EAV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE: FARRELL J DATE OF ORDER: 17 SEPTEMBER 2020

1. The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2. The appellant is refused leave to rely on the grounds set out in the amended notice of appeal filed on 27 March 2019.
3. The appeal is dismissed.
4. The appellant must pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an appeal from a judgment and orders made by the Federal Circuit Court of Australia (FCCA): see EAV16 v Minister for Immigration and Border Protection [2018] FCCA 2071. 2 The appellant (also referred to as EAV16) is a citizen of Sri Lanka who arrived at the Cocos Islands in September 2012 as an unauthorised maritime arrival within the meaning of s 5AA(1) of the Migration Act 1958 (Cth). 3 On 13 August 2015, the responsible Minister lifted the bar to EAV16 applying for a protection visa under s 46A of the Migration Act. EAV16's application for a Safe Haven Enterprise (subclass XE-790) visa was lodged in December 2015. 4 EAV16 claimed that he was born in the Batticaloa district of Sri Lanka and that he is Hindu and ethnically Tamil. He claimed to fear harm from Sri Lankan authorities and Tamil paramilitary groups if he returned to Sri Lanka because, as a Tamil from an area formerly controlled by the Liberation Tigers of Tamil Eelam (LTTE), he would be imputed with links to the LTTE. In addition, he claimed that he faced harm because he had left Sri Lanka illegally by boat and he had sought protection in Australia. 5 A delegate of the first respondent (Minister) refused to grant the visa on 24 August 2016. EAV16 was notified of this decision by a letter dated 24 August 2016 (delegate's decision letter) sent to an address in Granville, New South Wales (Granville address). The delegate's decision letter also advised that, as the decision to refuse EAV16 the visa was a "fast track reviewable decision", it had been referred to the Immigration Assessment Authority (or IAA) and was not otherwise reviewable by the Migration and Refugee Division of the Administrative Appeals Tribunal. The delegate's decision letter went on to say: As the refusal decision has already been referred, you do not have to lodge an application for review or take any further action to commence the review of the decision. The department has provided the following information to the IAA: • the attached decision record; • any material you gave to the department before the refusal decision was made; • any other material the department considers to be relevant to the review; and • your contact details, as follows: • [redacted] • GRANVILLE NSW 2142 If you would like the IAA to contact you at an address different from the ones listed above address, you should inform the IAA as soon as possible. The IAA will review the refusal decision based on the information that was before the department's decision maker and will consider new information only in exceptional circumstances. If you feel that there are exceptional circumstances that would justify the IAA considering new information, you will need to provide the new information and evidence of the exceptional circumstances directly to the IAA. It will be up to the IAA to decide whether or not exceptional circumstances exist in your case to justify consideration of the new information. Do NOT send the new information or evidence of the exceptional circumstances to the department. Information about the IAA review is available on the IAA website at www.iaa.gov.au/ guidance-forms/information-for-fast-track-applicants The IAA may make its decision at any time after referral. The IAA may either: • affirm the decision to refuse your visa, or • remit the decision to the department for reconsideration in accordance with directions or recommendations of the IAA. When the IAA makes a decision, you will be notified of the decision in writing by the IAA. 6 The Appeal Book contains two case file notes dated "29/08/2016" stating that EAV16's address was updated to be an address at Blacktown (Blacktown address) "in accordance with data changes from the Department Data Exchange Import Log dated 29 August 2016" and that a "re-generated Acknowledgment Letter" was sent to the Blacktown address "in accordance to Dept Data Exchange, applicant updated address. 29 August 2016". 7 By a letter (Referral Letter) dated 29 August 2016 addressed to EAV16 at the Blacktown address, the Authority advised EAV16 that the delegate's decision had been referred to the Authority on 26 August 2016. It also said: It is important that you: • immediately telephone us on 1800 205 919 to advise us of your email address; • use your reference number [redacted] whenever you contact us; • advise us in writing if you wish to appoint a person to receive correspondence on your behalf or act as your representative (to do this, visit www.iaa.gov.au and obtain form F2); • act quickly in your dealings with us (as we aim to complete the review within six weeks); and • tell us immediately if you change your contact details such as your email address, residential address, mailing address or telephone number. Please see the attached information sheet and Practice Direction for further information. … If you have any questions, please email iaa@iaa.gov.au or telephone 1800 205 919. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450. You may find information in your own language on our website. … 8 Attached to the Referral Letter was a copy of a Practice Direction dated 21 April 2016 issued by the President of the Administrative Appeals Tribunal expressed to have been made under s 473FB of the Migration Act. The Practice Direction is headed "Practice Direction for Applicants, Representatives and Authorised Recipients". The Practice Direction provided as follows in relation to new information and submissions. EAV16 relies in particular on [20]-[21]: Submissions and new information 20. For the purposes of the review, you may provide a written submission on the following: • why you disagree with the decision of the Department • any claim or matter that you presented to the Department that was overlooked. 21. Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions. 22. We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department. 23. If you want to give us new information, you must also provide an explanation as to why: • the information could not have been given to the Department before the decision was made, or • the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known. 24. Your explanation should be no longer than 5 pages and must accompany any new information you give to us. 25. All documents that are not in English should be translated into English by a translator with a 'Translator' level accreditation from the National Accreditation Authority for Translators and Interpreters [NAATI]. Both the documents and the translations should be provided. 26. Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral. … 28. Reviews will generally be completed within six weeks of referral from the Department. 9 Also attached to the Referral Letter was a document headed "What you need to know about the Immigration Assessment Authority" (Information Sheet). The document was provided in both English and Tamil. The Information Sheet relevantly included the following: How long will the review take? As each case is different, it is difficult to say how long it will take. The IAA aims to complete most reviews within six weeks; however, the length of review can depend on a variety of factors. … Can I provide new information to the IAA? We can only consider new information if there are exceptional circumstances to justify considering the new information. New information is information that is relevant and was not before the department when it made its decision. If there is new information you want us to consider, you must also provide an explanation why the information: • could not have been provided to the department before it made the decision to refuse you a protection visa, or • is credible personal information that, had it been known to the department, may have affected the department's decision. This explanation should be no longer than 5 pages and accompany any new information you give us. Any new information we have not requested must be given to us within 21 days of your case being referred to us by the department. In very limited circumstances, we may invite you to give us new information or comments about your case in writing or at an interview. Can I make a submission to the IAA? You can provide a written submission on: • why you disagree with the department's decision, and • any claim or matter you presented to the department that was not considered. Your submission should be no longer than 5 pages and given to us within 21 days of your case being referred to us by the department. … 10 It is common ground that the Authority had erroneously posted the Referral Letter to EAV16's former Blacktown address, not his then current Granville address. EAV16 had notified the Department that the Granville address was his current address in January, April and July 2016. The Referral Letter was returned to the Authority with the notation "return to sender". 11 The Minister accepts that EAV16 did not receive the Referral Letter and its attachments until they were sent to him by email time stamped 12.43 pm on 12 September 2016. The email said: Dear [EAV16], I am writing to you in relation to an application for a protection visa and the review conducted by the Immigration Assessment Authority (IAA). Please see attached a copy of the Acknowledgement of Referral letter, sent to you by post on 29 August 2016. If you have problems opening the document/s attached to this email message, please contact us at iaa@iaa.gov.au or call 1800 205 919. Yours sincerely Immigration Assessment Authority 12 EAV16 and Michael Brander, then an officer of the Authority, had conversations by telephone on 12 September 2016, the number and content of which is contentious. 13 The 21 day period for the provision of submissions specified in the Practice Direction at [21] ended on either 14 September 2016 (if, as suggested in the delegate's decision letter, referral occurred on 24 August 2016) or 16 September 2016 (if, as suggested by the Referral Letter, referral occurred on 26 August 2016), being either 19 or 17 days after the referral. EAV16 did not file any submissions with the Authority before it made its decision to affirm the delegate's decision on 6 December 2016.

Authority's decision 14 The Authority accepted the following: (1) EAV16 is a Sri Lankan citizen and a Tamil. (2) His second cousin was conscripted by the LTTE and killed in action against the Sri Lankan Army (SLA) in 2002. (3) EAV16 and his family were affected by the Boxing Day tsunami in 2004 and were displaced to a refugee camp for an extended period of time before being allocated more permanent accommodation. (4) EAV16's account of increased paramilitary activity and disappearances. This was on the basis that the account accords with country information that enforced disappearances began escalating in 2006, with most of the enforced disappearances in the 2006 to 2008 period occurring in areas controlled by the then government. (5) EAV16's account of a large-scale attack by the LTTE on the SLA in 2008 and of the SLA's response. The IAA accepted the account because it accords with country information issued by the Department of Foreign Affairs and Trade. (6) The SLA's approach may have been heavy-handed and EAV16 and his mother may have been assaulted. EAV16 was detained, tortured and interrogated about LTTE membership. (7) Following the cessation of hostilities, Tamil villagers felt unsafe living under the control of the SLA personnel. (8) Intoxicated SLA soldiers may have forced their way into EAV16's home and damaged property. The soldiers remained for around an hour and a half and they appeared to be searching for valuables. The Authority found that the essential and significant reason for these actions was opportunistic and criminal rather than because of EAV16's race or any imputed political opinion. 15 Although the Authority essentially accepted EAV16's factual claims, the Authority found that, on the basis of country information concerning then current circumstances in Sri Lanka, he was not subject to a real chance of persecution upon his return to Sri Lanka so that he did not satisfy the "refugee" criterion in s 36(2)(a) of the Migration Act. On the basis of the same findings of fact, the Authority was also not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of EAV16 being removed from Australia to a receiving country, there was a real risk that he would suffer significant harm so that he does not satisfy the criterion in s 36(2)(aa) of the Migration Act.

Application to the FCCA 16 By an application dated 22 December 2016, EAV16 applied to the FCCA for judicial review of the Authority's decision. His grounds of review as stated in the application were as follows: 1. The Immigration Assessment Authority (the IAA) accepted country information which indicated fluidity in the treatment of Tamils over relatively short periods of time. For example, the IAA accepted that "many Tamils ... reported being monitored, harassed, arrested and/or detained by security forces under the former Rajapaksa government" (at [20]) and "monitoring and fears about mistreatment have reduced under the current Sirisena government" (at [28]). In circumstances where the country information before the IAA suggested fluidity in the treatment of Tamils over relatively short periods of time, it was incumbent on the IAA to consider whether the applicant faced a real chance of persecution in Sri Lanka in the reasonably foreseeable future. However, the IAA did not address the question of the reasonably foreseeable future. This was a jurisdictional error. 2. On 29 August 2016 the applicant lived at [redacted], Granville and had informed the Department of this address in about January 2016. However, on 29 August 2016 the IAA sent a letter/invitation to the applicant at a previous address in Blacktown. On about 12 September 2016: a) The applicant received a copy of the letter from the IAA. b) The applicant had a telephone conversation with an officer of the IAA in which the applicant expressed concern about the short time he had to make a submission to the IAA, and the officer replied that the IAA would contact him [a]gain, and he did not need to lodge a submission in the meantime. For this reason, the applicant did not provide a submission to the IAA. In the circumstances, the applicant was denied procedural fairness. 17 EAV16 was represented by counsel at the hearing of his application by the FCCA Judge. In written submissions filed before the hearing which were prepared by counsel for EAV16, the FCCA was advised that he pressed only the first ground of review and that he did not rely on either of EAV16's two affidavits filed in September 2017. That was the basis on which the FCCA Judge made his decision: J[7]. 18 The FCCA Judge found that the first ground of review was not made out and dismissed EAV16's application with costs.

