Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 30 June 2020 be set aside and in lieu thereof, order that:

(a)    the application for judicial review to the Federal Circuit Court be dismissed;

(b)    the applicant pay the first respondent’s costs of the judicial review application, as agreed or taxed.

3.    The first respondent pay the appellant’s costs of the appeal save for the costs of and incidental to the interlocutory application to amend the grounds of appeal filed on 18 February 2021. Costs be fixed by way of a lump sum.

4.    On or before 5 May 2021, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the costs of the appeal.

5.    In the absence of any agreement in accordance with Order 4, the matter of an appropriate lump sum figure for the appellant’s costs be referred to a Registrar for determination.

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

ALLSOP CJ:

1    I have had the advantage of reading the reasons to be published of Justices Kerr and Mortimer. I agree with their Honours’ reasons and I agree with the orders proposed by their Honours. I only add the following.

2    The meaning of the word and phrase “information” and “new information” in different contexts throws up the subtlety involved in textual expression by the use of ordinary words, in particular when a choice is made by Parliament, as in Part 7AA, for a closely calibrated and confined process, strictly controlled by such words. It is perhaps not helpful to employ further concepts such as “subjective” or “objective” when attempting to give meaning to the word “information”. Different contexts and problems will throw up different insights into the application and subtlety of penumbral meaning of otherwise ordinary English words used to confine a process within strict limits, but nevertheless construct a process capable of being seen as fair: “efficient, quick and free of bias”. The cases in this Court concerning translations are an example of that subtlety: See for example ABJ17 v Minister for Immigration and Border Protection [2018] FCA 950; 260 FCR 295 (Bromwich J), DFS16 v Minister for Home Affairs [2019] FCA 944 (Kerr J) and BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 (Wigney J), which cases must now be examined in the light of DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 especially at [4]–[8].

3    The loss of the recording occurred before the delegate handed down reasons and the interview with the Immigration Assessment Authority occurred after the delegate’s decision. The information is new. It is a new expression or new communication of knowledge about facts, subjects or events and it is responsive to a new event in the loss of the recording, and it assists in remedying an informational gap. Parliament is not to be taken to have created a procedure whereby the character of “new information” is to be denied because it can be logically deduced (proof by comparative experience being impossible by reason of the loss of the recording) that some of the words used before the delegate will be repeated before the Authority or that most of the words used (as translated) by the applicant at the interview will be on the same subjects discussed earlier with the delegate. Such logical strictness (perhaps pedantry) is not demanded by the language of Part 7AA. The procedure under Part 7AA is supposed to be an efficient, but fair, way of reviewing material and information given to a delegate and available to the Secretary. Recognising the true nature of translation (DVO16 at [4]–[8]), and even assuming English may be the language of an applicant, to deny the ability to remedy an informational gap by denying the character of newness to an entirely fresh oral recounting of events on subjects, because there has been an earlier oral recounting about the same subjects (the record of which has been lost), and thereby create either procedural gridlock or an interference with or an undermining of fair efficacy of the procedure, is not demanded by the words of Part 7AA.

4    The concept of information as identified by the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at 228 [24] is sufficiently open to encompass the notion of the interview as a whole being “new information”. The interview is the communication of knowledge about particular facts, subjects and events. It is not possible to break down each aspect of the interview into respective individual pieces of information conveyed and analyse whether each individual piece is new or not. Such would be a process of likely complexity and incoherence. Parliament should not be taken to have required such a course.

Associate:

Dated:    21 April 2021

REASONS FOR JUDGMENT

KERR AND MORTIMER JJ:

INTRODUCTION

5    This appeal raises for consideration the lawfully available options for the Authority under Part 7AA of the Migration Act 1958 (Cth) in circumstances where key review material – an audio recording of an earlier interview with a visa applicant – is not produced by the Secretary to the responsible Department, pursuant to s 473CB of the Act.

6    The Federal Circuit Court upheld the first respondent’s judicial review application challenging how the Authority approached the absence of the audio recording of his interview with the Minister’s delegate. On this appeal, the Minister contends the Federal Circuit Court erred in its construction of the applicable provisions, and in its ultimate conclusion that the way the Authority dealt with the absence of the recording resulted in it exceeding its jurisdiction and failing to discharge its statutory task.

7    For the reasons set out below the Minister’s submissions should be accepted and the appeal will be allowed.

Background

8    Not without some doubt after a carefully explored and reasoned analysis, the first respondent was accepted by the Authority to be a citizen of Iran. He arrived in Australia on 20 January 2013 via boat from Indonesia, after travelling from Iran to the United Arab Emirates, and then to Indonesia. He was considered an “irregular maritime arrival” by Australian immigration authorities, which in substance resulted in him not being able to apply for any visa, including a protection visa, unless the Minister exercised a personal power allowing him to do so. This status also resulted in his protection visa application being progressed through the “fast track” review process under Part 7AA of the Act.

9    The chronology suggests the first respondent was not permitted to lodge a protection visa application for a long time. On 6 March 2017, the first respondent lodged a Safe Haven Enterprise Visa (SHEV) (Class XD, Subclass 785) application. The claims made by the first respondent for protection were summarised by the Authority and are extracted at [14] below.

10    On 31 July 2018, the first respondent attended a SHEV interview before a delegate of the Minister. It was the audio recording of this interview which was subsequently said not to be available to the Authority. There was no direct evidence of what happened to the recording before either the Federal Circuit Court or this Court. The only evidence was what was contained in the delegate’s decision:

Unfortunately, the audio recording of the SHEV interview conducted on 31 July 2018 has been corrupted due to a technical issue with an IC Recorder ICD-UX200F. A transcript of the interview based on contemporaneous notes taken during the interview is located in TRIM File CLF2016/6072 at CLD2018/40210905.

11    As the Authority itself correctly pointed out at [4] of its reasons, the document which the delegate referred to as a “transcript” was not a transcript. It was a pro forma typed document which was filled in by the delegate, and which also contained (as the Authority observed) the matters which the delegate had been instructed to read out to visa applicants. In some places the delegate’s notes are detailed, in others they record much shorter answers to questions.

12    On 22 August 2018, the first respondent was notified by the Department that his application for a SHEV was refused. On 18 September 2018, the delegate’s refusal was referred to the Authority pursuant to s 473CA of the Act. In written submissions to the Authority the first respondent’s migration agent highlighted the absence of the interview recording.

Noting the shortcomings regarding the record of the interview, the consequent issues of procedural fairness, and also what we submit are mis-directions on the part of the decision-maker, it would be best if the IAA either referred this matter back for a fresh interview, or called the applicant in for an interview to properly canvass his claims which were there but not considered.

13    On 6 December 2018, the Authority invited the first respondent to an interview, pursuant to s 473DC(3)(b). This provision assumes some significance in the appeal and we return to it below. The interview took place on 19 December 2018, and on 7 February 2019, the Authority notified the first respondent that it had affirmed the delegate’s refusal decision.

The Authority’s decision

14    The Authority summarised the first respondent’s protection claims as follows (at [6]):

He is a national of Iran, an ethnic Arab and a Shia Muslim. He fears that if he was forced to return to Iran he would be seriously harmed and punished because of his political opinion and his imputed political opinion and because of his close knowledge of Iran’s regime. He fears that he will be arrested, detained, physically abused, tortured and killed because the authorities will know that he has provided sensitive information to a western foreign government against Iran and has sought asylum, and spent significant time, in a Western country.

