The primary judge's determination of the review grounds
68 The primary judge dismissed each of the four grounds of review.
69 As to the first ground, the primary judge considered the obligations of the Authority and found that the Authority was not obliged to specifically set out all of the evidence before it. His Honour referred to the disclosure checklist and found that it suggested the Secretary had complied with their obligations under s 473CB, noting there was no evidence to the contrary.
70 As to the second ground, the primary judge found that it followed from the dismissal of the first ground that the second ground should be dismissed: there was no evidence from which it could be inferred that there was any material that the Authority had failed to consider.
71 It is necessary to address the primary judge's reasons as to ground 3 in a little more detail.
72 As to ground 3, the primary judge relevantly noted (including in part by accepting the Minister's submissions) that:
(a) the entry interview and delegate interview transcript were before the Federal Circuit Court, and his Honour had considered them;
(b) those transcripts did not reveal any difficulties or inadequacies with the standard of interpretation such as could give rise to jurisdictional error;
(c) even if the delegate's decision was affected by jurisdictional error by reason of procedural unfairness due to error of interpretation, it does not follow that the Authority's decision was made with jurisdictional error;
(d) the jurisdictional limits to the performance of the Authority's functions, as discussed in BVD17, are ascertained from Part 7AA;
(e) the natural justice requirements of the Authority are prescribed by s 473DA(1) of the Migration Act, which provides that Division 3 of Part 7AA and s 473GA and s 473GB are taken to be exhaustive statements of those requirements;
(f) the appellant had the opportunity to raise matters with the Authority, as was indicated in the materials provided to him when the matter was referred to the Authority, but he did not raise anything regarding the quality of the interpreting, and so the Authority was not on notice of any alleged defects, and under no obligation to consider inviting the appellant to an interview;
(g) the submissions provided to the Authority by the appellant's migration agent did not raise any issue as to the standard of interpretation;
(h) in any event there was no cogent evidence that linked any error in interpreting and the review decision;
(i) further, there was no other manner of procedural unfairness disclosed by the transcript;
(j) a reading of the transcript of the delegate interview indicated that the appellant was told that if he had not provided some information to the Department, or if he wished to correct some information provided previously, that he could do so during the interview - the appellant was then asked if there was anything in his application that he might like to add or change, and the appellant responded 'No';
(k) at the commencement of the interview the delegate stated as follows:
… If you do not understand the interpreter, or you think the interpreter does not understand you, please let me know immediately by raising your hand. Do you understand the interpreter?
(l) the appellant responded 'Yes' to that question;
(m) the delegate's questions and the appellant's answers as set out in the transcript do not indicate that the appellant was prevented by the delegate from providing any answers which he wished to give in response to the delegate's questions;
(n) at the conclusion of the delegate's questions she advised the appellant that he would be given some time to consider what had been discussed, and that he was to take this time to make sure that everything that he wished to talk about had been covered, and also to talk to his representative - when the interview resumed the appellant provided further information to the delegate, at the conclusion of which the delegate asked whether that was all, and the appellant's representative answered 'Yes';
(o) the submission provided by the migration agent to the Authority raised certain shortcomings as to the interview, suggesting that the speed of the interview and the speed of the provision of the delegate's reasons indicated bias on the part of the delegate, and further suggesting that it was incumbent on the delegate to consider all evidence and not be critical of the appellant based on one answer (and as to this 'one answer', apparently being a reference to the delegate's reliance on a delayed explanation that letters were on Taliban letterhead, I interpolate to say that the Authority did not rely in any manner in its reasons on such delay);
(p) as to these matters, the migration agent did not ask for the appellant to be re-interviewed; and
(q) further, the Authority addressed the migration agent's submissions (at para 5), stating that it was satisfied that the appellant was aware of the importance of providing all information to the delegate and was given an opportunity to do so during the interview, and noting that the appellant made an oral submission at the end of the interview and that the [migration agent] also made some further comments.
73 The primary judge concluded that no jurisdictional error arose as contended for by ground 3, stating:
[89] Having reviewed the transcript of the interview, the Court is satisfied that there was no issue in relation to translation. The applicant's responses to the questions asked were direct. They do not indicate that the substance of what was asked and what was translated was inadequate. Further, the Court does not accept that the substance of the interview was lacking. The applicant was given the opportunity to discuss his claims.
74 As to ground 4, it is also necessary to provide some detail.
75 The primary judge addressed the issue of the non-disclosure of a notification or certificate under s 473GB(2)(a) by correctly reviewing the arguments against the backdrop of the guidance provided by the High Court in BVD17, and its determination that procedural fairness does not oblige the Authority to disclose the fact of such notification to a visa applicant in a Part 7AA review.
76 However, the primary judge relevantly noted that the Minister accepted that the Authority did have regard to the AUSTRAC documents, and so exercised its discretion under s 473GB(3)(a) to do so. So much was apparent from a limited aspect of the Authority's reasons, being its reference to the potential for the appellant to fly domestically: see para 30 of the Authority's reasons extracted at [63] above.
77 The Authority was then obliged to consider the exercise of its discretion under s 473GB(3)(b): BVD17 at [10]. It cannot be inferred from the absence in the reasons of a reference to the exercise of its discretion to disclose that it did not consider doing so: BVD17 at [40].
78 The primary judge noted that the appellant bore the onus of establishing that the Authority failed to consider the exercise of its discretion as to disclosure, and the appellant had not met that onus. The primary judge was also not satisfied that it was unreasonable in all of the circumstances not to exercise the discretion.
79 The primary judge noted that the information the subject of the certificate, that is, the transfers of funds to his family in Afghanistan, had been discussed with the appellant by the delegate (as is evidenced by the transcript of the delegate interview), and so the appellant should have known that the Authority was on notice that he had transferred payments to his family, and no issue of practical unfairness arose.
80 However, and regardless, the primary judge considered that the failure to disclose the AUSTRAC documents was not material and could not have realistically resulted in a different decision, citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [49]-[50]. This was so because the Authority's comments as to the potential for the appellant to fly one way from Kabul to Bamiyan and then travel by road to Jaghori was an alternative finding, the Authority having already decided that in any event the appellant did not face a real chance of harm on the roads when returning to Jaghori (see para 30 and para 31 of the Authority's reasons extracted at [63] above).
81 Accordingly, the primary judge dismissed ground 4.