The Appeal 19 The appellant filed a notice of appeal on 16 July 2018 with five numbered paragraphs under the heading "Grounds of appeal". The first four grounds of appeal related to the first ground of review considered by the FCCA Judge and the final ground of appeal stated that the FCCA Judge made a jurisdictional error in dismissing the application "in circumstances where the substantive grounds in the application was meritorious". The Minister filed written submissions addressed to the matters raised in the notice of appeal. EAV16 filed no written submissions and appeared in person when the appeal came on for hearing on 13 November 2018. 20 At the hearing on 13 November 2018, EAV16's oral submissions were directed to the time at which he received the Referral Letter, on the basis of which he said that he had been denied an appropriate opportunity to make submissions before the Authority made a decision. He said that he raised the issue with his lawyer but that his "lawyer didn't consider this". 21 While indicating that the Minister would oppose any application to rely on this ground as a new ground, the Minister accepted that this is a matter that the Court may wish to allow EAV16 to explore. Orders were made permitting EAV16 to file evidence relating to matters identified in the orders, for the Minister to file evidence in response and for the parties to file further submissions. The matter was stood over to 21 December 2018. 22 Both EAV16 and the Minister filed additional evidence and submissions. At the hearing on 21 December 2018, the Minister's position was that, in circumstances where EAV16 was represented before the FCCA and his counsel did not press the second ground of his application to that Court or read evidence related to it, there was a threshold issue that EAV16 should be taken to have abandoned that ground so that there are significant hurdles to the grant of leave for EAV16 to run a similar ground on the appeal. However, the Minister also accepted that, relevant to the issue of merit of EAV16's proposed ground (when that was adequately formulated) was the difficult question of the extent of the Authority's duty in circumstances such as those which arose in this case. The issue was what the applicable legal principles are having regard to the 21 day period provided for submissions under the Practice Direction. Within the page limits allowed by the orders made by the Court on 13 November 2016, it had not been possible to explore that issue fully. 23 The Minister accepted that, as a result of error by the Authority, EAV16 got substantially less than the 21 days after the day on which EAV16's case was referred to the Authority in which to make submissions or provide new information to the Authority in accordance with the Practice Direction. Having said that, the Minister submitted that there were critical factual issues to be resolved concerning what happened on 12 September 2016. 24 EAV16 made submissions to the effect that it had been his understanding that the second ground of review to the FCCA had been the main part of his case, he does not speak much English, the FCCA hearing was conducted only in English and he did not understand that his counsel had not pressed the second ground. Counsel for the Minister submitted that that added a further factual dimension to the question of whether or not leave should be granted. 25 Having regard to these matters, the Court determined to seek pro bono assistance for EAV16 with the intent that his proposed grounds of appeal be enunciated clearly and the evidence and submissions on which he seeks to rely be clearly identified. The Minister did not object to that course being adopted. 26 Counsel for EAV16 accepted the pro bono brief. The Court wishes to record its thanks to counsel for accepting the brief.

Amended notice of appeal 27 EAV16 filed an amended notice of appeal on 27 March 2019. At the hearing, counsel confirmed that EAV16 withdrew all previous grounds and relied on the grounds in the amended notice of appeal. 28 The proposed grounds of appeal were expressed as follows: 1. The appellant says that: a. the appellant has no legal training and speaks and reads very little English; b. on 29 August 2016 the appellant lived at [redacted], Granville; c. the appellant had informed the Department of Immigration and Border Protection (Department) of this address in about January 2016, and again in April 2016 and July 2016; d. on 29 August 2016, the Immigration Assessment Authority (IAA) sent a letter to the appellant at his previous address in Blacktown; e. the letter enclosed the IAA's Practice Direction for Applicants, Representatives and Authorised Recipients (Practice Direction), made under section 473FB of the Migration Act 1958 (the Act), requiring the appellant to provide any written submission he wished to make within 21 days of his case being referred to the IAA by the Department, being (in the case of the appellant) 16 September 2016; f. the appellant was not aware of this letter until 12 September 2016, when an officer of the IAA telephoned the appellant, and subsequently sent the letter to the appellant by email; g. later on 12 September 2016, the appellant and the officer of the IAA had a telephone discussion in which the appellant said that he would not have enough time to make a submission to the IAA in accordance with the Practice Direction; h. the officer replied that the IAA would contact him again, and he did not need to lodge a submission in the meantime i. for this reason, the appellant did not provide a submission to the IAA; j. the IAA subsequently made its decision without contacting the appellant again; k. in the circumstances above: i. the appellant was denied procedural fairness; and/or ii. the decision made by the IAA is attended by apprehended bias; and/or iii. the IAA did not exercise its powers reasonably. 2. In the alternative to ground 1, the appellant: a. repeats paragraphs 1.a to 1.g above; b. says that if, as is claimed by the first respondent, the officer of the IAA did not tell the appellant that the IAA would contact him again, and he did not need to lodge a submission in the meantime, but instead told the appellant that the he could not direct the appellant whether or not to provide correspondence to the IAA, but if he chose to do so it would be wise to do it sooner rather than later, then: i. the appellant was denied procedural fairness; and/or ii. the decision made by the IAA is attended by apprehended bias; and/or iii. the IAA did not exercise its powers reasonably. 29 In written submissions filed on 21 May 2019, the Minister said: The amended notice deals with a discrete issue: did the IAA fall into error by failing to give the appellant an opportunity to provide submissions to the IAA following referral of the Delegate's Decision to the IAA for review. The grounds now relied upon were effectively abandoned before the primary judge. Notwithstanding this, the first respondent does not oppose leave being granted to the appellant to rely on the grounds in the amended notice. 30 At the hearing, the Minister's counsel clarified that the Minister opposes the grant of leave to rely on these grounds on the basis that they lack merit but agreed that the hearing should proceed on the basis that the question of leave and the appeal should be heard together and counsel for EAV16 agreed that the hearing should proceed on that basis. 31 There are three aspects to each of the grounds: want of procedural fairness, apprehended bias and legal unreasonableness which fall to be determined on alternate bases: (1) Whether the Court accepts EAV's evidence that Mr Brander told him something to the effect of "Do not do anything. We will contact you"; or (2) Whether the Court accepts Mr Brander's evidence that he said something more to the effect of "I can't direct you whether or not to provide correspondence to the IAA, but if you choose to do so, it would be wise to do it sooner rather than later".

Evidence 32 The appeal book filed by the Minister was in evidence. Relevantly it contained the email sent by the Authority to EAV16 on 12 September 2016 and its attachments (being the Referral Letter, the Practice Direction and the Information Sheet), the case file notes dated 29 August 2016 and one case file note in relation to a conversation between EAV16 and Mr Brander at 12.20 pm on 12 September 2016. The Court exercised its discretion under s 27 of the Federal Court of Australia Act 1976 (Cth) to admit further evidence relied on by EAV16 and the Minister without objection and in circumstances where the Minister had taken the opportunity to address the evidence relied on by EAV16.

Case file notes dated 12 September 2016 33 The Appeal Book contained a case file note (first case file note) as follows. "RA" means "referred applicant": Last updated by Michael Brander on 12/09/2016 On 12/09/2016 at 12:20pm I contacted the RA to advise that the letter we had sent to his updated address ([redacted] BLACKTOWN NSW 2148) had come back as RTS. RA stated that he had received no referral letter from the IAA. RA further explained that correspondence should not be sent to this address, instead it should be sent to his old address ([redacted] GRANVILLE NSW 2142). I indicated I would update his address on file accordingly. I asked RA whether he had an email address to which we could send an acknowledgement letter. RA provided the following: "[redacted]". I indicated that I would send the acknowledgement to this address in the next 30 minutes. I provided my phone number and requested, that, if RA did not receive the letter, he give me a call. I also provided the phone number for the translation and interpreting service. I told RA that the letter explained the process that was occurring and included a four page fact sheet in the Tamil language. I requested again, that if the RA did not understand the letter or would like me to explain any aspect of the letter, he call me on the number I had provided and I would assist. Call terminated. 34 There is a second case file note which had been omitted from the Appeal Book but which was annexed to an affidavit affirmed on 18 December 2018 by David Baddeley, an employee of the law firm representing the Minister in these proceedings. The second case file note was as follows: Case File Note Last updated by Michael Brander on 12/09/2016 On 12/09/2016 at 13:08 RA called with assistance of Tamil TIS (#160150868). RA sought clarification of the previous phone call (see previous case note). I responded that we had sent an acknowledgement of referral to his new address ([Blacktown address]) on 29 August, but the letter had been returned RTS. I stated to RA that he had told me that for correspondence purposes all postal correspondence should be sent to his old address ([Granville address]). I clarified that I had sent his acknowledgement to the email address he provided for expediency. I enquired as to whether RA had received the email, and he stated that he had. I asked RA whether it would be acceptable for the IAA to correspond with him via email from now. RA stated this would be fine. RA read the acknowledgement and asked whether to provide submissions. I responded that the IAA may make a decision at any stage after 21 days from referral, and that today was day 17. I told RA that I could not direct him whether or not to provide correspondence to the IAA, but if he chose to do so it would be wise to do it sooner rather than later. RA stated that he understood. RA thanked me and I terminated the call.

