FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    Order 1 of the orders of the Federal Circuit Court made on 13 September 2017 is set aside.

2.    The decision of the Immigration Assessment Authority made on 13 September 2016 affirming the decision not to grant the appellant a Safe Haven Enterprise visa is set aside.

3.    The matter the subject of the decision is remitted to the Immigration Assessment Authority for reconsideration in accordance with the law.

4.    Subject to the filing of any submission on or before 18 April 2018 opposing the making of this order:

(a)    the first respondent pay the appellant’s cost of the appeal; and

(b)    order 2 of the orders of the Federal Circuit Court made on 13 September 2017 is set aside.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The appellant is a citizen of Pakistan who lodged an application for a Safe Haven Enterprise visa (“visa”) on 23 April 2016. By this appeal, the appellant seeks to set aside the judgment of the Federal Circuit Court of Australia delivered on 13 September 2017 and published as CSR16 v Minister for Immigration [2017] FCCA 2222. By that decision, the primary judge rejected the appellant’s application for judicial review of a decision made by the Immigration Assessment Authority (“Authority”) to affirm a decision of a delegate of the first respondent (“Minister”) not to grant the appellant the visa.

2    Relevantly, the primary judge found that jurisdictional error had not been established in relation to the following three aspects of the decision of the Authority which were challenged by the appellant’s application for judicial review:

(1)    the primary judge found that there was no legal unreasonableness in the Authority’s decision to not disclose any matter contained in a document or information the subject of a certificate issued under s 473GB of the Migration Act 1958 (Cth) (“Act”);

(2)    the primary judge rejected the appellant’s contention that the Authority had misconstrued s 473DD(b) dealing with “new information”; and

(3)    in relation to the Authority’s rejection of the appellant’s claim that he had been shot in August 2008, the primary judge rejected the contention that the Authority’s reliance upon what was said by the appellant in an entry interview demonstrated jurisdictional error.

3    The failure of the primary judge to find jurisdictional error in relation to each of the matters just identified constitute, respectively, grounds 1, 2 and 3 of the appellant’s grounds of appeal. The appellant seeks to agitate a further ground (ground 4) the subject of which bears some relationship to that of ground 3.

4    The relevant background facts and procedural history are not in dispute and have been helpfully set out in the appellant’s outline of submissions which, with minor amendments, are adopted in what follows.

Background facts and procedural history

5    The appellant arrived in Australia by boat as an irregular maritime arrival on 25 March 2013.

6    On 24 May 2013, the appellant was interviewed by an officer of the Department of Immigration and Citizenship (as it then was) (“Department”) at an immigration detention centre in Darwin (“entry interview”).

7    On 6 November 2015, the appellant was invited by the Minister to make an application for the visa and he did, first on 20 November 2015, and again (having withdrawn his first application), on 23 April 2016.

8    The appellant made claims in his application for the visa that he feared being subjected to serious harm, including death, from the Muttahida Qaumi Movement (“MQM”). In particular, the appellant claimed that on the evening of 29 August 2008, whilst on his way from the local shop, he was shot in both legs by a person who worked in the MQM office. In support of this claim, the appellant produced a translated “first information report” (“FIR”), said to relate to, and provide details of, the shooting incident. The appellant claimed to have reported the shooting to the police and to have received threats from MQM supporters to withdraw the FIR and told that he would be seen as a supporter of the Awami National Party (“ANP”) if he did not.

9    The appellant also claimed that his father had received similar threats. It was these threats and the perception attached to the appellant that he was a supporter of ANP (including because he lived in proximity to an ANP office), that the appellant claimed caused him to first relocate within Pakistan, to Kemari, and then, in January 2013, to flee Pakistan.

10    On 28 April 2016, the appellant attended an interview with an officer of the Department (“interview”). The interviewing officer was not the Minister’s delegate who ultimately determined the visa application.

