Whether the Authority's conduct was legally unreasonable in the circumstances
96 This is an extraordinary case. The record of the appellant's entry interview contained a very brief summary of his claims (only a few paragraphs, scattered throughout the document). Save for this, the appellant had no opportunity speak, through an interpreter, in support of his protection claims for over five years after his arrival in Australia. I also note, lest it be forgotten, that he clearly had no facility in written English. When he was ultimately given the chance to speak, through an interpreter, with a Departmental officer about his claim, he was about to stand trial. At this trial he was to be found guilty of only one offence and to receive no penalty with respect to it. Further, it should be borne in mind that the appellant had not only a very limited command of English, he had evidently little knowledge of Australian norms and expectations.
97 The written account of the appellant's failed interview with the officer (who was also the delegate) indicates that he was distressed when the interview commenced and became increasingly distressed as it progressed to the point where he became unintelligible. The appellant told the delegate that he was finding the pressure of the forthcoming trial coupled with the interview too great to bear. He explained his position rationally at the outset and then in increasingly irrational terms. His response to these events was unsurprising, bearing in mind what was at stake for him, his lack of English language, his unfamiliarity with Australian legal and governmental systems, that he was in prison awaiting trial, and that he had been waiting for a Departmental interview about his protection claims for a long time. From his perspective at least, his initial request to adjourn the interview until after the "soon" upcoming trial was simple enough, given the passage of time between his arrival (24 March 2013) and the scheduled interview date (27 March 2018). The delegate's response may well have seemed to him inexplicably unbending to his personal predicament. Be that as it may, I would emphasise that this case does not call into question the delegate's decision. Rather, the appellant's first appeal ground challenges the Authority's decision not to invite the appellant to an interview. The question is whether, in the particular circumstances of the case, the Authority's decision was legally unreasonable.
98 The answer depends to a large extent on whether the reasons the Authority gave for not acceding to the appellant's repeated requests for an interview were themselves rational and intelligible.
99 In its reasons at [13], the Authority relied on three discrete kinds of considerations in declining the appellant an interview. The first set of considerations related to the appellant's own conduct at the failed interview before the delegate, the delegate's conduct, and the limited participation by telephone of the appellant's migration agent. It may be accepted that it was open to the Authority to regard these considerations as contextually relevant to its decision whether to invite the appellant to an interview before it.
100 The second set of circumstances considered by the Authority related to the fact that the appellant had not sought to obtain another interview, to provide further information (whether evidence of his medical condition or otherwise), or to contact the Department in the six weeks between the end of his trial and the delegate's decision. The Authority did not, however, take account of what had happened at the failed interview and in particular how it ended. That is, it did not refer to the delegate's consistent rejection of the appellant's request, where the appellant said he was "politely asking, lowering myself to you" to defer the interview, initially, until after his trial. Nor did the Authority refer to the delegate's final statement to the appellant that "I now will cease the interview and make a decision". When account is taken of the way the interview progressed and concluded, it is evident that the appellant might reasonably have understood that there was no point asking the delegate for another interview or for a further opportunity to provide information.
101 The third consideration, so far as the Authority was concerned, was the fact that the appellant had been given an opportunity to give evidence to the Department "at the interview and later in writing", but "chose not to" use these opportunities. In fact, the material before the Authority would have shown that the appellant's migration agent had advised the Department, by emails sent on 10 March and 1 May 2018, that the agent had been unable to contact the appellant to take advantage of the proffered opportunity to provide further information. There was no objective basis to believe that the appellant was aware at any point before the delegate made a decision that the delegate had offered this further chance. There was also no objective basis for the delegate's finding that the appellant did not respond to "the Section 56 invitation" because he did not want his claims to be scrutinised. Similarly, there was little, if anything, to support the delegate's finding that, for the same reason, the appellant also refused to take part in the interview.
102 Whether the migration agent could have done more to locate the appellant or given a better explanation of his inability to find him had no apparent bearing on the appellant's lack of knowledge. To place the migration agent's suggested deficiencies in context, I observe that the Department itself was apparently unaware that the appellant had re-entered one of its own facilities prior to June 2018, when it sought to advise the appellant by letter mistakenly addressed to the remand centre (where he had been prior to his trial) that his visa application had been refused and that the delegate's decision had been referred to the Authority.