It has also been submitted that he is at risk as a member of the Arab minority in Iran who might be imputed as supporting other Arabs in Iran against the Iranian authorities, and that the applicant’s mental ill-health and vulnerability could render him more vulnerable to serious and significant harm, especially as it is likely that his symptoms will be exacerbated if returned to Iran, especially given that minorities who attempt to assert their political and cultural rights may draw the adverse attention of the Iranian authorities.

15    In large part, the Authority did not accept these claims. However, the Authority did accept (at [9]) that the first respondent is an ethnic Arab and a Shia Muslim. It explained its doubts about whether the first respondent remained a national of Iran, but ultimately accepted (at [14]) that this was the case. The Authority did not accept that the first respondent’s mental ill-health and vulnerability might have explained any weaknesses in his evidence, nor that these factors might render him more vulnerable to serious and significant harm if returned to Iran. It is unnecessary to set out the detail of the Authority’s reasoning on the first respondent’s claims as this aspect of its decision formed no part of the judicial review application, nor of this appeal. As the Federal Circuit Court found, there were some matters upon which the first respondent was not believed, so that it can be accepted the Authority’s findings did depend to some extent upon its assessment of the first respondent’s credibility.

16    The approach taken by the Authority to the missing interview recording is set out at [4] of its reasons:

Significantly, the 18 September 2018 submission to the IAA notes that the Department has been unable to provide an audio recording of the 31 July 2018 SHEV interview. It is also noted that the Department has, in lieu of this, provided a typed document labelled being an interview transcript, and it is argued that there are a number of problems with the so called interview transcript. I have examined this document. It contains a prepared statement of introduction along with notes about the applicant’s claims, some country information extracts, various extracts from Departmental records concerning the applicant, and also prepared questions for the applicant and the delegate’s notes as to at least some of the applicant’s response. It is not plain whether or not every question was asked, or whether everything the applicant said was noted down by the delegate, or that what was noted was noted verbatim. The document could thus be characterised as the delegate’s interview notes but it is not an interview transcript. Given this, I invited the applicant to attend an interview to provide information in regard to his SHEV application. The interview was conducted on 19 December 2018 and it concluded with the applicant indicating that he had said everything he wished to say, and that he also wished to provide some additional documentary evidence, and evidence of this kind was provided to the IAA on 27 December 2018. Without coming to a determinative conclusion as to the truth of the new information which the applicant provided at the 19 December 2018 IAA interview and the 27 December 2018 submission to the IAA, I am satisfied that is has satisfied s.473DD(b)(ii) with regard to this new information and, given that the Department is unable to provide an audio recording of, or a proper transcript for, the SHEV interview, that there are exceptional circumstances to justify the consideration of this new information. Moreover, given that the applicant has indicated that he does not wish to say anything more, and that he has not indicated that he wishes to provide any further information in support of his application, I consider that the applicant has been heard.

17    This paragraph is critical in the resolution of the appeal.

Relevant legislative provisions

18    The terms of the obligation imposed on the Secretary to the responsible Department are set out in s 473CB:

473CB Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

(iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

   (d)    the following details:

(i)    the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)    the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)    the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)    if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)    if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)     The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

19    The provision which sets out the primary manner in which the Authority is to conduct its review is s 473DB:

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)).

20    It will be noted that the limitations in s 473DB are expressed to be “subject to” the remainder of Part 7AA, which leaves some room for the Authority to “fashion its procedure” in a given review: see Plaintiff M174/2016 v Minister for Immigration and Border Protection and Another [2018] HCA 16; 264 CLR 217 at [49].

21    The Authority may depart from the instructions in s 473DB where the terms of s 473DC and s 473DD are met:

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.

Federal Circuit Court decision

22    On 5 March 2019, the first respondent filed his application for judicial review, with two amending applications subsequently being filed. In its reasons on 30 June 2020 for orders upholding the judicial review application, and after having set out some matters of background, the Federal Circuit Court identified (at [43]) three key issues it considered were raised by the application:

There are three central to the issues raised in this application:

a)    Is a record of interview with the delegate “review material” for the purposes of s.473CB?

b)    Could the Authority invite the applicant to an interview to remedy the situation of the missing record of interview? And

c)    Did the Authority fail to exercise its jurisdiction in not putting to the applicant during the interview matters that it was concerned about contrary to the findings of the delegate?

23    As to the first and second issues, the Federal Circuit Court found (at [56]-[61], [67]-[74]):

The Act does not contain any definition of “material”. As noted earlier, neither party took the Court to any authority which considered the meaning of “material” as used in s.473CB.

It is clear that the audio recording of the applicant’s interview with the delegate could not be “review material” within the meaning of s.473CB(1)(b). The recording itself was not provided by the applicant, it did not exist prior to the interview.

The recording was created during the interview process by the delegate (or at his request), and came to be “material” which was capable of meeting the definition in s.473CB(1)(c). The fact that the file containing the audio recording became corrupted, meant that the Secretary, at the time of the referral, no longer had the intact recording in its possession and as such it could not be provided to the Authority. This did not however, avail the Secretary of the responsibility of providing the information supplied by the applicant during that interview to the Authority.

The information provided by the applicant during the interview with the delegate, being the answers he provided to the questions which were asked of him together with other matters he raised, was however “review material” within the meaning of s.473CB(1)(b). It would be non-sensical to find otherwise.

The statutory scheme is very restrictive, and the Authority can only conduct a review on the papers. It is a hearing de novo without the benefit of an actual hearing. The Authority can only interview the applicant in very limited circumstances, namely, those relating to “new information”. It cannot, in the usual course, ask the applicant questions, it cannot cross-examine, it cannot test any of the evidence provided by the applicant. If the information provided by the applicant orally to the delegate during the interview is not available to the Authority, how can the Authority properly discharge its duty to review the delegate’s decision as it does not have before it all of the information which the delegate had?

Certainly, the Authority accepted that the recording should have formed part of the “review material” provided to it by the Secretary, which is why it tried to remedy the problem of the corrupted audio recording by interviewing the applicant.

…

In order to be considered, information is either contained in the “review material” or it is “new information” and the Authority is satisfied as to the requirements of s.473DD. The information which the applicant provided to the delegate during the interview could never be “new information” as it was, at the relevant time, before the Minister. Even if the information was not contained in a document (or recording or similar) it had still been provided to the Minister before the decision had been made and it had previously been known.

While the Authority purported to be satisfied that exceptional circumstances existed because the recording was not available, it did not turn its mind to the question of whether such information was “new information”. Had it done so, it is difficult to see how it could ever make a determination that such information was or was not before the Minister before the SHEV decision was made or whether it had been known or had it been known it may have affected the consideration of the applicant’s claims, for the simple reason that it did not have before it what was before the Minister in its entirety. While it did have the notes of the delegate, and references in the delegate’s reasons as to what the applicant had said, it did not have the entire record. This is what it was trying to obtain through the exercise of its discretion under s.473DC.

While this situation must have created a conundrum for the Authority, if the information was not “new information” it was not open to the Authority to exercise its discretion to get the information pursuant to s.473DC. Whether information is “new information” is a matter to be determined by having regard to the legislative provisions. “Review material” could never be “new information”.

Where reasons for a procedural decision are given, those reasons must be treated as the real reasons for the Authority’s decision in respect of the discretion under s.473DD.

The task for this Court is not to “consider whether the reasoning process of the Authority was one which would satisfy the Court.” Rather, it is a question of “whether the reasoning process displayed a misunderstanding of the nature and extent of the prohibition and the task of the Authority in forming the required state of satisfaction”.

