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[2019] FCA 943
Federal Court of Australia
2019-06-20
Kerr J
Original judgment source is linked above.
KERR J: 1 This appeal has its genesis in a request made by a woman that she be provided with a female interpreter to explain her "extremely sensitive" claims in support of her application for protection as a refugee. 2 The Judicial Council on Cultural Diversity (JCCD) is an initiative of the Council of Chief Justices of Australia and New Zealand. The JCCD recently published its Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017, JCCD) (Standards). The object of the Standards are to provide guidance to courts and tribunals so as to ensure fairness in the administration of justice. 3 The Standards have no statutory basis. They are not prescriptive. Notwithstanding, I see no reason why this Court may not have regard to the Standards as a best practice benchmark, measured against which any significant falling short may be identified (as was done in Singh v Minister for Immigration and Border Protection [2017] FCA 1347 per Perry J at [21] and CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 per Perry J at [37]). The consequence of any such falling short will necessarily depend on the statutory setting and context in which such a falling short occurs. 4 The Appellants appeal from a decision of the Federal Circuit Court of Australia (FCCA) in which their application for judicial review of a decision of the Immigration Assessment Authority (Authority) had been dismissed. The Authority had affirmed a decision of a delegate of the First Respondent (Minister) dated 16 January 2017 refusing to grant the Appellants Safe Haven Enterprise (subclass 790) visas (SHEV). 5 The Appellants are all Pakistani citizens. The Fifth Appellant DYO17 is the mother of the First, Third and Fourth Appellants. The Second Appellant is the mother of the Fifth Appellant, and the grandmother of the First, Third and Fourth Appellants. The Appellants arrived in Australia in May 2013. They lodged their SHEV applications on 29 July 2016. 6 Although there are five Appellants, as associated family members, their appeals all stand or fall on the Court upholding or rejecting the grounds advanced on DYO17's behalf. There are no other grounds of appeal. It is thus convenient to address DYO17's appeal in the singular. 7 DYO17 had told the Minister's delegate who was to conduct that interview that she would not be comfortable speaking with the assistance of a male interpreter about the details of her "extremely sensitive" claims. Her claims were that if she was required to return to Pakistan she would be subject to discrimination as a divorced woman and/or suffer harm at the hands of her ex-husband and his family. 8 It is uncontentious that on the day of her interview a female interpreter with the requisite NAATI accreditation was not available. The Minister's delegate, a man, did not offer to reschedule the interview or to adjourn it to permit a female interpreter to be substituted. However, the Minister's delegate was otherwise mindful of DYO17's concerns. He encouraged her to express herself through an available male interpreter to the extent she felt comfortable. DYO17 participated on those terms with the assistance of a male interpreter. 9 Following DYO17's interview but before the delegate's decision was finalised, the Appellants' lawyer wrote to the delegate attaching a "post-interview submission" that included as the following: We would like to raise our concerns in regards to [DYO17's] specific request for a female interpreter to be provided during her interview due to the nature of her claims and the stigma attached to the issues she wanted to discuss. The Case Officer was made aware of this request, but proceeded to conduct the interview with the assistance of a male interpreter. Whilst we acknowledge [DYO17] agreed to proceed and advised that she had discussed all topics she felt she needed to at the conclusion of the interview, we are concerned that [DYO17] was placed under unnecessary pressure to use a male interpreter and that the environment was not conducive to her rejecting the Case Officer's request. Her discomfort is particularly evident given that [DYO17] had made a very specific request to use a female interpreter. We ask that the Case Officer have consideration of the intense social stigma faced by divorced women in Pakistan which is exacerbated if the woman is the protagonist in the divorce proceedings, and the likelihood that [DYO17] did not feel comfortable speaking as freely as she would have with a female interpreter. 10 Her lawyer's expression of concern was followed by a submission that DYO17's claims should be accepted as genuine and as a result of her direct experience as a victim of extensive and prolonged domestic violence at the hands of her husband, and the substantial discrimination she would suffer as a divorcee. 11 In support of the latter proposition, the Authority was provided with an extensive body of additional "country information" that addressed the position of divorced women in Pakistan and the absence of state protection for them. 12 However, no further factual information particular to DYO17's circumstances was included in that submission, or sought to be advanced, on her behalf. 13 The Minister's delegate addressed the concerns DYO17's lawyer had raised as follows: The migration agent raised that applicant two did not feel comfortable speaking feely at the interview because the interpreter was not female. Whilst I acknowledge that applicant two [being DYO17] raised a preference for a female interpreter, she agreed to provide evidence about her claims with a male interpreter at the interview. Applicant two was advised to alert the interviewer if at any time if she did not feel comfortable and was provided with an opportunity to present her claims via an alternative means if she wished. Upon culmination, applicant two advised that she had felt comfortable enough to discuss all of her claims during the interview. She stated that she had presented all of her claims for protection and confirmed that she was satisfied that she had expressed her claims in a way that the interviewer understood her situation. Applicant two was again offered an opportunity to present her claims at another time another [sic] and by a different means if she was not satisfied that she had presented all of her claims, which she indicated would not be necessary. I consider that applicant two was able to participate effectively during the interview and I consider she was able to adequately present all of her claims. 