FEDERAL COURT OF AUSTRALIA

DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222

Appeal from:

DYK16 v Minister for Immigration [2017] FCCA 2749

File number:

VID 1315 of 2017

Judges:

COLLIER, MIDDLETON AND RANGIAH JJ

Date of judgment:

7 December 2018

Catchwords:

MIGRATION – appeal from decision of Federal Circuit Court – whether Immigration Assessment Authority (IAA) failed to act reasonably – whether IAA failed to invite appellant to oral interview – whether IAA failed to seek further evidence – whether duty exists for IAA to seek new information upon request by visa applicants – whether intelligible basis for IAA’s decision not to conduct interview – whether IAA required to explain decisions refusing requests where appellant had adequate opportunity to advance evidence and submissions to support claims – purpose of fast track review process – held: IAA did not act unreasonably – held: no appellable error in primary Judge’s reasons – appeal dismissed

PRACTICE AND PROCEDURE – where leave required on appeal to raise questions not before primary Judge – consideration of merits of substantive appeal – consideration of new authorities post-dating primary decision – leave granted to raise new grounds

Legislation:

Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), 36(2)(aa), 36(2A), 368, 430, 473CB, 473CC, 473DA, 473DB, 473DC, 473DC(1), 473DC(2), 473DD, 473DD(a), 473DD(b)(ii), 473DE, 473DE(1)(a), 473DE(1)(b), 473DF(2), 473EA, 473EA(1), 473EA(2), Pt 7AA

Migration Regulations 1994 (Cth) reg 4.42(a)

Cases cited:

CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641

CGL17 v Minister for Immigration and Border Protection [2018] FCA 1747

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580

Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

DJF16 v Minister for Home Affairs [2018] FCA 1285

DYK16 v Minister for Immigration [2017] FCCA 2749

Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486

Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393

Minister for Immigration & Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Phoenix Institute of Australia Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 155

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) [2018] HCA 16; 92 ALJR 481

Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138

Date of hearing:

21 November 2018

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

86

Counsel for the Appellant:

Mr A Khron

Solicitor for the Appellant:

Carina Ford Immigration Lawyers

Counsel for the First Respondent:

Mr N Ford

Solicitor for the First Respondent:

Mills Oakley

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

VID 1315 of 2017

BETWEEN:

DYK16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGES:

COLLIER, MIDDLETON AND RANGIAH JJ

DATE OF ORDER:

7 DECEMBER 2018

THE COURT ORDERS THAT:

1.    The Appellant have leave to rely on grounds 1 and 2 in the amended notice of appeal filed on 12 November 2018.

2.    The appeal be dismissed.

3.    The Appellant pay the costs of the First Respondent, to be taxed if not otherwise agreed.

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 is a citizen of Albania who arrived in Australia as an unauthorised maritime arrival in 2013. On 6 May 2016 he lodged an application for a safe haven enterprise visa (SHEV) under the Migration Act 1958 (Cth) (the Migration Act). His application was refused by a delegate of the Minister on 26 September 2016. The delegates decision was reviewed by the Immigration Assessment Authority (IAA) in accordance with P7AA of the Migration Act. On 2 December 2016 the IAA affirmed the delegates decision and published supporting reasons. An application by the appellant to the Federal Circuit Court of Australia for judicial review of the IAAs decision was dismissed on 10 November 2017: DYK16 v Minister for Immigration [2017] FCCA 2749.

2    By an amended notice of appeal filed on 12 November 2018 the appellant has appealed the decision of the Federal Circuit Court. The original notice of appeal was filed on 1 December 2017, however we understand that the lateness of filing of the amended notice of appeal arose from pro bono legal representation becoming available to the appellant at a relatively late stage. We understand that the Minister took no issue in relation to the timing of the filing of relevant process – it is common ground, however, that grounds of appeal 1 and 2 raise questions not before the primary Judge and therefore require the leave of this Court. The Minister opposed leave being granted.

3    At the hearing the Court determined that the application for leave to appeal would be heard at the same time as the appeal.

4    For reasons which follow we consider that leave to appeal should be granted, but that the appeal should be dismissed with costs.

Protection claims of the appellant

5    The protection claims of the appellant are set out, in detail, in the decision of the IAA. They can be summarised as follows.

6    The appellant visited Belgium for a holiday at the end of November 2010 at the invitation of an Albanian friend (Mr A) who had a house in Liège. The appellant was subsequently introduced by Mr A to third parties. After a few weeks the appellant realised that Mr A and the third parties were in a criminal gang, and that the third parties were homosexual. When the appellant refused the sexual advances of gang members he was assaulted and raped. The appellant claims he was imprisoned in a room for months and repeatedly beaten and raped. After he was abandoned by the gang in the Belgian countryside in early 2011 the appellant was arrested by the Belgian police and imprisoned for several months. He believed, but was not certain because of language barriers, that he was imprisoned in respect of charges relating to robberies committed by the gang.

7    On his release from prison, the appellant returned to the gangs house to collect his passport but he was again imprisoned, assaulted and raped over many months. The gang subsequently abandoned him at premises which they robbed. The appellant was arrested again by the Belgian police, but after he made a statement to the police his travel documents were returned to him.

8    Mr A contacted the appellants brother in Albania, and communicated a threat to kill the appellant if he did not return to Belgium to retract his statements. The appellant was fearful of the gangs associates in Albania and, after returning to Albania, relocated his family.

9    The gang members were arrested in or about January 2013 and the appellant attended an interview at a local court house in Albania where he gave a statement to an Albanian magistrate (the magistrate) and a Belgian police officer concerning the gang. The following day he returned to the court house to sign paperwork, where the magistrate requested a bribe to remove the appellants name from an Interpol list. The appellant refused to pay the bribe.

10    Several months later the appellant attempted to leave Albania but was stopped at the Macedonian border by police in Macedonia on the basis that he was wanted in Belgium by Interpol. Subsequently he was released on the basis that he had already cooperated with the Belgian authorities, and he returned to Albania.

11    The appellant subsequently left Albania with the assistance of a people smuggler, and made his way to Australia.

12    Unknown persons, whom the appellant suspects are associates of the gang, subsequently contacted the appellants family asking for his whereabouts. His family informed those persons that the appellant had died en route to Australia.

13    His personal details were included in a data breach affecting the Department of Immigration and Border Protection in 2014 (the departmental data breach), and he feared that either Mr A or the magistrate could have accessed those details.

