FEDERAL COURT OF AUSTRALIA

BMV16 v Minister for Home Affairs [2018] FCAFC 90

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Federal Circuit Court of Australia be set aside, and in lieu thereof:

(a)    order that the first respondent pay the applicant’s costs;

(b)    there issue absolute in the first instance:

(i)    a writ of certiorari directed to the second respondent to quash the decision of 14 June 2016; and

(ii)    a writ of mandamus directed to the second respondent to exercise the power under s 473CC of the Migration Act 1958 (Cth) according to law.

3.    The first respondent pay the appellant’s costs of the appeal to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the appellant’s costs.

5.    In the absence of any agreement pursuant to paragraph 4 of these orders, within 21 days the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

6.    Within a further 14 days, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

7.    In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the appellant’s costs be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant appeals from orders of the Federal Circuit Court of Australia delivered on 8 December 2017, dismissing an application for judicial review of a decision of the Immigration Assessment Authority made on 14 June 2016. The Authority affirmed a decision dated 2 May 2016 of the delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) not to grant the appellant a protection visa.

OVERVIEW

2    The relevant facts and legal issues are explained in more detail below. The principal issues in the appeal revolve in particular around the following circumstances. When the appellant arrived in Australia he did not mention, at his “entry interview”, the name of a person the appellant claimed had tried to harm and abduct him in Sri Lanka. Indeed, the appellant is said to have stated that he did not know who had tried to abduct him. He later stated that the name of the person who had been trying to harm and abduct him was Mr A. Whilst this inconsistency did not concern the delegate when the delegate made his decision refusing to grant a protection visa, the failure to mention the name of the man, and the fact that the appellant had stated he did not know who had tried to abduct him, did concern the Authority and were significant in the Authority’s decision to affirm the delegate’s refusal to grant a visa.

3    An audio recording of the appellant’s “entry interview” had not been before the delegate, but it was requested and received by the Authority for the purposes of its review. A written record of the “entry interview” was before the delegate. The audio recording became “new information” before the Authority within the meaning of Part 7AA of the Migration Act 1958 (Cth).

4    The Authority invited the appellant to an interview and, at that interview, invited him to comment on aspects of the “new information” under s 473DE(1)(c). Specifically, the Authority put to the appellant that he had not mentioned the name Mr A at the entry interview and that this undermined his claim that Mr A had attempted to harm him. The Authority required the appellant’s comments in respect of that new information “now”, that is, in immediate response to the invitation to comment made at the interview. The Authority did not give the audio recording to the appellant and nor did it provide a copy of the written record of the entry interview to the appellant.

5    There are two principal issues in the appeal:

(1)    First, whether the Authority’s decision to require comments “now” was made in compliance with ss 473DE and 473DF of the Act and regulation 4.42 of the Migration Regulations 1994 (Cth) and, if not, whether any non-compliance resulted in jurisdictional error.

(2)    In the alternative, whether the Authority’s requirement, pursuant to s 473DE and s 473DF, that the appellant give comments “now” was a legally unreasonable exercise of power, which went to the jurisdiction of the Authority to make the decision it did.

6    The first issue turns on whether the effect of s 473DF and regulation 4.42 is that the Authority was required to give the appellant a period of 14 days to comment or did not permit requiring an immediate response.

7    As to the second issue, the first occasion on which the appellant was informed of the information which the Authority considered might be a basis for affirming the delegate’s decision was at the interview when the Authority told him that he had not mentioned at the entry interview, over three years earlier, that it was Mr A who tried to abduct him and that he had said he did not know who had tried to abduct him. No opportunity was provided for the appellant to consider the material relied upon by the Authority or to obtain advice, or to reflect upon whether there might be some explanation which should be given, assuming the recording was to the effect stated by the Authority. The appellant was unrepresented and being interviewed in Melbourne by video-link to Sydney where the interviewer and interpreter were both located.

8    It is relevant to understand at the outset the process which generally occurs in relation to visa applications, and the occasions on which a person in the position of the appellant might give an account of their circumstances. This was described in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 by Lee, Carr and Finkelstein JJ in terms which remain broadly applicable to the appellant’s circumstances from the time of his entry interview through to the review before the Authority, making allowances for the different process under Part 7AA (at [11]-[15]):

11.     The Tribunal had before it some material (it may be inappropriate to refer to such material as “evidence”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 282) on which it could assess the credibility of the appellant. The material included four or five accounts of events given by the appellant. We should explain how these accounts found their way into the hands of the Tribunal. When a non-citizen arrives in Australia without a visa, he or she is interviewed by an officer of the Minister’s Department (commonly referred to as an “arrivals officer”), who asks standard form questions and makes a written record of the answers that are given. One question asked is: “Why did you leave your country of nationality (country of residence)?” This appears to be the first opportunity a putative refugee has to explain why he fears persecution, although that is not the answer sought by the question. It must be remembered that people who come to Australia seeking refugee status often speak no English. So the question is usually answered with the assistance of an interpreter. It should not be assumed that the translation is precise. It may be anticipated that the information recorded will be a brief summary of the applicant’s true case, and will often be given in words which the applicant would not have chosen were he able to speak English. This involves no criticism of the interpreter who assists the non-citizen in responding to the questions put by the “arrivals officer”. Far from it. Often the interpreter will not be aware of the significance that will be attached to the precise words that are used. It may be that the interpreter acts in the mistaken belief that a summary of the applicant’s case is sufficient. On some occasions the “initial interview” may be recorded.

12.     The second occasion on which the putative refugee will give his account of events is on his application for a protection visa, which will also often be completed by the applicant with the assistance of an interpreter or an agent. In that application form the applicant is asked to provide “Your reasons for claiming to be a refugee”. In addition to the information provided in the application form, an applicant may provide an accompanying written statement which explains his position in a little more detail.

13.     The third occasion on which the applicant will give an account of events is when he is interviewed by an officer called a “protection officer” who may be the delegate who considers the application. Often the interview is recorded, and, in any event, a written summary of the interview is prepared. That summary is made available to the Tribunal. Here again an interpreter will be involved if the applicant does not speak English.

14.     If the applicant is refused a protection visa by the delegate, he may make application to the Tribunal for a review of that decision. This is the fourth occasion on which the applicant may give an account of the events, usually in the form of a written statement. Finally there is the hearing before the Tribunal where the applicant will be asked questions about his claims, and will provide more information.

15.     As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

BACKGROUND

9    The appellant is a citizen of Sri Lanka, of Tamil ethnicity. He is a practising Christian. He arrived in Australia on 4 November 2012.

10    On 8 January 2013, an officer of the Department of Immigration and Border Protection (as it then was) conducted an “entry interview” which was recorded. The audio recording of the interview was not before the delegate. The written record of the entry interview, which was before the delegate, contained the following answer to the question “Why did you leave your country of nationality (country of residence)?”:

tell me what happened to you personally to make you leave Sri Lanka?

for safety. question repeated. i got taken away by the police 3 time sand they have asked me to sign documents in sinhalese. they also tried to abduct me once in a van. when was the last time you were taken away by the police? 2012. the date? 01/10/2010. the other 2 happened in 1999 and 2001. why did the police take you in October? i do not know. did they question you? no. why did they take you? they were suspicious i was LTTE. are you LTTE? no. have you ever been part of the LTTE? no. have you ever worked for the LTTE? NO. how long were you detained for in 10/2012? one day. who would they be suspicious of you being LTTE? i do not know. what documents were they trying to make you sign? they write something and asked me to sign it but i do not understand what is written. did you sign it? yes. what did it say? i do not know.

when were you nearly abducted? 2009. who was trying to abduct you? 10-12 people in a van. tell me why they could not abduct you? they got out of the van and they told me to get into the van i said i will not and they tried to get me into the van but i shook them off my arm and ran away. who are those people? i do not know.

my next lot of questions require a yes or no answer and if i need more information i will ask for it.