There is nothing in the Authority’s reasons which indicates that it considered in any way whether it was satisfied as to the requirements of s.473DD(b), although it did consider whether there were “exceptional circumstances” as required by s.473DD(a). This is not surprising, as the Authority had no way of knowing whether what was said by the applicant during the interview with the Authority had already been information provided to the delegate.

Therefore, the Authority’s failure to mention or deal with these matters in its reasons leads the Court to infer that these matters had not actually been considered by the Authority.

Furthermore, the requirement of “exceptional circumstances” is a requirement only with respect to “new information”. The decision by the Authority that there were “exceptional circumstances” in the context of these facts was fraught with problems.

(Citations omitted.)

24    Commencing from [76] of its reasons, and referring to DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134 at [35]-[36] the Federal Circuit Court turned to the third issue it had identified. It found that while it was “well established” that a “failure on the part of the Authority to consider exercising its discretion in s 473DC may be legally unreasonable”, the difficulty in the present case was how putting such matters to the applicant during the interview and asking him for information could be “new information” and

how the Authority could satisfy itself as to the requirements of s.473DD even when exercising its discretion pursuant to s.473DC were not explained in submissions. That is, how could such information be “new information”?

25    At [78], the Federal Circuit Court found the Authority had invited the first respondent to an interview, in circumstances where

he was asked to provide any information he thought might be relevant. He was asked to provide information at large and he was also asked certain questions which he answered. However, it was done in the context of “…so those things have already been put forward in your statement. So what is it that you want to be heard about, that you have not yet been heard on?”

26    The Federal Circuit Court found at [79]:

This was not enough in light of the findings of the delegate when compared to the findings of the Authority, particularly in light of the unavailability of the record of interview before the delegate. Some of the matters in respect of which the applicant was asked questions might have been matters which had already been put to him by the delegate. Due to the lack of the record of interview, these things could not have been known by the Authority.

27    Therefore, while apparently not upholding the way the first respondent put the legal unreasonableness argument (because forensically it could not be established without the interview recording), the Federal Circuit Court did find the way the Authority approached its review to be legally unreasonable (at [89]):

Likewise, the failure by the Authority to afford the applicant a reasonable opportunity to be heard in the context of this particular case in respect of matters the Authority found against the applicant, was material in that it could realistically caused the Authority to come to a different decision had it not failed to do so. It was legally unreasonable for the Authority to act in the manner it did.

28    As we understand it, what the Federal Circuit Court is referring to in this passage is the fact that the Authority proceeded to conduct its review, at all, in the absence of the SHEV interview recording. The Federal Circuit Court concludes no lawful review could be conducted in these circumstances. So much is apparent from its earlier finding at [83]:

The failure by the Secretary to give to the Authority the transcript of interview, recording of interview or some other reliable record of the interview, that is, what the applicant said at the interview, was a failure to provide review material. Fault is irrelevant. The Authority’s conduct of a review, without having before it the review material, amounted to jurisdictional error in the circumstances. It is a failure which could not be remedied through the exercise of discretion under s.473DC.

29     At [84]-[88], the Federal Circuit Court explains why it considered these errors were “material” to the outcome of the review, and therefore jurisdictional in nature. Essentially that was because of the Authority’s focus on the first respondent’s credibility, including its adverse findings against him, and the importance of what he actually said in the SHEV interview to any such conclusions.

Grounds of appeal

30    The Minister relies on five grounds of appeal:

1.    The primary judge erred, at [83], in concluding that the non-provision by the Secretary to the second respondent of the transcript, recording or other reliable record of the first respondent’s interview with the first respondent’s delegate on 31 July 2018 was in the circumstances of this case a failure to provide review material under s 473CB(1) of the Migration Act 1958.

2.     The primary judge erred, at [83], in concluding that the second respondent’s conduct of the review, without having before it the review material in the form of a transcript, recording or other reliable record of the first respondent’s interview with the first respondent’s delegate on 31 July 2018, amounted in the circumstances to a jurisdictional error.

3.    Further, or in the alternative, to Grounds 1 and 2, even if the primary judge was correct to find that the Secretary breached the duty to provide the second respondent with the review material in this case, the primary judge erred in concluding that the breach was material to the outcome of the review and thus constituted a jurisdictional error.

4.    The primary judge erred in concluding that the second respondent acted in a legally unreasonable manner in failing to afford the first respondent a reasonable opportunity to be heard, and that the error was material to the outcome of the review.

5.    The primary judge erred:

a.     at [72], in finding that there was nothing in the reasons for decision of the second respondent to indicate that it considered in any way whether it was satisfied as to the requirements of s.473DD(b) of the Migration Act;

b.     at [73], in inferring that these matters had not actually been considered by the second respondent; and

c.     to the extent her Honour so held, in finding that the second respondent misconstrued or misapplied the requirements of s.473DD of the Migration Act in its application to information provided by the first respondent at the interview.

31    The fifth ground of appeal was added by an application for leave to amend the Minister’s notice of appeal shortly before the hearing of the appeal. The proposed notice of appeal was attached to the Minister’s reply submissions. The application was not opposed save as to the question of costs. We consider it is appropriate leave be granted, to ensure there is no uncertainty about what aspects of the Federal Circuit Court’s reasoning have been challenged by the Minister.

The parties’ appeal submission in summary

Grounds 1-3

32    These can conveniently be grouped together.

The Minister’s submissions

33    In oral submissions, the Minister described the correct approach to a circumstance where a recording of a previous interview was no longer available. Counsel did so while quite properly conceding that a recording of a previous interview with a visa applicant during which the visa applicant explains her or his claims, and the factual narrative which supports them, is likely always to be “relevant” to a review by the Authority under Part 7AA.

34    The correct approach is premised, the Minister contends, on Division 2 of Part 7AA being understood as distinguishing between the statutory concept of “review material” and the statutory concept of “information”, and on the further statutory concept of “new information” being understood in a relatively literal sense. We return to this contention below. Where a recording of an interview is not available to the Authority (whether having been lost, deleted or corrupted), or where for some different reason there is an “informational gap” in the review material as presented to the Authority by the Secretary, then the response to this “new event” that was not before the delegate, as counsel described it, will necessarily involve the Authority considering whether to get “new information”. That may be in the form of an interview conducted with the visa applicant, in which case all of what is said by the visa applicant at such an interview becomes “new information”.

35    The Minister submits that the Federal Circuit Court’s conclusion on this issue is founded on the suggestion that the information provided during the interview with the Authority may not have constituted “new information” for the purposes of ss 473DC and 473DD of the Act. The Minister contends this reasoning is unpersuasive. The Authority’s power to get new information allowed the Authority in this case to conduct an interview in order to obtain information from a visa applicant that it considered relevant to its review. This, the Minister contends, is part of the flexibility in its processes recognised by the High Court in Plaintiff M174 at [49] and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407 at [29].

36    Turning now to the way each ground of appeal is put, the first ground of appeal is framed by the Minister in the following way (at [16]):

The primary judge, correctly, accepted that a recording of the Delegate Interview would be material within the meaning of s 473CB(1)(c), but that the fact it had been corrupted meant that it was not in the “possession” of the Secretary and could not be provided to the Authority: J [58]. The unstated conclusion was that there was no failure to comply with s 473CB(1)(c). However, her Honour held that the information provided at the interview was nevertheless review material within the meaning of s 473CB(1)(b): J [59]. The failure to provide a “transcript of interview, recording of interview or some other reliable record of the interview” was a failure to provide “review material”: J [83].