EAV16's evidence 35 Counsel for EAV16 relied on affidavits affirmed by EAV16 on 14 September 2017 (14 September 2017 affidavit), 18 September 2017 (18 September 2017 affidavit) and 27 March 2019 (March 2019 affidavit). Counsel indicated that EAV16 would not rely on an affidavit affirmed by him on 10 December 2018 (December 2018 affidavit) or the submissions filed by him at that time when he was not represented. 36 The Minister tendered EAV16's December 2018 affidavit. As noted by counsel for the Minister, there are inconsistencies between the affidavits sworn by EAV16. The primary inconsistencies are: (1) Whether there were two or three conversations between Mr Brander and EAV16; and (2) The content of the final conversation. 37 The 14 September 2017 affidavit states relevantly as follows: 3. At page 101 of the Court Book is a file note of a conversation between someone from the Immigration Assessment Authority and me on 12 September 2016. I recall three conversations between me and someone from the Immigration Assessment Authority on this day. My recollection of the three conversations is as follows. 4. First, I recall receiving a phone call from a man who spoke English. There was no interpreter. I did not understand what the man was saying. The conversation ended. 5. Second, a short while later (and on the same day) the man phoned me again. This time the man had organised an interpreter over the telephone who could interpret between Tamil and English. With the assistance of the interpreter, we had a conversation as follows: Man: I am from the Immigration Assessment Authority. On 29 August 2016 we sent you a letter to [redacted] Blacktown. The letter has been returned to us. Do you still live at [redacted] Blacktown? Me: No. That is an old address. Please send me mail to [redacted], Granville. Man: Do you have an email address to which we can email the letter? Me: Yes. My email address is [redacted]. Man: I will email the letter to you. Please then read the letter. If you do not receive the letter or you have any questions, please phone me. My name is [XX]. My number is [XX]. The man told me his name and gave me his phone number. I no longer recall the man's name or phone number. 6. A short while later (and on the same day) I checked my email account. I had received an email from the Immigration Assessment Authority which attached a letter to me dated 29 August 2016. I printed the letter and attachments, and then read the letter and attachments. [Did applicant have person assisting him to read letter in English?] The first page of the letter (at page 103 of the Court Book) says: "The decision of the Minister for Immigration and Border Protection to refuse you a protection visa has been referred to the Immigration Assessment Authority for a review." A part of one of the attachments (at page 110 of the Court Book) says: "Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department." 7. I calculated that 21 days from 29 August 2016 was 19 September 2016. This did not give me much time to provide a submission to the Immigration Assessment Authority. 8. So I phoned the man back. I used the telephone interpreting service. This was still on the same day. With the assistance of the interpreter, we had a conversation as follows: Me: I have received and read your letter. The letter says I must provide a submission to the Authority within 21 days after my case was referred to the Authority. But I did not receive your letter until today. I now have only a few days to provide a submission to the Authority. This is not enough time. What should I do? Man: Do not do anything. We will contact you. 9. I understood from what the man told me that I should not prepare a submission for the Authority until I received a further communication from the Authority. So I waited for a further communication from the Authority. 10. At page 113 of the Court Book is a letter from the Authority dated 6 December 2016 notifying me of its decision. Between 12 September 2016 and 6 December 2016 the Authority did not contact me and give me a further invitation or opportunity to provide a submission to the Authority. 11. I wanted to provide a submission to the Authority. In our third conversation on 12 September 2016 the man told me "Do not do anything. We will contact you." If the man had instead told me that I must provide a submission to the Department within the following few days or something similar, I would have done so. The only reason I did not provide a submission to the Authority at the time was because the man said "Do not do anything. We will contact you." 38 This version reflects the second ground of the application for review made to the FCCA in December 2016. It indicates that EAV16 became aware of the 21 day period for making submissions by reading the materials sent to him in the email of 12.43 pm on 12 September 2016. He asks for more time and he gives as a reason for not providing submissions that he was told not to do anything and that "we" would contact him. 39 The second version is set out in the 18 September 2016 affidavit as follows: 4. At page 101 of the Court Book is a file note of a conversation between someone from the Authority and me on 12 September 2016. I recall two conversations between me and someone from the Authority on this day. My recollection of the two conversations is as follows. 5. First, I recall receiving a phone call from a man who spoke English. There was no interpreter. We had a conversation as follows: Man: I am from the Immigration Assessment Authority. On 29 August 2016 we sent you a letter. Did you receive it? Me: No. Did you send the letter by post or email? Man: By post - to [redacted], Blacktown. Me: I left that address two years ago. I informed the Department at the time that I moved out of that address, and I gave the Department my new address. Man: Do you have an email address to which we can email the letter? Me: Yes. My email address is [redacted]. Man: I will email the letter to you. If you do not receive the letter or you have any questions, please phone us. 6. A short while later (and on the same day) I checked my email account. I had received an email from the Authority which attached a letter to me dated 29 August 2016. I briefly looked at the letter. Most of the letter was in English. I could not understand the English. One document was in Tamil. I very briefly looked at this document. 7. I then phoned the man back on the same day. I arranged a Tamil interpreter through the telephone interpreting service. With the assistance of the interpreter, we had a conversation as follows: Me: Why did you send me this letter? Man: The letter is from the Immigration Assessment Authority. Because you did not receive the letter we posted you on 29 August 2017, we are sending the letter to you again. Me: Do I need to do anything in response to the letter? Man: If you want to submit something to the Authority, you should prepare and send it to the Authority today. 8. Following this conversation, it was not possible for me to prepare and submit something to the Authority that day. I now understand that the letter dated 29 August 2017 provided an opportunity for a submission and new information to be provided to the Authority "within 21 days of your case being referred to [the Authority] by the Department". If I had 21 days to provide a submission and information to the Authority, I would have engaged a lawyer to help me prepare a submission. However, it was not possible for me to engage a lawyer in time to provide a submission to the Authority on the same day as my conversation with the man from the Authority. For this reason, I did not attempt to prepare and submit something to the Authority. 40 This version suggests that EAV16 did not know that he had 21 days from the date of referral in which to make submissions at the time of the final conversation, but rather that he thought he was being told that he needed to provide them on 12 September 2016. It does not suggest that EAV16 asked for more time. As noted by the Minister, the 18 September 2017 affidavit was made four days after the 14 September 2017 affidavit and was designed to clarify the earlier affidavit. It was made with the benefit of an interpreter who had "first sworn that he had truly interpreted the contents of this affidavit to the deponent and that he or she would truly interpret to [EAV16] the oath about to be administered to him". 41 The third version of the conversations was in the December 2018 affidavit. That affidavit contains inconsistent statements as to whether there were two or three conversations. The version of the final conversation in the December 2018 affidavit at [8]-[12] largely reverted to the version in the 14 September 2017 affidavit at [7]-[11]: 42 Relevantly, EAV16 deposed as follows in his March 2019 affidavit: 4. The purpose of this affidavit is to: (a) explain why I did not run any ground below about procedural fairness based upon the fact that I was not given sufficient opportunity to make submissions to the Immigration Assessment Authority (IAA); and (b) clarify some matters in my previous affidavits. My application before the primary judge 5. In my application before the Federal Circuit Court, I had the benefit of pro bono assistance from Mr Ben Zipser of counsel. I did not have a solicitor. Mr Zipser prepared my application to the Federal Circuit Court and my two affidavits of 14 and 18 September 2017. 6. I speak very little English. I cannot read English very well. I have no legal training. 7. As best I can recall, I spoke to Mr Zipser on three occasions with the assistance of an interpreter: (a) once on or shortly before the day that my application was filed in the Federal Circuit Court. This discussion took place at Mr Zip[s]er's office, with an interpreter on the telephone. The main purpose of the discussion was for me to give Mr Zipser instructions for the filing of the Federal Circuit Court application; (b) once on or shortly before the day that my 14 September 2017 affidavit was made. This discussion also took place at Mr Zip[s]er's office, with an interpreter on the telephone. The main purpose of the discussion was for me to give Mr Zipser instructions for the drafting of my 14 September 2017 affidavit; (c) once on or shortly before the day that my 18 September 2017 affidavit was made. This discussion also took place in Mr Zipser's office. I was not happy with the previous discussion that had taken place with a telephone interpreter. I was concerned that I had not been able to communicate clearly with Mr Zipser. For that reason, I arranged for an interpreter to attend this meeting in person. The main purpose of the discussion was to clarify my 14 September 2017 affidavit. This meeting resulted in me making the 18 September 2017 affidavit. 8. I recall on at least one of the occasions referred to in paragraph 7, that Mr Zipser and I had a conversation (through an interpreter) about the fact that I had been told by someone from the IAA not to lodge any submissions but to wait to hear from them, because I had only received the IAA notice a short time before the deadline to lodge submissions. We had a conversation about this in words to the following effect: I said: This is the most important matter in my case. Mr Zipser said: Yes, it is a very important matter. 9. I also recall saying (through an interpreter) to Mr Zipser, by reference to the subject matter of ground 2, words to the effect that "This is the main thing that needs to go in my affidavit." I recall that when I said this, Mr Zipser responded (through the interpreter) by indicating that he agreed. I cannot recall when this conversation occurred, but it would have been at one of the conversations referred to in paragraph 7 above. 10. On the basis of the conversations referred to in paragraphs 8 and 9, at the time of my hearing in the Federal Circuit Court, I understood that this issue was the most important issue in my case. I do not recall being told by Mr Zipser that he would abandon this issue, or Mr Zipser asking me if he should do so. I am sure that I would remember such a conversation if it had occurred. I do not know why Mr Zipser apparently made a decision to abandon this issue on my behalf. My conversations with a man from the IAA on 12 September 2016 11. As I have stated above, I had assistance from Mr Zipser in preparing my 14 and 18 September 2017 affidavits, with an interpreter on the telephone for my 14 September 2017 affidavit, and an interpreter in person for my 18 September 2017 affidavit. 12. I had assistance in preparing my 10 December 2018 affidavit from an older man who a friend introduced me to. I do not know that man's name. I do not know if he is a lawyer or has any legal training. He did not tell me that he is a lawyer or that he has any legal training. I gave him a copy of the Court Book when he assisted me. The man typed up the affidavit and translated it to me. 13. I would like to clarify some matters in my previous affidavits regarding my conversations with a man from the IAA on 12 September 2016. 14. I had three telephone conversations with a man from the IAA on 12 September 2016. First conversation 15. In the first conversation, there was no interpreter and I could not understand what the man was saying. This is the conversation referred to in paragraph 4 of my 14 September 2017 affidavit. Second conversation 16. In the second conversation, there was an interpreter which the man from the IAA had organised. My recollection of this conversation is accurately recorded in paragraph 5 of my 18 September 2017 affidavit (although that paragraph incorrectly says that there was no interpreter for this conversation). 17. There is also an account of this conversation in paragraph 5 of my 14 September 2017 affidavit. That account is also broadly correct, but the account in my 18 September 2017 affidavit is a more accurate reflection of my recollection. 18. The same account of this conversation as appears in paragraph 5 of my 14 September 2017 affidavit is repeated in paragraph 2 of my 10 December 2018 affidavit. Again, that account is broadly correct, but the account in my 18 September 2017 affidavit is a more accurate reflection of my recollection. Paragraph 2 of my 10 December 2018 affidavit also says that there was no interpreter and paragraph 3 says that I did not understand what the man was saying in this conversation. Those statements are incorrect. Third conversation 19. I phoned the man from the IAA back the same day, with the assistance of the telephone interpreting service. Before the conversation, I had read the Tamil document which had been emailed to me along with a letter in English from the IAA (referred to in paragraph 6 of my 18 September 2017 affidavit). I understood before the conversation that the letter required me to make a submission to the IAA within 21 days of the case being referred to the IAA, and I had calculated that this did not give me much time (as set out in paragraph 7 of my 14 September 2017 affidavit). 20. The conversation we had (through the interpreter) was in words to the following effect: I said: Why did you send me this letter? The man said: The letter is from the Immigration Assessment Authority. Because you did not receive the letter we posted you on 29 August 2017 [sic], we are sending the letter to you again. I said: I have received and read your letter. The letter says I must provide a submission to the Authority within 21 days after my case was referred to the Authority. But I did not receive your letter until today. I now have only a few days to provide a submission to the Authority. This is not enough time. What should I do? The man said: If you want to submit something to the Authority, you should prepare and send it to the Authority today. I said: That is not enough time. The man said: Do not do anything. We will contact you. 21. The conversation then ended. 22. Versions of this conversation appear at paragraph 8 of my 14 September 2017 affidavit, paragraph 7 of my 18 September 2017 affidavit, and paragraph 9 of my 10 December 2018 affidavit. While each of those paragraphs records words which were spoken during this conversation (or words to the effect of what was said), none of these paragraphs sets out a complete account of my recollection. 23. I do not recall any other words being said in the course of this conversation. 24. I am positive that the conversation ended with the man saying "Do not do anything. We will contact you." I have a very clear recollection that this is how the conversation ended. I remember being surprised when the next communication I received from the IAA was an email attaching the IAA's decision, because I had been expecting to hear from them about how I could make a submission. 25. The conversations which I had with the man from the IAA all took place on my mobile phone. I no longer have that mobile number, but my phone number only changed after I received the IAA decision in December 2016. I advised the Department of my new mobile number immediately after I changed the number. 43 The Court notes that the March 2019 affidavit is an annexure to the affidavit of Selvi Ranjan affirmed on the same date. In his affidavit, Mr Ranjan deposed that he interpreted EAV16's affidavit and the oath accurately to him and that EAV16 "appeared to me to understand perfectly" the oath and affidavit before he signed it. 44 The Court also notes that the version of the final conversation set out in the March 2019 affidavit is, in effect, an amalgam of the versions in the 14 and 18 September 2017 affidavits. 45 EAV16 was cross-examined. As the Court understands EAV16's evidence: (1) He does not know how the statements "Do not do anything. We will contact you" were omitted from his 18 September 2017 affidavit, even though it had been included in his 14 September 2017 affidavit and even though the 18 September 2017 affidavit was translated to him before he signed it. (2) He explained the omission of the words "If you want to submit something to the Authority, you should prepare and send it to the Authority today" from the 14 September 2017 affidavit on the basis that there were difficulties in translation when that affidavit was prepared. (3) EAV16 accepted that he said different things on different occasions but stated that what he was trying to do was say the same thing. EAV16 said he had a "proper interpreter" for the March 2019 affidavit. When it was put to him that he had not previously complained about interpretation (save for at [7(c)] of the March 2019 affidavit), EAV16 said: I had this problem from the starting itself. But I don't know to whom I have to say because when I was mentioning this about - when I was mentioning this to my lawyer, I don't think he listened to me, so he was actually preparing it of his own - of his own idea and then he was doing it. Now, only I got a proper lawyer. If my previous lawyer listened to me, then he would have pressed this as a main thing in my case, but he didn't do it. I don't - that's - I would have - my case would be different. (4) In relation to the final conversation set out in his March 2019 affidavit at [20], EAV16 did not exclude the possibility that the IAA officer might have told him that he could not give him advice but that if he wanted to contact the Authority he should contact them soon, but his memory of the last conversation he had with that officer was to the effect of that set out at [20].