14 The Minister's delegate refused the Appellants' SHEV applications. 15 As fast-track review applicants, the Appellants were automatically referred to the Authority for review pursuant to Pt 7AA of the Migration Act 1958 (Cth) (Act). 16 The Authority was required to conduct a de novo review. However, save in particular circumstances, later discussed, it was to do so without accepting or requesting new information or interviewing the referred applicants: BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; 261 FCR 35 per Flick, Markovic and Banks-Smith JJ at [18]-[31]. The Authority conducts a limited form of review by reference to review material that the Secretary is required to give to the Authority: Plaintiff M174 /2016 v Minister for Immigration and Border Protection [2018] HCA 16 (M174) at [6]-[7] and [13]-[36] (Gageler, Keane and Nettle JJ, Edelman J agreeing). The Authority had a discretionary power to get new information, including by inviting the applicant to give new information in writing or at an interview, only in limited circumstances: s 473DC of the Act. 17 In response to the Authority's acknowledgment of the referral, the Appellant, by her migration agent, made submissions to it as follows: When assessing the risk of harm to [DYO17] as a woman in Pakistan the delegate lists a number of facts on page 29 of the PVDR. These findings of fact are superficial and do not give due consideration to the actual circumstances of [DYO17's] day to day life in Pakistan. Further consideration of context would have resulted in a decidedly different, more accurate, representation of [DYO17's] statements, as per below: • First fact: [DYO17] never had the means or opportunity to own property or land in Pakistan. The land was already previously owned by her family, not her, as a single divorced woman. • Second fact: [DYO17] has never lived independently since birth. After separating from her husband [DYO17] sought refuge in her father's home. She has never had the means or opportunity to live independently at for example, a rental property. • Third fact: [DYO17] has never applied for a job, been formally employed, or worked for any organisation. She has only ever received 6 years of primary school education. With respect to 'owning and operating a successful retail clothing and textiles business', this business was operated from within her father's house where she had sought refuge from her violent husband. She resorted to making and selling clothing and textiles so as not to be a financial burden on her parents, and to give her something positive to focus on during a difficult period. There was no 'business' owned or operated, as suggested. There was no renting or purchase of independent business premises. There were no employees, only family members assisting. There was no marketing or advertising. It was only through word-of-mouth amongst [DYO17's] neighborhood friends that sales were achieved. • Fourth fact: [DYO17] was generally house-bound and restricted in her movements unless a male relative was available to accompany her. If she had to travel independently she limited herself to visiting near-by friends as it was safer to do so. One of the reasons that [DYK17] assisted [DYO17] with her clothes-making (by venturing out and purchasing materials, etc), was that textile outlets were operated, primarily, by males and thus a male was generally required to interact with them. [DYK17's] assistance is documented in his SHEV application. When [DYK17] was working in the real-estate field, he (or a close male friend) continued to occasionally assist [DYO17] to purchase materials. • Fifth fact: It is only persons with financial means who can access medical treatment. If returned to Pakistan [DYO17] and her family will severely struggle to make ends meet and therefore will not have access to health care. 18 In respect of that submission, the Authority reasoned as follows: 9. The submission responds to findings made by the delegate that the applicant mother had not experienced discrimination as a divorced woman in relation to property rights, employment, education, housing, voting rights, freedom of movement or health care. The findings were based on the applicant mother's responses to questions asked of her at the SHEV interview. By way of response, the submission effectively raises new information in arguing that the delegate's findings were superficial and did not give due consideration to her circumstances. For example, while the applicant mother stated that she had not been denied access to or refused medical treatment, it was submitted that only people with financial means can access medical treatment and the applicants will not be able to afford it if they return. I am of the view that this and the other information provided at the top of page 4 of the IAA submission, addressing the delegate's findings as to the various forms of discrimination about which he asked the applicant mother, is new information, as it significantly adds to or changes the responses she gave at the interview, without any explanation as to why the information could not have been provided at the time. I am not satisfied that that there are exceptional circumstances which justify consideration of this information. The applicant mother was represented at the interview and her representative provided post-interview submissions. In my view it was apparent that the questions asked were directed to findings about whether she had suffered discrimination as a divorced woman, or for any other reason. I consider that the applicant mother had ample opportunity to provide the information which has now been put forward for the first time in the IAA submission, and which is in some respects not consistent with evidence that was provided before the delegate. 19 Having declined to receive that "new information", the Authority then proceeded to determine DYO17's claims having regard to the evidence that had been given to the Minister's delegate. 