37    The Minister submits that the ordinary meaning of the term “material” is a tangible physical item or thing, which is distinct from intangible “information” a distinction that is also made within the Act, for example ss 473CB, 360(2)(a), 473EA of the Act referring to “material” and ss 50, 53-50 of the Act referring to ‘information’. Contrary to the approach of the Federal Circuit Court, the word “material” needs to be construed consistently in s 473CB(1)(b) and in s 473CB(1)(c). Section 473CB(1)(b) should not be construed as imposing any duty on the Secretary to ensure there is a recording or transcript of a delegate interview because this would be inconsistent with those parts of the Act regulating the acquisition of information by delegates, such as s 56(2) and s 58. The Minister also contended the approach of the Federal Circuit Court could not be reconciled with other decisions of this Court which have found that there is no breach of s 473CB where a recording or transcript is unavailable or incomplete (albeit those cases appear to focus on compliance with s 473CB(1)(c)): BEL18 & Anor v Minister for Home Affairs & Anor [2018] FCA 2103 at [81]; DWA17 v Minister for Immigration and Border Protection and Another [2019] FCAFC 160; 272 FCR 152 at [51]-[52], and EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 174 at [56]-[57].

38    Accordingly, if there was no recording in the Secretary’s possession or control (as there was not, on the evidence), there was no contravention of s 473CB(1)(c), and para (b) was inapplicable. Separately, the Authority was correct that it could seek to “cure” the absence of a record of interview by inviting the visa applicant to an interview, pursuant to s 473DC(3) of the Act. If this power was exercised, then even if there had been a contravention of s 473CB(1)(c), the error was not material because the conduct of an interview by the Authority “cured” the absence of the recording of the delegate interview. That, the Minister contends, is why ground 2 should succeed, as the Federal Circuit Court erred in finding the conduct of an interview to be outside the jurisdiction of the Authority under Part 7AA. The Authority’s error could also not be material in the absence of any specific allegation by the first respondent about what was said in the delegate’s interview that he was not able to say in the Authority’s interview, this being the subject of ground 3.

The First Respondent

39    The first respondent makes joint submissions in relation to grounds 1-3 (at [22]-[27]). Notably, the first respondent draws the Court’s attention to ABT17 at [8], [11]-[12] per Kiefel CJ, Bell, Gageler and Keane JJ:

The purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is evidently to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and examines for itself the same information that was before the Minister and that was therefore available to be taken into account by the delegate when making the referred decision.

…

The Code of Procedure [in Subdivision AB of Division 3 of Part 2 of the Act] empowers the Minister or a delegate, “if he or she wants to”, to “get any information that he or she considers relevant” on the condition that, if he or she “gets such information he or she “must have regard to that Information in making the decision whether to grant or refuse the visa”. The Minister or delegate is specifically empowered to invite the applicant to give additional information in any of three ways: “In writing”, “at an interview between the applicant and an officer” or “by telephone”. If the applicant is invited to give additional information at an interview, there is no need for the officer who conducts the interview to be the delegate who is going to decide whether to grant or refuse the visa. Nor is there any need for the interview to be conducted in person. Nor does any statutory provision govern the form in which the interview might be recorded or transcribed.

Whatever the form in which any interview with a referred applicant conducted in accordance with the Code of Procedure might come to be recorded or transcribed, the record of the interview is material in the Secretary’s possession or control which the Secretary could not but consider relevant to the review. The record can therefore be expected to form part of the review material which the Secretary will be obliged to give to the Authority and which the Authority will be obliged to examine for itself.

40    The first respondent notes that all of the cases relied upon in the appellant’s submissions were heard prior to the High Court’s judgment in ABT17.

41    He contends that the legislature intended that there be a “reliable record of a referred applicant’s interview with the delegate” and that this formed part of the review material to be given to the Authority. What was intended to be before the Authority was the information the delegate had acted on, not simply physical documents or things. If that did not occur, s 473CB is contravened, and the Federal Circuit Court was correct to so find. The first respondent contended this approach was supported by the High Court’s reasons in ABT17. He submits the text of s 473CB supports his approach, in particular paragraph (d) which is plainly not limited to physical material or documents and is rather about “information”. The first respondent seeks to put to one side the apparently absolute nature of the Federal Circuit Court’s conclusion at [83] that the failure to provide the review material “could not be remedied through the exercise of discretion under s 473DC”. He submits that when the whole of the Federal Circuit Court’s reasons from [78]-[82] are considered, the Federal Circuit Court found that the interview in the present case, as conducted, could not remedy the contravention because there was no way of the Authority knowing what had been said to the delegate, and because the Authority sought to limit the topics the visa applicant could cover in the interview.

Ground 4

The Minister’s submissions

42    The Minister contends the Federal Circuit Court appears (at [89]) to have accepted the proposition that the Authority had unreasonably failed to give the first respondent the opportunity to address adverse issues that arose from his evidence given at the Authority Interview. The interview is not a “hearing” of the kind that is required in a “full” merits review situation such as s 425 of the Act, and therefore the principles in cases such as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26] are inapplicable. Rather, in the present case, the purpose of the interview was to obtain information that was not available to the Authority because of the unavailability of the recording of the delegate’s interview. For that reason, the terms of s 473DE of the Act were not engaged.

The First Respondent

43    The first respondent emphasised the limited nature of the interview by reference to what the Authority member said to the first respondent at the start of the interview:

“what it is that you want to be heard about, that you have not already been heard on”.

44    That meant the two matters identified by the Federal Circuit Court at [30]-[32] where the Authority took a different view to the delegate, were not matters the Authority explored with the first respondent in the interview. He was therefore not given the opportunity to present all of his claims at the Authority interview, and the Federal Circuit Court was correct to identify this (at [89]) as legally unreasonable when it was clear that the Authority made a series of adverse credibility findings against the first respondent (which the Federal Circuit Court described at [84]).

Ground 5

The Minister’s submissions

45    This ground appears to have been raised out of an abundance of caution by the Minister, responsively to the first respondent’s submissions, based on AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 384 ALR 196 at [11], that the Federal Circuit Court was correct to find (at [62]-[74]) that in deciding to conduct an interview the Authority had failed to form the requisite state of satisfaction about the matters contained in s 473DD(b), and the Minister has not challenged that finding.

46    The Minister contends this issue forms part of ground 2 (the interview ground), as it is part of the reasoning explaining how the Authority did or did not have power to invite the first respondent to an interview. Nevertheless, to avoid any uncertainty the Minister sought to press the challenge as a separate ground of appeal. He contended it was clear from [4] of its reasons that the Authority had formed the requisite state of satisfaction for the purposes of s 473DD(b) of the Act, and in any event the Authority is not required to give reasons for its procedural decisions, citing s 473EA and BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196 at [16].

The first respondent

47    Counsel addressed ground 5 during oral submissions. He submitted that the difficulty with [4] of the Authority’s reasons, which the Federal Circuit Court pointed out, was that the Authority did not identify what was the new information to be given in the interview and what was not. It could not validly form a state of satisfaction for the purposes of s 473DD(b) without doing so.

