DJV17 v Minister for Home Affairs

Federal Court of Australia|2019-06-19|Before: Collier J

The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 This is an appeal from the whole of the judgment and orders of the Federal Circuit Court given on 3 August 2018 in DJV17 v Minister for Immigration & Anor [2018] FCCA 2085. In that decision, the primary Judge dismissed the appellant's application for judicial review of an earlier decision of the Immigration Assessment Authority (Authority). The Authority had, in turn, reviewed and affirmed a decision of a delegate of the first respondent (formerly the Minister for Immigration and Border Protection) (Minister) to refuse to grant the appellant a Class XE Subclass 790 Save Haven Enterprise visa (protection visa).

Decision of the Authority 5 I adopt the following general summary of the Authority's decision of 22 June 2017 which affirmed the delegate's decision. The summary was set out in the Minister's written submissions before the Federal Circuit Court and duplicated at [7] of the primary judgment, the accuracy of which his Honour noted was not disputed by the parties and I understand not to be an issue in this appeal to the Federal Court: The IAA decision: the decision under review 7. On 22 June 2017, the IAA affirmed the delegate's decision. The IAA had regard to the material referred to by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act). The IAA also noted in its Decision Record (DR) that it had obtained updated country information regarding the emergent threat of Islamic State in Afghanistan and the security situation in Balkh province. The IAA considered that the updated country information was significant new information which impacted on its consideration of the Applicant's claims. Pursuant to s 473DC and s 473DD, the IAA found there were exceptional circumstances justifying consideration of the new information. 8. On 1 May 2017, the IAA invited the Applicant, in reliance on s 473DE, to comment on the new information, and on the reasonableness of his relocating to Mazar-e-Sharif. On 15 May 2017, the Applicant's representative responded with an attached submission. 9. The IAA was satisfied that the further information was not before the Delegate and could not have been provided before the Delegate's decision and was satisfied that there existed exceptional circumstances to justify considering it. 10. The IAA also noted that, by email sent by the applicant's representative on 24 November 2016, the applicant claimed that there had been interpreting errors during the applicant's SHEV interviews. Having found that this constituted new information (ie, new information that was, inter alia, not before the delegate), the IAA set out the limited circumstances in which new information could be considered by reference to Part 7AA of the Act. The IAA was not satisfied that the claim about the quality of the interpreting could not have been provided before the delegate's decision was made. Nor was the IAA satisfied that it was credible personal information. Similarly, the IAA did not accept new information put by the applicant's representative that the applicant had failed to recall information during his SHEV interview, for the same reasons. 11. After considering the Applicant's evidence and the country information, the IAA found that the Applicant did not satisfy the refugee criteria because there was not a real chance of persecution in relation to all areas of Afghanistan. Nor did the IAA find that the applicant satisfied the complementary protection criterion: this was because the IAA considered that the Applicant could relocate to the cities of Kabul and/or Mazar-e-Sharif. 12. The IAA considered the applicant's case by reference to the following aspects of his claims: Fear of harm as a Shia Hazara in Jaghori District, Ghazni Province 12.1. The IAA did not accept that the applicant came to the adverse attention of the Taliban under suspicion of transporting government officials and documents, or for any other reason. The IAA considered that the applicant's evidence in relation to his claimed abduction and escape "lacked detail", had "changed over time" and was marked by conflicting evidence as to when he was abducted and the period of time he spent in Kabul. Accordingly, the Tribunal was not satisfied the applicant was recalling a genuine personal experience; 12.2. The IAA also did not accept that, given independent country information pointing to the lack of Taliban penetration into Jaghori province, there was a real chance that the applicant would face harm from the Taliban in Jaghori for reasons of his ethnicity, religion, or any other reason. 12.3. However, by reference to the relevant country information, the IAA found that the Applicant's home province of Ghazni was one of the most volatile in Afghanistan. Roads linking Kabul and Hazara areas of Ghazni were unsafe, and the Taliban and other anti-government elements carried out attacks and abductions against Hazaras. Given the ongoing security concerns in the province, the IAA accepted that there was a real chance that the Applicant would suffer serious harm as an ethnic Hazara on surrounding roads leading to Jaghori if he were to attempt to return there. Fear of harm in relation to other part of Afghanistan 12.4. The IAA did not accept, however, that the applicant as a Shia Hazara faced a well-founded fear of persecution in relation to all areas of Afghanistan other than Ghazni. It concluded that the Applicant could safely relocate to the cities of Kabul or Mazar-e-Sharif in Balkh province. 12.5. The IAA found that, as it had not accepted that the applicant faced a real chance of serious harm in Jaghori District from the Taliban for any reason, it did not accept that he would be personally pursued by the Taliban outside his home area. 12.6. The IAA also noted that Kabul and Mazar-e-Sharif are some of the safest cities in Afghanistan for Hazaras and both provide viable options for people for internal relocation and resettlement. While some insurgent attacks do occur in each city, incidents targeting Hazaras are infrequent and the attacks are almost exclusively targeted against the government. There was nothing before the IAA to indicate the applicant would face a real chance of harm from an insurgent group because of his ethnicity or any other adverse profile. 12.7. The IAA accepted that, as a Shia Hazara, with no familial links in either Kabul or Mazar-e-Sharif, the applicant may be subject to a degree of discrimination. However, the IAA was not satisfied that there was a real chance that the discrimination would rise to the level of serious harm within the meaning of s 5J of the Act. Nor was the IAA satisfied that the applicant's capacity to exist or earn a livelihood would be threatened; and while there were reports that asylum seekers returned to Afghanistan are targeted due to their perceived pro-Western values or political opinions, the IAA noted, referring to DFAT country information, that none of the reports was from Mazar-e-Sharif and low-profile Hazaras faced a low risk of being targeted. The IAA also noted that the applicant would be returning with no identifiable links to the international community or Afghan government and did not accept that the applicant would be imputed with an adverse political opinion if returned to Mazar-e-Sharif or Kabul. 13. In light of the foregoing, the IAA was not satisfied that the applicant faced a real chance of persecution relating to all areas of Afghanistan in the reasonably foreseeable future, and so did not meet s 36(2)(a) of the Act. Complementary protection 14. The IAA next considered whether the applicant faced a real risk of significant harm on return to Afghanistan under s 36(2A). It adopted its earlier conclusion that there was a real risk of significant harm if he were to return to Jaghori. However, after referring to s 36(2B) of the Act and, on the basis of similar reasoning to the refugee decision, the IAA found that it would be reasonable for the Applicant to relocate to Mazar-e-Sharif or Kabul where there would not be a real risk that he would suffer significant harm. Accordingly, the IAA concluded that the Applicant did not meet s 36(2)(aa) of the Act. (Emphasis added, citations omitted.) 6 Following the Authority's decision to affirm the delegate's decision to refuse the issuing of the protection visa, the appellant filed an application for judicial review at the Federal Circuit Court on 27 July 2017.