20 In explanation, it reasoned with respect to DYO17's claims as follows: Gender issues 31. The applicant mother initially stated that she had no claims of her own to protection. Because of the allegations of domestic violence in the applicant's statutory declaration, she was invited to attend an interview so that any claims she might have could be explored. At the interview, at which she was accompanied by a female representative, she indicated that she was uncomfortable with a male interpreter; it may be that she was also uncomfortable with a male interviewing officer, although this does not appear to have been explicitly stated. The interviewing officer encouraged her to express herself to the extent that she felt comfortable without actually offering to reschedule the interview or find a female interpreter. It was submitted to the IAA that this response was inadequate and that the applicant mother could not freely express herself at the SHEV interview but felt unable to say so. While I am of the view that the interviewing officer's response to her concern was inadequate - especially given that she had requested a female interpreter in the first place - I note that the applicant mother has had the benefit of legal representation at all stages of processing of her application. Her representatives have not taken the opportunity at any stage to elicit any specific individual claims that she had, or to provide further details that she may have been unable to express at the SHEV interview. I also consider it significant that at the SHEV interview when asked open questions about her fears, she repeatedly referred only to the fear of harm from the Taliban in relation to her son; it was only when pressed several times by the interviewing officer that she mentioned concerns about her former husband. Even if she had felt uncomfortable to speak about details, I very much doubt that her discomfort with a male interpreter would have prevented her from raising fears relating to her former husband or her marital status, at least broadly, if these were a genuine concern for her. I will therefore consider her claims primarily as they were put forward at the SHEV interview, having regard to her initial instruction that she didn't wish to present claims of her own at all, and that the basis of her fear of returning to Pakistan was because she feared harm from the Taliban on account of her son. (Footnotes omitted.) 21 Having drawn its conclusions on that basis, the Authority affirmed the delegate's decision. 22 The Appellants sought review of the Authority's decision in the FCCA. The grounds of review relied on (particulars omitted) were as follows: 1. The Immigration Assessment Authority (IAA) erred in determining that there were no exceptional circumstances justifying the consideration of the 'new information' 'at the top of page 4 of the IAA submission, addressing the delegate's findings as to the various forms of discrimination'. … 2. The IAA's failure to consider whether to exercise its discretion to seek further information pursuant to section 473DC of the Migration Act 1958 (Cth) (Act) was legally unreasonable. 23 As to Ground 1, the learned trial judge reasoned: 30. The Authority's reasons in relation to the new information identified at the top of page 4 of the submissions, as summarised above, in relation to various forms of discrimination about the fifth applicant identified the significance of the information and expressly referred to the absence of explanation as to why the information could not have been provided at the time of the interview, and referred to the first applicant's mother being represented. 31. The Authority's reasons are not to be read with a keen eye for error. The Authority's reasons should be read as a whole. It is apparent by reference to paragraph 10 that the Authority expressly referred to the second limb in relation to s 473DD of the Act. In these circumstances, there is no proper basis for the Court to infer that the Authority adopted an erroneous construction or failed to have regard to both limbs of s 473DD of the Act in holding that there were not exceptional circumstances to justify consideration of the new information. No jurisdictional error as alleged in ground 1 is made out. 24 As to Ground 2, the learned trial judge reasoned: 34. This is a case where the fifth applicant was represented both at the time of the interview and before the Authority. No request was advanced to the Authority to exercise, or consider exercise of, a power under s 473DC of the Act because of the use of a male interpreter. The Authority took into account the use of a male interpreter and I do not regard the matters referred to as giving rise to circumstances where it was legally unreasonable of the Authority not to expressly consider exercising the power under s 473DC of the Act. 35. I accept the first respondent's submission that the Authority did not act in a legally unreasonable manner by not considering expressly the exercise of the power to get new information. The above express consideration as to the exercise of the power under s 473DC of the Act does not lack and evident and intelligible justification where the issue of the fifth applicant's risk of harm from her former husband or members of a family was an issue that had been raised by the fifth applicant and where the fifth applicant had agreed to provide evidence in relation to her claims at the interview before the delegate with the male interpreter and where the fifth applicant was advised to alert the interpreter if, at any time, she did not feel comfortable with the male interpreter, and was provided with an opportunity to present her claims via alternative means if she wished, and where the fifth applicant confirmed that she had presented and discussed all of her claims at the interview despite the female interpreter not being available, and in circumstances where the fifth applicant did not seek to make further claims or elaborate on her evidence to the delegate after the interview, and where the fifth applicant made no request for a further interview as a result of the use of the male interpreter at the interview with the delegate. In these circumstances, no jurisdictional error as alleged in ground 2 is made out. 25 His Honour accordingly dismissed the Appellants' application for judicial review. DYO17 now appeals to this Court on the following, near identical, grounds: 1. The Federal Circuit Court erred in failing to find that the Immigration Assessment Authority (IAA) erred in determining that there were no exceptional circumstances justifying the consideration of the 'new information' 'at the top of page 4 of the IAA submission, addressing the delegate's findings as to the various forms of discrimination'. 2. The Federal Circuit Court erred in failing to find The IAA's failure to consider whether to exercise its discretion to seek further information pursuant to section 473DC of the Migration Act 1958 (Cth) was legally unreasonable.