14    The appellant claimed further that he feared harm if he returned to Albania because:

    Albanian police are corrupt and unable to protect the appellant or his family;

    the gang members of their associates would seek blood feud revenge against him for providing information to the Belgian police, and/or to prevent him from revealing their homosexuality;

    as a victim of rape, he would be assumed to be homosexual himself;

    he was a witness to attempted corruption by the magistrate who could harm him to prevent disclosure of the magistrates corrupt behaviour;

    his details were included in a departmental data breach; and

    he would return to Albania as a failed asylum seeker.

15    The IAA noted that the appellant had claimed, and his migration agent had submitted, that the appellants evidence was affected by his being a trafficked person, a victim of torture and trauma and because he had been a long-term migrant; and further that these circumstances had made him a broken man and affected his memory and ability to focus.

16    The IAA noted that the appellant had claims against Albania as the receiving country, but was also mindful that there was a prospect of the appellant being removed to Belgium pursuant to an arrest warrant which is the basis of an Interpol Red Notice (IRN) referable to the appellant.

Information before the IAA

17    The IAA referred, in considerable detail, to the material which was before it.

18    First, the IAA stated that it had regard to the material referred by the Department of Immigration and Border Protection pursuant to s 473CB of the Migration Act.

19    Second, the IAA referred to a written submission (the first submission) provided to the IAA by the appellants migration agent on 28 October 2016. The first submission included a statutory declaration of the appellant. There was a statement in the first submission that it did not contain new information, but rather constituted further particulars of the appellants claims. The first submission also stated that, in the alternative, it was new information but there were exceptional circumstances justifying the IAA consideration of it (at [4]). The IAA concluded that the first submission was not new information for the purposes of the Migration Act.

20    In the first submission and the annexed statutory declaration the appellant asserted that the IAA was obliged to give the appellant an oral interview as a matter of procedural fairness. The appellant alleged that this was because, inter alia:

    the quality of interpreting at the SHEV interview was inadequate;

    the delegate was biased;

    the SHEV interview was not conducted in an appropriate manner given that the appellant was a vulnerable person;

    the IAA must view the appellant in person if the IAA decides an issue of credibility;

    the delegate did not give the appellant an opportunity to fully discuss his claims; and

    the IAA was obliged to obtain the appellants Interpol and Belgian criminal history certificates (which the appellant could not obtain himself) if the IAA did not consider the appellant to be credible.

21    At [7]-[8] of its reasons the IAA stated that it considered it reasonable to proceed to make a decision without seeking new information from the appellant at an oral interview. The IAA gave detailed reasons for this finding, including:

    the IAA was conducting a fast track review on the papers under s 473DB, and it was not obliged to obtain new information from the appellant or third parties simply because the appellant requested it;

    the appellant was essentially seeking a second opportunity to discuss his claims generally;

    the appellant was given a full opportunity to discuss his claims before the delegate;

    while there were some issues with the interpretation before the delegate, the appellant had not identified any specific instances of misinterpretation;

    the IAA was conducting its own view of the credibility of the appellant; and

    the IAA was not obliged to obtain evidence to support the appellants claims – it was for the appellant to do so, including in respect of the appellants Belgian criminal history.

22    The IAA noted at [9] that it considered there were exceptional circumstances justifying its consideration of the IRN. On 16 November 2016 pursuant to 473DE the IAA invited the appellant to comment in writing about the IRN. The IAA refused to grant the migration agent of the appellant an extension of time to comment, because the period to respond to the invitation was prescribed in s 473DF(2) of the Migration Act and reg 4.42(a) of the Migration Regulations 1994 (Cth). In response to this invitation the migration agent of the appellant provided a second submission (the second submission) and a second statutory declaration. The IAA considered whether the information in this response was new information, and concluded at [13] that it was appropriate to have regard to the new evidence in this response. However, the IAA considered that it was not obliged to provide the IRN to the appellant, that it had provided the appellant with sufficient particulars of the information in the IRN to permit the appellant to comment, that there was no requirement to provide the appellant with an oral interview, and that the IAA had achieved the appropriate balance.

23    The IAA at [15] said that it had obtained new information relevant to the issue of the departmental data breach, and it had regard to it.

Findings of the IAA

24    The IAA summarised the appellants protection claims, including relevant background information. It then considered whether the appellant satisfied the definition of refugee in s 5H(1) of the Migration Act and in particular whether the appellant had a well-founded fear of persecution in the event that he returned to Albania.

25    The IAA stated that it had difficulty accepting some of the appellants claims.

26    At [26]-[28] the IAA examined the appellants claims concerning his first arrest in Belgium. The IAA found that there were inconsistencies and implausibilities in the appellants claims, and non-persuasive explanations undermining the credibility of his evidence that the appellant was a trafficked person who had been imprisoned and abused. For example, the IAA considered it implausible that the Belgian police would know to question the appellant about the gang members in the absence of information explaining the link between the appellant, the gang members and a particular robbery.

27    At [27] the IAA considered it implausible that the appellant would return to the gangs house to get his passport after all the claimed events, when he could have asked the Belgian authorities to arrange new travel documents for him (as he claimed happened after his second arrest). The IAA also did not consider it plausible that the appellant was held in custody by the Belgian police for eight months without knowing why, or that he was held captive by the gang for such a lengthy period of time without finding a means to escape.

28    At [30]-[33] the IAA examined the appellants claims concerning his second arrest in December 2012, including how the gang grew tired of him and set him up to be arrested at a crime scene. The IAA said that information in the IRN was inconsistent with the appellants claim that he was only a captive of the gang and was framed at the time of the second arrest. The IAA continued:

31.     That was part of the information I put to the applicant in the s.473DE invitation. In the second IAA submission, the migration agent quotes country information, including from the Interpol Rules suggesting the function of the IRN is to seek the location of a wanted person and arrange extradition based upon the issue of a national arrest warrant. An IRN is not an international arrest warrant. The IRN contains a summary of facts related to the charges giving rise to the national arrest warrant and the IRN. That migration agent submits this country information explains why the IRN does not contain details of the applicants criminal history in Belgium or his dealings with the Belgian/Interpol officer or his detention in Macedonia. Further, his release by the Macedonian authorities is consistent with the IRN being only a notice, not a warrant. The migration agent submits it would be unreasonable for me to rely on the absence of information regarding the applicants earlier arrest in Belgium and his interview in Albania in the IRN to then find those events did not occur. I accept that submission. As set out below, I accept the applicant was arrested in Belgium a first time and did participate in the interview in Albania. So I have not relied on the IRN to make adverse credit findings against the applicant in respect to those aspects of his claims. However, I still consider it open to me to rely on the description of the offences in the IRN which led to its issue, namely the circumstances of the applicants second arrest.