RESOLUTION

Grounds 1-3 and 5

48    Grounds 1 to 3, and ground 5, are susceptible to resolution together. They can all be addressed by accepting the Minister’s core submission that the appropriate way to characterise a situation such as the one faced by the Authority is that there has been a “new event” since the delegate’s decision, and the Authority must then decide how to deal with it, recognising there are limits to its processes under Part 7AA.

49    As the authorities now reveal, the factual circumstances of such events may be many and various. In EVS17 v Minister for Immigration and Border Protection and Another [2019] FCAFC 20; 268 FCR 299, the Secretary failed to provide medical documents to the Authority: that was held to be a jurisdictional error because provision of the documents could have resulted in the making of a different decision: at [42], [56]. In Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; 268 FCR 379, a priest’s letter was not provided to the Authority, in contravention of s 473CB and in circumstances where the Full Court upheld the determination of the Federal Circuit Court that on the balance of probabilities, the material could realistically have resulted in a different outcome: at [32]-[33], [38]. In EMS18, part of the recording of the visa applicant’s arrival or entry interview was said to be “not available” and therefore not given to the Authority. The Full Court held the appellant had not proven a contravention of s 473CB(1)(c), and even if he had done so, the absence of part of the recording did not deprive the appellant of the possibility of a different outcome on the review. In BEL18 there was a gap in the recording of the delegate interview, but the Court held there was no contravention of s 473CB(1), and no other kind of jurisdictional error in the Authority proceeding with an incomplete recording.

50    In explaining how the Authority might deal with such an event or circumstance, it is important to recall that even within the confines of Part 7AA, the Parliament has evinced an intention that the Authority act quickly and efficiently, but fairly: see EVS17 at [33].

51    Where a recording of an interview is not available to the Authority (whether having been lost, deleted or corrupted), or where for some different reason there is an “informational gap”, then the question for the Authority is whether it is necessary for the purposes of the lawful and not unreasonable discharge of its review task to remedy the “informational gap”, and if so how. Cases such as EMS18 demonstrate that it may be open to the Authority to conclude there is no need to exercise any power available to it: much will depend on the centrality of the “informational gap” to the particular review being undertaken by the Authority.

52    That this is the correct approach can be seen from the text, context and purpose of Part 7AA, and Division 3 in particular.

The text of Part 7AA makes it plain that Parliament uses “review material” and “information” as distinct terms

53    “Review material” is a defined term (see s 473BB), by reference to s 473CB of the Act. “Information” is not defined, although “new information” is, by reference to s 473DC(1) (see s 473BB).

54    Section 473CB does not use the term “information” at all. When the provision is describing what is encompassed by the term “review material”, it uses the terms “material” and “details”. In paragraph (a), it uses the term “statement”. Read as a whole, it is clear that this provision is dealing with the form in which information has come to be embodied or stored. This might be a physical document – a letter or a photograph, or a witness statement. Equally, it could be a digital file possessed of no tangible, physical existence, but stored in a way which will constitute a record. Of course, it can be said at a general or colloquial level that all such records will contain “information” in the sense of facts, knowledge and opinion but it is not the “information” that the Secretary is required to give to the Authority; it is the media or record in which that information is stored or located. We do not consider paragraph (d) suggests otherwise, contrary to the submissions of the first respondent. While that paragraph concerns “details” relating to the visa applicant, those are all details which are inherently susceptible to being stored in a written or digital form. Whether or not those “details” are conveyed to the Authority through a newly created record or document expressly for that purpose, or by sending copies of existing records, either way paragraph (d), and s 473CB as a whole are concerned with the sending of the equivalent of what might have in the past been described as a “file”, so that the Authority is not only able to conduct its review in the way Part 7AA requires, but is also able to contact the visa applicant. That this is the correct view is reinforced by the use of the concepts of “possession or control” in s 473CB(1)(c), which again indicates Parliament is intending to refer to information only in so far as is embodied in a form capable of being “given” to the Authority. While the term “review material” may not be confined to tangible “things”, we respectfully agree with the underlying logic of the approach taken both by Anderson J in BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 at [95] and Derrington J in AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 at [67]. This construction is supported by the plurality’s view in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 at [15] that:

Words spoken by the applicant during the interview, having no enduring physical existence, are not themselves within the category of “material provided by the referred applicant to the person making the decision before the decision was made”. Rather, the physical embodiment of the totality of the words spoken during the interview (by the applicant, the delegate and the interpreter) in the form of the recording of the interview is within the separate category of “other material that is in the Secretary’s possession or control.”

(Citations omitted.)

55    As the plurality in ABT17 recognise (at [8]) the purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and can examine for itself the same information that was before the Minister. That, at least, is intended by s 473DB(1), to be the primary method by which a review will be conducted.

56    Nevertheless, what constitutes “review material” has been held not to be confined to the “material” before the delegate. That would appear to be the additional purpose served by the phrase “any other material” in s 473CB(1)(c) of the Act. The High Court has held the phrase extends to material in the possession of the Secretary but, at the point of it being given to the Authority, not known to the applicant and not known to the delegate. The Secretary must consider that material to be “relevant” to the review. In Plaintiff M174 at [25], the plurality of the High Court said:

There is no inherent dichotomy between new information which meets the two conditions set out in s 473DC(1)(a) and (b) and review material which the Secretary is required to give the Authority under s 473CB. That is because review material is not limited to information that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa.

57    In those circumstances, the plurality explained at [27]:

Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.

58    In Plaintiff M174, although there was material obtained by a delegate which the visa applicant was not given an opportunity to deal with before the delegate’s refusal decision, and although that material was sent by the Secretary to the Authority, the plurality held it was open to the Authority to decide, conformably with Part 7AA that there were no exceptional circumstances justifying the receipt of what the visa applicant put forward as supplementary or answering information.

59    Their Honours’ observations recognise another category of material, known and defined because it exists in some recorded or documented form, which might be necessary for the Authority to be given for the purposes of its review. Like the other categories, the plurality’s observations recognise that the review materials which must be given by the Secretary to the Authority will “contain” information. But nothing in those passages suggests the plurality was equating the term “review material” with the underlying facts, knowledge or opinions that might be contained in the departmental records. Rather, the plurality was describing the transmission of the departmental records as “material”, subject to the condition that the Secretary formed an opinion, reasonably and rationally, that those were records that were relevant to the review to be conducted by the Authority. The premise is that there are records which can be readily and specifically identified: see the description of the Secretary’s task in CNY17 v Minister for Immigration and Border Protection & Anor [2019] HCA 50; 375 ALR 47 at [6], Kiefel and Gageler JJ (in dissent on the outcome, but not in this particular respect).

60    In contrast “information” is used in Part 7AA in a deliberately open-ended context. The boundaries of the “information” are not known. That is because it is “new” – that is, “new” to the consideration of the visa application, although it need not be chronologically “new”, as the definition in s 473DC makes plain. It is also not a term used in Part 7AA without adjectival qualification: mostly the qualification is the statutory term “new information”, but at least once it is a differently defined statutory term “non-disclosable information” (see s 473DE(3)(b)). The term “information” is also the term used in respect of the delegate’s decision making: see ss 54-56, and also s 57 which uses the term “relevant information”. For example, s 56 provides:

56 Further information may be sought

(1)    In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

(2)    Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

61    In all these provisions, the term “information” is used in this open-ended way – facts, knowledge or opinions that might be given to a delegate for the purposes of the delegate deciding whether or not to grant a visa. With the extra layer of qualification imposed by the precise terms of s 473DC(1)(a) and (b), that is the same sense in which the term is used in Part 7AA. It is not used to refer to a closed category of facts, knowledge and opinion employed on a previous occasion to make a previous decision about whether or not to grant a visa, or otherwise in the possession or control of the Secretary. The term “review material” is used in that closed sense.