11    By a decision dated 11 July 2016, a delegate of the Minister found that the appellant was not a person to whom Australia owed protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act and refused to grant the visa to the appellant. The delegate rejected the appellant’s claims to satisfy s 36(2) of the Act principally because of the adverse view the delegate formed of the appellant’s credibility. In particular, the delegate considered that the appellant’s failure to raise certain of his claims during the course of the entry interview (concerning his ethnicity, his relocation to Kemari in 2010, and the shooting incident in August 2008) seriously undermined the appellant’s credibility.

12    On 12 July 2016, the Minister’s delegate issued a certificate under s 473GB(5) of the Act, notifying the Authority that ss 473GB(3) and (4) of the Act applied to a document or information in a specific document because the document or information was given to the Minister, or to an officer of the Department, in confidence.

13    On 13 July 2016, the Minister referred the delegate’s decision to the Authority for review and, pursuant to its obligation under s 473CB(1) of the Act, the Secretary of the Department gave to the Authority “review material” in respect of the delegate’s decision.

14    On 17 August 2016, the appellant’s representative provided the Authority with a written statement in support of the appellant’s review application, and a statutory declaration made by the appellant on 16 August 2016. The representative contended that the material did not constitute “new information” for the purposes of s 473DD of the Act, or alternatively, if the material did constitute “new information”, it could be considered by the Authority because the criteria in ss 473DD(a) and (b) were relevantly satisfied.

15    On 31 August 2016, the appellant’s representative made a further written submission in support of the appellant’s review application. The representative submitted that the submission constituted “new information” for the purposes of s 473DD of the Act but that it ought to be considered by the Authority because the criteria in ss 473DD(a) and (b) were relevantly satisfied.

16    On 13 September 2016, the Authority determined to affirm the decision of the delegate not to grant the visa.

ground 1

17    Ground 1 is in the following terms:

The learned Federal Circuit Court Judge erred by not finding that the Authority's exercise of its discretion as to whether to disclose to, or withhold from, the Applicant documents and/or information (or material derived therefrom) the subject of a certificate issued in purported compliance with s 473GB(5) of the Act on 12 July 2016 (certificate), as contemplated by s 473GB(3)(b) of the Act, was unreasonable as to the outcome of its exercise, in circumstances where the Authority had not disclosed to the Applicant the existence of and identity of the certificate.

18    Section 473GB, to which ground 1 refers, is in the following terms:

Immigration Assessment Authority's discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:

(a)    must notify the Authority in writing that this section applies in relation to the document or information; and

(b)    may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:

(a)    may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.

(4)    If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.

(5)    The Minister may issue a written certificate for the purposes of subsection (1).

19    Although not expressly recorded in the Authority’s reasons, it is not in contest that, first, the Authority had documents and/or information the subject of a certificate issued by the Minister pursuant to s 473GB(5) (“certificate”) and second, the content of those documents and/or information was taken into account in the Authority’s review. Nor is it contentious that the Authority did not disclose to the appellant the existence of the certificate issued by the Minister. Whether the Authority turned its mind to the exercise of the discretion given to it under s 473GB(3)(b), to disclose any matter contained in the documents and/or information to the appellant, is not clear. However, nothing turns on that consideration as the submissions made by the Minister do not depend upon it. The Minister’s approach is consistent with the observations made by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [70]–[72].

20    It was also not in contest that the power conferred upon the Authority by s 473GB(3)(b) is, like other powers exercisable by the Authority, a power that the Authority must exercise reasonably (in the legal sense): CRY16 at [82] (Robertson, Murphy and Kerr JJ); Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [98] (Kenny, Tracey and Griffiths JJ).

21    The appellant contended that he is the intended beneficiary of the discretionary power given to the Authority by s 473GB(3)(b). He says that in circumstances where the intended beneficiary of a discretionary power has been denied an opportunity to make submissions directed at its exercise which, in this case, occurred by virtue of the Authority’s failure to disclose to the appellant the existence of the certificate, the decision of the Authority to withhold from the appellant the documents and/or information was legally unreasonable as to its outcome. That conclusion, the appellant contended, followed from a lack of any evident and intelligible justification for the decision; the Authority arbitrarily determined that the appellant was not permitted to have the material the subject of the certificate in circumstances where it was uninstructed by anything that the appellant, as the beneficiary of the exercise of the power, could have said about it. Alternatively, the appellant contended that the conclusion followed from the exposure of an underlying error in the Authority’s decision, in the nature of a misapprehension about, or ignorance of, the power(s) that were available to the Authority, including the power of the Authority to disclose the certificate to the appellant.