32.    In the s.473DE invitation I put to the applicant information from the IRN regarding his being caught red-handed at the time of the second arrest. In the s.473DE response, the applicant claims not to know what red-handed refers to. He states he did not go into the business premises the gang robbed, but he was caught near the premises and if that is what red-handed means, then what is in the IRN is true. The migration agent submits there is no evidence to support the IRN stating the applicant was caught red-handed means he was actively involved in criminal activities with the gang. I am not persuaded by that submission. There is evidence before me, the IRN. And the IRN is issued by a credible source, Interpol. My understanding of the term red-handed means to be caught in the act of committing a crime. The Macquarie Dictionary defines the phrase catch red-handed as to discover in the very act of a crime or other deed. I place weight on the IRN notice describing the applicant being caught red-handed undermines the credibility of his claim he was framed by the gang at the time of his second arrest by simply leaving him at a crime scene. I consider the applicant being caught red-handed supports a finding the applicant was actively involved in criminal conduct with the gang.

33.    In the s.473DE invitation, I put to the applicant too information from the IRN the applicant was caught in the possession of stolen communications equipment and in the possession of fake Bulgarian identity documents. The applicant admitted in the second IAA statement he did have possession of a walkie talkie (which is the type of communication equipment identified in the IRN) and the fake Bulgarian identity documents. He claimed not to know the walkie talkie was stolen and that the gang members gave it and the fake Bulgarian identity documents to him for the first time on the day of the second arrest, for reasons he did not understand at the time but he now realises was so the gang could better frame him for the Belgian police. The migration agent submits in the second IAA submission, the applicant provided a plausible explanation for his possession of the fake Bulgarian identity documents and the walkie talkie. I am not persuaded by that explanation. I consider it implausible the gang would go to the lengths or preparing fake Bulgarian identity documents to better frame the applicant. Additionally, providing the applicant with the walkie talkie and fake Bulgarian identity documents would be evidence that would link the applicant to the gang. Therefore it is implausible the gang would provide the applicant with those items so as to better frame him for the Belgian police. I reach that conclusion because as the IRN demonstrates the Belgian police are relying in part on his possession of the walkie talkie and the fake Bulgarian identity documents to link the applicant o the gang. I consider the applicant being caught in possession of the walkie talkie and the fake Bulgarian identity documents further undermines the applicants claim he was framed by the gang at the time of his second arrest and it supports a finding the applicant was actively involved in criminal conduct with the gang.

29    In respect of the claims put by the appellant concerning his sexual abuse by the gang, the IAA found at [34] that the appellant had provided inconsistent information concerning the sexual orientation of gang members and who had abused him. At [35] the IAA was critical that the appellant made no claim of being raped until the appellants statement during the SHEV interview, and further had made no such claim to Belgian authorities. Overall the IAA found in this respect that the appellant had not made consistent claims in Belgium or Australia that he was raped, and this undermined the credibility of his claim.

30    At [37] the IAA said:

37.    I consider the above inconsistences, implausibilities and non-persuasive explanations I identified in the applicants claims and evidence, together with the information in the IRN outweigh the otherwise credible elements of his claims and the supportive country information. In reaching the below findings, I have been mindful of the claims regarding the applicants mental health arising from his being in long-term detention, but I do not accept he has been a victim or torture or trauma. I accepted above the applicant has had dealings with the gang in Belgium. I reject the applicant is a trafficked person. I accept the applicant is not homosexual. However, I reject the gang ever held the applicant in a room. I reject the gang stabbed, assaulted or raped the applicant. I reject any of the gang are homosexual. I accept the applicant has been arrested twice in Belgium and I consider that is because the applicant was caught twice committing crimes in Belgium as part of his criminal activities with the gang. I reject he does not know why he was imprisoned in Belgium for 8 months. I consider he known he was imprisoned for committing robberies with the gang. I accept he did not reveal information regarding the gang after his first arrest. I reject he was released by the Belgian authorities the first time without a passport or visa. I reject the applicant returned to the gang after his release to obtain his passport. I consider he returned to the gang to take up again with them in committing crime. I consider he was an active participant in the criminal activities of the gang both at the time of his first and second arrests. I accept when he was arrested the second time, the applicant did cooperate with the Belgian authorities which led to the Belgian authorities arranging for the applicants removal to Albania. I accept too the applicant participated in an interview in Albania with the Belgian (or Interpol) officer and the Magistrate (whom I discuss in more detail below), but I conclude that interview occurred prior to the issue of an arrest warrant in Belgium, which was the basis of the issue of the IRN in April 2013. I reach that conclusion because had the arrest warrant already been issued prior to that interview, it follows the Belgian/Interpol officer would have been seeking the applicants return to Belgium at that interview and not just asking the applicant questions about the gang. The later issue of the arrest warrant and IRN leads me to conclude the information the applicant provided at the interview about the gang led the Belgian authorities to pursue charges against the applicant, issue an arrest warrant in Belgium and the IRN in April 2013. I am willing to accept the Albanian Magistrate sought a bribe from the applicant, which the applicant refused to pay (which I discuss in more detail below). I accept the applicant was detained at the border when travelling between Kosovo and Macedonia in June 2013, as at that time, the IRN was already in place. I am not satisfied however that the Macedonia authorities told the applicant he was no longer of interest to the Belgian authorities because he had already cooperated with them. The reading of the IRN indicates the warrant issued against the applicant in Belgium relates to the offences which led to his second arrest as well as possession of the fake Bulgarian identity documents. The IRN contents do not indicate that he was just wanted for questioning and cooperation regarding the gang. I accept the applicant paid smugglers to be able to travel to Australia. That explains how he was able to cross borders even though he was the subject of the IRN.