62    This is consistent with the construction given in Plaintiff M174 at [24] to the phrase “new information”:

The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as concerned with “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).

63    Of course s 473DC(1)(a) and (b) qualify what might otherwise be considered “new information”. Paragraph (a) reinforces the distinction between “information” and “review material”. Paragraph (b) emphasises the responsibility given to the Authority to make up its own mind about what additional facts, knowledge or opinion it should, acting reasonably, consider in the review. It must do so conscious of its primary task under s 473DB(1) to perform its review in the ordinary course without new information.

The purpose of the concept of “new information”

64    In ABT17, the High Court was considering how what the majority described as the “reasonableness condition” on the Authority’s powers under Part 7AA, in particular the power to invite a referred applicant to an interview, could compel the Authority to exercise that power. The majority concluded it could, and in the appeal before it, it did: at [4]. In reaching this conclusion the plurality explained the purpose of s 473CB in the following terms (at [8]):

The purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is evidently to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and examines for itself the same information that was before the Minister and that was therefore available to be taken into account by the delegate when making the referred decision.

65    This is consistent with the approach we have taken above to the construction of the term “review material”. Noting at [11] the absence from the scheme of Division 2 of Part 2 of any prescription as to the form in which a delegate may record additional information acquired from a visa applicant, the plurality said at [13]:

However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview – his or her demeanour.

66    Emphasising the potential of such an “informational gap” to affect the assessment by the Authority of a referred applicant’s credibility because of the inability to observe demeanour, the majority held (at [16]) that the Authority could “bridge” this gap by exercising its powers under s 473DC(3) to invite the referred applicant to an interview. Therefore, the plurality reasoned:

The Authority’s own visual impression of the referred applicant’s appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority’s assessment of the referred applicant’s credibility and which was not before the Minister when the delegate made the referred decision. The new information so got by the Authority would then meet the preconditions to its consideration by the Authority on the basis that it was not and could not have been before the Minister when the delegate made the referred decision and on the basis of the Authority’s satisfaction that the existence of any informational gap is sufficiently aberrant within the scheme of de novo review for which Pt 7AA provides to make existence of the informational gap in the particular review alone enough to constitute “exceptional circumstances” justifying its consideration irrespective of how frequently such an informational gap might arise in practice.

67    The approach taken in ABT17 indicates the concept of “new information” is to be construed relatively literally. The way a narrative told to the delegate is told to the Authority can be “new information”. The reality that topics within the narrative may have been related to the delegate, albeit likely using different words, will not prevent the telling of the narrative to a new decision maker in circumstances where the new decision maker can see and hear a person, being “new information”. As a whole and as the Minister submitted, the interview is a new event, something brought into existence after the delegate’s decision. Insofar as the Federal Circuit Court in this proceeding found at [67] that the “information” provided to the delegate “could never be” new information, this finding was in error because it represents, with respect, a misunderstanding of the statutory concept of “new information”.

BVC20

68    In BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 the Court was concerned with a situation where a visa applicant had shown the delegate a digital photograph (on his phone) of a scar on his hand, for the purpose of distinguishing it from what he claimed was an older scar, suffered in an attack on him by “morality police” in Iran. Although he had been asked to, the visa applicant had not sent the delegate a print of the photograph. Therefore, one of the issues before the Court was whether there was a contravention of s 473CB(1)(b), because the showing of the image to the delegate was alleged to be “material” given to the delegate by the visa applicant but not provided to the Authority. The Court considered the issues were threefold (at [62]):

The question whether there was, in the circumstances, a breach of subs 473CB(1) appears to hinge on the answer to three questions: first, was the digital image that the appellant showed to the delegate during the interview “material”; second, if so, was it “provided” to the delegate; and third, does it matter that a copy of the image was not in the Secretary’s possession or control at the time of the Secretary’s purported compliance with subs 473CB(1)?

69    At [67], his Honour held that

Of course a digital image, as distinct from the device on which the image is stored, is less tangible than a hard copy or print of a photograph. It does not follow, however, that a digital image cannot be “material” for the purposes of s 473CB.

70    To that point, we respectfully agree. The medium in which information is stored does not need to be a “hard copy” medium. Information could be stored only in digital form. That is, relevantly, the case with recordings of interviews. It could well be the case with material sent by email to a delegate.

71    His Honour then said (at [68]):

It is true that, considered in context, “material” must be something that the Secretary can subsequently “give” to the Authority. It does not follow, however, that it must be a tangible document or thing. Information provided by an applicant orally during an interview, for example, is not a tangible item or thing. It would, however, plainly be “material” for the purposes of s 473CB. It is no doubt for that reason that interviews are recorded and the Authority would in the ordinary course be provided with a transcript or perhaps sound recording of the interview.

(Emphasis added).

72    There are aspects of this passage which may not fit entirely neatly with the approach we have taken. But that is because of the presently unexamined issue about the circumstances in which a delegate may be obliged, or required, to create a permanent record of information given to the delegate by a visa applicant – whether that be because the delegate has been shown a digital photograph without being given a hard copy (BVC20) or because of the need to record what a visa applicant says in an interview (this appeal). As we explain below, such an obligation may well be implicit in the scheme of Part 2 Division 3, and also implicit in the “review on the papers” mechanism created by Part 7AA. If it is, then there is no inconsistency of outcome between the approach in BVC20 and the approach we have taken on this appeal.

73    In BVC20, the Court then went on to find (at [69]-[79]) that the visa applicant had “provided” the digital photograph to the delegate, by showing it to her. His Honour observed at [82]-[83]:

It may readily be accepted that the fact that the appellant did not, after the interview, submit a copy of the photograph as he was in effect invited to do, meant that it was difficult for the Secretary to comply with subs 473CB(1) of the Migration Act. The problem for the Secretary was that a copy of the photograph was not in the Secretary’s possession or control. That problem was not necessarily the appellant’s fault. The problem was as much the product of the fact that the delegate did not take appropriate steps to ensure that a record or copy was made and retained of all the material that was provided by the appellant during the interview. That was the delegate’s responsibility.

In any event, and perhaps more fundamentally, the existence of the problem did not absolve the Secretary of the need to comply with subs 473CB(1)(b). It may be noted, in that regard, that unlike subs 473CB(1)(c), material that falls within subs 473CB(1)(b) must be given to the Authority even if it is not in the Secretary’s possession or control. In other words, the fact that the Secretary did not have all of the material that had been provided by the appellant to the delegate was the Secretary’s problem, not the appellant’s problem. It could not be ignored, as it appears it effectively was. There is certainly no evidence to suggest that the Secretary did anything to address the problem.

(Emphasis added.)

74    This led his Honour to find s 473CB(1)(b) had been breached (at [84]) but the breach was not material (at [111]). His Honour also suggested what might be described as a “workaround” to the apparent difficulty of the Secretary being found to be obliged to give the Authority something the Secretary did not have. At [102]-[103]:

One could be forgiven for thinking that it is somewhat absurd that, in the particular circumstances of this case, the Authority was in effect precluded by s 473DC or s 473DD from either getting or considering a document or information which was before the delegate whose decision the Authority was reviewing, but which it did not have in the review material. That is particularly the case given that the statutory scheme under Pt 7AA is clearly premised on the Authority having all of the material that was before the original decision-maker.