22    The primary judge rejected those contentions on the following basis:

[54]    Was the IAA’s decision to not disclose the document and information to which the s.473GB certificate applied such that it fell outside of the range of lawful outcomes? In my judgment the answer must be in the negative. I say that for several reasons.

[55]    First, Part 7AA has installed significant differences to the regime that preceded the inauguration of the IAA. Next, the IAA conducts its considerations on the papers or at least in the absence of a hearing. Next, the IAA either affirms the primary decision-maker or remits the matter. Next, the IAA considers the review material and such new information as the exceptional circumstances set out in s.473DD of the Act might justify. Further, it must not be overlooked that the legislative intendment of Part 7AA, as recorded in s.473BA of the Act, is to require the IAA –

... 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).

[56]    To my way of thinking, it was not outside the range of lawful outcomes, as that phrase was used in Eden, for the IAA to decide to not disclose the documents or information the subject of the s.473GB certificate.

23    The appellant contended that the primary judge’s reasons betray a pre-occupation with the differences between the regime introduced by Part 7AA and other review frameworks established by the Act (Part 7 in particular). He submitted that the focus of the primary judge should instead have been on whether, in the particular circumstances of this case and having regard to the statutory powers that were available to the Authority, the decision of the Authority to proceed without disclosing the documents and/or the information the subject of the certificate, was unreasonable.

24    By his written submissions, the appellant disavowed reliance on the principles of procedural fairness. The appellant there conceded that an analysis reliant on procedural fairness is not available having regard to the exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority (see s 473DA(1)). However by his oral submissions, the appellant resiled from that position. The appellant contended that the terms of s 473DA(1) (dealing with Part 7AA), when contrasted with the terms of a corresponding provision such as s 422B(1) (dealing with Part 7), suggest an intent to leave more rather than less room for the operation of the principles of natural justice. In that respect it was contended that the omission in s 473DA(1), when compared with s 422B(1), of the phrase “in relation to the matters it deals with” (“the qualifying phrase”) is significant.

25    The meaning and significance of the qualifying phrase was explained in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [35]–[42] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). In DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [62], Barker J observed that the inclusion of the qualifying phrase in s 422B(1) suggested that there was some scope for the operation of the common law principles of natural justice in relation to the operation of Part 7 of the Act. As his Honour noted “[m]arkedly, s 473DA(1) is not qualified in this manner”. His Honour was there adverting to the more restrictive character of s 473DA(1). That Part 7AA “modifies (by restricting) the common law principles of procedural fairness” was also observed by Thawley J in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71] in the extract set out in full below. Contrary to the appellant’s contention, I do not accept that the exclusion of the qualifying phrase was intended to provide room for the operation of the common law natural justice hearing rule.

26    At [71] of BCQ16, Thawley J said this:

Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.

27    The nature of the statutory scheme embodied by Part 7AA is relevantly reflected in the following observations made by Kenny, Tracey and Griffiths JJ in BBS16 at [97]:

The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material [material the subject of a s 473GB(5) certificate] is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review. The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA’s determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b). …

28    The absence of any duty upon the Authority (and the absence of any correlative right of a visa applicant) to disclose either the certificate or the documents and/or information the subject of it, or indeed any material (whether or not the subject of a certificate) that was before the Minister (s 473DA(2)), emphasises the limited nature of the intended involvement of the visa applicant in the “limited form of review” (s 473BA) provided for by Part 7AA.