11    The appellant was an unauthorised maritime arrival and thus precluded by section 46A(1) of the Act from making a valid application for a protection visa until the Minister had exercised his power under section 46A(2) to enable the appellant to make an application. The appellant was invited, by a letter dated 18 May 2015, to apply for a Temporary Protection (subclass 785) visa, which he did on 18 June 2015. The application for a protection visa included the following:

90. Why did you leave that country(s)? Provide specific details

From a small age I was afraid because I was a Tamil. I was brought up that way. I have seen so many things happen to other Tamil people. I have seen killings when I was a child and after that I could not study so I left school. I was always afraid. In 2007 there was a man who came from Colombo, a government employee, and told people he could get them work in Korea. There was another man from Trinco who also gave money to the man from Colombo. He came to my house and gave the money to the man from Colombo. The man form Trinco knows my friend, and he had stayed in Korea. People paid money to the government servant. He took about $40 million rupees. The officer who came from Colombo took our money. We went to the police, they did nothing. Then the person who came from Trinco suspected that I was involved in the cheating. One night when I was coming back from work. [sic] this man from Trinco came with his friends and tried to beat me up. They also came back another time. This man continued to threaten me in 2008 and 2009. He said I needed to give him money or he would kill me. So I went into hiding in 2009 in Colombo. I stayed in Colombo after that.

Also the police kept arresting me on suspicion of being in the LTTE because I was Tamil. I was arrested at least 4 times from the time I was young: 1984, 1989, 2002 and 2012. They wanted me to sign things that are in Sinhalese that they wrote. I signed them even though I cannot read them so that they would let me go. This is a brief outline of my reasons for leaving Sri Lanka. I will provide more details later.

91. What do you think will happen to you if you return to that country(s)?

I am afraid that that man will harm me. I am also afraid that the police will keep arresting me because I am Tamil.

12    The appellant swore a statutory declaration on 4 September 2015 in support of his visa application. That statutory declaration included the following:

19.    In 2007, a Singhalese government employee called [Mr B], came from Colombo on an official visit, going from village to village recruiting Tamil workers for Korea. He was asking for 150,000 rupees (about AU$1500) to organise a visa for Korea. There was a man from Trincomalee (Trinco), [Mr A], who came with my friend, [Mr C], and he had been to Korea and returned. He saw the visa that [Mr B] had, and confirmed that it was genuine. I gave the money to [Mr B] for a visa. [Mr A] wanted to go back to Korea and gave me money to give to [Mr B] for a visa, which I did. I was not given a receipt for the money, and I did not get the visa. [Mr A’s] brother gave me 100,000 rupees in cash which I deposited in [Mr B’s] bank account.

20.    We waited for about two years for the visa to be granted, and [Mr B] kept giving us excuses. There were 15 people from my village who had given [Mr B] money. Eventually we realised that it was a scam, and I went alone to the police to report it. I was scared to go to the police but I had borrowed the money and there was a lot of interest to pay. The police said they would investigate, but nothing was done. I was too afraid to go back to the police, in case I was arrested again. [Mr B] had taken my passport as well as my money. It was in the news that [Mr B] had taken 40 million rupees from people all over Sri Lanka, mostly Tamils.

21.    [Mr A] then accused me of being part of the scam, and of stealing his money. [Mr A] and his friends tried to attack me several times. I offered to go to the police with [Mr A] to report the scam, but he did not want to go. I made a complaint to the police and they said that they would look into it but they never did anything about it. I was very fearful about going to the police but I was more afraid of [Mr A]. He continued to harass me and told me he would kill me unless I returned the money to him. I moved to Colombo in 2009 to escape from him.

13    So far as the material before this Court reveals, this statutory declaration was the first occasion on which the appellant identified by name the government employee from Colombo (Mr B), the man from Trincomalee (Mr A) or the appellant’s friend (Mr C).

14    The appellant was invited to, and participated in, a protection visa interview on 7 September 2015.

THE DELEGATE

15    The delegate concluded that the appellant was “not a person in respect of whom Australia ha[d] protection obligations as outlined in paragraphs 36(2)(a) or (aa)”. He refused the temporary protection visa on 2 May 2016.

16    The delegate summarised the appellant’s claims in the following way:

•    The applicant is a Tamil

•    When the applicant was a child he was threatened by Sinhalese members of the Sri Lankan Army

•    The applicant was friends with [Mr D] who was a politician for the Up Country Freedom Front who spoke against the government for Tamils

•    The applicant attended meetings, helped with posters and participated in rallies with [Mr D] before he died in 2010

•    In 2003 Buddhist people damaged property at the applicant’s local Christian church, he feared he would be beaten by these people

•    The applicant was arrested at least 4 times: once in each of 1984, 1989, 2002 and 2012 on suspicion of involvement with the Liberation Tigers of Tamil Eelam (LTTE)

•    In 2007 the applicant was the victim of a visa scam that lost himself and an acquaintance, [Mr A], a lot of money, [Mr A] blamed the applicant for this

•    In 2008 and 2009 [Mr A] threatened the applicant in an attempt to recoup his lost money

•    The applicant fears being harmed or killed by the man who has previously threatened him

•    The applicant also fears being arrested, imprisoned and abused by government authorities on the basis that he is a Tamil and that he may be imputed with the political opinion of being a member of the LTTE

•    The applicant fears being discriminated against in education, employment, business and land ownership as a Tamil

•    The applicant also fears being arrested and harmed on the basis of leaving the country illegally and being a failed asylum seeker

•    Further, he fears being forced to pay money to get out of the airport if he is returned as a failed asylum seeker

•    Though not explicitly stated by the applicant in his application or at interview when asked what he fears when returning to Sri Lanka, the references to an attack on a Christian church and references to his involvement infer that the applicant fears harm on the basis of his faith and of his political opinion and as such I have considered these claims as well

17    The delegate’s reasons included the following with respect to the claimed difficulties with Mr A (at [26] and [38]):

26.    Difficulties with [Mr A]

The applicant stated that his problems with [Mr A] started in 2007. The applicant stated that a government employee came to their village claiming to be organising visas for people to work in Korea. The applicant was a victim of the scam, at the same time he took money from [Mr A], who was known to his friend, and deposited it in the government employee’s account on his behalf. After the scam came to light [Mr A] accused the applicant of involvement and demanded his money back. The applicant claimed that [Mr A] then threatened him repeatedly in an attempt to regain his money in 2008 and 2009 until the applicant moved to Colombo to avoid him. The applicant was able to give a detailed account of the financial dealings between himself and [Mr A], explain why he was asked to deposit the money (1 lakh) on his behalf and provide a detailed account of what happened the last time he was threatened by [Mr A] in 2009 at interview. As such I accept that the applicant did have some form of disagreement with this person. However, when asked why [Mr A] would still be interested in the applicant for the money eight years after the alleged incident the applicant stated that [Mr A] had visited his house just last year and clearly was still interested. This is a significant claim and was not present in either the applicant’s application, dated 18 June 2015, and a statutory declaration on the applicant’s claims that was prepared on 4 September 2015, just three days before the applicant’s interview. I find it unlikely that such a significant claim would have been omitted from both of these documents if it was true. As such I do not accept that the applicant’s house was visited by [Mr A] last year and instead find that the last interaction the applicant had with this man was in 2009, as stated in the application and in the subsequent statutory declaration.

…

38.    Problems with [Mr A]

As noted in paragraph 26, I do not accept that the applicant’s house was visited by [Mr A] last year, or that there is any evidence to suggest that [Mr A] would have a maintained interest in harming the applicant some eight years after the alleged disagreement occurred. Further to this the applicant was capable of residing safely in Sri Lanka for three years after his last interaction with [Mr A], apparently completely unmolested. This leads me to find that it is remote and far-fetched that the applicant would be harmed by [Mr A] due to a disagreement over money. As such I find that the applicant’s fear of persecution relating to his problems with [Mr A] is not well-founded.