103 According to the written record of the failed interview, the Authority was incorrect to state that the delegate and the appellant spoke "by video-link": see reasons at [5]. The written record of that interview stated that the delegate and the appellant spoke only by telephone and not "by video-link" contrary to the Authority's understanding: cf ABT17 at [31]. This was consistent with the Department's 13 March 2018 letter requesting that the appellant attend an interview "via telephone".
104 There was little, if anything, to support for delegate's finding that the appellant did not take part in the interview before him or provide further information because "he did not want … his claims to be scrutinised". Similarly, there was also no objective basis for the suggestion, at [12] of the Authority's reasons, referencing the delegate's reasons, that the appellant may have been "attempting to avoid scrutiny of his claims". In fact, this was inconsistent with the appellant's repeated requests to the Authority that the Authority interview him about his protection claims. Similarly, as we have seen, there is no objective basis for the finding, at [13] of the Authority's reasons, that the appellant "was given a further opportunity to provide evidence relating to his claims in writing", when there was no evidence before the Authority that the letter ever reached the appellant.
105 It is worth recalling in this context that the appellant emailed the Authority on 17 June 2018 to ask the Authority to contact him "with ... an BENGOLI [sic] interpreter" as he had a "need to talk with you". The appellant, with the assistance of an interpreter, then telephoned the Authority on 22 June 2018, and a file note recorded that the appellant "repeated the request for an interview on a number of occasions during the phone call". The appellant subsequently contacted the Authority again by way of email on 28 June 2018 and by telephone on 5 July 2018 where he is recorded to have "requested that he would be allowed to give his side of the story to the IAA in [sic] means of an interview". The Authority would have known about the appellant's repeated requests. This case is therefore relevantly different from those where the referred applicant did not in fact seek an interview from the Authority, and complained of the lack of opportunity thereafter: cf BQQ19 at [79]; EEE16 at [50].
106 Having regard to the above matters, the Authority's reasons for not inviting the appellant to an interview in exercise of its power under s 473DC(3) of the Act cannot be characterised as "reasonable and rational" as was the case in DPI17. Examination of other aspects of the Authority's reasons confirms the impression that the Authority's determination in this particular case not to invite the appellant to an interview was unreasonable in the legal sense. This decision had no sufficient rational foundation, and it was plainly unjust. No decision-maker, acting reasonably, could have exercised the power under s 473DC(3) in this way, having regard to the statutory context and the attendant factual circumstances.
107 First, it must be borne in mind that to assess a claim for protection (or for complementary protection) properly, the facts must be ascertained, bearing in mind that the existence of a well-founded fear of persecution depends on "questions of fact and degree", as indeed does the availability of complementary protection: compare Republic of Nauru at [43]. We must keep in mind that the appellant was not interviewed about his protection claims by either the delegate or the Authority.
108 Second, the Authority's reasons disclose the likelihood that the appellant would have been able to provide "new information" within the meaning of s 473DC of the Act had it invited him to an interview, and that some, if not all, of this information would have satisfied the conditions for its receipt in s 437DD of the Act. This is because the delegate's decision in the appellant's case was made on the basis of extremely limited information. This case can be contrasted with the more usual case where a referred decision is made after a Departmental interview and following the provision of further information at the delegate's request. As already stated, in this case, the appellant had not provided information about his protection claim at an interview before the delegate, through an interpreter; and had apparently not known of the opportunity to provide further information.
109 Apart from the brief record of his entry interview, the appellant's account of the events that led him to leave Bangladesh and claim protection in Australia was contained in the statement accompanying his visa application lodged in May 2016. The appellant could not reasonably have anticipated at that point all the pertinent information a decision-maker might subsequently consider relevant to deciding his claim. This does not usually matter because, at an interview, Departmental officers (usually delegates) can acquire relevant personal or other information that they consider relevant to the proper assessment of protection claims and also evaluate an applicant's credibility, often on the basis of an assessment of the manner in which the applicant gives an account. The information acquired at an interview can therefore be crucial to the success or failure of an application. The High Court recognised this in ABT17 where the plurality held, at [25], that the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview "in order to gauge his or her demeanour for itself before it decides to reject an account given by a referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given".