29    The logic of, or the values implicit in, the natural justice hearing rule are critical to the appellant’s contention that the Authority’s failure to disclose the existence of the certificate lacks evident and intelligible justification or is arbitrary. However, it is evident that the values placed on the opportunity for the visa applicant to be heard and involved in the review contemplated by Part 7AA is markedly lower than that which informs the common law natural justice hearing rule. The capacity for the natural justice hearing rule to be informative of whether the statutory discretion given by s 473GB(3)(b) has been exercised in a legally unreasonable way, is therefore much diminished. When assessed against the statutory scheme, the failure of the Authority to provide the appellant with an opportunity be heard as to whether to exercise its discretion under s 473GB(3)(b) does not equate to a legally unreasonable exercise of that power. That failure did not, in the context of the scheme of Part 7AA, lack intelligible justification. Nor was it arbitrary in the requisite sense.

30    For those reasons ground 1 must be dismissed.

ground 2

31    Part 7AA establishes a scheme of review where, broadly speaking, the Authority will conduct a review having regard to the “review material” provided by the Secretary pursuant to s 473CB of the Act (s 473DB(1)) and, any “new information” obtained by the Authority pursuant to s 473DC(1) that, in relation to information provided by a visa applicant, meets the “exceptional circumstances” test in s 473DD(a) and the criteria set out in s 473DD(b).

32    By ground 2, the appellant asserted that the primary judge erred by not finding that the Authority misapplied the statutory criteria for the consideration of “new information” provided by an applicant as set out in s 473DD(b)(ii).

33    Section 473DD provides:

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.

34    The Authority did not expressly consider whether the “exceptional circumstances” test in s 473DD was satisfied but proceeded on the basis that it was. The Authority was, however, not satisfied that the “new information” provided by the appellant about having made complaints against the MQM in Australia was information that met the criteria in either of the two limbs in s 473DD(b)(i) or (ii).

35    Relevantly, the Authority said this at [6]:

The 17 August 2016 submission and the 16 August 2016 statutory declaration submit that the applicant faces a real chance/risk of being seriously harmed by MQM as the applicant has made complaints against MQM in Australia. This information may be relevant and was not before the delegate when he made his decision. I consider that that this is new information. The applicant’s claim to fear harm from the MQM was squarely at issue at the April 2016 SHEV interview and was addressed in the subsequent 3 May 2016 submission provided by his former representative, a registered migration agent. Also squarely at issue were any concerns relating to the applicant’s returning from Australia and the disclosure of his details as a person who was in Australia immigration detention in 2014 (the 2014 data breach). At no point was it claimed that the applicant feared harm from the MQM because the MQM would know that he had made complaints against the MQM in Australia. I am not satisfied that this information could not have been provided to the delegate before he made his decision. Moreover, I am not satisfied that the applicant does have a genuine fear of this kind and I am therefore not satisfied that it is credible personal information. I am not satisfied s. 473DD(b)(i) or (ii) is met.

36    The appellant contended that in the penultimate sentence of [6], the Authority erred in concluding that the “new information” (the appellant’s complaints against MQM in Australia) failed to satisfy the second limb – the s 473DD(b)(ii) criteria. The appellant submitted that in recording that finding, the Authority misapprehended the statutory test or took into account an irrelevant consideration. The appellant contended that “the Authority effectively pre-judged the question of whether the appellant had a subjective fear of the relevant harm”, the answer to which could only be given “once the Authority had before it the whole of the material that was relevant to the review”.

37    The primary judge resolved the question of whether the Authority had erred in relation to the application of the s 473DD(b)(ii) criteria by concluding (at [63]) that, once the Authority determined that it was not satisfied that the information fell within s 473DD(b)(i), “it was not necessary for the [Authority] to consider the elements of subsection (b)(ii)”. The Minister did not defend the primary judge’s approach. Indeed, the Minister conceded that the primary judge’s construction was erroneous. With respect to the primary judge, so much must be accepted because properly understood the two limbs of s 473DD(b) are alternatives. In BZV16 v Minister for Immigration and Border Protection [2017] FCA 958, White J rejected the proposition that having considered s 473DD(b)(i) the Authority could disregard s 473DD(b)(ii). At [37] White J said this:

I would also uphold an additional and related contention of the appellant. This was to the effect that, even if the FCC Judge had been correct in finding that the IAA had addressed s 473DD(b)(i), this would not have completed the IAA’s statutory task, given that subpara (b) is expressed in alternatives. The circumstance that the appellant may not have been able to satisfy subpara (b)(i) did not foreclose him being able to satisfy subpara (b)(ii).