DYO17's submissions 26 DYO17 contends that the Authority was guided by an "unduly narrow" view of what may constitute exceptional circumstances in reaching its conclusion that the requirements of s 473DD(a) had not been met. 27 The written submissions filed on her behalf by her solicitors put that point as follows: 21. The 'new information' - referred to by the Authority as the 'information provided at the top of page 4' - is reproduced at paragraph 13 above and included evidence of the Fifth Appellant having never had the means or opportunity to own property; having never been formally employed and having only a primary school education. She also gave evidence that in Pakistan she was generally house-bound and restricted in her movements unless a male relative was available to accompany her. Finally, she claimed that if returned to Pakistan, she and her family will severely struggle financially and will be unable to access health care. 22. In assessing whether there were 'exceptional circumstances' within the meaning of s 473DD(a) of the Act, the Authority only considered that the Fifth Appellant 'had ample opportunity to provide the information' to the Delegate. The Authority reinforced this finding by noting that the: a. Fifth Appellant 'was represented at the interview and her representative provided post-interview submissions'; and b. questions asked by the delegate at interview 'were directed to findings about whether [the Fifth Appellant] had suffered discrimination as a divorced woman, or for any other reason'. 23. There is nothing in the Authority's decision which suggests it had other undisclosed reasons for finding there were not 'exceptional circumstances': see Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 per French CJ and Kiefel J at [31]-[33]. Further, the Authority's reasons dealt with this matter in some detail and in this context, it is unlikely that such other important aspects were considered but went unexpressed in the reasons: DFP16 v Minister for Immigration and Border Protection [2018] FCA 1901 (DFP16) at [22]. … 27. The 'new information' was of a character that might fall within the terms of the language used in s 473DD(b)(i) as it appears to be 'credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims'. 28. Supporting the credibility of the 'new information' was the fact that before the Delegate made his decision, the Fifth Appellant had complained that she 'did not feel comfortable speaking as freely as she would have with a female interpreter' when discussing 'the intense social stigma faced by divorced woman [sic] in Pakistan.' 29. It was not sufficient for the Authority to conclude under s 473DD(a) that there are no 'exceptional circumstances' only because a Fifth Appellant could have provided the information to the Delegate prior to the making of his or her decision and failed to provide an adequate reason for not doing so: DFP16 at [12], [13] and [21]; BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [47]; and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [112]. (Footnotes omitted.)
The Minister's submissions 28 The Minister accepts that in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 (BVZ16), White J had been correct to conclude that, for the purposes of s 473DD, for the Authority to confine its understanding of what might constitute exceptional circumstances to whether the information could not have been provided to the Minister's delegate at the time of decision would be an error of law. That accepted, Ms Oliver submits: 9. In the present case, in deciding whether exceptional circumstances existed under section 473DD(a) of the Act, the IAA did not adopt an "unduly narrow view" of what may constitute exceptional circumstances. The IAA's decision on exceptional circumstances was not based solely on considerations of whether the information could have been provided to the Minister before the decision was made. It is clear the IAA also relied on a consideration of the fifth appellant's circumstances as well as the nature of the information itself and consistency of the information with her previous claims. That is, the IAA did not consider prior opportunities to adduce the information as the only consideration relevant to the assessment of exceptional circumstances. 10. The first respondent submits that the IAA's consideration of section 473DD(a) involved an evaluative judgment that has been properly explained (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [75]) and which has an intelligible foundation. There is no basis to infer that the IAA erred in its consideration of whether there were exceptional circumstances in this case. 11. The Federal Circuit Court found, correctly in the first respondent's submission, that there was no proper basis for the Court to infer that the IAA had adopted an erroneous construction of or had failed to have regard to both limbs of section 473DD of the Act in holding that there were not exceptional circumstances to justify consideration of the new information (AB 755, [31]). (Emphasis omitted.)