Mr Brander's evidence 46 The second affidavit relied on by the Minister was affirmed by Michael Brander on 18 April 2019. Mr Brander's affidavit relevantly provided as follows: 2. I commenced employment with the Tribunal on 25 July 2013 and am currently an APS4 Tribunal Officer. Whilst working in this role, I regularly provided general information about the operation and procedures of the Tribunal to parties, their representatives and the general public. I am trained never to give advice to parties about what they should or should not do in running their cases before the Tribunal. It has always been my firm practice never to provide such advice. 3. From 16 May 2016, I was seconded to the Authority as a Case Support Officer before returning to my Tribunal Officer position with the Tribunal on 26 March 2018. In my role at the Authority, I was responsible for monitoring the 'Immigration Assessment Authority inbox', actioning and responding to case related correspondence, answering phone calls, and providing administrative support to the Reviewers. I was also trained in my role as Case Support Officer at the Authority to never give referred applicants advice or to tell them what to do in running their cases and I always adhered to this training. Any information given was consistent with and reflected what was set out in the IAA Practice Direction and the IAA Fact Sheet. If it became apparent that a referred applicant was seeking legal advice it was my usual practice to direct them to the Authority's website which contains contact details for organisations who may be able to provide immigration assistance and other support services. 4. Shown to me at the time of affirming this affidavit is the appellant's affidavit affirmed and filed in this proceeding on 27 March 2019 (the appellant's affidavit). 5. The Authority maintains an electronic case management system (CMS), which is used to record case information and electronically store case documents relating to individual review applications, including case notes. I was trained in my role as Case Support Officer to make a contemporaneous written case note following all telephone conversations with referred applicants or any person assisting a referred applicant, and for that case note to be saved in CMS. The written case note is to be a detailed record of the conversation and, if any follow up action is required, that would also be recorded in the case note. 6. On 3 April 2019, Kate Cunningham, IAA Executive Officer, performed a search of all documents held by the Authority in CMS relating to case no. IAA16/00712 seeking to identify records of the telephone conversations referred to at [15]-[20] of the appellant's affidavit. I have been provided with the case notes identified in this search. The search of CMS reveals the following: (a) There is a written case note in CMS that records I contacted the appellant by telephone at 12:20pm on 12 September 2016 (the first case note) and informed him that a letter sent by the Authority to his address had been returned to sender. During this conversation, the appellant provided me with his address for correspondence and an email address. I indicated that I would send a copy of the letter to his newly provided email address. I provided the appellant with my contact number and a phone number for the Translating and Interpreting Service (TIS). (b) There is a further written case note in CMS that records the appellant contacted me by telephone at 1:08pm on 12 September 2016 (the second case note) with the assistance of a Tamil speaking TIS interpreter. The appellant confirmed that he had received correspondence sent from the Authority to his email address earlier in the day. The appellant asked me whether he should provide submissions and the case note indicates that I responded to the effect that "The Authority may make a decision at any stage after 21 days from referral, and that today is day 17. I could not direct him whether to provide correspondence to the IAA, but if he chose to do so it would be wise to do so sooner rather than later". (c) I saved two case notes in CMS relating to case no. IAA16/00712 on 12 September 2016 at 12:39pm and 5:49pm. Annexed hereto and marked "MB-1" is a screenshot from CMS showing the time. 7. Whilst I cannot recall the specific telephone conversations referred to in paragraphs 6(a) and 6(b) above, I believe the first case note and the second case note represent an accurate and complete record of the telephone conversations referred to at [15]-[20] of the appellant's affidavit. The 'first' and 'second' conversations 8. Based on the results of the searches outlined above, as well as my experience and knowledge of the Authority's processes and systems, I believe that: the written case note referred to in paragraph 6(a) is an accurate and contemporaneous record of the first and second conversations referred to in [15]-[18] of the appellant's affidavit. In particular, I believe this to be the case because the first case note (see 6(a) above) indicates the appellant and I were able to understand each other to the extent that we could successfully exchange our contact details. The 'third' conversation 9. Based on the results of the searches outlined above and because the details of the conversation recorded in the case notes were consistent with my usual practice, I believe that the second case note referred to in paragraph 6(b) above is an accurate contemporaneous case note of the 'third' conversation referred to in [19]-[20] of the appellant's affidavit. 10. I have read the transcript of the 'third' conversation at [20] of the appellant's affidavit which finishes with the exchange: Me: If you want to submit something to the Authority, you should prepare and send it to the Authority today. Appellant: That is not enough time. Me: Do not do anything. We will contact you. 11. The last sentence attributed to me is not consistent with what I recorded contemporaneously in the case notes saved on CMS and is also inconsistent with how I have been trained to respond. 47 Mr Brander was cross-examined: (1) Mr Brander gave evidence concerning his duties as a case support officer. (2) Mr Brander said that it was his practice to make a file note of a conversation with a referred applicant at the end of the conversation and he usually typed it into the CMS system (rather than making handwritten notes) as soon as possible after the conversation finished. (3) While Mr Brander could not recall the conversations with EAV16 on 12 September 2016, he agreed that if he and a referred applicant could not understand each other on a telephone call and he called back with the assistance of an interpreter, he would not necessarily make separate records of those conversations. (4) In relation to the conversation recorded in the first case file note, Mr Brander said he did not know whether EAV16 had said to him that his correct address was the Granville address, not the address as recorded in that case file note. (5) Mr Brander accepted that the most likely explanation for the delay in making the second case file note was that he had had a busy afternoon so that he did not get to enter the file note until 5:49 pm on 12 September 2016. Mr Brander agreed that the entry in CMS was based on his recollection of the conversation. He did not necessarily accept that his memory might not have been as fresh as if he had made the entry shortly after the conversation at 1:08 pm on that day. In relation to the issue of EAV16's address as recorded in the file notes, Mr Brander said that the file note might "perhaps" be incorrect in relation to what the "new address" was and what the "old address" was but he did not know.

Findings on evidence 48 In the Court's view, both witnesses attempted to give truthful evidence, albeit that Mr Brander had no memory of the conversations with EAV16 on 12 September 2016 and he was guarded in his responses while EAV16 laboured under the difficulty of conducting conversations with Mr Brander and Mr Zipser and giving his evidence through interpreters.

Were there two or three conversations? 49 EAV16's evidence is inconsistent as to whether there were two or three conversations. The Court considers it most likely that there were three occasions when Mr Brander and EAV16 were in telephone contact. The first contact was conducted without an interpreter. The second contact was to the effect as recorded in EAV16's 14 September 2017 affidavit at [5], which most closely reflects the first case file note, containing the reference to the fact that the Referral Letter had been returned to the IAA which is more plausible than Mr Brander asking whether EAV16 had received the Referral Letter when it had been received by the IAA "return to sender". Further, Mr Brander's case note was made very shortly after the conversation. 50 In any event, EAV16 and Mr Brander both gave evidence that there were only two substantive conversations. Their evidence is generally consistent about the content of the conversation which occurred at around 12.20 pm on 12 September 2016 (albeit that Mr Brander was wrong about the information conveyed about EAV16's current address). The conversation that occurred after EAV16 received the Referral Letter by email, at about 1.08 pm on 12 September 2016, will be referred to as the final conversation.