Application for judicial review at the Federal Circuit Court 7 The application for judicial review was amended on 25 January 2018, and further amended on 15 February 2018. The appellant relied on two grounds of review: Grounds of application 1. The Authority made a jurisdictional error as it was not reasonably open to the Authority to conclude that the information as to errors in interpretation could not have been provided before the delegate's decision was made and was not credible personal information. Particulars a) There was no evidence before the Authority that either the Applicant or the Applicant's representative spoke both English and Arabic fluently; b) The Applicant did not speak English with sufficient competence and required an interpreter; c) The Applicant's representative was not the qualified interpreter. An independent interpreter was used; d) The Applicant and the Applicant's representative had no way of knowing at the interview whether the interpretation was defective or not; e) It was legally unreasonable for the Authority to conclude that the Applicant or the Applicant's representative should have alleged errors in interpretation before the Delegate's decision. f) On the same basis, it was not reasonably open to the Authority to conclude that the new information was not credible personal information. 2. The Authority made a jurisdictional error as it failed to make an obvious inquiry into a critical fact the existence of which was easily ascertainable, namely obtaining an independent evaluation of the audio recording of the interview so as to ascertain whether there were errors in interpretation. Particulars a) The words of the Applicant at the interview with the Delegate were material to the Authority's decision, especially in circumstances where the Authority itself was not itself interviewing the Applicant; b) The Authority failed to arrange an independent evaluation of the quality of the interpretation at the interview based on the audio recording. (Emphasis in original.) 8 The primary Judge noted at [16] that his primary concern with the appellant's grounds of review was the lack of evidentiary basis. At [20], his Honour noted the factual circumstances in which the serious concerns over the interpretation services were raised on 24 November 2016, and noted further that the appellant's further submissions did not refer to these concerns. 9 In light of this, his Honour concluded: 21. In my view, in providing the Applicant's adviser with a copy of the recording of the SHEV interview, the IAA gave the Applicant the appropriate and relevant opportunity to consider the detail of the interview and to make submissions on any matter of concern that arose in it. No such concerns were subsequently made by or on behalf of the Applicant. To claim now that the IAA should have made due or proper inquiry, pursuant to the comments of the High Court in SZIAI, in my view would place an improper and further requirement on the IAA. In my view, rather than make its own inquiry, which perhaps it could have done, instead the IAA chose to provide the relevant material to the Applicant. In doing so it gave him the opportunity, and importantly the relevant means, to identify any specific "serious concerns" he had with the interpretation provided, rather than simply to leave the Applicant's concerns at such a level of generality as to provide no meaningful detail. 22. In my view, in providing the information directly to the Applicant, the IAA did what it was required to do and absolved itself from needing to do anything more. Having provided the Applicant with the SHEV recording, it could have reasonably expected to be advised by him of relevant details of his "serious concerns" regarding the interpretation. Not only were no such details provided; the allegation of "serious concerns" was never repeated. In these circumstances, there is no factual basis for the IAA to have made any further inquiry. The comments of the High Court in SZIAI do not assist the Applicant here. 23. Further, for the same reasons, the comments by the High Court in Li do not assist the Applicant. Not only is the pathway of reasoning of the IAA reasonably disclosed, as already mentioned, but further the IAA gave the Applicant a proper opportunity, together with the relevant material, to outline or to detail what his "serious concerns" were. He did not do so. … 27. On the facts here, the Applicant expressed "serious concerns" to the IAA about the interpretation service provided. "Serious concerns" might readily come within what was comprehended by the High Court in SZBY as "doubts", or even "inconsistencies." The IAA provided him with the relevant means to check and to identify in detail what those unparticularised concerns were. He did not do so in correspondence or submissions subsequent to the hearing. Having provided all relevant means to the Applicant to identify what his "serious concerns" were, in my view, there was no further duty, or need for the IAA to exercise its discretion, to make inquiry itself as to what may have constituted the Applicant's "serious concerns" in circumstances where he did not do so himself, even after having been provided with material to double check his concerns. The fact that he did not make any further expression of concern - serious or otherwise - to the IAA subsequent to receiving the recording of the hearing would, in my view, be ground enough for the IAA to believe that his concerns had been resolved or otherwise appeased.