Consideration 29 The reasons of a tribunal are not to be scrutinised with an eye "keenly attuned to the perception of error": see Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 per Neaves, French and Cooper JJ at [22]. Although the Authority's reasons at [9] do not acknowledge that the delegate's response to DYO17's concern that she be provided with a female interpreter had been inadequate, the Authority later accepted (at [31]) that that was the case. 30 It was correct to have done so. 31 The Standards include the following passage (at 66): Gender and age considerations can sometimes be significant. For example, women may not feel comfortable talking about sexual or violence matters via a male interpreter, or even in the presence of other men. … As a general rule, a woman interpreter should be employed to interpret for women on violence and sexual matters … 32 In my opinion, had the "new information" which the Authority declined to receive been in respect of something DYO17 had failed to tell the Minister's delegate about any violence and/or sexual mistreatment she had suffered at the hands of her former husband and his family, and had she had no further opportunity to remedy that circumstance, the position would be clear cut. The Authority would have fallen into legal error if it had concluded that that would not be an exceptional circumstance within the meaning of s 473DD(a). Such information would plainly be personal information not previously known to the Minister. It would have been information which may have affected the consideration of her claims. I am satisfied that a decision not to have regard to any such hypothetical "new information" (in the absence of any factor causing the Authority to doubt its credibility) would have been legally unreasonable. 33 The Court need not rely on the Standards. Ms Oliver does not submit that the Authority was incorrect in so concluding. While there may be some similarities, the position in the present case is not directly analogous. The "new information" sought to be relied upon is that referred to at [15] above. That new information was submitted by her legal representatives to be relevant to the risk of harm DYO17 would face as a divorced woman in Pakistan. It is not self-evidently material that would have been the subject of discomfort to disclose. None of it relates directly to a claim of sexual abuse or domestic violence. However, it is not implausible that DYO17's general discomfort in being asked about her history of domestic violence (accepted as the truth by the Authority) may have been relevant to that information's non-disclosure during an interview conducted with the assistance of a male interpreter. The information also clearly goes to her powerlessness - again a matter that it is not implausible to reason might have stood in the way of frankness in those circumstances. 34 It was also information which DYO17 could have, but did not later provide to the Minister's delegate prior to his making a decision. 35 It will be recalled that the Authority rejected that there were exceptional circumstances within the meaning of s 473DD as would displace its primary requirement to conduct the review by considering only the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing DYO17. It will be recalled that in doing so, it reasoned as follows: 9. The submission responds to findings made by the delegate that the applicant mother had not experienced discrimination as a divorced woman in relation to property rights, employment, education, housing, voting rights, freedom of movement or health care. The findings were based on the applicant mother's responses to questions asked of her at the SHEV interview. By way of response, the submission effectively raises new information in arguing that the delegate's findings were superficial and did not give due consideration to her circumstances. For example, while the applicant mother stated that she had not been denied access to or refused medical treatment, it was submitted that only people with financial means can access medical treatment and the applicants will not be able to afford it if they return. I am of the view that this and the other information provided at the top of page 4 of the IAA submission, addressing the delegate's findings as to the various forms of discrimination about which he asked the applicant mother, is new information, as it significantly adds to or changes the responses she gave at the interview, without any explanation as to why the information could not have been provided at the time. I am not satisfied that that there are exceptional circumstances which justify consideration of this information. The applicant mother was represented at the interview and her representative provided post-interview submissions. In my view it was apparent that the questions asked were directed to findings about whether she had suffered discrimination as a divorced woman, or for any other reason. I consider that the applicant mother had ample opportunity to provide the information which has now been put forward for the first time in the IAA submission, and which is in some respects not consistent with evidence that was provided before the delegate. 36 In respect of that conclusion, the primary judge held: 30. The Authority's reasons in relation to the new information identified at the top of page 4 of the submissions, as summarised above, in relation to various forms of discrimination about the fifth applicant identified the significance of the information and expressly referred to the absence of explanation as to why the information could not have been provided at the time of the interview, and referred to the first applicant's mother being represented. 31. The Authority's reasons are not to be read with a keen eye for error. The Authority's reasons should be read as a whole. It is apparent by reference to paragraph 10 that the Authority expressly referred to the second limb in relation to s 473DD of the Act. In these circumstances, there is no proper basis for the Court to infer that the Authority adopted an erroneous construction or failed to have regard to both limbs of s 473DD of the Act in holding that there were not exceptional circumstances to justify consideration of the new information. No jurisdictional error as alleged in ground 1 is made out. 37 The passage of his Honour's reasoning at [30] regarding an absence of explanation takes no account of the submission made to the Minister's delegate by DYO17's legal representatives that she had been discomforted at the time of her interview by the absence of a female interpreter. 38 As noted, the Authority itself acknowledged that the "interviewing officer's response to her concern [not to have her account given without the assistance of a female translator] was inadequate". It observed (at [31]) that it was significant that "at the SHEV interview when asked open questions about her fears, she repeatedly referred only to the fear of harm from the Taliban in relation to her son; it was only when pressed several times by the interviewing officer that she mentioned concerns about her former husband". 