38    Despite accepting the erroneous approach taken by the primary judge, the Minister nevertheless contended that the Authority had not relevantly engaged in jurisdictional error. The Minister contended that pursuant to s 473DD(b)(ii) the Authority must form an assessment of whether the “new information” is “credible” before it is permitted to then consider that information for the purposes of making its ultimate decision on the review. In making that assessment, the Minister contended that the Authority was entitled to take into account the “review material”. That was what the Authority did here and, by reference to the fact that a claim of the kind raised by the “new information” had never previously been advanced by the appellant, the Authority was entitled to conclude that the “new information” was not “credible personal information” within the meaning of the s 473DD(b)(ii) criteria.

39    To address the competing contentions, it is necessary to properly understand the basis for the Authority’s conclusion that the new information was not “credible personal information”. It was not in contest that the Authority was engaged in a process of assessing the veracity of the “new information”, not on its face, but by reference to “review material” which had been received by the Authority. By that process, the Authority came to an ultimate or final view that the “new information” was not to be believed and therefore not information that could be received for consideration in accordance with s 473DD(b)(ii). The nature of the assessment made by the Authority indicates that the Authority proceeded on the basis that a condition of engagement of s 473DD(b)(ii) is the Authority’s satisfaction that the “new information” is true. That reflects the sense in which the Authority construed the word “credible”.

40    An alternative construction for the use of the word “credible” in the phrase “credible personal information”, is that it has a meaning consistent with the meaning given to the word in a setting somewhat akin to that found in s 473DD(b)(ii), that is, in the expression of one aspect of the natural justice hearing rule. I addressed the meaning of “credible” when used in that context in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 at [79], where I said this:

The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as “credible, relevant and significant”. “Credible, relevant and significant”, is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is “evidently not credible, not relevant, or of little or no significance to the decision that is to be made”: VEAL at [17] and see at [20].

41    In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

42    The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

43    The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).

44    In failing to identify that error, the primary judge erred. Ground 2 of the appeal is upheld.

grounds 3 and 4

45    Ground 3 is in the following terms:

The learned Federal Circuit Court Judge erred by not finding that the Authority misunderstood its statutory task in its review as required under s 473CC(1) of the Act by making adverse findings as to the credibility of the Applicant's claim to have been shot in August 2008 solely by reference to the answers given by the Applicant in his entry interview.

46    The Authority rejected the appellant’s claim that he had been shot in August 2008. In rejecting that claim as not credible the Authority relied upon the fact that, at his entry interview, the appellant made no reference to having been shot in August 2008. The primary judge rejected the appellant’s challenge to the approach taken by the Authority stating that the line of inquiry engaged in by the Authority was logical and accorded with common sense and that the conclusion reached was open (at [73]).

47    Before the primary judge and on the appeal, the appellant relied on the following observations made by the Full Court (North, Bromberg and Mortimer JJ) in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [56]:

On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

48    The appellant contended that his claim concerning the shooting incident in August 2008 was a discreet and important claim that should not have been rejected solely by reference to his answers given in his entry interview. By relying solely on the appellant’s omission at the entry interview to determine the credibility of the shooting claim, the appellant contended that the Authority misunderstood its task on the review.

49    The Minister contended that, to say that the sole reason for the credibility finding was the failure of the appellant to have raised the shooting at the entry interview, mischaracterises the Authority’s approach. That was so because in making its finding the Authority also relied on the fact that the appellant had not provided medical evidence to substantiate the claim that he sustained his injuries as a result of being shot in August 2008.