38.    Having regard to the evidence I have accepted as credible, I am not satisfied the applicant will face a real chance of serious harm as a former trafficked person who will be vulnerable to being trafficked, nor am I satisfied on the evidence I have accepted as credible that the applicant will face a real chance of being perceived as being homosexual, now or in the reasonably foreseeable future if he returns to Albania

31    In relation to the custom of blood feud in Albania, the IAA accepted that the appellant cooperated with the Belgian police to provide information about the gang, both in Belgium and in Albania. The IAA noted that Mr A was the only gang member who was Albanian, and that the evidence before the IAA did not explain how this claim related to gang members of other nationalities. At [41] the IAA observed:

The applicant was in Albania for approximately 6 months between returning from Belgium and leaving to go to Australia. I note the applicants claims regarding Mr A attempting to contact the applicant via telephone and of gang members or their associates contacting the applicants brother. I am not persuaded by the applicants explanation the gang members/associates were able to obtain his brothers telephone number through corruption in Albania. Were that the case, the gang members could also have obtained the applicants new telephone number too. Although he claims to have destroyed his old SIM, the evidence does not suggest the applicant then never obtained a new SIM. I note as well the applicants claims he relocated his family within Albania and that he lived in hiding, only visiting relatives. But he told the delegate at the SHEV interview he also travelled on holidays to Montenegro and Italy. I am not persuaded by his explanation in the first IAA statement, that he did so because his father paid for the vacations and he needed to relax after the stressful experiences he had in Belgium. His travelling to other countries on holidays is inconsistent with his claims he was living in hiding, not going out. I consider these inconsistencies in his evidence and his non-persuasive explanations undermine the credibility of the applicants claims that the gang members or their associates contacted him or his brother and that he was living in hiding due to fear of the gang members or their associates.

32    The IAA accepted at [42] that, having regard to country information, there is a custom of blood feuds in Albania, but at most this was relevant only to Mr A. It followed that the IAA was not satisfied that other (non-Albanian) gang members would engage in a blood feud with the appellant. The IAA considered however whether the other gang members would seek retribution against the appellant, and noted that the appellant was unaware whether Mr A or the other gang members were still in prison. The IAA continued:

42.    … I note on the evidence I accepted as credible, no harm came to the applicant while he was in Albania or to his family. I consider there to be only a remote or speculative chance and therefore not a real chance Mr A or associates at the behest of Mr A will seek to seriously harm the applicant as part of a blood feud due to the applicant providing information to the Belgian authorities/Interpol about the gang, now or in the reasonably foreseeable future. I consider too that there is only a remote or speculative chance and therefore not a real chance the other members of the gang or their associates will seek to seriously harm the applicant in retribution due to the applicant providing information to the Belgian authorities/Interpol about the gang, now or in the reasonably foreseeable future

33    In relation to the appellants claim that the magistrate who sought payment of a bribe would harm the appellant because the appellant was a witness to the magistrates corruption, the IAA accepted the country information supporting the prevalence of official corruption in Albania, but said there was no suggestion in that information that judicial officers sought to harm people who refused to pay bribes or to prevent exposure of their corrupt activities. At [43] the IAA considered there to be only a remote or speculative chance, and therefore not a real chance, that the magistrate would seriously harm the appellant for any reason if the appellant returned to Albania.

34    In relation the appellants claim that he feared farm returning to Albania as a failed asylum seeker, the IAA noted at [44] that there was little detail in that claim, but in any event the evidence before it did not suggest people who returned to Albania as failed asylum seekers were targeted for harm by the Albanian authorities or any group simply for that reason.

35    The appellant claimed that Mr A and/or the magistrate could have accessed his personal information arising from the departmental data breach in 2014. At [45] the IAA gave the appellant the benefit of the doubt that his details were disclosed in a document on the relevant departments website for approximately 14 days in February 2014. However at [47] the IAA noted that as the appellant applied for the SHEV after the date of the departmental data breach, there was no possibility that Mr A or the magistrate would be aware of the nature of his claims through any access to the document disclosed as part of the departmental data breach. In any event, the IAA concluded that even if Mr A or the magistrate accessed that document that would not materially change the appellants risk of harm.

36    The IAA concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act, and did not meet s 36(2)(a) of that Act.

37    The IAA then considered whether the appellant was at real risk of significant harm within the meaning of s 36(2A) of the Migration Act, and concluded that he was not. It followed that the appellant did not meet the criteria for protection under s 36(2)(aa).

Federal Circuit Court decision

38    The appellant applied for judicial review of the decision of the IAA by amended application filed 15 June 2017. The amended application listed four grounds of review. The following three grounds were pressed at the hearing:

1.    The Second Respondents finding of fact that there were exceptional circumstances to justify its consideration the [sic] new information was made without disclosing any basis on which the Second Respondent could be satisfied that such exceptional circumstances existed, with the result that the Second Respondent failed to conduct its statutory task.

2.    The Second Respondent failed to meet the requirements of section 473DE of the Migration Act 1958 (the Act) by not providing sufficient particulars.

3.    

4.    The decision of the Second Respondent was affected by jurisdictional error, in that it relied upon the evidence obtained in the hearing before the delegate, in which the applicant was denied procedural fairness.

39    Both the appellant and the Minister were legally represented at the hearing.

40    The primary Judge set out material parts of ss 473DC(1), 473DD and 473EA(1)-(2), and then turned to the grounds of review before the Court.

41    In relation to ground 1, his Honour noted the appellants complaint that the IAA had failed to reach a state of satisfaction under s 473DD(a) that there were exceptional circumstances before relying on new evidence, because it had failed to identify in its reasons the basis on which it was satisfied in its written statement. His Honour rejected this ground for the following reasons:

    Section 473DD did not require the IAA to set out reasons why it was satisfied that there were exceptional circumstances to justify considering new information. The failure of the IAA to set out reasons did not establish that it was not satisfied.

    The requirement on the part of the IAA to provide a written statement of decision pursuant to s 473DA did not impose a requirement on the part of the IAA to provide a written statement as to why it considered that there were exceptional circumstances that justified considering the IRN. The obligation under s 473EA on the part of the IAA was to give reasons for its final decision on a review under s 473CC.

    The observation of Mortimer J in Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393 at [11] that neither s 430 nor s 368 extended beyond an obligation to give reasons for the decision on review itself rather than discretions exercised in part of the review applied similarly to s 473EA in relation to the IAA. There were no requirements on the part of the IAA to give reasons for the discretions exercised, including why it concluded there were exceptional circumstances that justified receiving the IRN.