39 It is true that by reason of that circumstance the Authority then concluded that, even if DYO17 had been uncomfortable with disclosing the details with a male interpreter, it doubted that "her discomfort … would have prevented her from raising fears relating to her former husband or her marital status if these were a genuine concern for her". 40 However, that did not stand in the way of the Authority accepting at [35] that DYO17 had been subjected to physical and other abuse by her former husband during their marriage or that she may have been abused by other members of his family, although to lesser degree than she claimed to fear would apply to her as a divorced woman were she to be required to return to Pakistan. 41 This Court must not isolate a particular passage of a tribunal's reasons out of context and attribute to it a significance it cannot bear having regard to the tribunal's reasons read as a whole but it would appear to this Court that the only way the reasoning of the Authority at [31] can be reconciled with its conclusions at [35] is that, notwithstanding the doubts the Authority expressed at [9], it ultimately accepted that DYO17's expressed discomfort was the reason why she had only answered questions about her fears relating to her former husband when pressed by the "interviewing officer". 42 For those reasons, I have significant reservations as to whether it was properly open to the Authority and the primary judge to have concluded that no reason was advanced as would explain DYO17's failure to provide the information at the time of the interview. 43 However an appeal lies from the orders of a court, not from a judge's reasoning. The reasoning may be doubted, but the outcome correct. 44 The critical conclusion of the Authority and the primary judge was that the information could have been provided to the Minister's delegate prior to the delegate making a decision. That conclusion can be supported on grounds involving no suggestion that the information ought to have been provided during DYO17's interview. It had remained open to DYO17 and her legal representatives, following that interview, to give the information to the delegate before he made any decision. 45 In M174/2016, the plurality (Gageler, Keane and Nettle JJ) gave careful and detailed attention to the legislative scheme applying to the limited form of review provided for in Pt 7AA of the Act. Their Honours observed: [7] For the most part, the general scheme of Div 3 of Pt 2 of the Act applies to a valid application for a protection visa that is made by a fast track applicant in the same way as it applies to a valid application for any other visa made by any other applicant. Section 47 imposes a duty on the Minister to consider the application. Section 65 imposes a duty on the Minister to grant the visa if satisfied, relevantly, that the criteria prescribed for the visa have been met or to refuse to grant the visa if not so satisfied. Section 66 imposes a duty on the Minister to notify the applicant of the decision and, in the event that the decision is to refuse to grant the visa, to give the applicant written reasons as to why the Minister considers that any criterion for the grant of the visa is not met, In the case of a fast track reviewable decision, the notification is also required to state that the decision has been referred for review under Pt 7AA. 46 An important aspect of the general scheme of Div 3 of Pt 2 of the Act is s 55. That section provides as follows: Further information may be given (1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. (2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information. 47 No step was taken by DYO17, or her legal representatives, to provide the delegate with the additional information she later asked the Authority give consideration to as "new information". Moreover, her legal representatives did submit extensive, albeit general, additional country information as to the position of divorced women in Pakistan. There is no suggestion that material was not taken into account by the Minister's delegate. 48 Notwithstanding my hesitations regarding the reasoning the primary judge relied on, I am satisfied that that aspect of the substantive conclusion reached by both the Authority and the primary judge was correct. No appellable error is established. 49 Does the same apply with respect to the passage at [31] of the primary judge's reasons? In that passage, the primary judge cites what the Authority stated at [10] in support of his Honour's conclusion that there was no proper basis for the court to infer that the Authority had adopted an erroneous construction or failed to have regard to both limbs of s 473DD of the Act. 50 That reasoning cannot be sustained. What the Authority stated at [10] had nothing to do with the new information relating to DYO17's claims that the Authority had refused to consider. The Authority's observations at [10] were with respect to new information put before the Authority on behalf of another member of DYO17's family. The Authority agreed to give consideration to that information. 51 However, the Minister submits that, having regard to the Authority's reasons at [9], it is clear that the Authority referred to the want of consistency of the "new information" with DYO17's previous claims. The Minister submits that the fact that it did so establishes the Authority did not take an unduly narrow view of what might constitute exceptional circumstances. 52 That submission invites this Court to infer that the Authority's reference at [9] to the new information being "in some respects not consistent with evidence provided before the delegate" was a finding that the information had not been credible personal information within the meaning of the second limb of s 473DD (being subs (b)(ii)) as may have affected its consideration of DYO17's claims. 53 It is important to remember that an appeal by way of re-hearing requires an appellate court to decide for itself whether the decision of the primary judge is correct or incorrect. That requires a single judge exercising the Court's appellate jurisdiction to determine, within the boundaries of the grounds of appeal, whether the Authority took a course (as contended by the appellant) that caused it to fall into jurisdictional error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 per Gageler J at [20] and [30]. 54 The Minister submits that the primary judge was correct to have concluded that there was no proper basis "to infer that the [Authority] had adopted an erroneous construction of or had failed to have regard to both limbs of section 473DD of the Act in holding that there were not exceptional circumstances to justify consideration of the new information". 55 I do not accept that submission. Read as a whole, the sentence in which those words appear is as follows: I consider that the applicant mother had ample opportunity to provide the information which has now been put forward for the first time in the IAA submission, and which is in some respects not consistent with evidence that was provided before the delegate. 