The solution to that seemingly absurd conundrum is, however, rather simple. Once the Authority realised that it did not have the photograph, the appropriate course for it to have taken was not to seek to exercise its discretion under subs 473DC(1). It was, rather, to simply ask the Secretary to provide it with a copy of the photograph, given that it was part of the review material that should have been sent to the Authority pursuant to s 473CB. While the Secretary may not have had a copy of that document, it would have been a relatively simple step to contact the appellant to ensure that a copy could be provided. There is nothing to suggest that the Authority gave any thought to the fact that it had not been sent the photograph as part of the review material, let alone how that issue was able to be resolved. Had it done so, it is far less likely that its decision would have been the subject of review proceedings in the Circuit Court.

75    It is not necessary to express a view about this proposed workaround. It may well be that the better approach, as the Court in BCV20 reasoned in the passage we have highlighted in bold at [73] above, is to see the delegate as having a responsibility to ensure that he or she maintains a proper record of what is given to him or her by a visa applicant in support of their visa application, taking into account the visa applicant’s right in s 55(1) of the Act. If no record is made, or an incomplete or inaccurate record is created, then on any review this may lead to a contravention of s 473BC(1), depending on the facts. In BVC20 the Court held there was a contravention on the facts before it. It is not possible to be prescriptive about what might constitute a “proper” or “adequate” or “complete” record, because of the variety of factual circumstances which may arise at the delegate stage, especially in the context of interviews with visa applicants, or people who become visa applicants. What is more critical is that any failure to maintain adequate and complete records by a delegate may lead to an “informational gap” in the review material before the Authority. In such circumstances, the Authority will need to determine, in accordance with Part 7AA but also in a way which is rational and legally reasonable, what to do about such an “informational gap”.

The “informational gap” and the interview power

76    The open-ended nature of “new information”, compared to the closed category of “review material”, together with the Authority’s function to review the delegate’s decision for itself afresh, on the merits, means that it is not possible to be prescriptive about the kinds of circumstances in which an “informational gap” may arise in a review before the Authority.

77    It will be for the Authority itself to determine the significance of any such gap to the conduct of its review, acting reasonably and rationally, as it must. The Authority itself can also determine the form in which it may consider filling any informational gap – it may ask for further information in writing. It may conduct a telephone interview. It may interview a visa applicant in person: see s 473DC(3). Again, much will depend on the facts and circumstances, and the Authority’s perspective of what is significant for, and relevant to, its review.

78    Where the majority in ABT17 says at [7], referring to CNY17, that the Authority’s task is to “consider” the review material provided to it by the Secretary, it explains this means the Authority must

“examine the review material... to form and act on its own assessment of the relevance of that material to the review of the referred decision”

79    Where material which ordinarily would be provided, and would be relevant, is missing from the review material, it will be consistent with this characterisation of the Authority’s task that it will need to assess the likely importance of the missing material to its task, and what should be done about the fact of missing material. In some circumstances, it may not need to do anything: see EMS18 at [67]-[70].

80    If the Authority determines there is an “informational gap” which needs to be filled in order for it to conduct its review lawfully, then the reality that an interview may involve a visa applicant giving a narrative which overlaps with aspects of what she or he told a delegate, will not prevent the exercise of the interview power. The words spoken to the Authority, the demeanour and reactions of a visa applicant, these are all capable of rendering the interview as a whole, “new information”.

81    Since there was no excess of jurisdiction in the approach taken by the Authority, it is not necessary to address in detail the argument of the first respondent that there is an implied power in Part 7AA for the Authority to invite a referred applicant to an interview. Suffice to say that it is difficult to see into which part of Part 7AA such a power could be implied, and second, how any such implication could be compatible or consistent with ss 473DA-473DF in Part 7AA of the Act.

Application to the facts

82    The delegate did not purport to rely on the recording in making her decision. Rather, as the extract at [10] above suggests, the delegate relied on the notes she had taken, although of course she did in fact hear and see the first respondent and so would not have been entirely reliant on written notes. In contrast, that was all the Authority was given under s 473CB.

83    There was no real dispute that the interview recording was, in fact, not given to the Authority, because both the delegate and the Authority treated whatever recording did exist as “corrupted”. No evidence was available to the Federal Circuit Court, or to this Court, about what was meant by the statement the recording was “corrupted”, and whether the “corruption” affected all or part of the recording. However, nor was there any challenge by the first respondent to the factual statements to this effect in the delegate’s reasons. Rather, the approach taken by the first respondent before the Authority (and indeed accepted by the Authority) was to seek a practical remedy by way of another interview.

84    A corrupted recording would not, in our opinion, properly be considered as falling within the statutory concept of “review material”. It would not accurately and completely reflect the information given by the visa applicant at an interview conducted under s 58 of the Act. That appears to be the approach taken by the Secretary, and not disputed by the first respondent’s legal representatives before the Authority.

85    Therefore, in our opinion there was no contravention of s 473CB of the Act in the Secretary not forwarding to the Authority the corrupted recording. To the extent the Federal Circuit Court held at [58] that there was such a contravention, it was in error.

86    The real issue is whether the Authority was acting within its jurisdiction in conducting the interview with the first respondent. In our opinion, for the reasons we have given above, it was. There was an “informational gap” in the review being conducted by the Authority – the first respondent was contending he had said a number of things to the delegate, but since there was no recording, this could not be verified. The first respondent’s representative asked the Authority to remedy the situation by conducting an interview. The Authority, for itself, considered the informational gap was significant enough for this to occur. It explained its reasoning in [4] of its decision and there is no error in its explanation. The Authority was concerned that not everything the first respondent had said had been captured in the delegate’s notes.

87    The Authority expressed its satisfaction as to the matters in s 473DD(b)(ii), properly making it clear that this factor does not involve an inquiry as to truth, but as to “credibility”: see CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [40]-[43]; BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24 at [55]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [62], [75]-[77]. The Authority then explained why it was satisfied the circumstances were exceptional – namely the absence of the interview recording. That circumstance was well open to characterisation as “exceptional”. We reject the first respondent’s contentions that this reasoning is insufficient or inadequate, and insofar as the Federal Circuit Court found (at [72]) there was no such reasoning, it was incorrect.

This approach conforms to the principles in ABT17

88    This approach is consistent with what was said by the majority in ABT17. What the Authority did on the first respondent’s review is what might be expected of the Authority, acting reasonably. The plurality in ABT17 emphasised (at [19]) that the implied condition of reasonableness is not confined to why a statutory decision is made, but extends to how it is made. In other words, the process adopted by a decision maker in reaching her or his decision is also conditioned by the duty to act reasonably, so that if it can be said that the process adopted is “so devoid of plausible justification that no reasonable person could have taken that course”, then the ultimate exercise of power will be legally unreasonable. The plurality concluded at [24]-[25]:

The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.

However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.

89    Here, the absence of the recording of the interview with the delegate was in the Authority’s opinion a “good reason” to invite the first respondent to an interview. That opinion was one formed within jurisdiction.

90    Grounds 1-3 should be upheld. Ground 5 can be resolved in the way the Minister submits: see [45]-[46] above. We have rejected the first respondent’s contention that [4] of the Authority’s reasons does not reveal consideration of the matters in s 473DD(b) of the Act.

