specific inconsistencies in the appellant's evidence that had not been explored or the subject of findings by the delegate.

Appellant's submissions 56 The appellant submits that the issues of concern for the Authority were different from those for the delegate although he accepts that both made findings adverse to his credibility. 57 The appellant contends that the delegate rejected his claim that he had worked for the construction company at all and that in making the adverse finding the delegate had three issues of concern about the appellant's evidence: (1) his description of the work he undertook for the construction company was vague and lacking in detail; (2) his reason for undertaking work in a dangerous province was not plausible; and (3) his description of the Taliban ambush and escape was implausible and farfetched. 58 The appellant says that in contrast the Authority: (1) accepted that the appellant worked for the construction company; (2) did not examine the reason for the appellant working in the province; and (3) accepted that the appellant had been stopped by the Taliban, had his mobile phone taken, had been accused of working for the Americans and had managed to escape. 59 The appellant submits that the following specific concerns were critical to the Authority's rejection of his claim: (1) an inconsistency between the appellant's written claims and his evidence at the interview as to whether security personnel were present when they encountered the Taliban or whether they arrived later; (2) an inconsistency in that at the interview the appellant claimed that he had been taken by the Taliban and that other base employees came to his aid and that these were matters the appellant did not mention in his arrival interview or written application; (3) the Authority's concerns with the plausibility of the appellant's account of setting off in a convoy without his security personnel and of a driver having been shot but still managing to get help from the base; (4) in the appellant's arrival interview and written application he stated that the Taliban had taken his mobile phone when they stopped vehicles, whereas there was no evidence about the mobile phone being returned to the appellant, leading the Authority to doubt that he had received threatening phone calls as claimed; and (5) the appellant's claim that other employees had received threatening telephone calls but nobody told the appellant about it was doubtful in light of his other claim to know others were receiving letters and there was a security team posted with them. 60 The appellant submits that these matters were not explored by the delegate at the interview and that: (1) unsurprisingly, the delegate explored matters of concern to it including the appellant's reasons for working in the province, the nature of his work for the company and his oral account of the incident with the Taliban; (2) when the migration agent asked about "any concerns we need to address" the delegate, consistent with its reasons, expressed a concern about the appellant working in road construction, his descriptions being vague and lacking in detail and the plausibility of the escape from the Taliban; and (3) what was absent was any exploration of the issues of concern to the Authority. The appellant notes that his post interview submission corresponded with the matters of concern identified by the delegate and not the issues of concern before the Authority. 61 The appellant submits that the circumstances before the Authority were thus ones where, with the exception of issue (3) (see [58(3)] above), the issues of concern to it were specific inconsistencies in the evidence that had not been explored or the subject of findings by the delegate, referring to DZU16 v Minister for Immigration and Border Protection (2017) 321 FLR 306 (DZU16 FCCA) at [94] and Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82]. The appellant contends that his responses to those concerns constituted "new information relevant to his personal circumstances" that "was not and could not have been before the Minister when the delegate made the referred decision", referring to ABT17 at [15]-[17]. 62 The appellant submits that, faced with these circumstances, it was legally unreasonable for the Authority either not to consider the exercise of, or to decide not to exercise, its power to provide the appellant with an opportunity to address its concerns, at an interview or otherwise. The appellant says that this is not to gainsay the general proposition that the Authority may make an adverse credibility finding for different reasons from the delegate without considering the exercise of, or exercising, its power under s 473DC of the Act. However, the appellant contends that in this case the Authority's concerns were specific concerns and inconsistencies unexplored by the delegate, in contrast to the delegate's finding of implausibility in the account given.