Appeal to the Federal Court 10 The appellant appeals from the whole of the judgment and orders of the Federal Circuit Court. In the Notice of Appeal, filed on 23 August 2018, the appellant relies on one ground of appeal, namely that: 1. The primary judge erred by holding that the Authority had not made a jurisdictional error of legal unreasonableness when the Authority concluded that it was not satisfied that the information as to errors in interpretation could not have been provided before the delegate's decision was made and was credible personal information. 11 It is useful to set out the relevant submissions of the appellant in relation to the above ground of appeal. In submissions filed 14 February 2019, the appellant submitted: Legal unreasonableness 9. In reaching its state of satisfaction or non-satisfaction for the purposes of s 473DD(b)(i) and 473DD(b)(ii) of the Act, the Authority is subject to the law of legal unreasonableness (BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [28]-[29]; Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (Plaintiff M174) at [21]). That law requires an evident and intelligible justification for the Authority's decision (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (SZVFW) at [10] per Kiefel CJ and at [82] per Nettle and Gordon JJ). An appellate court must conduct an appeal by way of rehearing and ascertain the presence or absence of the evident and intelligible justification for itself, without asking whether the primary judge erred in the House v The King sense (SZVFW at [18] per Kiefel CJ, [60] per Gageler J, [86]- [87] per Nettle and Gordon JJ and at [154]-[155] per Edelman J). Application of legal unreasonableness in present case 10. The Authority purported to hold that it was not satisfied that either s 473DD(b)(i) or s 473DD(b)(ii) of the Act applied. Its reasons for doing so were the same for each provision. It is submitted that the Authority lacked an evident and intelligible justification for its non-satisfaction. There was no evidence before the Authority that either the Appellant or the Appellant's representative spoke both English and Hazaragi fluently. Rather, the Appellant did not speak English with sufficient competence and required an interpreter. The Appellant's representative, who it is not suggested spoke Hazaragi, was not the official interpreter. An independent interpreter was used. The Appellant and the Appellant's representative had no way of knowing at the interview whether the interpretation was defective or not. 11. It was, therefore, legally unreasonable for the Authority to conclude that the Appellant or the Appellant's representative should have alleged errors in interpretation before the Delegate's decision. Contrary to the Authority's reasoning, those errors were not necessarily apparent to the Appellant or his representative at the time of the interview. The Authority's conclusion that the information as to errors in interpretation was not credible personal information is in the same category. The Authority had no basis on which to reach that conclusion as there was no evidence as to what in truth transpired at the interview. Paths open to Authority on remittal 12. The Authority chose to treat the Appellant's "claim of interpreting errors during the SHEV interview" as new information. The Authority was correct to do so. In Plaintiff M174, Gageler, Keane and Nettle JJ held (at [24]) that "`new information' must be read consistently when used in ss 473DC, 473DD and 473DE of the Act 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". This amply covers the claim of interpreting errors. 13. If the Appellant succeeds in persuading this Court that the Authority lacked the requisite justification for not being satisfied that s 473DD(b)(i) and 473DD(b)(ii) of the Act applied, then the following consequences arise. The effect of the Authority's ruling was that it excluded the claim of interpreting errors from consideration. It proceeded as if no such errors existed. There was no basis on which the Tribunal did so apart from non-satisfaction as to s 473DD(b)(i) and 473DD(b)(ii) of the Act. … SZBYR irrelevant 15. The primary judge referred to SZBYR to suggest that, as the claim of interpreting errors merely raised doubts, it was not "new information" within the meaning of s 473DD of the Act. This is inconsistent with the broader notion of "new information" identified by the High Court in M174. The fact that the claim of interpreting errors may lack sufficient clarity is relevant to the further steps which the Authority may take, as described at paragraph 15 of these submissions. However, it ought not be enough to deprive the claim of interpreting errors of the threshold status of "new information".