What was said in the final conversation? 51 The Minister relied on the inconsistencies in EAV16's evidence to submit that the Court should prefer Mr Brander's evidence about the content of the later conversation. 52 The Minister submitted that: (1) Mr Brander gave evidence about his practice of making contemporaneous case file notes of conversations with referred applicants and the circumstances in which he recorded the earlier and later conversations in the first and second case file notes. The practice of making contemporaneous recording of conversations with referred applicants is designed to mitigate the risk that there will be disputes about what has been said to and by an applicant. The first and second case file notes are consistent with that established practice. (2) It is unlikely that an officer of the Authority, following an established practice and (it may be inferred) aware of the expedited review function under Part 7AA of the Migration Act, would have told EAV16 to do nothing in response to a statement by a referred applicant that the applicant had not had enough time. 53 The Court notes that the only words of EAV16's March 2019 affidavit at [20] that Mr Brander disputed in his affidavit were "Do not do anything. We will contact you". 54 In cross-examination, after being asked to compare the second case file note with EAV16's evidence given in his March 2019 affidavit at [20]: (1) Mr Brander agreed that very broadly speaking, save for matters of tone and who was said to have initiated topics in the conversation, the substance of EAV16's evidence that "I have received and read your letter. The letter says I must provide a submission to the Authority within 21 days after my case was referred to the Authority. But I did not receive your letter until today. I now have only a few days to provide a submission to the Authority. This is not enough time" was said during the conversation. (2) Mr Brander did not agree that EAV16 said the words "What should I do" but he agreed that those words fairly reflected the line in his second case file note "RA read the acknowledgment and asked whether to provide submissions". (3) Mr Brander disputed that he said words to the effect of "[I]f you want to submit something to the Authority, you should prepare it and send it to the Authority today" on the basis that he would have said something more like that he could not direct EAV16 whether or not to provide correspondence to the IAA, but if he chose to do so, it would be wise to do it sooner rather than later. Mr Brander accepted that, essentially, he told EAV16 that if he wanted to put in a submission he needed to do that quickly. (4) Mr Brander did not accept that EAV16 said "That is not enough time" even though he has no memory of the conversation and he agreed that that was sometimes said to him by referred applicants. His only reason for taking that position was that words to that effect were not included in his case file notes. (5) Mr Brander said that he could not say from memory whether or not he said to EAV16 "Do not do anything. We will contact you", but he agreed that that sentence is not consistent with his training and what is recorded in his case file notes. (6) In response to a question about whether or not he would have appreciated that EAV16 could have considered it unfair to have only four days to provide submissions when other referred applicants were given more time, Mr Brander said "I think it was my understanding that applicants are otherwise aware of the process". He conceded that there was no note that EAV16 was aware of the process but he did not accept that, from Mr Brander's own account of the conversation, it would have been obvious that EAV16 did not know about the 21 day period for making submissions before he received the Referral Letter. (7) It was a matter for the reviewer whether or not to entertain submissions after the 21 day period specified in the Practice Note, not a matter for him, and he had never asked a reviewer to agree to do so. (8) Mr Brander rejected the proposition that it was possible that during the conversation he contemplated making enquiries about whether EAV16 should be afforded more time to make submissions, that he told EAV16 he would get back to him, and that it simply slipped his mind. 55 Having regard to this evidence and submissions, the Court finds that: (1) Through no fault of EAV16, the Authority sent the Referral Letter to the wrong address with the result that EAV16 received the Referral Letter for the first time around 12.43 pm on day 17 or 19 of the 21 day period allowed for providing submissions to the Authority in accordance with the Practice Direction. The Court notes that the delegate's decision letter dated 24 August 2016 suggested that the decision had been referred to the Authority on that day (which would suggest that the Referral Letter was given to EAV16 on day 19), but the parties were prepared to proceed on the basis that the Referral Letter was correct when it stated that the delegate's decision had been referred to the Authority on 26 August 2016. (2) In substance, EAV16 and Mr Brander had a conversation to the following effect: "I have received and read your letter. The letter says I must provide a submission to the Authority within 21 days after my case was referred to the Authority. But I did not receive your letter until today. I now have only a few days to provide a submission to the Authority. This is not enough time". (3) Although there is a difference between EAV16's evidence that he asked "What should I do" and the second case file note which indicates that EAV16 asked whether he should provide submissions, it is clear that a question was asked by EAV16 concerning what his next steps should be and, relevantly, that was most likely directed to whether he should provide submissions. (4) The Court accepts that EAV16 said words to the effect of "This is not enough time" or "I need more time". As noted above, the second case file note does not purport to be a transcript of the conversation and the second case file note is the only basis on which Mr Brander disputed that EAV16 said that he needed more time. It is highly likely that a referred applicant would say that he needed more time shortly after discovering that 17 of the usual 21 days in which submissions could be made in accordance with the Practice Direction had passed and he was told that the Authority would make its decision any time after the 21 day period had expired, where he speaks little English and he would need to obtain legal advice. (5) Because of his training, and in response to EAV16's remark to the effect that he needed more time, Mr Brander said to EAV16 words to the effect that the Authority may make its decision any time after the end of the 21 day period and he could not direct EAV16 whether or not to provide correspondence to the IAA, but if he chose to do so, it would be wise to do it sooner rather than later. While the exigencies of the circumstances or interpretation may mean that EAV16 understood that to mean "today", that would be inconsistent with the Practice Direction and Mr Brander's training so the Court does not accept that that is what Mr Brander said. The purport of what Mr Brander said is that whatever correspondence EAV16 wished to give the IAA should be provided quickly. (6) The Court accepts Mr Brander's evidence that he did not say to EAV16 words to the effect of "Do not do anything. We will contact you". EAV16 has (with the exception of the 18 September 2017 affidavit) been consistent in his evidence that, after he expressed concern about the short amount of time left to provide submissions to the Authority, the IAA officer with whom he spoke on 12 September 2016 said words to the effect that EAV16 should do nothing and the IAA would get back to him. Indeed, that concept is included in the second ground of his application for review filed with the FCCA on 22 December 2016. However, there is nothing in the second case file note to that effect. The second case file note was made about five and a half hours after the conversation while EAV16's application was filed some months after the conversation and EAV16's affidavits were sworn over a year after the conversation. The Court finds Mr Brander's evidence persuasive that he would not have said anything like "Do not do anything. We will contact you" because his feelings about EAV16's late receipt of the Referral Letter did not matter, he appears to have an operating assumption that referred applicants generally knew what the process was (albeit he did not have a basis for forming that view about EAV16), it was not his place to grant further time to make submissions, he did not have power to do so, he has never asked a reviewer whether an extension of time should be given and he would not have considered asking a reviewer because it was not consistent with his training to follow the Practice Direction. 56 EAV16's counsel put a scenario to Mr Brander that he did in fact consider seeing if it was possible for an extension of time to be given to EAV16 and then, after a busy afternoon, simply forgot about it. The Court does not accept that there is sufficient evidence to draw the inference that that occurred. While a lapse of time between the conversation at 1.08 pm and the time at which Mr Brander entered a record of it in CMS at 5.49 pm on the same day might account for Mr Brander's failure to record that EAV16 asked for more time, the Court does not accept that it would explain why he would have said "do nothing" or his failure to record his decision to escalate a request for more time. Given Mr Brander's convincing evidence that he was trained to follow the Practice Direction, it is unlikely that he would, in a five and a half hour timeframe, have forgotten something like an intention to ask whether it was possible to grant an extension of time in circumstances which, on his evidence, were so unusual as the Authority having sent the Referral Letter to the wrong address with only four days remaining for submissions to be lodged with the Authority in accordance with the Practice Direction.

Principles relevant to an application to consider new grounds on appeal 57 The principles relevant to consideration of whether leave to advance new grounds of appeal should be granted in migration cases were usefully summarised by Murphy J in AFZ17 v Minister for Immigration and Border Protection [2019] FCA 1035 at [17]-[21]: 17. An appeal court has a discretion to allow an appellant to raise new grounds on appeal where the court considers that it is expedient and in the interests of justice to entertain the issue and where the proposed new ground could not possibly have been met by calling evidence in the hearing below: Water Board v Moustakas (1988) 180 CLR 491 at 497. The court is more likely to permit a new ground to be advanced on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O'Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 317 ALR 665 at [126]-[131] (Tracey, Gilmour, Jagot and Beach JJ). 18. In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [166] Madgwick J (with whom Conti J agreed) set out the following non-exhaustive list of the considerations relevant to a grant of leave: (a) Do the new legal arguments have a reasonable prospect of success? (b) Is there an acceptable explanation of why they were not raised below? (c) How much dislocation to the Court and efficient use of judicial sitting time is really involved? (d) What is at stake in the case for the appellant? (e) Will the resolution of the issues raised have any importance beyond the case at hand? (f) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? (g) If so, can it be justly and practicably cured? (h) If not, where, in all the circumstances, do the interests of justice lie? 19. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25], the prospects of success of a proposed new ground is an important consideration in deciding whether to grant leave: The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law. 20. Cases involving an asylum seeker often have a particular sensitivity in relation to whether the interests of justice favour a grant of leave, since an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); CGA15 v Minister for Home Affairs [2019] FCAFC 46 (CGA15) at [35]-[38] (Murphy, Mortimer and O'Callaghan JJ). 21. The fact that the appellant had legal representation in the hearing below weighs against a grant of leave, but leave may be granted even when that is the case and the only explanation for the failure to raise the new ground was that its significance may not have been apparent to the lawyers. What is at stake in a public law case is the lawfulness of the exercise of public power affecting the interests of an individual, and the considerations that inform whether leave should be granted to advance a new ground of appeal in a public law case are not necessarily the same as in a case between private parties: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J), endorsed by the Full Court in CGA15 at [37]. It is relevant too that the new grounds do not involve much dislocation to the Court or the efficient use of judicial sitting time. The necessary hearing will be short. 58 In this case, the aspect of the grounds which relates to procedural fairness was raised in the application and abandoned in submissions filed prior to hearing in the FCCA. The principles relevant in such cases were usefully summarised by Flick J in SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436 at [20]-[26] as follows: 20 Differing factors have been identified in respect to whether a ground which has been expressly abandoned at first instance should later be permitted to be "resurrected" on appeal. 21 In SZLWE v Minister for Immigration and Citizenship [2008] FCA 1343, Perram J reviewed some of these different outcomes as follows: [19] It is then useful to say something about the Tribunal's confusion of the Appellant's membership of the Lebanese forces with membership of the Lebanese Armed Forces. In the Appellant's amended application to the Federal Magistrates Court such a claim was expressly included. However, at the hearing in the Federal Magistrates Court the Appellant, who was represented by counsel, abandoned that argument. There may be some circumstances in which an appellate court will permit a party who has expressly abandoned a point at trial to raise it afresh on appeal. Gyles J would have permitted such a course in Dovuro v Wilkins (2000) 105 FCR 476 at 527 [181] at least where the point involved no prejudice to the other party. Branson and Finkelstein JJ took the opposite view: 487-488 [38] and 508-509 [119]-[120]. There may be something to be said for the view that where a point is expressly abandoned that the doctrine of waiver is relevant to the question: cf. Browne v Dunn (1894) 6 R 67 at 75 per Lord Halsbury, 80 per Lord Bowen; applied by the Privy Council in Yorkshire Insurance Co v Craine [1922] 2 AC 541 at 552-553 per Lords Buckmaster, Atkinson, Sumner, Parmoor and Wrenbury. If that were so, the question of whether an appellate court should entertain a fresh ground might not be relevant - there might be no ground to raise. However, whether the question is posed as one about the circumstances in which an appellate court should permit a point abandoned below to be resurrected on appeal, or, instead, one of waiver leading to the conclusion that the point no longer juridically exists - the outcome is the same in this case. I would not permit the abandoned ground to be entertained. It is not necessary in the present appeal to pursue His Honour's views as to the possible application of the doctrine of waiver. 22 There are unquestionably instances where an argument has been permitted to be raised on appeal even though "unequivocally disclaimed" before the primary judge: e.g. CA Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [30] to [35], 52 IPR 42 at 57 to 60. In the specific context of migration cases, leave to raise on appeal an argument abandoned before a Federal Magistrate may thus be permitted where (for example) there has been "an error of judgment by [an appellant's] counsel in abandoning a point which had originally been taken, and which was plainly viable": White v Minister for Immigration and Multicultural Affairs [2000] FCA 232 at [35], 96 FCR 511 at 519; SZBLY v Minister for Immigration and Citizenship [2007] FCA 765 at [36], 96 ALD 70 at 77. 23 It has generally been recognised that the considerations relevant to whether an argument which has previously been abandoned should later be permitted to be "resurrected" include the circumstances in which the argument was previously abandoned, whether a party was legally represented and whether the argument requires further evidence if leave is given. Other considerations include the importance of the argument sought to be raised and any potential prejudice to an opposing party. 24 Whatever may be the correct approach which may ultimately prevail, the difficulties confronting applicants for refugee status should nevertheless be constantly recalled. Such applicants may have very little (if any) appreciation of either the arguments which are sought to be advanced on their behalf before the Federal Magistrates Court or the significance which may later be given to those arguments by this Court on appeal. As in the present proceeding, the arguments are often drafted by so-called "friends" who neither appear before the Court to explain the arguments sought to be advanced nor explain to the litigant in advance of any hearing the substance of the arguments to be resolved. The quality of the assistance provided by such so-called "friends" may frequently be doubtful. 25 In such a context, there is thus an element of unreality in concluding that an unrepresented litigant has "abandoned" or "not pressed" an argument which he did not really understand he was otherwise advancing for resolution. In many migration cases, and the present is no exception, the Appellant understands little other than the fact that he has not been successful. Not surprisingly, many unrepresented applicants for refugee status cannot explain the concept of "jurisdictional error" or even less esoteric terms such as "actual bias" or "procedural fairness". Yet such is the language frequently employed in their Grounds of Appeal. 26 Consideration of those factors relevant to an informed decision being made to abandon an argument in circumstances more apposite to civil litigation in which litigants are well-represented may assume little (if any) importance in an appeal such as the present. But some significance, it is considered, is nevertheless to be given to even an ill-informed unrepresented litigant apparently abandoning an argument otherwise available to him and thereafter seeking to resurrect on appeal the very same argument. The "interests of justice", it is to be recalled, encompass the interests of both the unrepresented Appellant and the interests of the Respondents to an appeal. An unconstrained freedom on the part of an unrepresented Appellant to pursue all such arguments as may advance his own interests may well be inconsistent with the interests of a respondent or the more generally expressed public interest in the orderly administration of justice. An absence of prejudice claimed by a respondent may not be a sufficient reason to allow an argument to be raised for the first time on appeal: e.g. NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [23] to [33], 100 ALD 118 at 128. 59 The Court notes that the Minister did not challenge EAV16's evidence that he had not understood that his counsel would not raise the second ground of review before the FCCA. Accordingly, the Court is prepared to act on the basis that EAV16 did not understand that his counsel would not pursue that ground before the FCCA Judge. The difficulty faced by both counsel and client in ensuring that there is a meeting of the minds cannot be overrated where (as here) the client has scant English and all communications must be through interpreters. It should be said that the Court does not attribute fault to the counsel who appeared for EAV16 before the FCCA. 60 The Minister opposes the proposed new grounds being raised on appeal on the basis that they lack merit.