Consideration 63 The appellant relies for his analysis on DZU16 FCCA. In that case, a delegate of the Minister refused the applicant's application for a visa because, despite finding the appellant's chance of being subjected to serious harm for reason of his race and religion could not be described as remote or insubstantial if he returned to his home area in Afghanistan, it also found that he could relocate to Kabul where, despite dangers, there was no real chance that he would be persecuted for reasons set out in s 5J(l)(a) of the Act: DZU16 FCCA at [6]-[7]. 64 The delegate's decision was referred to the Authority under Pt 7AA of the Act. On 16 August 2016 the Authority sent the applicant an acknowledgement letter. On 27 October 2016 the Authority sent an email to the detention centre where the applicant was detained which attached a three page letter addressed to the applicant (referred to as an Invitation to Comment) which contained, among other things, analyses of the security situation in Afghanistan as a whole, and a suggestion that the applicant may not face a real chance of being seriously harmed for reason of his ethnicity and religion in Kabul or Mazar-e-Sharif and that it may be reasonable for him to relocate to those places, particularly the latter. The letter invited the applicant to comment on the information by 1 November 2016 and informed the applicant that if his comments were not received by that date a decision may be made without the Authority taking further steps to obtain the applicant's views. 65 The letter was not given to the applicant until 31 October 2016. The following day the applicant contacted the Authority and informed it, among other things, that he had only received the letter the previous afternoon and that he was unable to respond by that afternoon. On 1 November 2016, with the assistance of another person, the applicant sent an email seeking an extension of time to respond to the Invitation to Comment and was informed by an email dated 2 November 2016 that the Authority would not make a decision before 3 November 2016. The Authority's decision was made on 15 November 2016. The Authority: found that there was more than a remote chance that the applicant would face serious harm in his home area and on the roads in the area; was not satisfied that the applicant would face a real risk of harm in urban centres such as Mazar-e-Sharif because of his ethnicity, religion or any other reason; and, in the context of considering s 36(2)(aa) of the Act, found that relocation to an area such as Mazar-e- Sharif was reasonable. 66 One of the grounds raised by the applicant in his application for judicial review of the Authority's decision was a contention that the Authority's failure to invite him to an interview or to consider doing so was unreasonable. The Federal Circuit Court accepted that was so. At [117]-[118] Judge Driver said: 117 First, the delegate based his decision of 12 August 2016 on the availability of Kabul as a place of relocation. The Authority, confronted with the new information that Kabul was dangerous, decided that Mazar-e-Sharif, which had been unmentioned prior to the letter of 27 October, was a viable place of relocation. Therefore in the absence of notice, the applicant and any advisor he may have had could not have known that relocation to Mazar-e-Sharif was an issue before the Authority. 118 It was objectively unfair for the Authority to conduct the review on the basis of that new sub-issue without effective reference to the applicant. The attempt by the Authority to bring the issue to the applicant's attention and invite a response was ineffective because the time for a response was wholly inadequate, given the applicant's circumstances, and the Authority proceeded under the wrong section of the Migration Act and applied the wrong time limit. Even if it had applied the correct time limit, that would have been an inadequate time for the applicant to respond given his detention, his lack of English and his lack of advice or professional assistance. There is no evidence that the Authority considered any alternative procedure. As noted above, the Authority had available to it the discretions conferred by s 473DC, as well as its administrative discretion to extend its earlier invitation to the applicant to make a submission. Consistently with my findings on Grounds 3 and 4, however, the general law cannot provide a remedy for that unfairness unless the conduct of the Authority was legally unreasonable. (Footnotes omitted.) 67 At [122] his Honour held that it was unreasonable for the Authority not to consider giving the applicant "an effective opportunity to address the issue that it found dispositive" and that "it should have acted or considered acting pursuant to s 473DC(3)" of the Act. His Honour continued at [122]-[123]: 122 … Given that the giving of that letter, at least insofar as raising the issue about relocation to Mazar-e-Sharif was concerned, was fundamental to the review, it follows that an error in identifying the relevant statutory provision, calculating a statutory response time, or unreasonableness in insisting on a particular form or timeframe of response, would unreasonably deny the applicant the opportunity to respond consistently with the provisions of Pt 7AA and thus is a jurisdictional error. 123 Further, given the applicant's circumstances, of which the Authority was plainly aware, which imposed severe limitations on his capacity to respond in writing, especially within a three working day time limit, the Authority needed to consider the option of inviting the applicant to an interview to address the issue of fundamental importance to the outcome of the review. In the circumstances of this case, the failure by the Authority to consider its power to conduct an interview was unreasonable. 