Consideration 12 In summary, there are two questions for consideration arising out of this appeal, namely: (1) Did the primary Judge err in finding that it was not legally unreasonable for the Authority to conclude that claims of errors in interpretation could have been brought to the delegate's attention before the delegate's decision or was credible personal information that was not previously known? (2) If so, was this material to the Authority's decision? It is useful to consider each of these questions in turn.

Did the primary Judge err in finding that it was not legally unreasonable for the Authority to conclude that claims of errors in interpretation could have been brought to the delegate's attention before the delegate's decision or was credible personal information that was not previously known? 13 As a starting point to considering this question, I refer to s 473DD of the Migration Act 1958 (Cth). Section 473DD sets out the circumstances in which the Authority can consider new information before it: 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 14 The Authority considered the appellant's claims at [6]-[8] of its decision stating that: 6. On 24 November 2016, the IAA received an email from the applicant's representative stating that the applicant 'had serious concerns about the interpretation service performed by [the] accredited interpreter' in the SHEV interview. He states there were 'many occasions' where the interpreter did not interpret his words correctly. These concerns with the interpreter were not raised with the delegate. 7. The IAA must not consider any new information from an applicant unless satisfied exceptional circumstances justify considering the new Information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant's claims. 8. The applicant's claim of interpreting errors during the SHEV interview is new information. The email of 24 November 2016 does not specify the nature of the interpreting errors claimed to have occurred in SHEV interview, but does state that an audio copy of the interview had been sought. In a further email of 25 November 2016, the applicant's representative confirmed he had in his possession a copy of the SHEV interview. Neither the subsequent email not the IAA submission makes reference to any interpreting errors, nor does it explain why this information could not have been provided to the delegate or why it may be considered credible personal information. I have listened to the recording of the SHEV interview and at no time did the applicant, or his representative who was also present, indicate concerns with the competence of the interpreter. In the circumstances, I am not satisfied that this information could not have been provided before the delegate's decision was made. Nor am I satisfied the new information is credible personal information. 15 I note that Counsel for the appellant submitted at [10] of his written submissions and reiterated during the hearing (see Transcript p 4) that the circumstances that gave rise to the claim of legal unreasonableness were: The appellant does not speak English and is fluent in Hazaragi. The appellant's representative at the SHEV interview spoke English and there is no indication that the representative spoke Hazaragi. The appellant required an interpreter and an independent interpreter was utilised. 16 The appellant submits that this is relevant as: In the absence of a person in the appellant's camp, as it were, or in the absence of the appellant himself being fluent in both languages, there's no meanings of perceiving the errors in the interpretation at the interview. Now, we know at some point later the appellant, or his representative, becomes aware that there are shortcomings in the interpretation, but there was no means of perceiving that shortcoming at the time the interview was being conducted. (Transcript p 5.) And that: The sole basis of the authorities ruling that s 473DD(b)(i) was not satisfied is because in the authorities view it could have been brought to the delegate's attention before the delegate's decision that there were errors in interpretation, and there's no evident and intelligible justification for that. (Transcript p 6.) 17 In oral submission the appellant asserted that the "new information" referred to is the claim that there was an error with the interpretation and not information regarding the errors themselves. 18 In relation to this point, the Minister submitted, in summary: In the context of a review pursuant to Part 7, there is no formal onus of proof, however, s 473DD(b)(i) requires that the appellant satisfies the Authority that the new information was not, and could not have been, provided to the Minister before the Minister made the decision under s 65. The appellant did not substantiate any basis upon which he contends that either ss 473DD(b)(i) or 473DD(b)(ii) was met. Other than the email sent on 24 November 2016, the appellant did not make any further reference to translation errors in his subsequent submissions to the Authority, and there were no further requests to make submissions or challenge the translation in any way prior to the Authority's decision. There was no requirement for the Authority to make further enquiries in relation to errors in translation prior to its decision. The appellant does not identify how the Authority acted unreasonably in finding that the new information was not, and could not have been, provided to the Minister before the Minister made the decision under s 65. 