First proposed ground 61 Having regard to the principles set out at [57] above and the Court's finding that Mr Brander did not say words to the effect of "Do not do anything. We will contact you", the Court considers that the first proposed ground lacks sufficient merit to grant leave for that ground to be raised for the first time on appeal.

Second proposed ground 62 The Court accepts the factual basis of the proposed second ground as set out at [55] above. There remains the question of whether any or all of the procedural fairness aspect, the apprehended bias aspect and the legal unreasonableness aspect have sufficient merit to warrant the grant of leave and if so, whether the appeal on any of these aspects should be allowed.

Statutory context: Part 7AA of the Migration Act 63 Before considering these aspects, it is useful to note the structure of the scheme for the conduct of reviews by the Authority under Part 7AA of the Migration Act and ss 473DA to 473DF in Div 3 of Part 7AA (conduct of review) in particular. 64 Section 473CA in Div 2 of Part 7AA requires the Minister to refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. 65 Section 473DA(1) provides that "this division" (Div 3), together with ss 473GA and 473GB (which are not here relevant), "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority". 66 Section 473DB(1) goes on to spell out that the primary obligation of the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material given under s 473CB "without accepting or requesting new information" and "without interviewing the referred applicant". This is the "primary requirement" in relation to the conduct of reviews, subject to the exceptions in ss 473DC, 473DD and 473DE: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [22] (Gageler, Keane and Nettle JJ). 67 Section 473DB(2) provides that the Authority may make a decision at any time after the fast track reviewable decision has been referred to the Authority. 68 Section 473DC(1) in effect provides that, "[s]ubject to this Part", the Authority may "get … new information" (being any document or information) that the Authority considers may be relevant which was not before the Minister when the fast track reviewable decision was made. The Authority has no duty to "get, request or accept" new information in any circumstances: s 473DC(2). The Authority may invite a person, orally or in writing, to give new information in writing or at an interview: s 473DC(3). 69 Section 473DD(a) prohibits the Authority from considering any "new information" for the purposes of making a decision in relation to a fast track reviewable decision unless the Authority is satisfied that there are "exceptional circumstances" justifying its consideration. Under s 473DD(b), the referred applicant must also satisfy the Authority that the new information either (i) was not or could not have been provided to the Minister before the decision under review was made, or (ii) that it 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. 70 Section 473DE requires the Authority to provide certain new information to a referred applicant for comment. 71 Section 473DF provides that if a referred applicant is invited under s 473DC to give new information or invited under s 473DE to give comments on new information, the information or comments must be given within a period prescribed by regulation and specified in the invitation, but if it is not given in accordance with the invitation, the Authority may make a decision on the review without taking any further action to get the information or comments. 72 There is no provision for a referred applicant to make submissions in Div 3 of Part 7AA, save for the requirement to submit some material for comment under ss 473DE and 473DF. 73 Division 5 of Part 7AA relates to the exercise of powers and functions by the Authority: (1) Section 473FA provides that the Authority is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Div 3 in carrying out its functions under the Migration Act. (2) Section 473FB relates to practice directions and provides as follows: 473FB Practice directions (1) The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to: (a) the operations of the Immigration Assessment Authority; and (b) the conduct of reviews by the Authority. (2) Without limiting subsection (1), the directions may: (a) relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or (b) set out procedures to be followed by persons giving new information to the Authority in writing or at interview. (3) The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision. (4) If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review. (5) The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.

Procedural fairness aspect 74 EAV16 submitted as follows. 75 First, for the purposes of this case, EAV16 is content to proceed on the basis that s 473DA(1) is effective according to its terms. Nonetheless, EAV16 says that s 473DA(1) preserves the natural justice hearing rule insofar as it emerges from Div 3 of Part 7AA and ss 473GA and 473GB: see Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 (DZU16) at [99]. He submitted that, as explained in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 (Saeed) at [11]-[15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ), unless very clearly excluded, statutes must be read as being subject to a background of common law notions of justice and fairness. Given the principle of legality against which provisions of this kind are construed, any requirement of the natural justice hearing rule that is express or implied in those provisions must be preserved by s 473DA(1). 76 Second, EAV16 submitted that the conduct of a review on the papers under s 473DB is said to be "[s]ubject to this Part". In other words, s 473DB (which is part of Div 3) incorporates compliance with the requirements of the whole of Part 7AA, insofar as it bears on the conduct of a review, as a condition of a valid review. Part 7AA relevantly includes s 473FB. Section 473FB(1)(b) provides for the President to issue directions as to "the conduct of reviews" by the IAA. Under s 473FB(3), the IAA "must, as far as practicable, comply with the directions". 77 Third, EAV submitted that s 473FB must be read and construed against the backdrop of the principle of legality. Relevantly, in Saeed at [15], the plurality said (footnotes omitted): The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers' Union, "governs the relations between Parliament, the executive and the courts". His Honour said: "The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law." 78 Counsel for EAV16 noted that there is nothing expressly in s 473FB which states that the requirements in it are not to be read subject to common law procedural fairness. Counsel acknowledged that s 473FB(3) states that "non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision." He says that the function of s 473FB(3) is to confirm that mere non-compliance with a direction, of itself, will not invalidate a decision and that coheres with the fact that the IAA is only required to comply with a direction "as far as practicable". Counsel submitted that, consistently with the principles in Saeed, s 473FB(3) should be read so that material non-compliance will invalidate the IAA's decision where it denies an applicant procedural fairness. Counsel accepted that that proposition is not expressly in the text of s 473FB, but says that it is the standard way to read a provision like this. 79 Fourth, EAV16 says that the Authority's failure to comply with the Practice Direction in his case amounted to procedural unfairness and therefore to a failure to conduct the review under s 473DB "[s]ubject to this Part". Counsel submitted that the Practice Direction provides that an applicant is to be given an opportunity to provide written submissions in relation to a review within 21 days of referral to the IAA. The 21 day time period is plainly intended to allow an applicant a reasonable opportunity to make submissions. That opportunity will only exist if an applicant is notified of a referral promptly. It does not exist if the applicant is given a few days by reason of a process error by the IAA. 80 EAV16 submitted that this conclusion accords with the Full Court's decision in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 (CLV16) (Flick, Griffiths and Perry JJ), in which the Court held that it is within the IAA's power to receive a written submission, saying at [42]-[43]: 42. In those circumstances where the Authority has not made a decision, no argument could prevail that a visa applicant could not make a submission to the Authority in relation to a fast track reviewable decision referred to the Authority for review. The relevance of the guidance provided in the "information sheet" and the Practice Direction for present purposes is to lend support to an expectation on the part of visa applicants that submissions would in fact be taken into account. Having provided visa applicants with that guidance, it would be contrary to good administrative decision-making for the Authority to invite the submission, receive the submission but to fail to take the submission into account. The reference to "good administrative decision-making" is of course subject to the observations of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 and Attorney-General (NSW) v Quin (1990) 170 CLR 1. 43. It is not to be lightly assumed, of course, that the Practice Direction is either misleading or (wholly or in part) invalid. Indeed, Senior Counsel for the Minister shrank from advancing such a submission. The highest the Minister's submission rose was to contend that paras [20] and [21] of the Direction were "incomplete". 81 EAV16 also submitted that the Full Court rejected summarily any broadly expressed contention that the Authority could not entertain a submission made in relation to a fast track reviewable decision and that any such contention was contrary to the Information Sheet and Practice Direction distributed to referred applicants: CLV16 at [38]-[39]. EAV16 noted that the Full Court further held that the ability to receive a submission was not restricted by the provisions of ss 473DC or 473DD: see CLV16 at [45]-[56]. He says that it is noteworthy that in CLV16's case, the Minister contended (and the Court accepted) that decisions of the IAA which were attended by a failure to consider a submission which had been made were affected by jurisdictional error, such that they were, in law, no decision at all (permitting the IAA to make a fresh decision): CLV16 at [59]-[62]. EAV16 noted that, in CLV16 at [91]-[92] the Full Court said: 91. … Section 473DA in Pt 7AA of the Migration Act severely constrains the procedural protections which the common law may otherwise have afforded a participant in the fast track review process undertaken by the Authority. But no construction of Pt 7AA should be countenanced which further constrains the ability of a visa applicant to make submissions as to the consequences flowing from such factual material as was before the delegate or the ability to seek to have the Authority exercise its power under s 473DD to consider "new information". 92 Pt 7AA certainly contains no express statutory constraint upon a party's ability to participate in the review process by way of making submissions; nor is any such constraint necessarily to be implied. The ability at least to make a submission and the minimal (but nevertheless fundamentally important) procedural protection thereby provided, as opposed to a freedom to supplement the facts to be taken into account without there being "exceptional circumstances" (s 473DD), does not frustrate or impede the legislative objective sought to be achieved by Pt 7AA and the provision of a "limited form of review". An opportunity to make submissions, together with an opportunity to "present material information", it is to be recalled, forms part of a "principle [that] lies deep in the common law" and is an "indispensable requirement of justice": cf. Allesch v Maunz (2000) 203 CLR 172 at [35] per Kirby J. A legislative constraint upon the ability to provide "information" should not be readily construed as extending to a constraint upon the separate procedural protection of the right to make "submissions". The continuing ability to make "submissions" - as opposed to an ability to provide additional factual material other than in "exceptional circumstances" - provides a claimant with perhaps a final opportunity to make submissions as to why (for example) different factual findings should be made upon the existing material or why adverse findings as to credit made by a delegate were misplaced. 82 EAV16 submitted that, if a decision made through a failure to consider a submission is affected by jurisdictional error, it is hard to see why a decision made through a failure to permit a referred applicant a reasonable opportunity to make a submission would not similarly be affected by jurisdictional error. It is equally unfair for the Authority to invite submissions from all applicants, but in relation to a particular applicant who receives notification of that invitation late through no fault of his own, to fail to give that applicant a further opportunity to give submissions. 83 The parties provided post-hearing submissions concerning whether the High Court's decision in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (BVD17) (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) at [33]-[34] was fatal to the success of EAV16's procedural fairness ground. It is useful to set out BVD17 at [32]-[34] (footnotes inserted): 32 Recognising that the prescription in s 473DA(1) is broad in its scope, the appellant argued that the effect of its operation on the identification of the incidents of the Authority's obligation to afford procedural fairness is minimal. The appellant argued that the "exhaustive statement of the requirements of the natural justice hearing rule" to which s 473DA(1) refers encompasses all that is expressed in and implied by the totality of the provisions which s 473DA(1) mentions. If a particular obligation of disclosure arises by implication from construing Div 3 in combination with s 473GA or s 473GB against the background of the common law then, according to the appellant, that implied obligation is itself part of the "exhaustive statement of the requirements of the natural justice hearing rule" to which s 473DA(1) refers. All that the prescription in s 473DA(1) achieves, according to the appellant, is to prevent recourse to provisions in Pt 7AA other than Div 3 and ss 473GA and 473GB in determining the express or implied incidents of the Authority's obligation of procedural fairness. For example, it precludes an implication arising from the requirement of s 473FB for the Authority, so far as practicable, to comply with a direction by the President as to the conduct of reviews. 33 The argument would deprive s 473DA(1) of any meaningful operation. It cannot be accepted. The evident purpose of s 473DA(1) in prescribing that the provisions to which it refers are to be taken to be an "exhaustive statement of the requirements of the natural justice hearing rule" is to require that those provisions be construed as a codification of the incidents of the Authority's acknowledged obligation of procedural fairness. The prescription does not preclude all implications. Importantly, it does not preclude an implication that a statutory power within the provisions to which s 473DA(1) refers must be exercised only within the bounds of legal reasonableness. What the prescription does preclude is an incident of the Authority's obligation of procedural fairness arising as a matter of implication through the application of the common law principle of statutory interpretation according to which, where the exercise of a power or the performance of a duty is conditioned by a requirement to afford procedural fairness, "regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition" with the result that "[i]t is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy [the] condition" [Kioa v West (1985) 159 CLR 550 at 611. See also at 585]. 34 The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court constituted by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 [(2017) 253 FCR 475 at 491 [67]] and in Minister for Immigration and Border Protection v DZU16 [(2018) 253 FCR 526 at 552-553 [99]]. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined. 84 In his submissions, EAV16's counsel submitted that, in accordance with what the plurality of the High Court said in BVD17 at [33], he did not rely on the principles of statutory interpretation for the implication of procedural fairness obligations at common law which rely on the principle discussed in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 611 (Brennan J). Rather, EAV16 relied on the extent to which s 473DA(1) preserves the natural justice hearing rule, for which he relied on the Full Court's decision in DZU16 at [99] as follows (emphasis in EAV16's submissions): 99. In our opinion, there is no scope for the principles of procedural fairness to apply to a review by the Authority where Pt 7AA is followed, except to the extent that those principles overlap with legal unreasonableness. A procedural fairness analysis is not the correct perspective: CRY16 at [67] and [86]. The respondent's contention fails. This is not to say that where Div 3 of Pt 7AA is not followed, a ground of denial of procedural fairness is not available. Section 473DA is not so broad. Section 473DE plays a critical role in the scheme of limited review that Parliament has enacted to ensure some procedural fairness. Where s 473DE applies, an allegation of legal error on the Authority's part in making a decision on the review without taking steps to obtain a referred applicant's response to an invitation to comment may sound in invalidity for that reason alone: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2018) 228 CLR 294 at [77] per McHugh J, [173] per Kirby J and [208] per Hayne J. To that extent we would, with respect, disagree with the reasoning of the primary judge at [68]. 85 EAV16 submitted that the High Court expressly confirmed the correctness of DZU16 at [99] in BVD17 at [34] and what the Court said in BVD17 at [33] must be read in that light. He says that, on this basis, the true rule emerging from BVD17 is not that s 473DA(1) precludes any ground of judicial review on the basis of a denial of procedural fairness. It is that a procedural fairness ground of review can only be sustained where a breach of the procedural code prescribed by s 473DA(1) is alleged; that is, an applicant is permitted to allege that one or more provisions of Part 7AA, Div 3 or ss 473GA and 473GB have been breached, with a resultant denial of procedural fairness. 86 In summary, EAV16's contention on the procedural fairness ground is that: (1) The IAA was required by s 473DB of the Migration Act to conduct its review "[s]ubject to this Part"; (2) That required the IAA to comply with, among other things, s 473FB in the conduct of the review; (3) Section 473FB(3) required the IAA to comply with any directions given by the President "as far as practicable". While s 473FB(3) also states that non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision, this means only that mere non-compliance (for example, a minor or technical breach) will not of itself invalidate a decision. It does not preclude an argument that non-compliance with directions may give rise to a denial of procedural fairness; and (4) The IAA did not comply with the Practice Direction because it did not provide EAV16 with an opportunity to provide written submissions to the IAA, and thereby contravened s 473DB in a manner which denied EAV16 procedural fairness.