    If the IAA was required to give reasons for reaching a level of satisfaction, it did so at [9] of its decisions.

42    In relation to ground 2 the primary Judge set out s 473DE(1)(a) and noted that the IAA did not provide the IRN to the appellant, but instead provided a paraphrased summary in four dot points of certain aspects of the IRN in a letter to the appellant dated 16 November 2016. Relevantly this summary, as quoted by his Honour, was as follows:

[y]ou are invited to comment on the following information that may be the reason, or part of the reason for affirming the decision of the Department of Immigration and Border Protection:

    Interpol published a Red Notice in May 2013 naming you as a fugitive wanted for prosecution in relation to organised or armed robbery, forgery of administrative documents and tracking of administrative document offences that you are suspected of committing in Belgium in 2012 as part of a gang with four other individuals. The maximum penalty possible for these offences is 10 years imprisonment.

    That Red Notice states too you were arrested in December 2012 on suspicion of committing offences of aggravated theft in company and in the possession of false Bulgarian identity documents, following which, you were deported to Albania. It stales you are caught red-handed attempting a theft at a business premise premises.

    The Red Notice states additionally, four other gang members were arrested in January 2013.

    Communications equipment of similar origin and stolen from a business premises in October 2012 were found in your position at the time of your arrest in December 2012 and in the possession of one of the other gang members at his arrest in January 2013.

43    The primary Judge noted that the appellant referred to the lack of context or further explanation of the phrase red-handed, and further that the appellant submitted it was unclear what the term meant. The appellant submitted further that because a copy of the IRN was not provided to the appellant, or alternatively particulars of the IRN were not provided, the appellant was denied procedural fairness because he had not been provided with a meaningful opportunity to respond to the IRN. The primary Judge held that this ground lacked merit because, in summary:

    In using the expression red-handed the IAA was repeating what was stated in the IRN.

    The expression caught red-handed is a common expression meaning caught in the act.

    Although in a statutory declaration the appellant claimed that he did not understand what the IRN meant by caught red-handed, he went on to state to the effect that he was not caught red-handed.

    The IAA gave a detailed description of the information in the IRN that it considered would be the reason, or part of the reason, for affirming the fast track reviewable decision, and the IAA gave a detailed explanation why it considered that information to be relevant to the review.

    In asking for particulars of the meaning of red-handed the appellant is asking the IAA to explain what the author of the IRN meant. The appellant was provided with particulars as requested under s 473DE(1).

    The reasons for the IAAs decision do not disclose that the IAA went beyond the information disclosed to the appellant regarding the IRN in making its decision. This was particularly apparent from paragraphs 31, 32 and 37 of the IAAs decision. The IAA relied on those matters in the IRN which it disclosed to the appellant and which it considered relevant to the application. It did not go beyond that information in reaching its decision.

    The appellant was not denied procedural fairness because he had the opportunity to respond to information in the IRN which the IAA thought relevant, including that the appellant was caught red-handed attempting a theft. It followed that the IAA failed to comply with s 473DE(1)(b) of the Migration Act.

44    In relation to ground 4 the primary Judge noted the appellants submission that he had not received a fair hearing before the delegate in respect of interpretation services, and that because of that denial of procedural fairness the IAA should have exercised its discretion to conduct an interview with the appellant. His Honour noted that the IAA had considered it reasonable to proceed to make a decision on the papers without seeking new information from the appellant at an oral hearing, and in particular his Honour referred to the following observation of the IAA:

I am not persuaded by the submission the applicant was not given an opportunity to fully discuss his claims generally. I consider the applicant was given a full opportunity to do that before the delegate. I have listed [sic] to the SHEV interview. It is a very long interview, exceeding 5 hours. Regarding the interpreting, a few different interpreters were used via telephone across the SHEV interview. I agree with the comments of the migration agent and the applicant there were occasions were [sic] there was difficulty in communicating with the interpreters. However, neither the first IAA submission nor the first IAA statement identifies any specific instances of misinterpretation which materially affected the participants understanding of the SHEV interview. On occasions were [sic] there were difficulties communicating, the applicant, the interpreters and/or the delegate all sought clarification. I note too the applicant conducted a considerable amount of the SHEV interview in competent English. On the evidence before me, I am not satisfied there were any interpreting errors which materially affected the SHEV interview.

45    His Honour considered that there was no jurisdictional error apparent from the reasons the IAA gave as to why it declined to exercise its discretionary power conferred on it by s 473DC of the Migration Act to interview the appellant. Further, his Honour considered there was no evidence produced to establish that the appellant was denied a meaningful opportunity to put his case before the delegate or to establish that the quality of interpretation was of such a poor standard as to affect his ability to put his case.

46    Accordingly, his Honour dismissed the application.

Grounds of appeal

47    The appellant relies on three grounds of appeal in this Court, each of which are particularised. They are as follows:

1.    The Federal Circuit Court at first instance erred in not finding that the Second Respondent (the Authority) fell into jurisdictional error in that it failed to exercise its powers according to law.

Particulars

(a)    The Authority found that the applicants evidence to the delegate was not vague but responsive, and was not critical of his reluctance to discuss with a female interpreter his claims of being raped. (Authoritys decision record, [24]) The applicants claim to have been falsely imprisoned and raped was relevant and critical both to the Authoritys assessment of the risk to the applicant from the people he claimed to fear, and to its assessment of his general credibility. Yet the Authority neither invited nor sought detailed evidence about the rape and imprisonment of the applicant, either from him at interview or otherwise, or by expert medical, psychiatric or psychological reports

(b)    The Authority did not seek the applicants Belgian or Interpol criminal history certificates. (Authoritys decision record, [8])

2.    The Federal Circuit Court at first instance erred in not finding that the Authority fell into jurisdictional error in that it was unreasonable, whether by making findings without logically probative evidence or otherwise.

Particulars

(a)    The Authority accepted that the applicant cooperated with police in Belgium or elsewhere, that there is a custom of blood feuds, and that gang members may have been imprisoned because of the applicant cooperating with police, but it was then unreasonable in finding there was only a remote chance the gang members may seek to harm him in retribution. Authoritys decision record, [39]-[42]

(b)    The applicant refers to and repeats the particulars to Ground 1.