19 A plain reading of s 473DD(b)(i) requires a visa applicant to take some positive steps to satisfy the Authority that new information was not and could not have been provided to the Minister before the Minister made a decision. Section 473DD(b) can be contrasted with s 473DD(a) which requires that the Authority be satisfied of exceptional circumstances. In comparison s 473DD(b) requires that "the referred applicant satisfies the Authority" placing some obligation on the appellant. This is consistent with findings of Mortimer J in AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33]: I accept the Minister's submissions that in the present circumstances, there was nothing erroneous about the Immigration Assessment Authority directing its attention to (b) rather than (a), since the text of (b) does suggest an applicant must "satisfy" the Immigration Assessment Authority about why the information was not provided earlier. That at least calls for some material from an applicant by way of explanation, although in a statutory setting such as this there is no burden imposed. In circumstances where the appellant had not put any express material before the Immigration Assessment Authority to explain why he was relying on these facts for the first time, the Immigration Assessment Authority was not in error to identify (b) as not satisfied. That was enough to trigger the prohibition in s 473DD. 20 In the present case the appellant did not provide any "express material" to the Authority to explain why the claim that there was an error with the interpretation at the SHEV interview could not have been provided to the Minister or why it may be considered credible personal information which was not previously known. 21 In material before the primary Judge is an email to the Authority on 24 November 2016 from the appellant's representative to the effect that the appellant "had serious concerns about the interpretation service performed by a NAATI accredited interpreter" and that the appellant requested a copy of the SHEV interview audio recording. On 25 November 2016, the Authority provided the relevant audio recording to the appellant's representative. The appellant then provided written submissions to the Authority on 30 November 2016. 22 Following the email on 24 November 2016, the appellant made no further representations to the Authority in relation to the interpretation at the SHEV interview. The appellant had the opportunity in his written submissions, to provide the Authority with further information to substantiate his claim and satisfy the Authority that the information regarding an error with the interpretation was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or was credible personal information which was not previously known, but did not. 23 I note the appellant's submission that the new information related to the "claim" of the error in interpretation and not the facts particularising this error. However, the appellant had the opportunity, once provided with the transcript to determine whether an actual error occurred. In light of no further correspondence being received, it was open to the Authority to consider the appellant's case on the facts before it, that is, a single and non-particularised claim that that appellant had "serious concerns about the interpretation service". The Authority did in fact consider these claims at [8] of its decision. The Authority noted that the appellant had not explained why the information had not been provided to the original decision maker or why it was credible personal information, and in light of this the Authority did not consider that section 473DD(b) was satisfied. I am satisfied that the Authority demonstrated an evident and intelligible justification for its decision and did not act in a manner that was legally unreasonable; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30. Accordingly, the primary judge did not err by holding that the Authority had not made a jurisdictional error of legal unreasonableness when the Authority concluded that it was not satisfied that the information as to errors in interpretation could not have been provided before the delegate's decision was made and was credible personal information not previously known. I accept the Minister's submission that there was no basis upon which the Federal Circuit Court ought to have found that the Authority's decision was vitiated by jurisdictional error. 24 For the above reasons, I do not accept the appellant's contention that the primary judge erred by finding that the Authority had not made a jurisdictional error. It is therefore, unnecessary for me to consider submissions relating to materiality. In my view, the decision of the Federal Circuit Court does not give rise to an appellable error.

Conclusion 25 The appropriate order is to dismiss the appeal with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Construction of Migration Act 1958(Cth)s 473DD

Migration Act 1958(Cth)ss 473DD, 473DD(a), 473DD(b)(i), 473DD(b)(ii)

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