56 Accepting that the reasons of a tribunal are not to be reviewed with an eye to the identification of error, nonetheless that sentence is not open to be construed as going beyond identifying the nature of the material which is to be excluded because it had not been put forward earlier. 57 In the circumstances applying, the Authority itself had later recognised that DYO17 had requested a female interpreter to assist her to give evidence in respect of her "extremely sensitive claims". Given that the Authority also recorded that it had only been when pressed several times by the interviewing officer that DYO17 had expressed concerns about her former husband, it is difficult to understand how those words, in the context of the sentence in which they appear, is open to be construed as a finding that the new information DYO17 sought to rely on lacked credibility. If it need be said, I decline, in those circumstances, to place any significance upon DYO17 having confirmed to the interviewer that she had presented and discussed all her claims. 58 The Authority neither identified the nature of what was the information that "in some respects" was not consistent with DYO17's evidence, nor did it advance any path of reasoning to suggest it had decided that the want of consistency was such as would justify it finding what she had asked the Authority to give consideration to was not "credible personal information". The Authority gave no consideration as to whether DYO17's discomfort in undertaking an interview without a female interpreter having regard to her "extremely sensitive" claims might have led to her avoid providing the details she later wished to have the Authority consider. 59 The inference that is available to be drawn from the final sentence in [9] is not that the Authority made such a finding. Rather, it is that in its assessment of whether or not the requirements of s 473DD had been met, the Authority proceeded on the basis that that question was not necessary to determine because, as it observed in that passage, DYO17 had had ample opportunity to provide that information earlier. 60 For the reasons stated above, it is indisputable that DYO17 had more than ample opportunity to provide that information earlier. Notwithstanding her being legally represented, that opportunity was not taken. In her oral submissions advanced in support of the proposition that the authority had not focused exclusively on that factor, Ms Oliver sought to provide a contextual reason for the fact that there had been no mention of the interpreter issue in [9]. That was understandable, she submitted, because an opportunity to provide information after the delegate's interview had been offered but that none had been provided. That may be accepted. However, accepting that proposition cuts both ways. It also points to why in those circumstances it was intuitively understandable that the Authority would have concluded that it was unnecessary to go further and make even a cursory evaluative assessment of the creditworthiness or otherwise of the information. 61 On behalf of the Minister, Ms Oliver accepts that White J had been correct in BVZ16 to conclude that, for the purposes of s 473DD, for the Authority to have confined its understanding of what might constitute exceptional circumstances to whether the information could not have been provided to the Minister's delegate at the time of decision was an error of law. 62 Out of an abundance of caution, I should observe that I am mindful that it is well established that the requirements of subs (a) and subs (b) of s 473DD are cumulative. I should not proceed on the basis of any unwarranted concession. However, I am satisfied Ms Oliver's understanding of the consequence of BVZ16 is entirely correct. In Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111, the Full Court (Kenny, Tracey and Griffiths JJ) referred approving to his Honour White J's reasoning as follows: 102 We are unpersuaded by the Minister's contentions that in BVZ16 White J misconstrued or misapplied the term "exceptional circumstances" under s 473DD. We respectfully agree with his Honour's reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour's findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA's consideration of either or both of the limbs in subpara (b) may inform the IAA's satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information. 103 That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information. 104 As White J explained, the phrase "exceptional circumstances" is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or there are "exceptional circumstances" (see the authorities cited by his Honour at [39]-[41] of BVZ16). 63 Where the Authority's considerations with respect to whether exceptional circumstances do or do not exist as would permit it to give consideration to "new information" are exclusively confined as to whether the information was "not, and could not have been provided to the Minister [or the Minister's delegate] before … the decision" pursuant to s 473DD(b)(i), the statutory task conferred on the Authority has been misunderstood and not discharged. 64 I am satisfied that that error is established in the present appeal. The primary judge erred in concluding otherwise. 65 The Minister properly does not submit, assuming such an error was made, it was immaterial. The error accordingly went to the Authority's jurisdiction. 66 Ground 1 must be upheld.
DYO17's submissions 67 Mr Jahnke advanced written and oral submissions on DYO17's behalf. The gravamen of those submissions is that, from an outcome-focused perspective, it was unreasonable for the Authority to conclude that DYO17's evidence had been vague and unspecific given that the Authority had rejected the information she had sought to tender, and the unusual and unfortunate circumstances of her interview. The principles established in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 (CRY16) and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; 253 FCR 526 (DZU16) are applicable to those circumstances. It had been legally unreasonable for the Authority to have failed to consider exercising its discretion under s 473DC to get further information from DYO17. 68 DYO17's written submissions concluded as follows: 43. The failure by the Authority to consider inviting the Fifth Appellant to provide 'new information' under s 473DC lacked an evident and intelligible justification, especially in circumstances where the Authority made findings that: a. the Delegate's handling of the Fifth Appellant's request for a female interpreter was 'inadequate'; b. there were not 'exceptional circumstances' which justified considering the 'new information' submitted by the Fifth Appellant to the Authority; c. it 'very much doubt[ed] that [the Fifth Appellant's] discomfort with a male interpreter would have prevented her from raising fears relating to her former husband or her marital status'; but that d. the Fifth Appellant had 'not provided detailed or persuasive evidence, but only vague and non-unspecific claims about these subsequent problems after the divorce'. 44. At the very least, the IAA needed to turn its mind to whether to extend an invitation to the Fifth Appellant to provide 'new information', even if it were to ultimately decide not to. (Citations omitted.)