3.    The Federal Circuit Court at first instance erred in not finding that the Authority fell into jurisdictional error in that it failed to meet the requirements of section 473DE of the Migration Act 1958 by not providing sufficient particulars.

Particulars

(a)    The Authority denied the applicant procedural fairness by failing to provide sufficient particulars of the new information in its letter dated 16 November 2016.

(b)    

(c)    

(We note that the appellant did not press particulars (b) and (c) of ground 3.)

Consideration

Leave to appeal

48    It was common ground that the appellant required leave to rely on grounds of appeal 1 and 2 of the amended notice of appeal because they were not argued at first instance. The appellant submitted that the Court should grant leave, because the proposed grounds:

    were necessary in the interests of justice;

    had merit;

    were arguable with reasonable prospects of success;

    did not cause any prejudice to the respondents;

    were advanced in circumstances where the appellant had different legal representatives to those who acted at first instance;

    were referable to cases which had been decided since the judgment at first instance (namely Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) [2018] HCA 16; 92 ALJR 481 (Plaintiff M174) and CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16); and

    were important to the appellants case such that refusal of leave would cause substantial prejudice to the appellant.

49    The Minister submitted that grounds of appeal 1 and 2 lacked merit, and should be dismissed even if the Court considered it appropriate to grant leave to the appellant to advance them. As to whether the appellant should be granted leave to advance grounds 1 and 2, the Minister submitted that:

    no good explanation had been provided as to why the grounds were not run below;

    a change to the appellants legal representatives was not an adequate explanation;

    the two recent judgments on which the appellant sought to rely did not support the appellants new grounds or explain why those grounds were not, or could not have been, advanced below; and

    the Minister was prejudiced in responding to grounds 1 and 2(b).

50    As this Court explained in Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at [2]-[6], recently reiterated in Phoenix Institute of Australia Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 155 (Phoenix Institute) at [41], relevant questions for the Court in considering an application for leave to appeal are whether in all the circumstances the decision below is attended by sufficient doubt to warrant it being reconsidered by a Full Court, and whether substantial injustice would result if leave were to be refused, supposing the decision below to be wrong. The Court further noted in Phoenix Institute at [42] that, although applications for leave will be entertained with the appeal itself (particularly where the hearing of an application for leave and the appeal itself canvas much the same factual and legal territory) nonetheless no encouragement should be given to a course whereby the statutory requirement to first obtain leave is subverted and relegated to an unnecessary distraction from a consideration of the arguments sought to be raised on appeal (see also Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138 at [21]).

51    In this case it is clear that, should the primary Judge be wrong in refusing the appellants application for judicial review, the appellant would experience substantial injustice. However the question whether sufficient doubt attended the correctness of his Honours decision such as to warrant grant of leave was not immediately apparent, and significantly overlapped with the merits of the grounds on which the appellant sought to rely. Further, we note that the appellant sought to rely on two authorities which post-dated the primary decision, and which required consideration. At the hearing, we requested the parties to direct their arguments to the merits of the substantive appeal before us, and detailed submissions were made on each ground.

52    In the circumstances we consider it appropriate to grant leave in respect of grounds 1 and 2. We now turn to consider the merits of the appeal before the Court.

Ground of appeal 1

53    In relation to this ground of appeal the appellant submitted that, although the IAA found the appellants evidence to the delegate responsive, despite being pressed by the appellant, the IAA neither invited nor sought detailed evidence from the appellant about the rape and imprisonment he claimed, and proceeded to disbelieve him on the basis of its findings of implausibility or inconsistency of evidence given by the appellant. The appellant submitted further that it was critical to the IAAs assessment of the appellants extraordinary claims that it engage with the material before it as required by law, and this included the requirement that discretions under Pt 7AA of the Migration Act be exercised in a reasonable way. On the submission of the appellant, it followed that, in the circumstances of the case, the IAA was obliged to exercise its powers under s 473DC(1) to invite the appellant to give information at an interview for the purpose of assessing his credibility thoroughly.

54    The appellant also submitted that it was unreasonable and unlawful for the IAA not to have exercised its power and discretion under s 473DC to obtain the appellants Belgian or Interpol criminal history certificates in circumstances where such certificates must either have corroborated or undermined the appellants claims.

55    We note the considerable overlap between ground of appeal 1 and ground of appeal 2(b), identified in the amended notice of appeal, and further explained by the submissions of the appellant in respect of ground 1 (in particular his contention that the IAA failed to act reasonably in failing to invite the appellant to an oral interview, seek further evidence from him, obtain medical reports, or obtain his criminal history certificates).

56    Relevant in this context is s 473DB which provides:

s 473DB: Immigration Assessment Authority to review decisions on the papers

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

57    Sections 473DC and 473DD provide for the IAA to consider new information:

s 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.

s 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; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicants claims.

58    The starting point for consideration is that the role of the IAA is to fast track any reviewable decision on the papers and it may – but is not obliged to – get, request or accept new and relevant information which was not before the Minister at the time of the s 65 decision. However, the IAA is proscribed from considering new information unless there are exceptional circumstances to justify its consideration, and the new information was either not available to the Minister or was credible personal information which was not previously known which (had it been known) may have affected the consideration of the referred applicants claims.

59    The appellant submitted that the recent decision of the High Court in Plaintiff M174/2016 stood for the proposition that s 473DC(2) does not exclude or limit the requirement that exercise of discretion under Pt 7AA of the Migration Act was to be reasonable. The appellant also referred to comments of Bromberg J in CSR16 to the effect that the terms of s 473DD(b)(ii) imposed a preliminary filter, excluding only information which is obviously incredible or inherently incapable of belief, and was therefore a rough and inclusive filter rather than a precise assessment.

60    Section 473DC clearly vests a discretionary power in the IAA to get new information provided that information satisfies the criteria identified in that section. In Plaintiff M174 the High Court considered, inter alia, whether the IAA acted unreasonably in failing to get or consider new information under ss 473DC and 473DD of the Migration Act. After discussion of relevant legislative provisions, Gageler, Keane and Nettle JJ said:

49.    The other scenario, which the plaintiff argues exists in the present case, is where relevant information in respect of which there has been non-compliance with s 57(2) was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The relevant information in that scenario would not itself be new information and could not become new information. Were the Authority in that scenario to consider that the information may be relevant to its own consideration on the review, however, the Authority would not lack power to fashion its procedure so as to bring the relevant information to the attention of the referred applicant and to invite the applicant to respond. The Authority would have the capacity to exercise the discretion conferred on it by s 473DC(3) to invite the referred applicant to give new information in response to the relevant information and, in the context of issuing that invitation, to give the relevant information or particulars of it to the referred applicant. And the Authority would risk transgressing the bounds of reasonableness in the conduct of the review under s 473DB were the Authority to go on to treat the information as the reason, or a part of the reason, for affirming the decision to refuse to grant the protection visa without first exercising the discretion conferred by s 473DC(3) to issue such an invitation.