Consideration of procedural fairness aspect 87 The premise of EAV16's argument is that, in the events that occurred, the Authority failed to comply with s 473DB because it failed to provide EAV16 with a reasonable opportunity to provide submissions in accordance with a direction made under s 473FB which is in Part 7AA and s 473DB is expressly made "[s]ubject to this Part." 88 This aspect of the second ground lacks sufficient merit to grant leave for it to be raised on appeal. The Court does not accept that EAV16 has sufficient prospect of establishing that the Authority failed to comply with the Practice Direction or that it was obliged to provide EAV16 with a reasonable opportunity to provide submissions for the following reasons. 89 First, while the President may, under s 473FB(1)(a), give directions as to the operations of the Authority and efficient processing practices in the conduct of reviews, in its terms, the Practice Direction imposes no express obligations on the Authority, with the possible exception of the undertaking to send correspondence to a person that the referred applicant appoints to receive correspondence (see the Practice Direction at [16]). 90 Second, the Practice Direction is directed to referred applicants and their advisers. As submitted by the Minister, paragraphs [20]-[21] of the Practice Direction (see [8] above) are facilitative in the sense that they guide a referred applicant and his or her representative on how submissions can be made for the purpose of the conduct of a review. Those paragraphs do not impose an obligation on the Authority, albeit that the failure to consider a submission actually submitted to the Authority may result in jurisdictional error: CLV16 at [63]. 91 EAV16 has not drawn to the Court's attention any authority which supports his submission that a failure to give a referred applicant a reasonable opportunity to make a submission is affected by jurisdictional error having regard to s 473DA(1) and the other provisions of Part 7AA. Outside of s 473DE (which is not applicable in this case), there is nothing in Div 3 of Part 7AA or (having regard to ss 473DB and 473FB) in the Practice Direction which requires the Authority to give a referred applicant an opportunity to make submissions or "comments". 92 Paragraphs [20]-[21] of the Practice Direction should not be understood as being designed as a means by which the Authority provides referred applicants with procedural fairness: CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404 at [51]. Those paragraphs should be understood as a mechanism by which the Authority seeks to ensure that any submissions which a referred applicant elects to make are provided concisely and promptly so that it can meet its obligations for the conduct of a review in accordance with s 473FA(1). That is consistent with the purpose for which the power to make directions was conferred on the President by ss 473FB(1)(b) and 473FB(2). 93 Third, it is important that the 21 day period referred to in the Practice Direction at [21] is not defined by reference to when the referred applicant receives notification that the delegate's decision has been referred to the Authority. It is also important that there is nothing in Part 7AA or the Practice Direction which requires the Authority to notify a referred applicant that referral has occurred or of the terms of the Practice Direction. 94 The possibility that the referred applicant might not receive the Referral Letter or the Practice Direction promptly must be taken to have been known when the Practice Direction was made. It is likely that many referred applicants will not receive notification on the day of referral either because notification is not sent by email on that day or because a referred applicant is notified by mail. Indeed, even if the Referral Letter had been sent to EAV16's correct mailing address and referral in fact occurred on 26 August 2016 (not 24 August 2016 as the delegate's decision letter would suggest), it was sent by mail on 29 August 2016 so that it is likely that at least five days would have passed between referral and the time at which EAV16 might have received it in the ordinary course of mail. 95 Fourth, the language employed with respect to the making of submissions and the timeframe for providing submissions in paragraphs [20]-[21] of the Practice Direction is precatory, not mandatory: see EUW17 v Minister for Immigration and Border Protection [2019] FCA 744 at [43]. Paragraph [21] states that submissions "must" be concise and submissions longer than five pages may be returned and a deadline given for revised submissions after which they will not be considered, but, importantly, there is no similar language indicating that submissions made later than 21 days after referral will not be considered. 96 The Court does not accept the submission made by EAV16's counsel that, to a person who does not speak English, "should" will be interpreted as saying what the referred applicant has to do. The terms of the Practice Direction must be considered as they are written. 97 Having said that, there is no doubt that the Practice Direction seeks to engender a sense of urgency in referred applicants and their representatives which is consistent with the evident intention of the regime in Div 3 of Part 7AA and with s 473FA(1). The Practice Direction at [28] warns applicants that reviews "will generally be completed within six weeks of referral from the Department" so referred applicants are put on notice that they must act quickly. That advice was also given in the Information Sheet (under the heading "How long with the review take" at [9] above) and in the Referral Letter (in the fourth dot point at [7] above). The Court notes that a Tamil version of the Information Sheet was provided to EAV16 with the Referral Letter. 98 Fifth, EAV16 received the Referral Letter with a copy of the Practice Direction and Information Sheet (which is in similar terms to the Practice Direction at [20] and [21]) and a Tamil version of the Information Sheet on 12 September 2016, which the parties agree was day 17 after referral, within the period in which submissions "should" be made, albeit late in that period. That is in circumstances where EAV16 had been advised of the delegate's decision and of the fact of referral of that decision to the IAA by the delegate's decision letter which was sent to the correct mailing address by a letter dated 24 August 2016, so that he in fact had more than four days in which to seek advice concerning the delegate's decision letter. 99 Sixth the Court's evaluation of the evidence is that: (1) Mr Brander took steps to draw the Referral Letter to EAV16's attention once it became clear that EAV16 had not received it. (2) In response to EAV16 saying that the four days left of the 21 day period specified in the Practice Direction at [21] was "not enough time" for him to provide submissions, Mr Brander said to EAV16 words to the effect that the Authority may make its decision any time after the end of the 21 day period and he could not direct EAV16 whether or not to provide correspondence to the IAA, but if EAV16 chose to do so, it would be wise to do it sooner rather than later. What Mr Brander said encouraged the making of prompt contact in writing with the Authority. It is unclear whether this was directed to EAV16 making a written request for further time or to provide a submission if he determined to make one. On any view, it does not convey that EAV16 was refused an opportunity to make written submissions. What Mr Brander said did not amount to telling EAV16 that he must provide submissions "today" or "by day 21". That is true even if EAV16, who received what Mr Brander said through an interpreter, in fact placed other interpretations on what was said. (3) What Mr Brander said was consistent with all of s 473DB(2) (which provides that decisions may be made at any time after referral); the Referral Letter (which said "act quickly in your dealings with us (as we aim to complete the review within six weeks)"); the Practice Direction at [21] and the Information Sheet (which said that submissions "should" be provided within the 21 day timeframe, not that they must be provided within that timeframe); the Practice Direction at [28] and the Information Sheet (which also advised of the aim to have reviews conducted within six weeks); and s 473FA (which requires the IAA to "pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)"). (4) The Authority did not make its decision until 6 December 2016, almost three months after EAV16 received the Referral Letter, a period in which EAV16 could have, but did not, provide any "correspondence" to the Authority concerning any issues he wished to raise about the delegate's decision. 100 There therefore appears to be no substance to the submissions that the Authority acted inconsistently with Part 7AA or the Practice Direction made under s 473FB(1) or that EAV16 did not have a reasonable opportunity to make submissions to the Authority. 101 As the premise that the IAA did not comply with the Practice Direction should not be accepted, EAV16's argument based on DZU16 at [99] would also not assist him. 102 Further, even if it could be established that the Authority failed to comply with the Practice Direction in a material way, in the Court's opinion, the better view is that such a failure should be viewed through the lens of legal unreasonableness, not through the lens of a failure to provide procedural fairness, having regard to: (1) The scheme of Part 7AA, and in particular ss 473DA(1), 473DB, 473FA(1) and 473FB and in particular s 473FB(3) which obliges the Authority to act in accordance with a direction only "as far as practicable" and expressly states that "non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision"; and (2) The High Court's findings in BVD17 at [33]-[34].