18    The delegate summarised his conclusions in the following way (at [28]):

In summary, I accept that:

•    The applicant is a Tamil

•    The applicant knew and campaigned for [Mr D]

•    The applicant witnessed a Christian church being attacked by Buddhists in 2003

•    The applicant was threatened over a financial dispute by a man named [Mr A] whom he last had an interaction with in 2009

•    The applicant was questioned as a child by Sri Lankan Army officers

•    The applicant was held two times on suspicion of involvement with the LTTE, once in 1984 and once in 1989, but was not harmed and has not been accused of involvement since

•    The applicant was held twice on suspicion that his National ID Card was not his, but was released the next day without suffering harm

I do not accept that:

•    The applicant’s house was visited by [Mr A] last year

•    The applicant would be imputed with a political opinion against the government for supporting a government minister.

•    The applicant would be suspected of involvement with the LTTE

THE AUTHORITY

19    As the delegate’s decision to refuse the appellant’s visa application was a fast track reviewable decision, the appellant’s case was referred to the Authority for review. The delegate’s notification of refusal letter dated 2 May 2016 stated that the Department had forwarded certain information to the Authority, including the “decision record” (the delegate’s reasons for decision), material that had been given to the Department before the refusal decision was made, any other information that the Department considered to be relevant to the review, and the appellant’s contact details – see: s 473CB(1) of the Act. The audio recording of the arrival interview was not one of the items of material forwarded by the Secretary (by his delegate) to the Authority and was not something which had been before the delegate.

20    By letter dated 3 May 2016, the Authority wrote to the appellant indicating that the matter had been referred to it on 3 May 2016.

21    On 10 May 2016, the Authority made a “post-referral request for documents” to the Department. This included: “There is no recording or PDF transcript of the entry interview or record of the biodata interview, can you please send”.

22    On 11 May 2016, the appellant wrote a letter to the Authority stating that he wished to submit further particulars relating to his claims for protection which he submitted was not new information or, alternatively, that exceptional circumstances existed to justify considering the new information. This included:

The delegate made a range of adverse findings and I would like to respond to those findings as follows:

a)    In the 26th paragraph on page 6 of the decision, the delegate states that he does not believe the claim I made that a person named [Mr A] was still looking for me as late as 2014. He states that he does not believe this because I had not mentioned this information in my protection visa application dated 15 May 2015 and my statement dated 4 September 2015. The reason that I had failed to mention this was that I was under a lot of stress and was going through so much chaos in my life at the time I submitted my visa application and made my statement. I confirm that after 2009 I was living in hiding - first at my boss’ house in Colombo but then they too faced problems with the government. Thereafter I moved and was hiding in different places. [Mr A] kept finding out where I was and would keep trying to contact me usually by phone. The house where I was living in [Town X] is empty after I left Sri Lanka but my neighbour [Mr E] told me that [Mr A] had come looking for me in 2014. I am in contact with [Mr E] and this is how I found out that [Mr A] had been looking for me. [Mr E] knows about this person [Mr A] since I had talked about him and the threats I was receiving in the past.

b)    In the 38th paragraph of page 10 of the decision, the delegate states that I was able to live in Sri Lanka safely for three years after the disagreement with [Mr A] and therefore my fear is not well founded. However as I have stated previously I was living in hiding for those three years, firstly with my boss and then moving from place to place. [Mr A] is someone who will go to any lengths to harm me for something he believes I have done. I believe he has connections with the LTTE. When he tried to abduct me in 2009 he came into an area where he was new and where there were Sinhalese people living as well - this just shows how fearless he is.

23    The appellant’s letter indicated that he had received pro bono advice and assistance in preparing the letter. He requested an oral hearing.

24    Evidence adduced in the Federal Circuit Court established that the audio recording of the entry interview, requested by the Authority on 10 May 2016, was provided to the Authority on 23 May 2016. That evidence also established that the audio recording had not been before the delegate.

25    On 26 May 2016, the Authority sent an email to the appellant attaching correspondence. That correspondence invited the appellant to attend an interview scheduled for 1 June 2016. The letter included:

You are invited to attend an interview to provide the following information:

•    Information about your religious beliefs and activities;

•    Information regarding your interactions with [Mr A];

•    Information about your whereabouts and activities in the period between 2009 and October 2012; and

•    Information in relation to your claims to fear harm as a Tamil, a failed asylum seeker, and a person who departed Sri Lanka illegally.

Please note that the IAA can only consider any new information you provide if there are exceptional circumstances. During the interview you may be asked to explain:

•    why the above information could not have been given to the Department of Immigration and Border Protection before it made the decision to refuse you a protection visa

OR

•    why the above information is credible personal information which was not previously known and, had it been known, may have affected the consideration of your claims.

26    On 26 May 2006 the Authority telephoned the appellant on his mobile to advise that the Authority had sent the appellant an email. The appellant stated he did not understand what was being said and requested an interpreter. The Authority confirmed it would telephone him back shortly with a Tamil interpreter. Some eight minutes later, the Authority, with an interpreter, telephoned the appellant again, but the call was not answered. The interpreter left a voicemail noting that the Authority had sent the appellant an email on 26 May 2016 regarding an interview the following week and he was asked to contact the Authority if he had any questions.

27    On 1 June 2016, the interview was rescheduled for 2 June 2016. That was because the appellant did not appear on 1 June 2016. When the interview was rescheduled on 1 June 2016, the Authority repeated over the telephone, with the assistance of an interpreter, the information the appellant would be asked to provide and the explanation he might be asked to provide as had been set out in the letter of 26 May 2016. This was then confirmed by an email attaching correspondence dated 1 June 2016.

28    The Authority conducted its interview on 2 June 2016. The following exchanges are significant in this appeal:

[THE AUTHORITY]: Interview resuming. The time is 11.35. Okay. Now, under the Migration Act, I’m required to invite you to comment on certain new information that I have obtained. We’ve actually already discussed some of this information earlier. But now I’m giving you a formal opportunity to comment. So what I am going to do now is give you an oral invitation to comment on some new information. Subject to your comments, this information would be the reason or part of the reason for affirming the delegate’s decision. I haven’t made up my mind about the information. Now, I’m going to put each piece of information to you and then explain to you why it is relevant and invite you to comment.

The information comes from the arrival interview that you had with the department on 8 January 2013. So at the arrival interview with an officer of the department, you were asked what happened to make you leave Sri Lanka. You did not mention anything about [Mr A].

THE INTERPRETER: Yes.

[THE AUTHORITY]: However, you said that people tried to abduct you once in a van in 2009. You were asked who was trying to abduct you, and you said 10 to 12 people ..... you were then asked who those people were, and you answered that you did not know. This information is relevant to your case, because in your temporary protection visa interview on 7 September 2015 and also at the interview today you described a similar incident in 2009 when [Mr A] ..... you. You stated at the arrival interview ---

[THE AUTHORITY]: Yes.

MS TYSON: --- that you didn’t know who was trying to abduct you undermines your claim that it was [Mr A] - undermines your claim that it was [Mr A] who tried to abduct you.

THE INTERPRETER: Yes.

[THE AUTHORITY]: Also, your failure to mention any problems with [Mr A] in the arrival interview undermines your claim that he was attempting to harm you. This information could lead me to find that [Mr A] did not attempt to harm or abduct you. Now is your opportunity to comment on that .....