Ground 4

91    It is necessary to determine ground 4 separately, but in our opinion this ground should also be upheld.

92    The Federal Circuit Court erred in its finding at [79] when it described the Authority’s statement (“so what is it that you want to be heard about, that you have not yet been heard on”) as “not enough”. That description does not fairly reflect the whole of the interview conducted by the Authority. As the Minister submitted, in substance the interview conducted by the Authority was not one involving any limitation on what the first respondent could narrate, nor the topics he could cover.

93    The transcript of the interview conducted by the Authority was before the Federal Circuit Court, and it was before this Court on appeal. It is true that the Authority member commences the interview with a series of statements about the constraints on the Authority receiving information that is outside the review material. However, having done that, the Authority member then asks the first respondent:

[I]n your submission to the [Authority] ah you have requested an opportunity to be heard. You are now being provided with that opportunity. Umm what would you like to say?

94    This open ended question produces, as one might expect, the start of a narrative by the first respondent about the basis for his fear of persecution in Iran. The Authority member then stops him, after he has given quite a long answer and states

Okay. Just a second. I just want to ask. Because you seem to be broadly repeating the information that you provided in your statement that was included in your protection visa application.

95    After extracting the first respondent’s agreement to this proposition, the Authority member continues:

So the impression I, I, I had from the submission that was made to the [Authority] was that you had felt there were things that you had not yet had the opportunity to say. Okay so those things have already been put forward in your statement. So what is it that you want to be heard about, that you have not yet been heard on?

96    The first respondent then responds by describing, in his words, “the issues that have not been mentioned”. After some exchanges about the need for the first respondent to break his answers up for the interpreter, what then occurs is, in substance, that the first respondent is able to embark on a narrative of why he fears persecution in Iran, which would seem to be the matters he felt had not been “mentioned” to the delegate. The Authority member occasionally interrupts with questions about dates, or seeking further details, with questions such as

Mmm hmm. And how did you meet this person specifically? In, in detail, tell me exactly how it happened?

97    The first respondent then gives his answer to such questions. The Authority member continues to direct the narrative by targeted questions, but on any view the questions range over matters which are likely to have been recounted in some form to the delegate. There are no “new claims”; rather the first respondent is explaining his existing claims in response to the questions asked. The responses are, we infer, differently worded, and differently emphasised, and are likely to contain different details, because a different person is asking the questions and this person clearly has a number of matters on which he wishes to focus. In that sense, the answers given by the first respondent throughout this interview are, as the Minister accepted, “new information”.

98    The interview continues in this fashion. There is no occasion on which the Authority member stops the first respondent by reference to the new information provisions. Indeed in places the Authority member presses the first respondent for details:

What issues? Too vague, it’s too vague. You need to tell me what specifically the issues were. And this is your last chance to respond to that question. It’s the third off question, third time, last chance.

99    There are other occasions when the Authority member squarely put his difficulties with aspects of the first respondent’s narrative to him:

Okay. Now here’s the problem Mr [redacted]. The only evidence I have before me of your Iranian umm nationality is all old evidence. I don’t have any evidence to show that you were an Iranian national after two thousand and nine (2009). Okay. So...the problem with that is that it raises the question of whether you may have never been issued ah an Iranian national identity card after July two thousand and nine (2009) because after that time you were no longer an Iranian national.

100    This particular statement appears approximately 20 pages after the substantive interview commenced. The first respondent’s representative asks for an opportunity to “canvass this issue” with his client, and the Authority grants that opportunity, and breaks off the interview for around 10 minutes. A few pages later the Authority member asks:

Was there anything either you or your representative would like to say about that specific matter before I move on?

101    These are open-ended, inquisitorial questions. The interview continues for another 16 pages in this question and answer format, ranging over wide subject matter. It includes the Authority member asking the first respondent about earlier statements:

Okay. Alright. So in your statement in your T-P-V application, the first time you mention being in court you talk about how you were, ah you came into trouble with the police as a consequence of being a currency trader without a licence.

102    On at least three occasions, the Authority member asks the first respondent questions in the form of “is there anything else you want to say about that?”.

103    Then the Authority member informs the first respondent that he has completed all the questions he had, and invites the first respondent and his representative to say anything further, offering them a 10 minute break to discuss what else they might like to say, and what submissions they may wish to make. When they return, the representative states:

I’ve canvased with Mr [redacted] whether he wishes to say anything further, at this stage he’s indicated that he doesn’t want to say anything further.

104    The representative expresses his gratitude to the Authority member for conducting the interview, makes some short submissions and asks for an opportunity to put further documents before the Authority. The Authority member agrees not to make a decision for seven days to give the first respondent the opportunity to submit documents, but reminds the representative about the new information provisions. After further formalities and pleasantries, the interview concludes.

105    The interview conducted by the Authority was comprehensive and wide ranging. It was a new event, so that there was no need for a comparison with what occurred before the delegate, before the Authority could be satisfied it was obtaining “new information”, if this is what the Federal Circuit Court meant at [79] by “not enough”. Alternatively, if what the Authority meant by this description was that the interview was constrained by its comment “So what is it that you want to be hear about, that you have not yet been heard on?”, then the examination of the content of the interview above demonstrates no constraint was imposed. Either way, the finding in [79] is erroneous.

106    Further, the Federal Circuit Court’s description (at [89]) of what the Authority did as a legally unreasonable “failure to give the first respondent the opportunity to be heard” cannot be sustained on a close consideration of the content and conduct of the interview.

107    In these circumstances, it is not necessary to determine the correctness of the Minister’s submission that there is a qualitative and legal difference between an “interview” in Part 7AA and a “hearing” in Part 7.

The errors in the Federal Circuit Court’s reasons

108    Replete as it is with artificially defined concepts and constraints on the Authority’s review power, Part 7AA and Division 3 in particular are challenging provisions to construe. In the unusual circumstances presented to the Federal Circuit Court, there should be no criticism of the Federal Circuit Court in its attempts to reconcile how those provisions are intended to operate.

109    Nevertheless, we have concluded that the Federal Circuit Court’s reasoning was affected by error. Those errors lie principally in its construction of what constitutes “new information”, of the operation of s 473CB(1)(b) in relation to the interview power in s 473DC(3), and also in a misunderstanding that the approach taken by the Authority was not open to it. We have identified at [67], [85], [87], [92], [105], [106] above where those major errors appear in its reasoning. The overall conclusion of the Federal Circuit Court that the Authority’s decision was affected by jurisdictional error is also incorrect. The Authority acted within jurisdiction, and indeed sought to ensure that the “informational gap” caused by the corruption of the interview recording was remedied, and remedied fairly for the referred applicant.

Conclusion

110    The appeal must be allowed, and the decision of the Federal Circuit Court set aside.

111    The first respondent submitted there should be no order as to the costs of the interlocutory application to amend the notice of appeal. We agree with that submission. The Minister sought to add a fifth ground of appeal responsively to the first respondent’s submissions, and out of an abundance of caution. That ground has in substance succeeded as it is connected to ground 2, the interview ground. However, it was added very late and the first respondent’s counsel was left to deal with the matter in oral submissions. In those circumstances it is not appropriate the Minister recover any costs of the interlocutory application additional to the costs in the appeal itself.

112    As to the costs of the appeal, neither party sought to contend the Court should depart from the usual approach to costs on an appeal. Accordingly, there will be orders that the first respondent pay the Minister’s costs of the appeal, to be fixed by way of an agreed lump sum, and in the absence of any agreement, the question of an appropriate lump sum to be referred to a Registrar for determination.

Associate:

Dated:    21 April 2021