110 In considering the appellant's narrative as set out in his May 2016 statement, which had not been augmented by an interview before the delegate, the Authority drew attention in its reasons to matters that the appellant had not addressed. For example, at [22], the Authority stated that "[i]t was not apparent from the evidence that the persons who attacked the applicant made any reference to his support for the BNP", concluding that it was not satisfied that the appellant was attacked "because of his real or imputed political views". The Authority also recorded, at [23], that the appellant had not claimed similar events had occurred "more recently"; or that, if returned to Bangladesh, he would take up working in his father's shop once more. These matters demonstrate the serious lack of information before the Authority (see [105] above). This information deficit was attributable wholly or in large part to the absence of an interview at which the appellant would have had the opportunity to explain his protection claim and answer relevant questions about his explanation.
111 The delegate also noted numerous informational deficiencies in the material, including about the circumstances of the appellant and his family. For example, the delegate noted that the appellant had not submitted "any further information about why his family would still be living in the same village" after the claimed attack on them. Such deficiencies were, however, virtually inevitable in the circumstances of this case. Because of these deficiencies, the delegate made findings adverse to the appellant; and, as we have seen, so did the Authority, notwithstanding the appellant apparently sought to do everything within his capability to rectify the situation before the Authority.
112 Considering the appellant's case as a whole, acting reasonably, the Authority could not disregard the fact that there were significant deficiencies in the information before it as a consequence of the fact that, save perhaps for his entry interview prior to his visa application, the appellant had never been interviewed about his protection claims.
113 In most cases, where a decision is referred to the Authority under s 473CA of the Act, a delegate of the Minister has previously interviewed the applicant; and, having regard to s 473DB of the Act, it may be presumed that the efficiency of the Authority's review is therefore not imperilled by a review "on the papers". In this particular case, however, there was no interview at which the delegate invited the applicant to give an account of his claims and asked him questions by way of clarification, to test his credibility or otherwise to assist in evaluating his account. In consequence, the material before the delegate left some significant factual deficiencies. These included factual questions that the appellant could presumably have answered, one way or another. They also included some significant credibility issues, since the plausibility of numerous of his claims was called into question.
114 Further, respecting credibility issues, it should be borne in mind that insofar as the delegate made assessments of credibility, the delegate had little, if anything, on which reliably to base them, since the failed interview of 27 March 2018 proceeded by telephone only and the material before the delegate on the appellant's protection claims was slight. I interpolate here that this is not an "information gap" case of the kind considered in ABT17 and, more recently in this Court, in ATD19. Rather, this case concerned the absence of information before the delegate due to disabling circumstances affecting the appellant at the time of the delegate's decision-making.
115 To proceed without an interview in the circumstances of this case when the applicant was persistently seeking to be interviewed and an interview in some form could readily be given was not efficient: cf. s 473FA(1) of the Act. In the particular circumstances of this case, it was plainly unjust. No decision-maker, acting reasonably, could have exercised the power under s 473DC(3) in this way, having regard to the statutory context and the attendant factual circumstances. Notwithstanding s 473DB(1), it should have been apparent to the Authority, acting reasonably, that in this particular case an interview with the appellant was necessary to ensure that his claim for protection was efficiently determined consistently with Division 3 of Part 7AA, as required by s 473FA(1).
116 For these reasons, I would conclude that ground one of this appeal should be upheld and that there is jurisdictional error shown in the Authority's decision in this case.
117 As indicated earlier in these reasons, whenever a question arises as to whether the Authority has failed to comply with the implied condition of reasonableness in the exercise of a power affecting its review, the answer largely depends on the particular facts of the case, having regard to the statutory context in which the exercise or non-exercise of power falls to be considered. Consistently with this, I would emphasise that this particular case turns almost entirely on its own facts, and in consequence analogical reasoning by reference to other cases is unhelpful.