50    I do not accept the appellant’s contention that the Authority solely relied upon what was not said at the entry interview. Even if that had been the case, I do not consider that, on its own, that circumstance would have sufficed to demonstrate that the Authority misunderstood its task. As the primary judge noted at [72], the Authority listened to a recording of the entry interview and gave careful consideration to what occurred. Even if it were the case that an incautious approach (of kind referred to in MZZJO) was demonstrative of jurisdictional error, the reasons given by the Authority do not suggest that it was incautious in evaluating the significance of the appellant’s failure to refer to the August 2008 incident during the entry interview.

51    The primary judge was correct to conclude that no jurisdictional error was made by the Authority on the basis of the challenge made under ground 3.

52    Ground 4 is also concerned with the August 2008 incident in which the appellant claimed that he had been shot by a person who worked in the MQM office. It is a new ground not raised before the primary judge. The Minister contended that it was not expedient in the interests of justice (Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 at [31]) to permit the appellant to raise it. In the main, the Minister based his contention on the basis that ground 4 lacked merit. I agree that ground 4 lacks merit and that as a consequence leave should not be granted. Notwithstanding this, even if I had granted leave, I would have rejected ground 4 for the following reasons.

53    As previously stated, at the entry interview, the appellant did not refer to the August 2008 incident or to the threats made by MQM that he withdraw the police report (the FIR) he alleged he made in relation to the August 2008 incident. The Authority assessed that failure at [14] of its reasons and concluded that it seriously undermined the appellant’s claim to have been personally targeted by the MQM. At [14] the Authority said this:

At the outset of the May 2013 entry interview the applicant was instructed that the entry interview was his opportunity to provide any reasons why he should not be removed from Australia, and that if the information he gave was different at any future interviews this could raise doubts about the reliability of what he had said. I expect that if the applicant had been shot and threatened by the MQM that he would have raised this claim when he was asked why he had departed Pakistan. He did not. Likewise, when asked if he had ever had any involvement with political parties he spoke about the nearby ANP office whose members said hello to him. He did not indicate that he had been shot near this office by the MQM or that he feared being seen by the MQM as an ANP supporter. Likewise, when asked what he thought would happen to him upon return the applicant responded that you never know, and that because every day in Karachi 20 to 25 people get killed there is no guarantee of life. He was asked if there was anything more he would like to say about this and he said no. He was asked if there was anything he had not been asked he would like to speak about and he said no. I accept that at the entry interview the applicant was asked to pause and slow down at different points so that his statements could be recorded. At some points the interview sighed as he attempted to keep up with the applicant’s statements. But the applicant was not scolded or spoken to discourteously. It was evident that he was being asked to pause so that the detail of what was being said could be recorded. The applicant’s responses remained detailed and gave no indication that he was not being completely forthcoming. Everything the applicant said in this regard indicated that he feared the general insecurity in Karachi created by the conflict between the MQM and the ANP. But at no time did he indicate that he had any personal involvement in this. If the applicant had been shot in 2008 as he claims, and if he feared harm from the MQM for refusing to withdraw an FIR, I expect that he would have said so. I consider that this seriously undermines the applicant’s subsequent claim to have been personally targeted in this way.

54    At [17] the Authority observed that “the applicant has shown a willingness to advance new claims to protection in an opportunistic fashion”. I would infer that that observation was made including because of the way in which the appellant had advanced his claim in relation to the August 2008 incident. I would accept the underlying premise for ground 4 that the Authority was of the view that the August 2008 incident was a matter of recent invention. That is, a claim belatedly and opportunistically made.

55    The essence of ground 4 is really this: in concluding that the claim made relating to the August 2008 incident was a matter of recent invention, the Authority failed to take into account its own finding that the FIR had been made to the Pakistani police on 29 August 2008 contemporaneously with the occurrence of the incident claimed by the appellant. If that fact had been properly taken into account, the Authority could not have concluded, as it did, that the August 2008 incident was a claim belatedly and opportunistically made.