68 The Minister appealed the decision in DZU16 FCCA, raising a number of grounds, including that the Federal Circuit Court erred in finding that it was legally unreasonable for the Authority to fail to consider proceeding under s 473DC(3) of the Act. In Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 (DZU16 Full Court) a Full Court of this Court (Robertson, Murphy and Kerr JJ) identified (at [5]) five issues arising on appeal including relevantly, whether the primary judge erred in holding that it was unreasonable for the Authority not to consider giving the respondent an effective opportunity to address the issue that it found dispositive and that it failed to consider acting under s 473DC(3) of the Act. In considering that issue the Full Court set out three alternatives but preferred its analysis at [79]-[81] where it said: 79 A second alternative analysis is that if the Authority had not been mistaken as to its obligation to act under s 473DE, then to carry out its statutory task of review in a legally reasonable way it would have had to consider acting under s 473DC: see Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that way the Authority's mistake had an operative effect on the performance by it of its statutory task of review. We would not accept the Minister's submission that, because s 473DE did not apply, the mistakes made by the Authority did not have a legal or jurisdictional consequence. It is common ground that the Authority did not consider acting under s 473DC and this was because it wrongly considered that it was under a duty under s 473DE to invite the respondent to give comments. 80 CRY16 establishes that particular circumstances may arise in the course of a review that may, as a matter of legal reasonableness, require the Authority to consider exercising its discretion under s 473DC. That is so notwithstanding that s 473DA(1) provides that the provisions of Div 3 of Pt 7AA of the Migration Act "are to be taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority". 81 The application of the principles in CRY16 that meant that it was legally unreasonable for the Authority not to have considered the exercise of its statutory power under s 473DC leads to a comparable conclusion in these proceedings, although the circumstances in which the Authority did not consider the exercise of that power in the present proceedings are different. In the present case the Authority decided that it had new information, albeit country information, and that there were exceptional circumstances that would justify it considering that new information. As in CRY16, the Authority was considering whether it would be safe for the review applicant to relocate within a country in circumstances where he might otherwise be entitled to protection, and whether it would be reasonable in the sense of "practicable" for him to do so. This depended upon the particular circumstances of the respondent, the applicant for refugee status, and the impact upon that person of relocation of the place of residence within the country of nationality: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]. In each case the Authority had decided to take into account new material which had not been before the Minister's delegate. As the Authority said in the present case at [51], "the delegate asked [the respondent] questions about relocation to Kabul in his visa interview, but not Mazar-e-Sharif". The errors as to time limits, considered at [75] above, would also be relevant to the extent that it is contended that the mistaken resort to s 473DE yielded no response and the same should be taken to apply to the jurisdictional error of the Authority in failing to consider acting under s 473DC. 69 At [91]-[94] of DZU16 Full Court the Full Court undertook an alternative analysis in the event that their Honours were wrong in their conclusion thus far. The Court relevantly said: 91 Our analysis is that although the Authority made a legal error in considering it was under a duty to invite the respondent to comment, it in fact invited a response. But the invitation specified the wrong period and did so three times: see [75] above. Next, considered objectively, the errors were likely to have had an effect on whether the respondent gave a response: there is a substantive difference between being told of a right to respond and a possibility or contingent possibility born of the Authority's mistakes. The Authority's mistakes were likely to have had an operative effect. In the circumstances, the chance to respond in fact given was not an effective chance, or a reasonable chance, to respond. The absence of a duty under s 473DE does not change the assessment of the ultimate decision for legal unreasonableness. Subsequently, the Authority made its decision without the respondent's response. 92 In these circumstances it was legally unreasonable for the Authority to make its decision. The process it adopted was either contrary to the statute or did not allow a reasonable time to respond. The Authority's mistake as to its obligation to invite the respondent to give comments does not mean that the errors it made in limiting the period in which the respondent had a right to respond were immaterial. 93 The legislature is to be taken to intend that the Authority's statutory powers will be exercised reasonably. 