The Minister's submissions 69 Ms Oliver accepts this Court is bound by the reasoning in CRY16 and DZU16, but would distinguish those cases. On behalf of the Minister she submits: 18. In CRY16, the Full Court was of the view that, in circumstances where: (a) the IAA determined the matter against the appellant on the issue of relocation to a particular location in Lebanon; (b) the issue of relocation was not explored by the delegate at the interview, or subject of the delegate's findings; and (c) the IAA knew that it did not have, but the appellant was likely to have, information relevant to the reasonableness of the applicant's relocation to Beirut; it was unreasonable for the IAA to not consider inviting the appellant to provide new information to it on the issue of relocation. A similar outcome was reached in DZU16. The first respondent submits that the decisions in CRY16 and DZU16 are clearly distinguishable on their facts. 19. In the present case, the first respondent did not act in a legally unreasonable manner by not considering exercising its power under section 473DC to get new information, in circumstances where: (a) the issue of the fifth appellant's risk of harm from her former husband or members of his family was raised by the fifth appellant; (b) the fifth appellant agreed to provide evidence in relation to her claims at interview before the delegate, whilst using a male interpreter; (c) the fifth appellant was advised to alert the interviewer if at any time she did not feel comfortable with the male interpreter, and was provided with an opportunity to present her claims via an alternative means if she wished; (d) the fifth appellant confirmed she had presented and discussed all of those claims at interview despite a female interpreter not being available (AB 530 and 532); (e) the fifth appellant did not seek to make further claims or elaborate on her evidence to the delegate after interview (AB 503-508 and 532); (f) the fifth appellant made submissions to the IAA in respect of this issue, which the IAA considered, noting that she had the benefit of legal representation. The IAA noted that the representatives had not elicited any claims that the fifth appellant was unable to express at the SHEV interview; and (g) the fifth appellant made no request for a further interview as a result of the use of a male interpreter at the interview. 20. It is immaterial that, in this case, the delegate and the IAA made different findings in relation to the fifth appellant's claim. The relevant point is that the fifth appellant was aware of the issue and she therefore had an opportunity to give whatever evidence and submissions she thought relevant either to the claim or the use of a male interpreter. It was not legally unreasonable for the IAA to not consider exercising its discretionary powers to obtain new information in those circumstances, and in the context of the relevant statutory regime.
Consideration 70 Section 473DC is concerned with when the Authority can "get", in the sense of seek out, "new information". As the plurality of the High Court noted in M174, it is purely facultative. It provides: Getting new information (1) Subject to this Part, [the Authority] may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) [The 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 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. 71 A "duty" to consider the exercise of that facultative power will arise only when it would be legally unreasonable to proceed otherwise. 72 As was observed by the Full Court in CRY16 at [79], it is necessary to give full weight to the requirements of s 473DB which, subject to Pt 7AA, require the Authority to review a fast track reviewable decision referred to it under s 473CA by considering the review material, as defined in s 473CB, without accepting or requesting new information and without interviewing the referred applicant. That, however, does not exclude the possible exercise of the power granted by s 473DC. 73 In CRY16, the Full Court reasoned as follows (at [82]) Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority's statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks 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 Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority's failure to consider the exercise of that discretionary power 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. 74 Such a circumstance as arose in CRY16, Ms Oliver submits, is not remotely analogous to that which applied in the present instance. I accept that submission. 75 Legal unreasonableness is fact and context specific. Context includes the particular statutory environment in which the impugned conduct occurred. The statutory context in the present case was one in which the Act generally required the Authority to review a fast track reviewable decision referred to it under s 473CA without requesting new information and without interviewing the referred applicant. In the specific facts of this case DYO17 was legally represented; could not have been unaware of what was in issue after having been interviewed; and had been provided with ample opportunity to provide any additional information to the Minister's delegate (after what I accept had been a significant falling short in the provision of an appropriately gendered interpreter), but had failed to take advantage of that opportunity. 76 It would be inconsistent with the reasoning of CRY16 at [79] in the specific circumstances, for this Court to hold that it was legally unreasonable for the Authority not to have given consideration to exercising its discretionary powers pursuant to s 473DC to further interview the Appellant or seek additional information from her. 77 That conclusion says nothing as to the position which might prevail in different circumstances should an interview be conducted where issues of violence or sexual abuse should have been acknowledged by the provision of an appropriately gendered interpreter but had not been. 78 I would dismiss Ground 2.
Disposition 79 The parties accept that the usual position should apply as to costs. DYO17 has succeeded in her appeal. The orders to be made however apply to all five Appellants. The primary judge fixed the costs of the proceeding in the court below in the sum of $7,328.00. No submission was made to the effect that that was in error. I see no reason why I ought not make a lump sum order in that amount as the Appellants are (jointly) entitled to in respect of those proceedings. 80 I will make the following orders: (1) The appeals be allowed. (2) The orders made by the Federal Circuit Court of Australia on 31 July 2018 be set aside, and in lieu thereof order that: (a) An order in the nature of certiorari issue quashing the decision of the Second Respondent dated 1 August 2017; (b) The matter be remitted to the Second Respondent for determination according to law; and, (c) The First Respondent pay the Applicants' costs in the sum of $7,328.00. (3) The First Respondent pay the Appellants' costs of the appeal as agreed or as taxed. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.
SCHEDULE OF PARTIES WAD 375 of 2018 Appellants Fourth Appellant: DYN17 Fifth Appellant: DYO17
DYK17
Minister for Home Affairs