(Emphasis added.)

61    Further in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (CRY16) at [82] the Full Court of this Court held that it was legally unreasonable in the particular circumstances of that case for the IAA not to consider exercising its power under s 473DC to obtain new information from the visa applicant.

62    The concept of unreasonableness in the exercise of a discretion was explained by the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (and recently reiterated by the Full Court of this Court in Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486 at [36]) in the following terms:

44.    In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the courts supervisory powers over executive or administrative decision-making. In Li [[2013] HCA 18; (2013) 249 CLR 332], the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls an area of decisional freedom: it has the character of a choice that is arbitrary, capricious or without common sense. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking an evident and intelligible justification. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):

It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason: Giris Pty Ltd v FCT [1969] HCA 5; (1969) 119 CLR 365 at 383-384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].

63    While it is possible for the IAA to act unreasonably in the exercise of its discretion under s 473DC, we are satisfied that it did not do so in terms alleged in ground of appeal 1.

64    First, that the appellant pressed the IAA to invite him for an interview and the IAA declined the invitation is, of itself, of little moment in light of the specific provision in s 473DC(2) that there is no duty imposed on the IAA to get, request or accept, any new information regardless of any request by the visa applicant.

65    Second, the IAA is not required to explain a refusal to exercise its discretion under s 473DC in the appellants favour: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [49]. However we note in this case that at [7] the IAA did provide an explanation of its decision for its decision not to interview the appellant, including that:

    it was conducting a fast track review on the papers under s 473DB of the Migration Act;

    it did not consider it an appropriate exercise of its discretion to invite the appellant to an interview in circumstances where the appellant was essentially seeking a second opportunity to discuss his claims generally;

    it was not persuaded by the submission that the appellant was not given an opportunity to fully discuss his claims – rather the IAA considered that the appellant was given a full opportunity to do so before the delegate;

    notwithstanding some issues with translation by interpreters, no instances of misinterpretation were identified which materially affected the participants understanding of the SHEV interview, and in any event the appellant conducted a considerable amount of the SHEV interview in competent English;

    the IAA noted that the interview of the appellant by the Ministers delegate was very long – approximately five hours – and the IAA listened to it all; and

    irrespective of complaints by the appellant concerning the Ministers delegate, the IAA was making its own assessment of the appellants evidence.

66    In our view these reasons are both reasonable and rational.

67    Third, the fundamental question in considering whether the IAA has acted reasonably in deciding not to require the appellant for an interview and/or seek new information from him in respect of his claims of rape and imprisonment is whether there is an intelligible basis for that decision on the part of the IAA. In this case there clearly is. The IAA referred to the lengthy (five hours) interview conducted by the delegate, and listened to the audio recording of that interview. The IAA noted – and accepted – the appellants submission that he was reticent to speak in detail of his rape claims to the female interpreter at the delegate interview. Nonetheless, it is evident from the reasons of the IAA that, notwithstanding that reticence, the appellant took advantage of the opportunity to provide extensive evidence to the delegate, and the IAA could, and did have, regard to that evidence in respect of these aspects of the appellants claims.

68    The appellant cavils with the IAAs findings against him in respect of his credibility. However there was no reason for the IAA to anticipate any additional or new evidence being put to it in an oral interview, which would influence the view the IAA had taken in respect of credibility. The case before the IAA here is very different from that in CRY16. In CRY16 the possibility of internal relocation to a particular place within Lebanon had never been identified to the visa applicant before or during the review, and the IAA knew that it did not have (but the visa applicant was likely to have) information in respect of his particular circumstances and the impact upon him of relocation. The Court in that case found that, as a result, the failure to consider the exercise of its discretionary power meant that the IAA had disabled itself from considering what was reasonable, in the sense of practicable in terms of relocation (at [86]).

69    The decision of the Full Court in CRY16 has been distinguished in a number of cases, including DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (DGZ16) and CGL17 v Minister for Immigration and Border Protection [2018] FCA 1747 (CGL17). In DGZ16 the Full Court said:

70.    It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3).

74.    We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellants case, and to provide the appellant with an opportunity to respond.

70    In CGL17 Rangiah J considered DGZ16 and relevantly continued:

22.    The Authority had before it information that allowed it to reach the conclusion that the appellant did not face a real chance of persecution that amounted to serious harm. It knew the nature and context of the events and that they had occurred four years before. It had information that the appellant had remained in Iraq for two months after the election without being harmed. It knew that the appellant, as a Shia Muslim, did not fall within the profile of those predominantly targeted by Shia militias. It knew that the appellant had not claimed that militias had continued to make threats against him or his family. These matters led the Authority to conclude that Shia militias did not have a continuing interest in harming the appellant. This was not a case like CRY16 where, in order to carry out its function of reviewing the application, the Authority had to obtain information from the appellant. The Authoritys decision was not legally unreasonable.

71    Like DGZ16 and CGL17, the circumstances in the case before this Court are fundamentally different from those in CRY16. Unlike in CRY16, there is nothing in this case to suggest that the appellant did not have an adequate opportunity to advance any evidence or submissions he wished to in support of his claims, or that the IAA had disabled itself in some way from considering an issue.

72    Fourth, we are not satisfied that the decision of the IAA not to adduce expert medical, psychiatric or psychological reports about the appellants alleged rape, was unreasonable, or otherwise supported a claim of jurisdictional error on the part of the IAA. As Logan J pointed out in DJF16 v Minister for Home Affairs [2018] FCA 1285, it is questionable whether there is a duty imposed by Pt 7AA of the Migration Act on the IAA to make inquiry of the kind described in relation to the Administrative Appeals Tribunal by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429, namely an obvious inquiry about a critical fact easily ascertained. Further, it appears that the appellant himself did not seek to obtain or advance the reports the subject of his claims to either the delegate or the IAA. Again, it was reasonable for the IAA to find that the appellant had advanced such evidence as he wanted, and that the appellant had chosen not to rely on medical reports for the purposes of his claim.

73    Fifth, the IAA dealt with, in considerable detail, the appellants submissions concerning the IAA obtaining the Belgian and Interpol criminal history certificates. In particular, the IAA considered publicly available information indicating that the appellant could have obtained his own criminal history certificate from the Belgian authorities, and provided that document to the delegate (but did not). The IAA also found that the appellant could have provided that document to the IAA with a statement as to why there were exceptional circumstances justifying the IAA having regard to it (but did not). In our view, and notwithstanding the claim of the appellant that information in the relevant certificates would have addressed the IAAs concerns as to the appellants credibility, these findings of the IAA are not unreasonable. The IAA was not obliged to obtain the appellants Belgian and Interpol criminal history certificates in circumstances where the appellant had not sought to obtain them, and had not obtained them.

74    Finally, we note the appellants criticisms of the IAAs findings in respect of credibility. However we endorse the observation of Lee J in DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580 at [17] that if the IAA were compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be that the IAA would generally come under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. That would not only be inconsistent with the text of s 473DC(2), but would also defeat the purpose of the fast track review process.

75    We do not consider that the IAA fell into jurisdictional error in failing to exercise its powers according to law, including by acting unreasonably. The first ground of appeal has no merit.

Ground of appeal 2

76    Ground of appeal 2(b) repeats the particulars to ground 1 and claims unreasonableness in respect of issues raised. We have found that ground 1 lacks merit. For the reasons we have stated in respect of ground 1, we find that that ground 2(b) similarly lacks merit.

77    In ground of appeal 2(a) the appellant submitted that the IAA was obliged to act rationally and according to logically probative evidence. The appellant submitted further that it was unreasonable of the IAA to accept that the appellant cooperated with police in Belgium or elsewhere and that gang members may have been imprisoned because of that cooperation but to then find there was only a remote chance of the gang members seeking to harm him in retribution notwithstanding the custom of blood feuds in Albania. This finding was unreasonable, in the appellants submission, because it was based on the rejection of the appellants claim to have been in fear and hiding in Albania, when the appellant was also travelling to Italy and Montenegro.

78    As Crennan and Bell JJ observed in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130]-[131]:

130.    In the context of the Tribunals decision here, illogicality or irrationality sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is clearly unjust or arbitrary or capricious or unreasonable in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

131.    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

79    The Court should approach, with considerable caution, a claim equating adverse findings as to credit with jurisdictional error. As Wigney J noted in Minister for Immigration & Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [56], assertions of illogicality and irrationality can too readily be used to conceal what is simply an attack on the merits of the relevant findings and decision. Further, in SZMDS at [96], Crennan and Bell JJ made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

80    In reaching its decision concerning the prospect of harm to the appellant arising from the blood feud custom in Albania, it was clearly open to the IAA to find that:

    gang members from outside Albania would not engage in Albanian blood feud with the appellant, and therefore the only prospective blood feud concerned the appellant and Mr A;

    having regard to the inconsistencies in the appellants evidence, no gang members or their associates had contacted either the appellant or his brother since events involving the appellants cooperation;

    no harm (including threats of harm) had come to the appellant or his family when he was in Albania following his cooperation with the police in both Belgium and Albania; and

    no harm (including threats of harm) had come to the appellants family from gang members at any time, including when he was in Albania, Italy and Montenegro, such as to suggest that the appellant was being targeted by gang members, their associates, or anyone.

81    The finding of the IAA that there was only a remote chance that gang members may seek to harm the appellant by way of retribution in the course of Albanian customary blood feud, was not unreasonable. In our view, this ground of appeal has no merit.

Ground of appeal 3

82    Ground of appeal 3 was raised before the primary Judge, and concerned whether the IAA had met the requirements of s 473DE of the Migration Act by not providing sufficient particulars of information concerning the IRN to the appellant in its letter dated 16 November 2016. His Honour found that the IAA had met the requirements of the section. The section provides:

s 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.

83    The appellant submits that the particulars provided by the IAA to the appellant in respect of the IRN did not say anything of the appellant having assisted police in December 2012, nor of his earlier arrest in 2011, and did not give particulars of what was meant in the IRN by the appellant having been caught red-handed attempting a theft in December 2012. The appellant contends further that, had he been provided more information about the IRN, he may have been able to respond giving a more circumstantial explanation of the things alleged or assumed in the IRN, or by responding to the limited scope of the IRN.

84    In our view no appellable error has been shown in this aspect of the decision of the primary Judge. In summary:

    The operation of s 473DE in a particular case is to be determined in advance, and independently, of the IAAs particular reasoning on the facts of the case: Plaintiff M174/2016 at [9].

    Section 473DE(1)(a) only requires particulars of information that would be the reason or a part of the reason for affirming the decision of the delegate to be given to the visa applicant rather than the information itself. This must provide some latitude to the IAA in respect of its presentation of the relevant material to a visa applicant – it follows, for example, that the IAA was not required to provide the IRN itself, being the document in which the new information was contained.

    In relation to the expression red-handed, the evidence suggests that the IAA was quoting from the IRN when it used that expression. As his Honour observed at [35], in asking for particulars of the meaning of the expression the appellant was asking the IAA to explain what the author of the IRN meant by the use of the expression. Clearly, the IAA was not in a position to do this.

    The primary Judge also pointed out at [34] that the expression red-handed is common and dictionary-defined.

    In any event, the IAA explained why it considered the new information that it identified was relevant to its review, including that the new information that the appellant was caught red-handed suggested the appellant was an active participant in the relevant offences. The appellant responded to that new information without apparent reservation as to his understanding of it – indeed it was open to the IAA to find that the appellant did understand the import of the particulars provided by the IAA to him.

    There is no reason to conclude that the IAA did not give an accurate description of the information in the IRN that it considered would be the reason, or part of the reason, for affirming the delegates decision, or that there was some other information in the IRN that was not disclosed to the appellant by the IAA.

85    In our view this ground of appeal has no merit.

Conclusion

86    The appropriate orders are to allow the application for leave by the appellant to rely on grounds of appeal 1 and 2, but to dismiss the appeal. Costs should follow the event.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Collier, Middleton and Rangiah.

Associate:

Dated:    7 December 2018