94 Further, the exercise of the power to decide lacked an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Mazar-e-Sharif. The Authority did not have that information because the question of relocation to Mazar-e-Sharif was not explored, or the subject of findings, by the delegate. The Authority's failure to give the respondent an effective chance to respond meant that it disabled itself from considering what was reasonable, in the sense of "practicable", in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error. 70 At [95] the Full Court referred to the reasoning of the primary judge as follows: … [I]t is to be recalled that one element in his Honour's conclusion of legal unreasonableness was that the Authority failed to consider proceeding under s 473DC(3). The second element of the conclusion was that the Authority proceeded incorrectly under s 473DE. The third element was the imposition of an incorrect deadline for a response. The fourth element was that the Authority failed to correct its error in relation to time when informed by the respondent of the day on which the 27 October 2016 letter had been received. 71 At [96] their Honours expressed their preference for their analysis at [79]-[81] and the alternative analysis at [91]-[94] to that of the primary judge, noting that, in effect, their Honours' analysis was that "the first element identified by the primary judge is sufficient to establish legal unreasonableness" and that they had adapted "the second, third and fourth elements identified by the primary judge" in their reasoning at [91]-[94]. The Full Court concluded that the result was however the same "in that the Authority's decision cannot stand". 72 The Full Court in DZU16 Full Court did not affirm the reasoning in DZU16 FCCA. The Full Court's preferred reasoning focussed on the fact that the Authority in that case had new information, namely country information, and that there were exceptional circumstances that would justify it considering that new information. The Full Court observed that, as was the case in CRY16, the Authority decided to take into account information that had not been before the Minister's delegate. That is the Full Court was not concerned with the Authority making findings about matters that had not been explored before the delegate. It was concerned with the Authority's reliance on new information in making a different determination to the delegate without considering whether to exercise its discretion under s 473DC of the Act. 73 Here there is no new information that the appellant contends was not before the delegate. Rather, the appellant relies on specific inconsistencies in the evidence that he says had not been explored or were not the subject of findings by the delegate. But the Authority is not required to notify an applicant that it is considering taking a different view of material considered by the delegate or to inform an applicant of specific reservations about the applicant's case and provide an opportunity to respond: see DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [72]. 74 In DGZ16 the appellant contended that the delegate and the Authority both dealt with his claims by focusing on his credit but said that, save in one respect, their reasons for doing so were entirely different. A Full Court of this Court (Reeves, Robertson and Rangiah JJ) noted at [70] that the case before the Court was not one where the Authority had decided a point which was not the point decided by the delegate but was one where additional information was necessary in order to complete the review. The Full Court referred to CRY16 and accepted that there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3) of the Act. However, their Honours found that in that case the Authority reassessed the material that had been considered by the delegate and came to a different view. At [75]-[76] the Full Court said: 75 There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant. 76 It was open to the Authority to disagree with the delegate's evaluation of the material without providing to the appellant an opportunity to respond. 75 The present case, like DGZ16, is one where both the delegate and the Authority addressed the same central issue, namely the appellant's claim that he worked for the construction company and that he was endangered in the course of that employment by the attack by the Taliban. The delegate and the Authority made different findings about that claim as identified by the appellant (see [57]-[58] above). In doing so the delegate and the Authority considered and assessed the same material. In forming its view, the Authority evaluated that material for itself as it was required to do by Pt 7AA of the Act: see DGZ16 at [72]. 76 For those reasons, in my opinion, proposed ground 2 lacks merit. 77 The appellant was unrepresented before the primary judge, which explains why this ground was not raised below, and there is no apparent prejudice to the Minister in the ground being raised at this late stage. However, given the lack of merit in the proposed ground, I would not grant leave to raise it on appeal.

conclusion 78 It follows from the above that I would grant leave to the appellant to rely on ground 1 as amended in the further amended notice of appeal but refuse leave to rely on proposed ground 2 in the further amended notice of appeal. The appellant has failed to make out ground 1 therefore the appeal should be dismissed. 79 As the appellant has been unsuccessful, he should pay the Minister's costs of the appeal, including the Minister's costs relating to the application to amend, as agreed or taxed. 80 I will make orders accordingly. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.