Apprehended bias aspect 103 The Minister did not dispute that a decision of the Authority may be impugned on the basis of apprehended bias. Nor did the Minister dispute the principles discussed by EAV16 in his written submissions in which EAV16 cited: (1) NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 for the propositions that: (a) A reasonable apprehension of bias will arise where the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision: at [14]; (b) Apprehension is not as to the fact or likelihood of a lack of impartiality, but a possibility (real and not remote) of a lack of impartiality: at [17]; (c) An apprehension may arise from a predisposition of a Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question: at [20]; and (d) The enquiry is not directed to the personal thought processes of the decision-maker, but rather to his or her conduct "objectified" through the prism of what a fair-minded and informed observer would reasonably apprehend: at [21]. (2) Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8] for the proposition that the apprehension of bias principle admits of the possibility of human frailty and its application is as diverse as human frailty. (3) Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74 (Deane J) for the proposition that the conduct of proceedings by a decision-maker may give rise to an apprehension of bias. A typical example is excessive judicial intervention in cross-examination (see R v T, WA [2014] SASCFC 3; (2014) 118 SASR 382 at [38] (Kourakis CJ, Vanstone and Anderson JJ agreeing). 104 EAV16 submitted that the IAA's conduct in his case effectively denied him the opportunity (his only opportunity) to put submissions to the Authority about why the delegate's decision was wrong, and thereby undermined the proper presentation of his case, relying on the decision of the New South Wales Court of Criminal Appeal in Ellis v R [2015] NSWCCA 262 (Bathurst CJ; R A Hulme and Garling JJ) at [65] where, after referring to a number of decisions on apprehended bias relating to judicial conduct during the course of a criminal trial, the Court said (footnote inserted): 65. Although a number of these decisions seem to be based on the proposition that the conduct of the judge founded a reasonable apprehension of bias, that is not necessarily the case. A miscarriage of justice will occur in circumstances where the conduct of the judge prevents a party from properly presenting his or her case: Jones v National Coal Board [(1957) 2 QB 55]. 105 EAV16's counsel submitted that a fair-minded observer would be aware that: (1) The Authority's normal procedure is to permit an applicant to provide written submissions as to why the delegate's decision was wrong within 21 days of the matter being referred to it; (2) Through no fault of EAV16, he was notified of his right to make submissions only on day 17 of the 21 day period; (3) EAV16, being a person of very limited English language proficiency, would not have been able to make a meaningful submission in the four days remaining; and (4) EAV16 raised this matter with the Authority and he was told in effect that he would not be given any further time to make submissions. 106 EAV16 submitted that, knowing of these matters, the fair-minded observer might reach the conclusion that the Authority might have approached the matter from the point of view that it was going to make its decision regardless of what submissions EAV16 may have wished to make, and thus the decision was attended by prejudgment. 107 The Court accepts the Minister's submission that the Authority did not prevent EAV16 from putting on submissions nor did Mr Brander tell him that he would not be given further time to make submissions. Rather, Mr Brander told EAV16 that he could not direct him whether to provide correspondence to the Authority, but if he chose to do so, he should do it sooner rather than later. The Court accepts that the purport of what Mr Brander said was that the Authority might make a decision in the absence of EAV16 giving "correspondence" to the Authority promptly, and, having regard to EAV16's lack of English and lack of legal training, it might have been better had Mr Brander been explicit as to what he meant by "correspondence". 108 However, a fair-minded lay observer, who was knowledgeable about the terms of Div 3 of Part 7AA and the terms of the Practice Direction, Information Sheet and Referral Letter, would have understood that what Mr Brander said was a fair summary of relevant provisions of Part 7AA and the Authority's administrative procedures for receiving submissions. In EAV16's interest, he was being encouraged to act promptly. That is not a basis for a fair-minded lay observer to apprehend that the Authority's decision on the review might be affected by prejudgment or that a fair judgment would be jeopardised by EAV16 being impeded in the presentation of his case. 109 The Court is not satisfied that this aspect of the second ground has sufficient merit to warrant leave being given to EAV16 to rely on it on the appeal.

Legal unreasonableness aspect 110 EAV16's counsel submitted as follows. First, it was legally unreasonable for the Authority not to afford EAV16 an additional period in which to make submissions, having regard to the circumstance that, through no fault of EAV16's, the Referral Letter was not given to him by the Authority until day 17 of the 21 day period specified in the Practice Direction at [21]. Counsel submitted that it was, as a practical matter, unfair that when EAV16 told Mr Brander that there was not enough of the 21 day period left in which to provide submissions, in effect Mr Brander told him that there would be no extension and he just had to get the material on. That was arbitrary, capricious and lacking in common sense. It does not meet the standard that ordinary people would expect a reasonable decision-maker to reach. 111 Second, as the President has the authority to issue directions under s 473FB, as a matter of necessary implication, the Authority must have the power to administer compliance with any direction that is issued. That follows from the requirement in s 473DB of the Migration Act that the Authority conduct a review "[s]ubject to this Part". 112 Third, s 473FB(3) requires the Authority to comply with the directions made under s 473FB(1) as far as practicable but mere non-compliance does not invalidate a decision. That combination confers an area of freedom on the IAA to not comply with practice directions. It is the discretion conferred by the ability to comply or not comply with a practice direction which must be exercised reasonably. For instance, it would be open to the Authority to give a referred applicant only five days to put on a submission, rather than 21 days, but to do so would be subject to review as a decision which is arbitrary or capricious. 113 Fourth, EAV16 does not dispute the proposition that the statutory scheme does not place any obligation on the Authority to receive a submission at all. However, counsel submitted that the evaluation of what is unreasonable in the present case must also take into account that the President had decided, as an aspect of good administrative decision making, to invite submissions as a matter of course from all referred applicants and to give them 21 days from the date of referral to get those submissions on, which is clearly intended to be a period of time which is expeditious. If the opportunity is being afforded to all referred applicants, even if those applicants will, in fact, have something less than but close to 21 days from the date of referral to provide submissions, EAV16 submitted that what has occurred in the present case is legally unreasonable. 114 Fifth, EAV16 relied on DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (DGZ16) (Reeves, Robertson and Rangiah JJ) in which the Full Court found that paragraph [21] of the Practice Direction (in respect of setting page limits on submissions) was not an unreasonable exercise of the directions making power in s 473FB(1) of the Migration Act.

Consideration of legal unreasonableness aspect 115 Whether a decision by the Authority under Part 7AA is tainted by legal unreasonableness must be evaluated having regard to the following: (1) Questions of legal unreasonableness are not only fact-dependent but also informed by the subject matter, scope and purpose of the legislation in question: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [12] (Keifel CJ), [78]-[79] (Nettle and Gordon JJ) and [134]-[135] (Edelman J). (2) The task of reviewing a decision for legal unreasonableness is not definitional but one of characterisation. The decision is to be evaluated and a conclusion reached about whether it has the character of being unreasonable having regard to the terms, scope and purpose of the statutory source of power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. Decisions have been said to be legally unreasonable because they lack sufficient rational foundation or an evident or intelligible justification, or because they are plainly unjust, arbitrary, capricious, or because they lack common sense having regard to the terms, scope and purpose of the statutory source of the power. Those descriptions are not exhaustive, they are only explanations of legal unreasonableness, of going beyond the source of power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] (Allsop CJ). (3) Even though reasonableness is closely linked to procedural fairness , the question of legal unreasonableness is not to be approached through the lens of the principles of natural justice unaffected by statute: see BVD17 at [33] and CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [45] (Thawley J) Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (CRY16) (Robertson, Murphy and Kerr JJ) at [67]; DZU16 at [99]; BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [81]. (4) Section 437DA(1) does not preclude the implication that a power of the Authority under Part 7AA must be exercised reasonably and that is the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Part 7AA is to be determined: see BVD17 at [33]-[34]. (5) Unfairness in a process can be relevant to whether or not there is legal unreasonableness: see CRY16 at [67]. (6) The existence of a discretion rather than a duty does not answer the question of whether or not a power is or has been exercised reasonably nor do the principles of legal unreasonableness apply only to a circumstance where the Authority has considered whether or not to exercise the power: see CRY16 at [69], [70], [72] and [82]. (7) The Authority's ability to receive a submission is not restricted by ss 473DC or 473DD: see CLV16 at [45]-[56]. Part 7AA contains no express statutory constraint upon a party's ability to participate in the review process by way of making submissions; nor is any such constraint necessarily to be implied: CLV16 at [92]. (8) Section 473FB(1) of the Migration Act authorises the President to issue directions in writing which are not inconsistent with that Act or regulations made under it with respect to the conduct of reviews by the Authority. Section 473FB(2) authorises directions that relate to efficient processing practices in the conduct of reviews by the Authority. (9) The Practice Direction at [21] is not inconsistent with s 437DC or s 473DD nor is it an unreasonable exercise of the power conferred on the President by s 473FB: DGZ16 at [107]. 116 Having regard to the statutory context of Part 7AA of the Migration Act summarised at [63]-[73] above, the principles set out at [115] above and the matters set out at [89] to [100] above and in particular those at [99], the Court is not satisfied that this aspect of the second ground has sufficient merit to warrant the grant of leave for EAV16 to rely on it on the appeal. 117 For completeness, it is appropriate to say the following: (1) For reasons previously given, the characterisation of what Mr Brander said in the final conversation as contended for by EAV16 should not be accepted. Whatever EAV16 might have understood from a conversation conveyed through an interpreter, what Mr Brander said accurately conveyed the need to act promptly, but EAV16 was not denied the opportunity to put on submissions either by what Mr Brander said or by the Authority. Importantly, in fact, the Authority did not make a decision for almost three months after the conversations on 12 September 2016 during which time EAV16, could have, but did not, file submissions or file a written request for more time to file submissions with the Authority. (2) EAV16's reliance on DGZ16 appears to have been directed at the issue of whether or not legal unreasonableness is a basis for impugning actions taken by the Authority in breach of obligations imposed on it under a direction made under s 473FB(1) and therefore in breach of s 473DB(1). As submitted by the Minister, DGZ16 was a case which affirmed that the Practice Direction at [21] was not an unreasonable exercise of the President's statutory power to make directions, which is a different issue. In any event, the Authority had no relevant obligations under the Practice Direction. (3) The Minister did not dispute the application of the principles of legal unreasonableness to this ground, even though the impugned exercise of discretion by the Authority was said to have derived from the Practice Direction which is neither delegated legislation nor a power conferred by statute. The Authority was conducting a review under Div 3 of Part 7AA of the Migration Act; there is no reason why the Authority's actions in considering whether or not a request to be granted time to put on submissions should not fall to be decided subject to the principles of legal unreasonableness.

Conclusion 118 As the proposed grounds of appeal set out in the amended notice of appeal were not raised in the FCCA and the Court is not satisfied that the proposed grounds have sufficient merit to warrant their consideration on appeal, leave to rely on those grounds will be refused and the appeal will be dismissed with costs. I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell.