FEDERAL COURT OF AUSTRALIA

DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157

ORDERS

THE COURT ORDERS THAT:

1.    The appellant is granted leave to amend his notice of appeal in the form of the amended notice of appeal filed on 6 June 2019.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

GREENWOOD & FLICK JJ:

1    The facts giving rise to the present appeal, and the statutory provisions to be applied, have been set forth in considerable detail in the reasons for decision of Stewart J. They need not be repeated.

2    In very summary form, a delegate of the Minister conducted an interview with the Appellant in March 2016 and in August 2016 the delegate refused the Appellant a visa. The delegate’s decision was subject to “fast-track review” as provided for in Pt 7AA of the Migration Act 1958 (Cth) (the “Migration Act”). The decision was thus automatically referred to the Immigration Assessment Authority (the “Authority”) and in December 2016 the Authority affirmed the delegate’s decision. An application to review the Authority’s decision was dismissed by the Federal Circuit Court in October 2018: DVO16 v Minister for Immigration & Border Protection [2018] FCCA 3058.

3    Although it would have been self-evident to the delegate during the course of the interview that difficulties were being experienced in both the translation of the delegate’s questions and in the translation of the Appellant’s responses, what was not self-evident to either the delegate or the Authority was that there were a series of errors in the translation of those questions and responses and a series of responses which were not translated at all. Those errors only emerged when a transcript of the interview and an expert report on the interview was obtained for the purposes of the proceedings before the Federal Circuit Court.

4    Free of the constraints of Pt 7AA of the Migration Act, a conclusion may have been open that the errors in translation and the failure to translate the responses of the Appellant constituted a denial of natural justice and the common law rules of procedural fairness. A failure to adequately translate questions and answers may deny a party a fair opportunity to be heard: cf. SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [5], (2013) 219 FCR 212 at 215 per Allsop CJ. And jurisdictional error may be held to have occurred even though the decision-maker is unaware of the facts and circumstances giving rise to the error: cf. SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [3] to [8] and [51] to [52], (2007) 232 CLR 189 at 193 to 194 and 206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. There the High Court held that fraudulent advice provided to the appellants (by a person holding themselves out as a solicitor and migration agent) to the effect they should not attend a hearing before the Administrative Appeals Tribunal was such that the Tribunal’s jurisdiction remained “constructively unexercised” despite the Tribunal being unaware of the fraud. Similarly, a decision-maker may be held to have denied procedural fairness even in the absence of personal “fault”: Hot Holdings Pty Limited v Creasy [2002] HCA 51 at [22], (2002) 210 CLR 438 at 448 per Gleeson CJ; Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 at [37], (2003) 211 CLR 476 at 494 per Gleeson CJ.

5    Had the common law rules of procedural fairness applied to the present decision-making process, it would probably have been concluded that there was a denial of procedural fairness on the part of both the delegate and the Authority. The errors in translation and the failure to translate responses made by the Appellant were such, with respect, that the questions being asked by the delegate were not being accurately conveyed nor answered and the difficulties being experienced by the Appellant were such that his inability to comprehend what was being asked of him was not being conveyed to the delegate.

6    But Pt 7AA of the Migration Act imposes significant constraints upon the common law rules of procedural fairness. Indeed, within Pt 7AA, s 473DA(1) provides that it is Div 3 (together with ss 473GA and 473GB) which “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule”. Part 7AA “modifies (by restricting) the common law principles of procedural fairness”: BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 at [71] per Thawley J; Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 at [12], (2018) 260 FCR 482 at 486 per Flick, Griffiths and Perry JJ. Within Pt 7AA, Div 3 is largely directed to the manner in which the Authority may “get” what is referred to as “new information” (s 473DC), the constraints upon the ability of the Authority to “consider any new information” (s 473DD) and the manner in which the Authority “must … give … particulars of any new information” to a visa claimant (s 473DE).

7    If any consideration of “new information” is presently left to one side, the task of the Authority is to “review a fast track reviewable decision … by considering the review material provided to the Authority under s 473CB”: s 473DB(1). But the Authority is not required to give to the visa claimant “any material that was before the Minister when the Minister made the decision under section 65”: s 473DA(2).

8    The delegate when making the decision to refuse the present Appellant’s visa was making a decision pursuant to s 65 of the Migration Act. An audio recording of the interview was available to the Authority and, in fact, listened to by the Authority.

9    Within the constraints imposed by Pt 7AA, no argument is open to the Appellant that the Authority acted unreasonably in not exercising the discretionary power to get “new information” pursuant to s 473DC. Any such argument would confront a number of difficulties.

10    First, it is simply not known whether the Authority in fact gave consideration to whether or not it should seek further information. It is simply not known what significance it attached, if any, to the self-evident difficulties being experienced between the delegate and the Appellant in respect to what was being said, those difficulties being evident from listening to the audio recording. Second, and more importantly, it cannot be said that any consideration that the Authority gave to whether it should seek further information was unreasonable when there was no information available to it at the time of undertaking its review, other than that the audio recording, which exposed difficulties in communication as between the delegate and the now-Appellant. Upon the information then available to it, including the audio recording, it cannot be concluded that the Authority acted unreasonably in proceeding upon that information. The extent of the errors in translation made apparent by evidence only obtained subsequent to the Authority’s decision, and for the purposes of the Federal Circuit Court proceeding, cannot be employed retrospectively to render the decision-making process of the Authority legally unreasonable.

11    Any scope for judicial intervention, accordingly, is to be found – if at all – in the statutory requirement imposed upon the Authority to undertake a “review” as required by ss 473CC and 473DB of the Migration Act. The “review” to be undertaken is a de novo review and the Authority is not bound by the findings of fact made by the delegate: cf. Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [17] and [85], (2018) 92 ALJR 481 at 487 per Gageler, Keane and Nettle JJ and 497 per Gordon J. But such scope for judicial intervention is, regrettably, short lived. Although a “review” would include a genuine process of considering the material forwarded to the Authority pursuant to s 473CA together with any “new information” which it “gets”, a “review” cannot be construed as a review of only factually accurate transcriptions of an interview process. Whatever misgivings may have occurred to the Authority when considering the audio recording of the interview, and even though the Authority “may” get further information that it considers “may be relevant” (s 473DC(1)), the Authority nevertheless remained subject to no “duty to get” any further information from the Appellant: s 473DC(2).

12    Left to one side are those cases in which deficiencies in translation services are so manifestly apparent that both the delegate and the Authority must be taken to be on notice that any interview process was manifestly deficient and a manifestly inadequate basis upon which a “review” can lawfully be undertaken. Such is not the present case.

13    Subject to these comments, concurrence is otherwise expressed with the reasons of Stewart J. It follows that the appeal should be dismissed.

Associate:

Dated:    9 September 2019

REASONS FOR JUDGMENT

STEWART J:

Introduction

14    This is an appeal from the decision of the Federal Circuit Court of Australia (FCC) reported as DVO16 v Minister for Immigration & Border Protection [2018] FCCA 3058. It is a decision dismissing an application by the present appellant pursuant to s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority. The latter decision affirmed a decision of a delegate of the first respondent (the Minister) refusing the appellant a Temporary Protection (Class XD) (subclass 785) visa.

15    The following two issues were initially presented by the appeal in appeal grounds 1 and 2 respectively.

16    First, should the primary judge have found that it was a jurisdictional error by the Authority to fail to consider exercising its power under s 473DC of the Act to hear further from the appellant, or to make further enquiries of the appellant, on the question of why he feared persecution on account of ethnicity if he returned to Iran?

17    Secondly, should the primary judge have granted the appellant leave to advance grounds of review of the decision of the Authority which contended that the Authority had fallen into jurisdictional error by failing to apply the test in s 473DD of the Act to parts of a written submission made on behalf of the appellant to the Authority, which should have been properly considered as potential “new information” (as defined in s 473DC), rather than as a mere submission?

18    A further potential issue arose during the course of argument. It became the subject of an application by the appellant to introduce a third ground of appeal. That ground was expressed as follows:

The Court erred in not holding that the Second Respondent failed to complete the statutory task of jurisdiction to review the decision granted by section 473CC, in circumstances where, due to material interpreter error in the hearing before the delegate, the Second Respondent was prevented from being able to consider the exercise of its power under section 473DC to get new information about the appellant’s claim.

19    The Minister did not oppose the amendment of the notice of appeal to introduce the third ground. Leave should accordingly be granted to amend the notice of appeal in the form in which it was filed on 6 June 2019.

Background

20    The appellant is a Shi’a Muslim of Arab ethnicity from Khuzestan Province, Iran. He identifies as Ahwazi Arab.

21    The appellant arrived in Australia (Christmas Island) in August 2012 by boat, having come via Dubai and Indonesia. As he arrived in circumstances contemplated by s 5AA of the Act, he is what is referred to in that section as an “unauthorised maritime arrival”.

22    After spending five and a half months in immigration detention, the appellant was released and has lived in the community on a bridging visa pending the determination of his applications for protection visas. After an earlier application for a different visa was ruled to be invalid, the appellant lodged a valid application for a Temporary Protection visa, the refusal of which is the subject of this appeal.

23    In a statutory declaration made in support of his visa application, the appellant stated, amongst other things, the following. He is of Arab ethnicity and belongs to the Nagravi tribe. At the time of his arrival in Australia he was 28 years of age. He left Iran because he feared that he would be killed for being a member of a minority group and for belonging to the Nagravi tribe. Specifically in relation to ethnicity, he said:

Authorities are not willing to protect me because of my ethnicity. The Iranian authorities discriminate and do not protect the members of the Arab community who live in the South-Western province of Khuzestan or elsewhere in Iran.

24    For the purposes of his temporary protection visa application, the appellant was interviewed by the delegate in March 2016. The conduct of that interview, and in particular the quality of the interpretation of the questions from English to Arabic and the answers from Arabic to English, is of relevance in the determination of the appeal. It will be dealt with further below.

The delegate

25    By a decision dated 19 August 2016, the delegate refused the appellant’s application for a temporary protection visa. In the decision the delegate expressed that she had serious concerns regarding the appellant’s credibility in relation to his claims for protection.

26    Relevantly with regard to the appellant’s claim to fear persecution on the basis of his ethnicity, the delegate was satisfied that the appellant fears persecution for reasons of his (Arab) ethnicity. She also acknowledged that he claimed that he feels that the outcome of a court case arising from the bus incident referred to further below was not satisfactory because he is an Arab. After citing various reports containing “country information” which deal with the question of discrimination in Iran against Arabs, and Ahwazi Arabs in particular, the delegate concluded that the appellant’s claims of personal discrimination because of his ethnicity are unconvincing. She said that there was no evidence before her to suggest that the appellant or his family have been subject to undue discrimination or harassment by the Iranian authorities.

27    The delegate noted that the appellant claims that his father holds nine degrees and has worked most of his life at a government run university, that several of his siblings are university educated and that his parents and many siblings still live in Khuzestan. The delegate accepted that if the appellant returned to Iran there is a reasonable possibility that he would face discriminatory treatment due to his ethnicity, as an Ahwazi Arab. However, she concluded that having considered such treatment in its entirety, she did not regard it to constitute persecution.

The Authority

28    The decision of the delegate was automatically referred to the Authority under the “fast track” review process set out in Part 7AA of the Act.

29    To that end, the appellant was told by letter from the Authority that it would make a decision on the basis of the information that had been available to the delegate, unless it decided to consider new information. It said that it can only consider new information in limited circumstances which it said were explained in an attached fact sheet and Practice Direction.

30    Apparently in response to that, a registered migration agent on behalf of the appellant submitted a document to the Authority. The covering email by which the document was submitted and the heading to the document itself described it as a “submission”. It is a short document – three and a half pages of double-spaced type. Its contents will be discussed further below.

31    By a decision dated 1 December 2016, the Authority affirmed the decision of the delegate not to grant the appellant a protection visa.

32    Critically in relation to the issues that arise on the appeal, the Authority recorded as follows with regard to information considered by it:

2.     I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act).

3.     On 12 September 2016, the IAA received a submission from the applicant. The submission contains a discussion in relation to why the applicant did not agree with aspects of the delegate’s decision. I do not consider this new information and I have had regard to it.

33    The authority summarised the appellant’s claims to protection as follows:

•     The applicant is a Shia Muslim of Arab ethnicity from Khuzestan, Iran.

•     On 22 May 2007, the applicant was taking the bus from his work in Ahwaz to his home in Sosangerd. He was having a nap on the bus when he was woken up by a girl screaming. She accused the applicant of putting his foot on the back of her chair.

•     A few days later a policeman stopped him and asked him to enter a police station. Several of the girl’s relatives were there and they beat him.

•     He complained to the court but the head of the tribe (Jalali) which the girl belonged to put him under pressure and he was forced to stop the proceedings.

•     A few days later, the applicant was kidnapped by members of the Jalali tribe and jailed in a secret place for three weeks. He was beaten.

•     He managed to escape to his uncle’s place and took photos of his injuries.

•     He relocated to Ahwaz to seek protection. He did not go out during the night and stopped working.

•     His family has been regularly threatened. The Jalali tribe members went to his parents place and shot at their house.

•     After several years of living in hiding he decided to flee Iran for Australia.

•     He fears harm due to his ethnicity and tribal group. He fears harm from the Jalali tribe and the Iranian authorities.

•     He fears harm because he sought asylum in Australia.

34    With regard to the claim by the appellant that he would be persecuted due to his ethnicity, the Authority reasoned and concluded as follows:

22.     In his written statement the applicant also claimed he would be persecuted due to his ethnicity. During the TPV interview the delegate asked the applicant what this meant. The applicant responded that he did not know. He further stated that apart from the tribal conflict and fearing harm from the Chanani tribe, he does not fear returning to Iran for any other reason. He later said he fears from the Iranian authorities because they will cover up any harm he faced from the Chanani tribe as they have connections. He did not claim to fear harm from the authorities on the basis of being an Ahwazi Arab, nonetheless the delegate addressed this in her decision.

23.     The Arabs of Khuzestan are known as the Ahwazi and have endured various forms of abuse and repression by the state on account of their ethnic and cultural identity. They make up about three per cent of Iran’s population. The United States Department of State has reported that while the Iranian constitution grants equal rights to all ethnic minorities and allows for minority languages to be used in the media and in schools, minorities did not enjoy equal rights and the government consistently denied their right to use their languages in schools. Ahwazi Arabs have been reported to have been marginalised and subject to discrimination in access to education, employment, adequate housing and political participation. They also faced discrimination in respect to their identity and language.

24.     DFAT has reported that treatment of Arabs by the state is usually consistent with that of other ethnic minorities, but can be unpredictable. According to the prevailing political environment, Arabs may unexpectedly face increased adverse attention. For example, a number of Arabic language newspapers established by Arabs in Khuzestan during Khatami’s presidency were banned after Ahmadinejad became President. Broadly there is a high level of societal discrimination against Arabs. This can lead to unfair day to day treatment, such as in employment and access to housing and services. DFAT considers that such discrimination is usually a result of patronage, nepotism and favouritism reflecting social attitudes rather than official or state-directed policies. Such discrimination against Arabs is rarely coupled with community-level violence. DFAT assesses that most Arab Iranians do not come to the attention of authorities and are subject to only low levels of adverse attention by the state. However, this risk increased dramatically for Arabs who attempt publicly to assert cultural or political rights.

25.     I note DFAT reports a high level of societal discrimination, in the form of limitations on access to employment, housing and services. The applicant continues to have access to housing as his immediate and extended family continue to reside in Ahwaz and Sosengerd. The applicant has also demonstrated his ability to obtain employment in Iran. There is no evidence before me to indicate the applicant will not be able to return to Iran and reside with his family, including wife and child and/or his siblings and parents. There is further no evidence before me to indicate that the applicant will not be able to return to Iran and obtain employment. I note the applicant has spent periods of time in Iran unemployed however he claimed this was on the basis of being in hiding from the opposing tribe, a fear which I have not accepted. I am not satisfied the discriminatory treatment the applicant may face on return amounts to serious harm.

26.     Having regard to the country information and the applicant’s circumstances, I am not satisfied he will face a real chance of serious harm on return to Iran as an Ahwazi Arab.

(Footnotes omitted.)

35    The Authority ultimately concluded that the appellant does not meet the requirements of the definition of refugee in s 5H(1) or the requirements of s 36(2)(aa) of the Act.

The Federal Circuit Court

36    There was a previously filed amended application in the FCC at the time of the hearing before the primary judge. It set out three grounds for the application. Counsel for the appellant sought leave to amend the application as reflected in a second amended application. The amendments that were sought were to delete grounds 1 and 2, in respect of which there was unsurprisingly no opposition, to refine ground 3 and to introduce two further grounds labelled grounds 4 and 5.

37    After hearing argument from counsel on both sides at some length, which centred on the question of whether the grounds were reasonably arguable, the primary judge refused leave to amend in respect of grounds 4 and 5. Her Honour stated as follows in relation to ground 3:

At the conclusion of the hearing, I understood counsel for the [Minister] not to oppose leave in respect of Ground 3 and the parties asked the Court to determine Ground 3 based on the submissions provided by each of them. In considering Ground 3, I had regard to the evidence of the applicant provided in support, including the affidavit of Dr Christopher Lucas affirmed on 16 October 2018.

38    Dr Lucas is an expert on Arabic dialects and gave evidence as to the quality of the interpretation of the appellant’s interview with the delegate. His evidence will be discussed further below.

39    Since the appeal is directed in part against her Honour’s refusal of leave to amend the application to introduce grounds 4 and 5, it will be necessary to consider them. It is however convenient to commence with ground 3 which is the subject of the first and third grounds of appeal in this Court.

FCC Ground 3: the exercise of the discretion under s 473DC

40    Ground 3 before the primary judge, as amended, was in the following terms:

Ground 3: Error of Law — the Tribunal erred, amounting to jurisdictional error, by failing to consider exercising its jurisdiction, to seek further information from the Applicant, pursuant to the powers contained within Division 3 of Part 7AA of the Migration Act 1958 (Cth) in respect of his claim to fear persecution on account of his ethnicity.

41    The primary judge recorded that the appellant’s counsel submitted that the Authority had before it the appellant’s interview by the delegate and must have been aware from it that he had not been heard on his ethnicity claim because of miscommunication, the failure of the delegate to put required matters to him in respect of his ethnicity claim, and what was described as a wholly unreasonable approach of the delegate evidenced by this statement by her in the transcript:

So obviously you don’t hold a fear of that, then, if you don’t know what it means.

42    The appellant submitted to the primary judge that it was unreasonable in those circumstances for the Authority not to consider exercising its power under s 473DC(3) of the Act and give the appellant an opportunity to be heard on the basis of the rejection of the ethnicity claim.

43    The primary judge did not accept the delegate’s statement (quoted at [41] above) as the delegate’s definitive position in providing an opportunity to the appellant to give evidence about what the harm is that he fears if returned to Iran. Her Honour concluded that later exchanges make it clear that there was every opportunity for the appellant to say what he feared, and indeed he did so. Her Honour concluded that there was nothing before the Authority to suggest to it that a failure to exercise its discretion under s 473DC(3) would cause any procedural unfairness amounting to jurisdictional error. In the circumstances, ground 3 was not made out.

FCC Grounds 4 and 5: misapplication of s 473DD

44    Grounds 4 and 5, in respect of which the appellant sought leave to amend his application before the FCC and which relate to ground 2 in the appeal in this Court, were in the following terms:

Ground 4: Error of Law - the IAA has misapplied and/or breached section 473DD of the Migration Act 1958 (Cth) in dealing with the submission of the Applicant dated 12 September 2016 by erroneously directing itself that the document did not contain new information, thereby failing to complete the task of jurisdiction embarked upon.

Ground 5: Error of Law – The IAA has made a decision which is legally unreasonable. In directing itself that it had regard to a submission from the Applicant dated 12 September 2016, there remains no discernible reason as to why regard was had to some of the information contained in the submissions and not to other information in the submissions.

45    Her Honour refused leave to introduce grounds 4 and 5 on the basis that they were not sufficiently arguable. The primary judge reasoned that there is no mention in the “submissions” document that there is anything in it to suggest that the appellant was purporting to put new information to the Authority. The appellant did not suggest that, to the extent that there was information in the submission, it was new information, and that there were exceptional circumstances to justify the Authority considering it under s 473DD of the Act. On that basis leave was refused.

Relevant provisions of the Migration Act

46    As indicated, the review by the Authority of the delegate’s decision to refuse the appellant’s temporary protection visa application was required to be dealt with under the fast track review process provided for in Part 7AA of the Act. Division 2 of that Part deals with the referral of a fast track reviewable decision to the Authority. Within it, s 473CA provides that the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made. Section 473CB then provides for the material that must be provided to the Authority for the purpose of the review. In that regard, the Authority must be given, amongst other things, the material provided by the referred applicant (in this case, the appellant) to the person making the decision before the decision was made (i.e. the delegate).

47    Section 473CC obliges the Authority to review the delegate’s decision:

473CC Review of decision

(1)     The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

  (2)    The Immigration Assessment Authority may:

(a)     affirm the fast track reviewable decision; or

(b)     remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

48    Division 3 deals with the conduct of the review. Relevantly, it includes the following provisions:

Division 3 – Conduct of review

Subdivision A—Natural justice requirements

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.

Subdivision B—Review on the papers

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.

Subdivision C—Additional information

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.

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 applicant’s claims.

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.

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.

49    As will be seen, grounds 1 and 3 in the appeal centre on s 473DC with regard to the Authority getting new information. Given its close relationship to a claim for lack of procedural fairness, s 473DA is also particularly relevant to this ground. Ground 2 in the appeal centres on s 473DD with regard to the Authority considering new information in exceptional circumstances.

50    Section 473FA in Division 5 is also relevant. It provides that the Authority, in carrying out its functions under the Act, “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)”.

Appeal Ground 1: section 473DC

The parties’ submissions

51    The appellant submitted that the transcript of the interview before the delegate and the expert evidence as to parts of the interpretation undertaken by an Arabic speaking interpreter in the interview demonstrate that the appellant did not understand the concept of ethnicity; nor was it explained to him. He submitted that the conversation that then ensued involved no substantial discussion of the ethnicity claim, with the delegate primarily asking whether the appellant wished to raise anything else, and the appellant referring back to another basis for his claim for protection, namely his tribal claim.

52    The appellant submitted that the delegate’s approach occasioned a want of procedural fairness. It was submitted that he had squarely advanced a claim of a fear of persecution on account of being a member of an ethnic minority group which, on the material before both the delegate and the Authority, is and has been historically subject to a high degree of discrimination and persecution. It was submitted that he was, however, not accorded a fair hearing on the ethnicity claim in circumstances where he did not understand he was being asked about it.

53    It was submitted by the appellant that he was not given a proper opportunity to address the basis on which his claim based on ethnicity was rejected, namely: (1) that his claims in relation to discrimination relate mainly to the fact that he feels the outcome of his court case was not satisfactory to him, and that this was because he is an Arab; (2) his claims of personal discrimination because of his ethnicity are unconvincing; and (3) he did not claim to be in serious need of wearing Arabic clothes or speaking the Arabic language in public and there is no indication that the curtailment of the rights to express his culture is taken by the appellant to be so oppressive that he cannot be expected to tolerate it.

54    The appellant further submitted that the hearing provided on the ethnicity claim did not meet the requirements of procedural fairness identified in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at 591-592. The appellant drew attention to paragraph [22] of the Authority’s decision, quoted at [34] above, and submitted that the Authority did not consider the procedural unfairness involved in the way the delegate had disposed of the ethnicity claim, and nor did it consider exercising its powers under s 473DC(3) of the Act, namely by inviting the appellant to give new information with regard to his ethnicity claim.

55    The appellant relied, in particular, on Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 where, in the circumstances of that case, it was concluded that it had been legally unreasonable of the Authority not to exercise its statutory power in s 473DC to seek further information from the referred applicant.

56    The Minister submitted that the submission that the procedure before the delegate miscarried because the appellant did not understand that he was being asked about his ethnicity claim is wrong. He submitted that the appellant applied for a protection visa, and it was up to him to advance his claims and to provide evidence in support of them. The Minister referred to s 5AAA of the Act. Relevantly, subsection (2) provides that it is the responsibility of a non-citizen who claims to be a person in respect of whom Australia has protection obligations (which the appellant is) to specify all particulars of his or her claim to be such a person, and to provide sufficient evidence to establish the claim. Also, subsection (4) provides that to remove doubt, the Minister does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the non-citizen’s claim or to establish, or assist in establishing, the claim.

57    The Minister submitted that the interview before the delegate is not demonstrative of a failure to give a real and meaningful opportunity to be heard, but rather it shows that the appellant did not avail himself of the numerous opportunities given to him by the delegate to put forward anything that he wished to say in respect of his ethnicity.

58    The Minister submitted that CRY16 is to be distinguished because, there, the Authority decided the case on a different basis to the delegate, namely relocation, on which the appellant had not been given an opportunity to put his case. That did not occur in the present case, where the delegate and the Authority’s decisions were based on the case as put by the appellant.

Consideration

59    At the heart of the appellant’s submissions with regard to ground 1 was the proposition that the Authority should have been put on notice by material before it that there had been a misunderstanding or miscommunication in the interview of the appellant by the delegate to such a degree that it had the result that fairness, or the requirement to act reasonably, required the Authority to consider whether or not to request more information from the Appellant by exercising its power under s 473DC(3) of the Act. The appellant submitted, and the Minister accepted, that the Authority listened to the interview – this is apparent from references in the Authority’s decision and reasons to things said in the interview. In any event, there can be little doubt that the Authority was obliged to listen to the interview because it was part of the “review material” provided to it by the Secretary under s 473DB(1) and a proper review of the delegate’s decision would necessarily entail reviewing the material considered by the delegate.

60    The appellant identified two matters that he said should have put the Authority on notice of the problems with the interview. The first matter was that in listening to the recording of the interview, which was reflected in the form of a transcript in this Court, the Authority should have recognised from the following exchange that there was a misunderstanding or miscommunication such as to have resulted in the appellant not having put his case with regard to persecution on grounds of ethnicity:

Delegate:     Mm, it’s all right, okay. Moving on from that, it also says here that you say that you’ll be persecuted for your ethnicity. What do you mean by that?

Interpreter:     Because sometimes he’s Ahwazi, sometimes he doesn’t understand my - I think my

Delegate:     No, I think it means because you’re an Arab.

Interpreter:     Yeah, because what happened, Arab, sometimes they use different expression.

Delegate:     Yeah.

Interpreter:     He doesn’t know the meaning of it, even in Arabic.

Delegate:     So obviously you don’t hold a fear of that, then, if you don’t know what it means.

Interpreter:     Sorry, he’s persecuted by which?

Delegate:     Okay, I think we’ll start again maybe.

Interpreter:     Just he wanted to know by which group.

Delegate:     It doesn’t say. After that it talks about the Jalali tribe again, but - and we need to be out of this building very soon, so what I’m going to do is ask you a question, so do you want to - just tell me exactly what it is that you fear will happen to you if you return to Iran.

Interpreter:     I might be killed.

Delegate:     Okay and why would that be?

Interpreter:     Yeah, the tribe I mentioned.

61    The other matter relied on by the appellant as putting the Authority on notice that there was a problem with the interview by the delegate is that in a number of places in the ‘submission’ that was made on behalf the appellant to the Authority reference was made to problems with the interview. These included:

•    … he was confused during this interview …

•    … he attribute such misunderstanding to possible misinterpretation of what he said …

•    Again the applicant maintain that his words might be misinterpreted for some reason, he maintain that he told the delegate the whole story, but for some reason there was misinterpretation to what he said …

•    The applicant maintained that it may be an interpreter’s error …

62    In response, the Minister submitted that the delegate’s statement in the interview, which is quoted above, “I think we will start again maybe”, represents a recommencement of the interview insofar as it concerned persecution on grounds of ethnicity. The Minister submitted that thereafter on seven or eight occasions the delegate, by way of open questions, gave the appellant ample opportunity to say whatever he wished to say with regard to his claim of persecution on the ground of ethnicity and on none of those occasions did he say anything sufficient to establish that ground.

63    Close analysis of the transcript of the interview bears out the Minister’s submission with regard to the further opportunities that the appellant was given to state whatever he wished to state with regard to persecution on grounds of ethnicity. These opportunities include the following:

•     … just tell me exactly what it is that you fear will happen to you if you return to Iran.

•    Is there anything, any other reason you fear return to be around?

•    Okay, but apart from those people, apart from issues to do with the Chanani tribe, is there anything else you fear if you were to return to Iran?

•    So I take it from that answer that there’s nothing else that you fear if you were to go back to Iran, apart from that issue?

•    What I am trying to establish is if there is anything else apart from this issue that we have discussed today.

•    What is the fear from the government?

•    So are you saying you would be discriminated against?

64    On each of those occasions given to the appellant he referred back to the tribal conflict arising from the bus incident or otherwise failed to say anything to establish a claim for persecution on grounds of ethnicity.

65    It is true that because of an apparent misunderstanding by him arising from the interpretation, a question dealt with in relation to ground 3 below, he apparently did not understand that he was being specifically asked about persecution on grounds of ethnicity. However, as relied on by the Minister, s 5AAA(2) squarely places on the applicant for a protection visa responsibility “to specify all particulars of his or her claim … and to provide sufficient evidence to establish the claim” and s 5AAA(4) provides that the Minister does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim or to establish or assist in establishing the claim. There was no obligation on the delegate to ask the appellant about persecution on grounds on ethnicity. The fact that her endeavours to ask specifically about that issue failed does not have the result that the Authority then had an obligation to correct that failure.

66    In the circumstances, although it might be said that the Authority was on notice that there had been difficulties with the interpretation such that the appellant may not have properly understood everything that was asked of him, particularly with regard to ethnic persecution, it is clear that the appellant was asked open questions which gave him ample opportunity to speak to his ethnic persecution claim. There was generally no duty on the Authority to interview the appellant (DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [75] per Reeves, Robertson and Rangiah JJ), and there is nothing in the circumstances of this case to have required the Authority to consider whether or not to interview him or otherwise seek further information from him with regard to his ethnic persecution claim.

67    Ground 1 of the appeal accordingly fails.

68    Because of its close relationship with ground 1, it is convenient to consider ground 3 next.

Appeal ground 3: failed interpretation

The parties’ submissions

69    Ground 3 is different from ground 1 because instead of relying on material that was available to the Authority to say that the Authority knew or ought to have known of the problems with the interpretation and hence the interview, it relies on evidence not available to the Authority to show that the interview process failed or suffered from material problems because of interpretation error.

70    In that regard, the appellant submitted, with reference to Dr Lucas’s expert evidence on the quality of the interpretation of a small part of the appellant’s interview by the delegate, that there were material errors of interpretation with regard to the appellant’s ethnicity claim.

71    The appellant submitted that the consequence of those errors is that the Authority was deprived of considering the exercise of its discretion under s 473DC, and referred again to CRY16 at [82] and to Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; 253 FCR 526 at [93]-[94] in that regard. The consequence, so it was submitted, is that the review which occurred was not the review intended by Part 7AA. The appellant submitted that the review miscarried in circumstances where the Authority was unable to consider exercising the power due to material interpreter error meaning the review was “disabled from the due discharge of its imperative statutory functions” – referring to SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 at [51].

72    The appellant also put the point on an alternative basis, namely that as a consequence of the interpretation errors the Authority failed to complete the task of jurisdiction imposed by s 473CC, i.e. to “review” the decision of the delegate.

73    The appellant submitted that the correct enquiry is whether the interpreting errors deprived the appellant of the possibility of the exercise by the Authority of the s 473DC power and, if so, whether the failure to have had that advantage may have denied the appellant the possibility of a different decision on the review. Reference was made to Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 263 ALR 599 at [2].

74    The Minister submitted, as he had done with respect to ground 1, that such errors as they were in the interpretation had no material or relevant effect because the appellant was given ample opportunity to state his case with regard to his ethnic persecution ground. He submitted that there was no material interpreter error as required by the authorities: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 and BZAID v Minister for Immigration and Border Protection [2016] FCA 508; 242 FCR 310 at [52]-[54].

Consideration

75    The interpreter errors which the appellant relies on occurred in relation to the delegate’s enquiries of the appellant about his ethnic persecution claim.

76    An extract of the transcript of the interview quoted above at [60] but now with Dr Lucas’s translation into English of what was said in Arabic between the interpreter and the appellant reflected in italics, is as follows:

Delegate:    It also says here that you say that you will be persecuted for your ethnicity what do you mean by that?

Interpreter:     [Arabic] ‘You say here that persecution has happened to you, I mean, that you’ve been persecuted for, what’s it called, your belonging to your community.’

Applicant:    [Arabic] ‘What? Huh? My tribe? My tribe?’

Interpreter:     Sometimes because he’s Ahwazi, sometimes he doesn’t understand my- I think my…

Delegate:     No, I think it means because you’re an Arab.

Interpreter:    Yeah, because what happened, Arab, sometimes they use different expression.

Delegate:    Yeah

Interpreter:    [Arabic] ‘She is saying that you, persecution has happened to you. You have been persecuted, in virtue of your belonging to the community you belong to.’

Applicant:     [Arabic] ‘You mean how much “protecution” [i.e. strange hybrid of ‘persecution’ and ‘protection’] I had from them?’

Interpreter:     He doesn’t know the meaning of it, even in Arabic.

Applicant:     [Arabic] ‘What does “persecution” mean?’

Delegate:     Well obviously you don’t hold a fear of that then it if you don’t know what it means.

Interpreter:     [Arabic] ‘What it means is they treated you badly.’

Applicant:     [Arabic] ‘My tribe?’

Interpreter:     [Arabic] ‘Yes. Not your tr- the fact that you belong to the community you belong to.’

Applicant:    [Arabic] ‘My tribe…’

Interpreter:     Sorry, he is, persecuted by which,

Delegate:     I think we will start again maybe.

77    The first two entries in this extract show that the delegate was enquiring as to future persecution, whereas the interpretation put the question with reference to the past. The extract also shows that the delegate understood that the appellant did not understand what was meant by “ethnicity”, which caused her to make a facetious aside, whereas in truth the appellant did not understand what was meant by “persecution”.

78    Following the indication to start again, which, significantly, was not interpreted, the following exchange took place:

Interpreter:    Just he wanted to know by which group.

Delegate:    It doesn’t say.

Interpreter:    [Speaks in Arabic] ‘It’s not written here. It’s not written.’

Delegate:    After that it talks about the Jalali tribe again, but –

Interpreter:    [Arabic] ‘Afterwards they mentioned the Jalali, what’s it called, tribe. Um, you being, um, you belong, no. And you were persecuted by - sorry - because you belong to the tribe you do, you were persecuted by this tribe, the Jalali.’

79    The interpreter’s additions to what the delegate had actually said had the apparent effect of again directing the appellant to tribal issues rather than the Ahwazi Arab ethnicity claim as was intended by the delegate.  That intention of the delegate is apparent from her use of the word “but”, but after the interpreter apparently interrupted her sentence speaking in Arabic she in effect started again and asked open questions. The effect was that the appellant’s attention was not directed to what she was interested in, which was his ethnic persecution claim. His attention was also not directed to the fact that she was starting again. Thus he likely understood the open questions that followed to be related to or a continuation of the enquiries about, as he understood, his tribal disputes.

80    In a later passage this occurred:

Delegate:    And why - why could you not go to the authorities for assistance?

Interpreter:    [Arabic] ‘Why didn’t you try to go to, what’s it called, to your authority? And ask them for help? Did you try?’

Applicant:     [Arabic] ‘The authority/regime of the tribe/clan?’

Interpreter:    Which authority you mean, the tribes?

Delegate:    The Iranian authorities.

Interpreter:    [Arabic] ‘No, I mean the Iranian authority. The Iranian government.’

Applicant:     [Arabic] ‘What is this government? Isn’t this government what I ran to? It’s not a court. What, how did they treat me?’

Interpreter:    You know, the court, it is from the - it belonged to the Iranian authority, what they did to me, you know.

Delegate:    Well yeah, but I mean that was an outcome that you perhaps didn’t like.

Interpreter     [Arabic] ‘Ok well it was a result that you didn’t like. That you weren’t satisfied with, the result of the court.’

Applicant:     [Arabic] ‘I’m not satisfied with it? What am I not satisfied with? They... if every... They don’t accept me, not a court or anything else. [They say] “I want someone” beforehand. [They say] “He’s the one I want. What we want is to get our revenge”. This is the life of [unclear].’

Interpreter:    No, I am - yeah, yeah because you know the Iranian authority, they are taking by those people because they are very influential and they have connections with them.

Delegate:    All right, so this is the Chanani tribe.

81    The appellant submitted that the sentence “They don’t accept me, not a court or anything else” in the third last entry which was spoken by the appellant but not translated, was an expression of his ethnic persecution claim. It may be that that is what the appellant was referring to, but that is by no means clear. In any event, as identified at [26] above, the delegate in her reasons understood that the appellant claimed that the outcome of the court case was unsatisfactory because he is an Arab.

82    The errors of interpretation, as identified in the expert report of Dr Lucas, can be characterised as follows: framing of the question in the incorrect tense giving the impression that it was about past persecution rather than the possibility of future persecution, not adequately conveying that the question was directed to the appellant’s ethnicity (as an Ahwazi Arab) and not conveying that the appellant was confused as to whether he was being asked about persecution in relation to his tribal connections and the meaning of the word ‘persecution’.

83    The appellant relies on these errors bringing the case within this paragraph of SZFDE:

[51] No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal.

84    Two paragraphs later the Court issued a caution with regard to the narrowness of the finding:

[53] The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.

85    The Court identified the relevant facts that gave rise to the conclusion of fraudulent dealing by Mr Hussain and its effect on the decision-making process by quoting from the reasons of French J (in dissent) in the Full Court:

[42] In his reasons, French J developed the matter as follows:

The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the Tribunal was 'not accepting any visa applications at all at the moment'. He expressed a false concern that if [the first appellant] and her family appeared before the Tribunal they would say something inconsistent with his proposed submission to the Minister. The advice amounted to a representation that the Tribunal process was a sham and that participation in it might prejudice [the first appellant's] prospects of a successful outcome on the basis of a submission to the Minister.

….

The decision-making process, that is the process of review which incorporates an opportunity for a hearing on the conditions set out in Pt 7, was corrupted. The importance of the appearance before the Tribunal to the outcome of the review was highlighted by the Tribunal's reference, in its reasons, to matters which it did not have an opportunity to explore with [the first appellant] because of her non-appearance. On this basis, in my opinion, the decision of the Tribunal was vitiated. It was not a decision made under the Act and therefore not a privative decision protected by s 474.

86    Do the errors in interpretation in the present case infect the decision-making process to the extent required to conclude that the Authority “was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review” or otherwise to bring the case within the principle in SZFDE? There was no “fraud” in this case to “unravel everything”. So, do the interpreting errors, rather, have the quality of merely “some other mishap” as referred to in paragraph [53] of SZFDE?

87    The effect of the errors on the reasoning of the Authority is apparent in paragraph [22] of its reasons, quoted at [34] above, where it records that the appellant said that he did not know what persecution due to his ethnicity meant. From the evidence of Dr Lucas, we now know that this is incorrect; the appellant did not say that. Also, unlike what the Authority recorded in the same paragraph, he did not say that he does not fear returning to Iran for any reason other than the tribal conflict and fearing harm from the Chanani tribe. Despite these errors in the Authority’s reasoning having arisen from the interpretation errors, the Authority, as the delegate had done, went on – as is apparent from what is quoted at [34] above – to consider the likelihood and consequence of discrimination against the appellant on the basis of him being an Ahwazi Arab.

88    In those circumstances, the extent of the detrimental impact on the review process is not particularly material and is not such as to bring it within SZFDE.

89    The first alternative basis on which the appellant puts this ground, namely that as a consequence of the interpretation errors the Authority failed to complete the task of jurisdiction imposed by s 473CC, is no different from his reliance on SZFDE, i.e. “disabled from the due discharge of its imperative statutory functions”. It fails for the same reasons.

90    In the context of ground 3, the appellant also relied on CRY16¸ in particular at [82]. However, that is a quite different case. First, there it was held that the Authority was aware of the deficiency in question. Second, and most importantly, the issue on which there was an absence of information was an issue raised and relied on by the Authority itself, rather than the visa applicant. That is to say, it related not to the grounds advanced by the applicant to justify his being granted a visa, but rather a reason advanced by the Authority to deny him a visa. It is that factor which made the failure by the Authority to consider exercising the power under s 473CC unreasonable. DZU16 is to the same effect, as is apparent from the paragraphs relied on by the appellant, namely [93]-[94].

91    The appellant does not assert a procedural fairness complaint with regard to the errors in interpretation. Such a complaint would fail because the errors would have to be material before they amounted to jurisdictional error, where a “breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome”: SZMTA at [2] per Bell, Gageler and Keane JJ. The applicant was not denied any opportunity to give evidence.

92    In the circumstances, ground 3 fails.

Appeal Ground 2: section 473DD

The parties’ submissions

93    The appellant submitted that the ‘submission’ on his behalf to the Authority contained relevant material of an evidentiary character and thus within the potential scope of s 473DC(1) of the Act, as distinct from submissions designed to merely persuade the Authority. This included an account of why the appellant was confused in recounting his employment details, the asserted fact that the appellant was employed with a subcontractor and that his employer filled positions with illegal workers, an account as to his work at the bank, a further account of the event which occurred a few days after the event that was said to have prompted his persecution, a further account of how he came to be assaulted by the family of the young woman, and claims as to interpreter error and his state of mind during the interview.

94    The appellant relied on EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180, which the Minister sought to distinguish. The case is discussed further below.

95    The Minister submitted that there is no reason to disregard the authority’s clear statement that it had regard to the submission, which would include any factual aspects within it, and that no unfairness to the appellant resulted from the failure by the Authority to consider that factual matter only after having satisfied itself of the matters set out in s 473DD.

Consideration

96    It will be recalled that the primary judge refused an application to introduce this ground before her. Before us, the Minister accepted that that refusal had been on the basis that the prospects of that ground succeeding were too low to warrant leave being granted. On that basis, the Minister accepted that if this Court concluded that the ground was good, the necessary corollary is that leave to rely on it below should have been granted. In that event, the matter would have to be remitted to the primary judge for reconsideration rather than it being dealt with, for the first time, in the appellate jurisdiction of this Court.

97    It follows that the principal issue with which we are presently concerned is whether or not the ground is good.

98    In EEM17, shortly after the delegate made a decision to refuse the application for a protection visa, the appellant’s migration agent, provided a submission to the delegate. This submission contained a new claim based on the appellant’s involvement with the Australian Tamil Congress, including a photograph of the appellant attending a Tamil Heroes’ Day commemoration. The submission, including the photograph, was provided by the Secretary to the Authority as part of the material in the Secretary’s possession or control that was considered to be relevant to the review. The Authority did not consider whether or not the submission constituted “new information” and did not consider whether the conditions upon the consideration of new information set out in s 473DD of the Migration Act were satisfied. Nevertheless, the Authority considered the submission, including the photograph, and made a finding that the photograph was “staged in an attempt to strengthen [the appellant’s] protection claims”. The Authority did not invite the appellant to give comments on this matter pursuant to s 473DE.

99    In that case, the appellant contended that had the Authority correctly regarded the submission as containing “new information” and therefore contemplated the matters on which it was required to be satisfied under s 473DD, it is likely to have approached its consideration of the material differently. It was also said that the Authority was likely to have given the appellant the opportunity to comment under s 473DE before making an adverse credibility finding based on the photograph.

100    The Court, per Barker, Griffiths and Moshinsky JJ (at [4]), concluded that at least part of the submission constituted “new information” and that the Authority failed to comply with the requirements of s 473DD in relation to that information. Further, the Court considered the failure to comply with those requirements to be material for the reasons submitted by the appellant. The Court (at [45]) acknowledged that the appellant’s reliance on the Authority’s failure to comply with s 473DD may appear to be counter-intuitive in that the Authority did consider material that the appellant had provided and presumably wanted the Authority to take into account. The Court then found that, “at least in the circumstances of the present case, the failure of the Authority to address the conditions set out in s 473DD operated unfairly to the appellant”.

101    Clearly the relevant circumstance of that case referred to by the Court, as is apparent from the further discussion at [45], was the fact of the Authority reaching a credibility finding adverse to the appellant based on the photograph that had been submitted. That places that case in quite a different circumstance from the present case. There is no equivalent circumstance in the present case.

102    It can be difficult to identify a distinction between what is a submission about the facts and what is a new statement of fact and thus qualifies for characterisation as “new information”. That is made all the more difficult when the document that records the statements in question is not in the name of a witness to the facts, but is prepared by and in the name of someone clearly representing the appellant and making submissions on behalf of the appellant. The difficulty is compounded by the nature of the document in this case, namely that it is in the nature of, and called and referred to as, ‘submissions’.

103    That said, on close analysis there are some matters that might be regarded as “new information”. However, the Authority stated that it considered those matters, there is nothing to indicate that it did not consider them, and it did not rely on them in any way adverse to the appellant. The result is that even if any of the identified items of information is properly characterised as “new information” within the meaning of s 473DC(1), and thus should not have been considered by the Authority without the Authority first having been satisfied as to the matters identified in s 473DD, no unfairness to the appellant operated. Indeed, the Authority did exactly what the appellant wished it to do with the information, which was to consider it, and since that consideration was not adverse to the appellant there can have been no unfairness.

104    In the circumstances, ground 2 must fail.

Conclusion

105    For the above reasons, the appeal should be dismissed. There is no reason why the costs should not follow the event.

Associate:

Dated:    9 September 2019