THE INTERPRETER: While – as I said, I will not lie to the law, because I’m a Christian. The reason I did not disclose the information at the very first interview, I was told by the..... who were in the camp if I give more information like what I did, they might not let me out of the camp. That’s why I didn’t mention about [Mr A] at that time. After I left, I - after I was allowed into the community, I got good advice to disclose every information clearly and in detail. That’s..... I did.....

[THE AUTHORITY]: So why did you think that disclosing that it was [Mr A] was a problem if you talked about the incident itself?

THE INTERPRETER: I mean, I didn’t lie. I actually did not mention the name. I told the - I told about the incident.....

[THE AUTHORITY]: Now, the next piece of information is that at the arrival interview and also in your temporary protection visa application you said that between 2011 and October 2012 you were living at Batavaliya state in [Town Y]. You said at the arrival interview that you stayed in [Town Y], but would travel and stay at other places for work. This information is relevant to your case, because it undermines the claim that you stayed in Colombo after 2009. The evidence that you were living in Hatton and that you were travelling for work also undermines the claim in your submission to the IAA that you were moving around and hiding in different places. This information could lead me to find that you were not living in hiding between 2011 and 2012. So now is your opportunity to comment on that information.

29    On 14 June 2006, the Authority decided to affirm the delegate’s decision.

30    The Authority stated (at [8]) that it considered there were deficiencies in the way the 7 September 2015 interview had been conducted. It found parts of the evidence difficult to follow and noted that, although an interpreter was present, the applicant had spoken English much of the time. The Authority stated that, as submitted by the appellant at the Authority’s interview on 2 June 2016, some of the questions asked by the Authority at the 2 June 2016 interview had not been raised by the delegate.

31    The Authority stated in its reasons at [8] that, to the extent the appellant had provided new information in his written submission and at the interview of 2 June 2016, there were exceptional circumstances within the meaning of s 473DD to justify considering the new information.

32    The Authority noted in its reasons, at [9], that it had obtained from the Department a “recording” of the appellant’s arrival interview on 8 January 2013. This was a reference to the audio recording. The Authority noted that the recording of the entry interview had not been included in the material referred to the Authority by the Secretary and was not referenced in the delegate’s decision and was, accordingly, considered to be new information. As mentioned, evidence before the Federal Circuit Court established that the recording was not before the delegate.

33    At [10], the Authority stated:

At the interview on 2 June 2016, in accordance with s 473DE I issued an oral invitation to the applicant to respond at interview to adverse information contained in the arrival interview. That information related to his failure to mention the problems with [Mr A] during the interview and claim, contrary to later evidence he gave, that he did not know who had attempted to abduct him, and to information he gave regarding his residence and work prior to leaving Sri Lanka. The applicant’s response contained new information. However, I am satisfied that there are exceptional circumstances to justify considering it, and that it could not have been provided to the delegate prior to the decision being made, given that the delegate did not refer to the arrival interview or put the adverse information to the applicant.

34    At [11], the Authority stated:

The applicant’s claims are contained in the information referred and subsequently given to the IAA. They can be summarised as follows (where the applicant has presented different versions of the claims, the below reflects the most recent):

…

•    In 2006 or 2007, the applicant became the victim of a visa scam. A government employee named [Mr B] was recruiting Tamil workers to go to Korea. The applicant gave [Mr B] his passport and 150,000 rupees for a Korean visa. He also paid 100,000 rupees on behalf of a man named [Mr A], who wanted a visa. [Mr A] told the applicant that he has connections with Karuna, a former LTTE commander.

•    They waited for about two years for the visas to be granted before realising that it was a scam. [Mr B] had scammed many people in this way. The applicant reported it to the police who said they would investigate, but nothing was done. The police told the applicant [Mr B] had left the country.

•    In 2009, [Mr A] accused the applicant of being part of the scam and stealing his money, and tried to attack the applicant several times. Once was when he was at church, and another was when he was returning home from work and [Mr A] and around 10 others attempted to abduct the applicant in a van. [Mr A] demanded that the applicant repay the money with interest otherwise he would be killed. The applicant suggested they go to the police, but [Mr A] refused and the applicant was able to get away and hid until he was sure they had left.

•    In 2009 the applicant moved to Colombo to escape [Mr A], where he lived with and worked for a wealthy man named [Mr E]. The applicant lived there until he came to Australia in 2012, with the exception of a number of months in 2011 in which he stayed with his sister after having a stroke, and the period prior to the applicant’s departure. By this time, [Mr E] had had some difficulties with the government asking for ransom and left for London, but these issues were nothing to do with the applicant.

•    In 2010 [Mr A] broke into the applicant’s house in [Town X] and took personal possessions and documents.

•    In 2012 [Mr A] would call the applicant but the applicant would not answer. On one occasion a relative of [Mr A] came and met the applicant to ask when the applicant was going to pay him. This person did not harm the applicant because he was a big businessman and the applicant was with his sister.

…

•    The applicant was told by a neighbour that in 2014, [Mr A] came to his home and asked the neighbour about his whereabouts.

35    The Authority dealt at length with the appellant’s evidence concerning the visa scam and Mr A. There were a number of aspects of the appellant’s evidence that caused the Authority to doubt the appellant’s claims concerning his problems with Mr A.

36    At [15], the Authority stated, as the fourth matter giving rise to its concerns, the following:

There are a number of significant credibility concerns in the applicant’s evidence regarding the visa scam and [Mr A] that, when taken together, lead me to doubt the applicant’s evidence regarding his problems with [Mr A].

…

•    In his arrival interview with the Department on 8 January 2013, when asked what happened to make him leave Sri Lanka, the applicant did not mention anything about [Mr A]. However, he described an incident in which people tried to kidnap him in a van in 2009, similar to that mentioned at the TPV and IAA interviews. When asked who these people were, he said he did not know. I put this to the applicant at the interview, first in the course of questioning and then later in a formal oral invitation in accordance with s 473DE. The applicant’s explanation was that colleagues in the camp had told him not to give names or identify anyone, and if he did, he would not be let out of the camp. He also emphasised that as a Christian he does not lie, and later said the arrival interview was very short. I do not find his explanation credible, particularly as he was directly questioned about the incident. I find that the applicant’s evidence at the arrival interview undermines his claim that it was [Mr A] who tried to abduct him, and that [Mr A] was attempting to harm him more broadly.

37    At [16], the Authority stated:

The applicant has also made a number of inconsistent and confusing statements between his arrival interview, TPV application, submission to the IAA and IAA interview regarding his work and location between 2009 and 2012. I put information from the arrival interview in this regard to the applicant under s 473DE during the IAA interview. However, I note that even within the applicant’s arrival interview, his statements on these matters were contradictory and unclear, and so am reluctant to place weight on that information. Given the many other concerns I have set out above, I ultimately place no weight on the inconsistency in this aspect of his evidence.

38    At [18], the Authority made it clear that it did not believe that the applicant was threatened, pursued or otherwise harmed by Mr A:

Considering the evidence as a whole, I am willing to accept that the applicant and others may have been scammed by an agent called [Mr B], and that there may have been some accusations and blame-shifting between the victims. However, I am not satisfied that the applicant was threatened, pursued or otherwise harmed by [Mr A], or that he relocated to Colombo and lived in hiding because of those threats. If there was an attempted kidnapping of the applicant in 2009 (a time at which such things were prevalent in Sri Lanka, including for ransom), or his house was broken into, I do not accept that these had any connection to [Mr A] or the visa scam and there is nothing before me to indicate a real chance of these things occurring again in the future. Even if [Mr A] is connected to the LTTE or Karuna, as the applicant claimed before the IAA, I do not accept that the applicant faces harm from him. I am not satisfied that there is a real chance that the applicant will face any harm from [Mr A] or anyone else in relation to these events in the reasonably foreseeable future.

39    As noted above, the Authority affirmed the delegate’s decision not to grant a visa.

LEGISLATIVE CONTEXT

40    The general operation of Part 7AA has been described in detail in a number of cases – see, for example: Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [12] to [27], per Griffiths J.

41    The scheme of Part 7AA is that, except in the limited circumstances identified in Part 7AA, the Authority must review a fast track reviewable decision referred to it (s 473CC(1)) “on the papers” (s 473DB(1)), being the “review material” provided to it by the Secretary of the Department (under s 473CB(1)), and conduct that review without “accepting or requesting new information” (s 473DB(1)(a)) or “interviewing the referred applicant” (s 473DB(1)(b)). This case involved the limited circumstances in which “new information” was requested by the Authority such that the review was conducted not only on the basis of the “review material” provided to the Authority by the Secretary of the Department.

42    It has been observed that Part 7AA modifies (by restricting) the rules of procedural fairness: Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 at [12]. Section 473DA provides:

473DA Exhaustive statement of natural justice hearing rule

(1)    This Division, together with sections 473GA and 473GB, 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.

(2)    To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

43    This provision restricts the first limb of natural justice (the fair hearing rule), but – consistently with the simplified outline of Part 7AA contained in s 473BA and with s 473FA(1) – does not purport to affect the second limb (bias): AMA16 at [18], per Griffiths J (with whom Charlesworth J agreed); but see AMA16 at [2], per Dowsett J (who considered it at least arguable that the reference to “bias” in s 473FA(1) might be a reference to actual bias and not to apprehended bias).

44    The modification to the rules of procedural fairness, through a restriction of the natural justice hearing rule, is only to be taken so far as the express terms of the legislation require. Section 473DA(1) states that Division 3 (together with ss 473GA and 473GB in Division 6) is an exhaustive statement of the natural justice hearing rule. Section 473DE, addressed further below, is a provision which preserves procedural fairness by providing, according to its terms, an opportunity to a referred applicant to comment on “new information”.

45    There was no dispute that the Authority was entitled to “get” the audio recording of the entry interview which had not been before the delegate. Section 473DC provided:

473DC  Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

46    The audio recording of the entry interview was “information” (a communication of knowledge about some particular fact, subject or event): Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [24]. The information was not before the Minister when the decision was made under s 65 of the Act and the Authority evidently considered it relevant, such that the conditions in s 473DC(1)(a) and (b) were satisfied.

47    There is also no dispute that the Authority was entitled to consider the entry interview recording having regard to the terms of s 473DD(a); the Authority stated it was satisfied that there were “exceptional circumstances” – as to the meaning of which, see: M174 at [30]. Neither party sought to contend that there were not “exceptional circumstances”. Section 473DD(a) provided:

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)      the Authority is satisfied that there are exceptional circumstances to justify considering the new information; …

48    As noted above, s 473DE is a provision which has, as one of its core purposes, the object of providing procedural fairness to a referred applicant. In simple terms, and so far as is relevant to the present case, if the Authority has obtained “new information” which it is considering using as a basis for affirming the delegate’s decision it “must” invite the relevant applicant to comment on that new information, having first given “particulars” of the new information and having explained why the information is relevant to the review. In M174 at [35], the High Court stated:

Section 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been or is to be considered by the Authority under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision.

49    Section 473DE provided:

473DE Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)     in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)         Subsection (1) does not apply to new information that:

(a)     is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)     is non-disclosable information; or

(c)     is prescribed by regulation for the purposes of this paragraph.

Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

50    Section 473DF provided:

473DF Invitation to give new information or comments in writing or at interview

(1)     This section applies if a referred applicant is:

(a)     invited under section 473DC to give new information in writing or at an interview; or

(b)     invited under section 473DE to give comments on new information in writing or at an interview.

(2)    The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.

(3)     The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.

(4)     If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:

(a)     without taking any further action to get the information or the referred applicant’s comments on the information; or

(b)    without taking any further action to allow or enable the referred applicant to take part in a further interview.

51    The relevant regulation for the purpose of s 473DF(2) is r 4.42, which provided:

4.42 Periods for giving information or comments

For subsection 473DF(2) of the Act, the period for giving information or comments in response to an invitation given by the Immigration Assessment Authority to a referred applicant is as follows:

(a)     for a referred applicant in immigration detention—3 working days after the referred applicant is notified of the invitation; and

(b)    in any other case:

(i)    for an oral invitation to give information or comments in writing—7 days after the invitation is given; and

(ii)     for an oral invitation to give information or comments at an interview—14 days after invitation is given; and

(iii)     for a written invitation to give information or comments in writing or at an interview—14 days after the referred applicant is notified of the invitation.

52    Section 473FA(1) contains a general exhortation that, in carrying out its functions under the Act, the Authority “is 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)”. That provision is relevant to the correct interpretation of the provisions of Part 7AA and in the identification of the scope and purpose of a particular power when examining whether it was exercised in a way which was legally reasonable in the sense described in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210.

THE FEDERAL CIRCUIT COURT

53    The appellant applied to the Federal Circuit Court for orders quashing the decision of the Authority. The first ground of judicial review was that the decision of the Authority was invalid because the invitation under s 473DE (or s 473DC(3)) did not comply with s 473DF(2) and r 4.42 in that the period for giving comments (or information) was less than 14 days and no period was specified.

54    The Federal Circuit Court rejected this ground, concluding (at [17]):

A plain reading of s 473DF indicates that the time prescribed in the Regulations is the outer limit of the time in which a response must be given. Thus, the response must be within the outer limit of the time that may be specified in the invitation for the response. Section 473DF(2) appears to allow the IAA to determine the amount of time to specify in the invitation (provided that it is less than or equal to the maximum time provided for in reg.4.42.)

55    The court stated that the proper reading of the provisions was that r 4.42 prescribed the outer limit for the period that might be specified in the invitation to comment: at [25]. It noted that it was “open to an applicant to seek an adjournment of the hearing if an immediate response is sought, and such request would have to be appropriately considered by the [Authority]”: at [25].

56    The Federal Circuit Court noted at [18]:

Counsel for the applicant pressed an interpretation of these provisions that would require the invitation to provide the amount of time set out in the Regulations. This would create a great deal of impracticality, with respect to oral invitations as, at the very least, a further oral hearing would have to be scheduled for the last day of the period prescribed in the Regulations in order for the comments to be “within a period that is prescribed by regulation” as required by s. 473DF(2).

57    The Federal Circuit Court recorded the Minister’s submission that assistance could be derived by what were submitted to be analogous provisions, namely s 359B and s 424B: at [19]. The court referred to the decision of Buchanan J in SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452, in which his Honour considered s 424B, and to the decision of Tracey J in M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333, in which his Honour considered s 359B.

58    In SZLWQ, Buchanan J noted that s 424B(2) directed that “information or comments are to be given within a period specified in the invitation” but stated that it did not “impose a direct obligation ... [as to] the terms of the invitation”, unlike s 424B(1). His Honour stated (at [52]):

… The consequence of any failure to specify a period is that the facility in s 424C of proceeding to a decision in the absence of the information might not be available but I do not see s 424B(2) as establishing the kind of obligation on the RRT which could lead to either statutory breach or jurisdictional error …

59    The Federal Circuit Court considered that, although there were differences in the legislative provisions, the “scheme in which they operate is similar” and it was “not persuaded” that the difference in drafting indicated that s 473DF and r 4.42 were intended to have a different effect: at [22]

60    The second ground of judicial review was that the Authority denied the appellant procedural fairness in respect of its decision to treat the entry interview recording as “new information”. The appellant accepted that the Federal Circuit Court was bound by the decision in DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 to reject that ground: at [27]. It is not pressed on this appeal.

61    The third ground was, in substance, that the decision to require a response immediately was legally unreasonable. The Authority could have provided the appellant the new information (or particulars of it) and either rescheduled an interview within 14 days (or 14 days later) or invited the appellant to provide written comments within the prescribed period. Adopting either course would have permitted the appellant to have an interpreter assist him with the new information, to refresh his memory, to engage a lawyer or to consider, prepare and provide a response.

62    The Federal Circuit Court rejected this ground. At [33], it stated:

It is difficult to conclude, in the abstract, that confronting a witness with a previous inconsistent statement and requiring a response automatically leads to a conclusion that the process was unfair, nor that adopting such process is legally unreasonable. Indeed, this is a common event in cross-examinations in civil and criminal trials. It is ultimately a question for the decision maker as to whether or not the context of the request to comment upon previously inconsistent statements requires the witness or party to have time to consider and reflect upon their statements.

63    The Federal Circuit Court stated that it did not appear from a consideration of the transcript “that the situation was one where the process adopted by the IAA decision maker to simply invite comment could be said to be so unfair as to amount to legal unreasonableness”: at [34]. It considered it important that no request for an adjournment was made. It noted that the explanation given by the appellant “engaged meaningfully with the material – he didn’t simply claim to have forgotten or sit there unable to respond”: at [35]. It observed that there was “no evidence before this Court that the matters put were unfair in the sense of not reasonably reflecting the comments made in the entry interview”: at [36].

THE APPEAL

Ground one

64    Ground one of the appeal was framed in the notice of appeal by reference to both ss 473DE(1)(c) and 473DC(3). The former provision, where it applies, requires the Authority to invite comment on “new information” the Authority has. The latter provision provides a discretionary power to invite a referred applicant “to give new information”.

65    The invitation to the appellant to provide comments was made by the Authority orally on 2 June 2016 at the interview. It is that decision which is the subject of direct attack by the appellant. The Authority considered it was inviting comment on “new information” it already had in accordance with the requirement under s 473DE(1)(c), rather than exercising the discretionary power under s 473DC to invite the appellant “to give new information”. This is evident from the manner of questioning and the Authority’s reasons at [15], which expressly state the request was made under s 473DE.

66    The Authority could have considered exercising its discretionary power under s 473DC(3) to request new information. It did not do so because it evidently considered it was bound to give the appellant an opportunity to comment on the new information in accordance with s 473DE as it had formed the view that the content of the new information (contained in the audio recording) would be a reason for affirming the delegate’s decision. Section 473DE did not involve the exercise of any discretionary power; the Authority had to afford to the appellant the opportunity contemplated by the section.

67    There is no dispute that the Authority gave “particulars” of the new information in accordance with s 473DE(1)(a). There is also no dispute that the Authority explained to the appellant why the new information was relevant to the review in accordance with s 473DE(1)(b). The dispute concerns s 473DE(1)(c). The appellant’s first ground of appeal is that the Federal Circuit Court erred in failing to conclude that the decision under s 473DE(1)(c) (or s 473DC(3)) was invalid because the invitation did not comply with the requirements of s 473DF(2) in that: (a) “there was no period for giving information or comments in response to the invitation”; and (b) “no period was specified” in the invitation.

68    The Minister filed a notice of contention in respect of ground one which provided two grounds for upholding the Federal Circuit Court’s decision in this respect:

(a)    If his Honour’s construction of section 437DF and regulation 4.42 set out in paragraph [17] of his Honour’s reasons is incorrect (the Minister’s primary submission is that this construction is correct), the trial judge ought to have concluded that section 473DF(2) has no operation where the Authority exercises its power to invite the applicant to give comments on new information at an interview.

(b)    Further or alternatively, the trial judge ought to have concluded that any breach by the Authority of section 473DF(2) the Authority did not involve a jurisdictional error.

69    At the hearing of the appeal, the parties’ attention was drawn to a concession made by the Minister in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 regarding the operation of ss 473DE, 473DF(2) and r 4.42. That case concerned an invitation under s 473DE to a person in detention to comment in writing on new information. The Minister’s concession was to the effect that a period of three working days had to be provided to the detained person to respond in writing to the invitation – see: DZU16 at [73], [75] and [84]. The effect of this concession was that r 4.42(a) was not to be read as setting an outer limit in the case of a written invitation to comment to a person in detention; the Minister had to provide three working days for the person to comment. The Minister did not resile from that concession in this case.

70    Regulation 4.42(a) applies to both an oral and written invitation. If the concession in DZU16 is correct and the Minister’s submissions on this appeal are also correct, then r 4.42(a) must operate differently in the case of an oral and written invitation, despite the terms of the regulation not distinguishing between the two. Thus, in the case of a person in detention being interviewed (for example by video-link), r 4.42(a) would allow (leaving aside questions of legal reasonableness) the Authority to require an immediate answer to an invitation to comment, because the regulation allows an outer limit of three working days after “notification of the invitation”. However, in the case of a person in detention receiving a written invitation to comment, r 4.42(a) requires the Authority to allow three working days, no more and no less.

71    This difference in result was said, by Senior Counsel for the Minister, to arise because of the operation of s 473DF(3) which is relevant only to invitations to comment at an interview rather than in writing.

72    Section 473DF and r 4.42 operate with respect to both:

(1)    the discretion to invite a referred applicant to “give new information” under s 473DC and the obligation under s 473DE to invite comment on “new information” already obtained by the Authority; and

(2)    invitations to give information or comment orally or in writing.

73    This appeal concerns the operation of sub-ss 473DF(2) and (3) and r 4.42(b)(ii) in relation to an oral invitation made pursuant to s 473DE to provide oral comment at an interview, that invitation being made to a referred applicant who is not in detention. Regulation 4.42(b)(ii) and ss 473DE(1)(c) and 473DF operate in the following ways relevant specifically to the present circumstances:

(1)    Under s 473DE(1), the Authority must give to the applicant “particulars of any new information”, but only if it has been or is to be considered by the Authority under s 473DD and would be the reason or part of the reason for affirming the delegate’s decision: s 473DE(1)(a).

(2)    The Authority “must” invite the referred applicant to comment, but it is for the Authority to decide whether to invite the referred applicant to give comments on the new information in writing or at an interview; s 473DE(1)(a) cannot be read as giving the referred applicant a choice as to whether to respond in writing or at an interview. This conclusion is made clear by s 473DF(1) and is supported by the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Seeker Legacy Caseload) Bill 2014 (Cth) at [927], [939].

(3)    Where the Authority decides to invite the referred applicant to give comments at an interview, the Authority is empowered to “determine the manner in which, and the place and time at which, an interview is to be conducted”: s 473DF(3).

(4)    If the referred applicant does not provide comment “in accordance with the invitation”, the Authority may proceed to make a decision on its s 473CC review without taking further action to either: (a) get the referred applicant’s comments on the information; or (b) allow or enable the referred applicant to take part in a further interview: s 473DF(4).

(5)    Section 473DF(2) contemplates that the Authority specify in its invitation “a period” “within” which comments “are to be given” by the referred applicant: “The comments are to be given within a period that is prescribed by regulation and specified in the invitation”.

(6)    Given the terms of s 473DF(2) and the consequences in s 473DF(4), the statutory scheme must be taken to require an identification in the invitation of the period within which comments are to be given.

(7)    Regulation 4.42(b)(ii) gives content to the meaning of the words in s 473DF(2) “within a period that is prescribed by regulation”. It provides, in the case of an oral invitation to provide comments at an interview, that “the period for giving … comments in response to an invitation … is … 14 days after [the] invitation is given”.

(8)    In the case of an oral invitation, s 473DF(2) and r 4.42, allows the Authority to specify “a period” which is “within” 14 days. It can specify in the invitation “a period” of less than 14 days. Otherwise, the provision must be read as requiring in each case a fixed period of 14 days, no more and no less. It is difficult to conclude that the legislature can be taken to have intended that result, having regard to the scheme of Part 7AA, which introduced a “fast track review process” and the statutory admonition that the Authority seek to provide a mechanism of limited review that is, amongst other things, efficient and quick: s 473BA and s 473FA(1).

(9)    Section 473DF(2) and r 4.42, allows the Authority to “specify in the invitation” that the comments are to be given immediately after, that is by way of immediate response to, an invitation. The word “period” is capable of various meanings depending on the particular statutory context. A period can be identified by reference not only to dates and times, but by reference to events. Requiring an answer “now”, or in immediate response to the invitation, does specify a “period” within which the comments are to be given within the meaning of s 473DF(2). The period begins once the invitation is communicated; it ends once the answer is complete. It is not a valid objection, in this statutory context, to say it is not known how long the answer will take. A “period” can be “an indefinite period of time or a fixed and ascertainable portion of time”, depending on the statutory context: Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189 at [56], per Buss JA (Newnes JA agreeing at [131]); but see Murphy JA at [136].

(10)    The power afforded by s 473DF(2) to specify that a comment is to be provided within a period specified in the invitation is subject to the condition that it be exercised reasonably (the subject of ground two of the appeal).

74    It must be acknowledged that a different construction is easily reached from the text of s 473(2) and r 4.42. The words “within a period that is prescribed by regulation and specified in the invitation” can be read as requiring that the period for comment specified by the Authority in the invitation be the same as the period prescribed by the regulation. That is, the phrase “a period” is to be read as a reference to the period prescribed by the regulation and not as permitting the Authority to require a response before the end of the prescribed period. One could read the word “within” in the phrase “comments are to be given within a period” as permitting the applicant to provide comments before the end of the prescribed period (specified in the invitation) and that it is not to be understood as allowing the Authority to require a response at some specified time before the end of that period. This construction would be consistent with the concession in DZU16. However, this construction does not best accord with the statutory object of providing for limited review which is efficient and quick: ss 473BA and 473FA(1). For example, this construction would mean that, if the Authority determined to seek “new information” at interview in exercise of its discretionary power under s 473DC(3), it would then have to allow a period of 14 days and could not specify an earlier period. The intention the legislature should be taken to have had in setting the time in r 4.42 for the provision of a comment within 14 days is that it was the outer limit of what the Authority could provide a referred applicant.

75    It is not necessary to express a view on whether the concession made in DZU16 was correct. This case does not turn on an invitation to comment in writing and the decision in this case cannot depend upon a concession made in another.

76    No particular assistance is derived from other statutory provisions such as those identified by the Federal Circuit Court. The “review” under Part 7AA is of a different character to a “review” under Part 7 and the operation of each of the provisions turns on the precise statutory language employed, which is a surer guide to the meaning the legislature is taken to have intended than the operation of differently worded provisions concerned with different forms of review. That is particularly so in circumstances where one of the principal objects of Part 7AA is to provide a “fast track” procedure for limited review. Timing provisions in other parts of the Act do not occur in the same context as they do in Part 7AA. However, it is worth observing that regulations made for the purpose of s 424B deal separately with invitations to give additional information (or to comment) in writing and at an interview. The construction of r 4.42 is made more difficult by the fact that it deals with both. It may have been preferable if it dealt separately with each. In combining what had been dealt with separately in provisions in Part 5 and Part 7 concerning invitations to comment on information, clarity has been lost as to how this aspect of Part 7AA is intended to operate in practice.

77    The primary judge was correct to dismiss ground one.

78    In these circumstances, it is not necessary to deal with the arguments raised in the notice of contention.

Ground two

79    In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained that the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation:

… [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

80    In determining whether a particular decision was legally unreasonable, it is necessary to:

(1)    identify precisely the decision complained of;

(2)    examine the terms, scope and purpose of the statutory power under which the decision was made; and

(3)    evaluate the decision made to see “whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense”.

81    It has been observed that, when the question is whether an exercise of power under Part 7AA is affected by legal unreasonableness, it is important to approach the task by reference to the principles of legal unreasonableness rather than the principles of procedural fairness: CRY16 at [67]. However, this does not mean that, where Division 3 of Part 7AA is not followed, a ground of denial of procedural fairness is not available: DZU16 at [99], per Robertson, Murphy and Kerr JJ. Their Honours stated (at [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 [2005] HCA 24; 228 CLR 294 at [77] per McHugh J, [173] per Kirby J and [208] per Hayne J …

82    The appellant identifies the relevant decision in ground two of his notice of appeal as the decision made under s 473DF(3) to seek comments orally at the interview or as the decision under s 473DC(3) to seek “new information” from the appellant. The relevant decision (or exercise of power) was the decision made under s 473DF(2), read with r 4.42 and perhaps s 473DF(3), to specify in the invitation to comment that the period within which the appellant was to give his comments was, in effect, in the time it took him to complete an immediate response to the invitation – that is, “now”. One could also seek to impugn the ultimate decision affirming the delegate’s decision as being legally unreasonable because of the earlier procedural decision or exercise of power under s 473DF(2). The review decision would be affected by jurisdictional error because it involved a legally unreasonable exercise of power in relation to a matter which was, on the face of the reasons, material to the outcome of the Authority’s review.

83    The decision under s 473DF(2) was one made in the context of a provision, s 473DE, which was an exhaustive statement (see s 473DA(1)) of the referred applicant’s opportunity to be heard in respect of “new information” which the Authority considered, or was to consider, would be a reason for affirming the delegate’s decision. The opportunity to comment mandated by s 473DE is an opportunity provided in the context of a legislative scheme which restricts, but does not eliminate, the natural justice hearing rule.

84    Section 473DF(2) is to be read as conditioned by a requirement that it be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. That power cannot be exercised in a way that would defeat the opportunity to be heard which is mandated by s 473DE, for example so as to deny a referred applicant a real opportunity to comment on new information which is considered by the Authority to be a reason to affirm the delegate’s decision. An exercise of the power under s 473DF(2) in that way would be legally unreasonable because the referred applicant would have been denied the opportunity which s 473DE contemplated the referred applicant should have. In its application to s 473DE (rather than its application to s 473DC), the power in s 473DF(2) is to be exercised reasonably having regard to the object of s 473DE, which is to provide an opportunity to a referred applicant to be heard on an issue of importance to the outcome of the review which the Authority must conduct. The issue is of importance to the outcome because the Authority has necessarily formed the view that the “new information” to be commented upon would be the reason or a part of the reason for affirming the delegate’s decision”: s 473DE(1)(a)(ii).

85    The appellant contends that it was legally unreasonable for the Tribunal to decide to invite comments from the appellant in respect of the “new information” orally at the interview on 2 June 2016 immediately after particulars pursuant to s 473DE(1)(a) had been given to the appellant. The decision was said to be legally unreasonable because:

(1)    the Authority did not exercise its discretion to seek comments in writing;

(2)    it made its decision 12 days after the oral invitation and, on a correct construction of the provisions, it was required to allow a period of 14 days for the response;

(3)    the content of the “entry interview” conducted on 8 January 2013 was determinative of significant aspects of the Authority’s decision and was:

(a)    an interview lasting 80 minutes from over 40 months previously which had not been raised with, nor provided to, the appellant at any time in the intervening 40 months;

(b)    not provided to the appellant at the time of inviting him to comment;

(c)    described to the appellant by reference to the s 473DE(1)(a) particulars provided orally by the Authority at the interview, through an interpreter, only at the time he was invited to comment, and in circumstances where he was without legal representation.

86    As to the first matter raised by the appellant, it was not legally unreasonable to seek comments from the applicant at an interview rather than in writing. The Authority had a discretion under s 473DE(1)(c) to determine whether to permit the appellant to provide comments orally or in writing. The fact that comment was sought at an interview rather than in writing is not indicative of unreasonableness in this case. Here, the real complaint concerns the period of time which was allowed for comment.

87    As to the second matter, for the reasons above, it is not the correct construction of the relevant provisions that the invitation had to allow a period of 14 days.

88    As to the third matter, for the reasons which follow, the decision to require an immediate response was legally unreasonable in the particular circumstances of this case.

89    The starting point is to recognise that the power in s 473DF(2) to specify “a period” in which to give comments was being exercised for the purpose of affording the applicant the statutorily mandated opportunity to comment contemplated by s 473DE.

90    A number of circumstances are relevant. First, the Authority had information which was not before the delegate. It considered that the new information was, or would be, a reason for affirming the delegate’s decision: s 473DE(1)(a)(ii). The delegate had not relied upon the “new information” or the “particulars” that the Authority considered significant. The new information was being deployed, or would be deployed, as a new basis for disbelieving the appellant on credibility grounds with the result that even fewer of his claims as to the events which occurred in Sri Lanka were to be accepted than had been accepted by the delegate.

91    Secondly, the appellant had no advance warning that he would be challenged at the interview by reference to an audio recording of things he allegedly said, in no doubt very difficult circumstances, over three years earlier, in an interpreted conversation.

92    Thirdly, the appellant was not provided with the “new information” at the interview and therefore had no opportunity to consider the new information. Rather, the appellant was informed by the Authority that the audio recording was to a particular effect. That is, he was given “particulars” of the new information: s 473DE(1)(a). The “new information” was of a nature (an audio recording of over three years earlier) that it could not be expected that the appellant would in fact have a recollection of the content of it.

93    Section 473DE(1)(a) only required the Authority to give “particulars” of the new information and not the new information itself. Nevertheless, its decision not to provide the appellant with the audio recording, or to play back the relevant excerpt of it at the interview, is a relevant circumstance in determining whether the decision to require an answer immediately was legally reasonable. (It is not known what the appellant may have heard if he had been provided with the audio recording; he presumably would have heard precisely what he had said at the entry interview and potentially had the opportunity to see whether the interpretation of what he said was accurate. The audio recording was not before the Federal Circuit Court, it being marked as not reproduced in the index to the relevant court book.)

94    Fourthly, at the interview, the appellant was without representation or assistance, legal or otherwise. He was being questioned in Melbourne via video-link, with the interpreter being present in Sydney with the Authority.

95    It would be legally unreasonable to exercise the power in s 473DF(2) in a manner which denied the appellant the very opportunity which s 473DE contemplated. The opportunity to comment afforded by s 473DE was restricted by the terms of ss 473DE and 473DF and more generally by Division 3, which is taken to be an exhaustive statement of the natural justice hearing rule: s 473DA(1) (ss 473GA and 473GB which are also referred to in s 473DA(1) are not presently relevant). Restrictions included that the referred applicant need only have been given particulars of the new information as opposed to the new information itself. A further restriction was that the most time the Authority could allow for the comment to be given was 14 days. That the opportunity to comment afforded by s 473DE was restricted does not mean that it could be wholly or substantially denied through an unreasonable exercise of the power contemplated by s 473DF(2).

96    In the present case, the exercise of the power under s 473DF(2) to require an immediate answer did not result in a complete denial of the statutory opportunity to comment contemplated by s 473DE in the sense that an opportunity was provided. The question is whether it denied the statutory opportunity to such an extent that the exercise of the power in s 473DF(2) was legally unreasonable. In the particular circumstances of this case, it did. The decision to require an immediate answer, in the circumstances of this case, was not an outcome which the statutory scheme contemplated as an outcome of the grant of the power to specify a period within which to comment under an invitation made under the s 473DE requirement to invite comment.

97    Section 473DE, read with s 473DF(2), contemplates, in the case of an invitation to provide comments orally at an interview when the referred applicant is not in detention, that the referred applicant is given a proper opportunity to consider the particulars of the new information and what comment to make before being required to comment, recognising that the maximum amount of time the Authority may specify that the comments are to be given within is 14 days. In the present circumstances, requiring immediate comment operated to deny the opportunity s 473DE contemplated.

98    It will not always be the case that a requirement to comment “now” in relation to a s 473DE invitation to comment at an interview will be unreasonable. The circumstances must be such as to conclude that the exercise of the power in that way was not contemplated by the grant of the power. It is only unreasonable in this case because the effect of the decision under s473DF(2), in the particular circumstances identified above, substantially denied the opportunity which s 473DE required the Authority to give to the appellant, in a context where the “new information” was being treated as raising a new reason to disbelieve the appellant and ultimately to reject his claims more comprehensively than the delegate.

99    In reaching the conclusion that the decision to require comment immediately was not legally unreasonable, the primary judge considered it important that no adjournment had been sought by the appellant at the interview when asked to comment on the “new information”. It is important to examine the relevance of a failure to request an adjournment. The failure to ask for an adjournment cannot operate to make the Authority’s earlier decision to require an immediate response reasonable. However, if the appellant had asked for an adjournment and been granted one, then the ultimate decision of the Authority if it had still affirmed the delegate’s decision, having first considered the appellant’s further comment, may not have been shown to be affected by any jurisdictional error because of the subsequent step of granting an adjournment. If the appellant had asked for an adjournment and been refused one, the request for an adjournment could not have rendered reasonable the Authority’s decision to require immediate comment.

100    In any event, the significance of a failure to request an adjournment depends on the circumstances. It would be significant in a situation where the referred applicant had the benefit of a representative who might be taken to understand that an adjournment could be requested, or where the Authority had let it be known that an adjournment could be requested. Neither situation applied here. The failure to ask for an adjournment is of diminished significance where it cannot be inferred that the referred applicant knew one could be sought.

101    The primary judge also considered it significant that the issue for comment went to credibility and that in civil or criminal trials witnesses are regularly challenged in cross-examination with a prior inconsistent statement. The present circumstances arise in a different context. The role of the Authority was to conduct a Part 7AA “review”. That review was one being conducted in furtherance of Australia’s treaty obligations and as a genuine, albeit “limited”, review of the delegate’s decision in a manner which was, amongst other things, free of bias: s 473BA; s 473FA(1). The Authority was not in the position of a cross-examiner seeking to advance the interest of one side of an adversarial dispute. During the course of the review of the primary decision, the Authority determined that there were “exceptional circumstances” which warranted it considering “new information” which would be a reason for affirming the delegate’s decision. The Authority evidently considered that the “new information” provided a different basis for an adverse credibility finding than the bases which had been relied upon by the delegate and probably that it supported a more comprehensive rejection of his claims. It had a statutory obligation under s 473DE to afford to the referred applicant limited procedural fairness in accordance with the terms of that section, which lead inexorably to s 473DF and r 4.42. The Authority would not meet its obligation by treating the appellant as being in the position of a civil or criminal trial witness being ambushed in cross-examination by a cross-examiner armed with a prior inconsistent statement.

102    The primary judge also made the observation that the appellant engaged meaningfully with the material and did not assert he had forgotten or was unable to respond. That is correct. However, the important point is that the appellant was denied the opportunity which s 473DE was intended to provide him. The appellant might have responded quite differently if he had been given a real opportunity to consider what was being put to him. Further, it was not so much the material which he engaged with but the Authority’s “particulars” of that material. At the simplest level, the appellant may have pointed out, in more detail than he did and no doubt in his own way, the matters to which Lee, Carr and Finkelstein JJ referred in W375 at [11], set out at paragraph [8] above. He may have explained that his responses at the “entry interview” should be considered in the context of his experiences with, or suspicion of, government authorities in Sri Lanka, his recent experiences in fleeing that country or other matters. It was not necessary for the applicant to adduce evidence about what he would have said, something which at best would have been a hypothetical exercise.

CONCLUSION

103    The appeal should be allowed.

Associate:

Dated:    21 June 2018