56    The Minister contended that the premise for the appellant’s contention, that the Authority accepted that the FIR was made to police on 29 August 2008, was unsound. The relevant passage is at [16] where the Authority said this:

At the April 2016 SHEV interview the applicant was able to give a reasonably detailed overview of the alleged August 2008 incident and its aftermath. But this does not overcome the doubts raised by the evidence provided by the applicant at the May 2013 entry interview, where he made no reference to such an event and where he was forthcoming in claiming that the only reason he departed Pakistan was because of the way the violence between the ANP and the MQM in Karachi prevented you from going about your day-to-day life without fear. Nor does the FIR document provided by the applicant overcome these doubts. DFAT and other credible sources have reported that Pakistan’s police can be bribed to register fraudulent FIR complaints and that the existence of an FIR does not therefore constitute evidence that the described events actually occurred. At the SHEV interview the applicant stated on two occasions that he would like Australia’s embassy in Pakistan verify the FIR number he had provided. Although there is no evidence before me to indicate that Australia’s High Commission in Islamabad was ever instructed to validate the FIR with the Pakistan authorities, I accept that the FIR provided by the applicant has been recorded. However, given my doubts about the credibility of the applicant’s claims regarding the August 2008 incident and the manner in which Pakistan’s police can be paid to lodge false records of this kind, I am not satisfied that the claims recorded in the FIR are credible or that a person named Mr MI exists. While the applicant has visible injuries on his legs he has provided no medical evidence to substantiate the claim that he sustained these injuries as a result of being shot in 2008. I accept that the applicant has sustained injuries to his legs but I am not satisfied, and I do not accept, that these injuries were sustained as a consequence of an incident in which he was shot in August 2008 by members of the MQM. I do not accept that the applicant has lodged an FIR report against an MQM member or that he, or his father, were warned by MQM supporters to remove this FIR. I do not accept that the applicant moved away from his Gulshan Iqbal family home from January 2010 until his departure from Pakistan.

57    There is some ambiguity here as to whether the Authority made a finding that a report was made to police on 29 August 2008. There is some support for the conclusion that the Authority only regarded the claims recorded in the FIR as not credible and no more. That is, by accepting that the FIR “has been recorded”, the Authority accepted that it was made at the time (29 August 2008) it purports to have been made. However, there is also support for the conclusion that all that the Authority accepted was that the FIR was a document created by a Pakistani police officer, but did not accept the accuracy of the content of the FIR, including the record of when it was made.

58    I accept the Minister’s contention that the latter characterisation of what the Authority determined is to be preferred. I consider that the observation made at the foot of [16], that the Authority did not accept the appellant had lodged an FIR report against a MQM member (an observation repeated at [20]), is telling.

59    As part of its consideration, the Authority was assessing the appellant’s claim that in or around March or April 2009, MQM supporters told him to withdraw the FIR and that he would be seen as an ANP supporter if he did not. In respect of that claim and at [20], the Authority relevantly said this:

However, I do not accept that the applicant has reported an MQM member to police and I do not accept that the applicant would be imputed to be an ANP supporter ...

60    In the context of the claim being considered, the Authority’s failure to accept that the appellant would be imputed to be an ANP supporter as a consequence of his refusal to withdraw the FIR in or after March or April 2009, appears to me to be based on the Authority’s rejection of the assertion made in the FIR that, at an earlier time, the appellant had made a report to police implicating a member of MQM. It follows that the Authority did not accept as genuine the date recorded in the FIR as the date of its creation.

conclusion

61    For the reasons set out above the appellant succeeds in relation to ground 2 of the appeal. It follows that orders should be made setting aside the order of the primary judge dismissing the appellant’s application and the Authority’s decision, as well as an order remitting the matter for redetermination by the Authority. In the ordinary course an order would be made that the Minister should pay the appellant’s costs of the appeal and a further order would be made setting aside the order made by the primary judge that the appellant pay the Minister’s costs below. As the Minister has not had an opportunity to make a submission that orders of that kind ought not be made, I will give the Minister an opportunity to do so. In the absence of any such submission being received, an order that the Minister pay the appellant’s costs of the appeal and an order setting aside the primary judge’s costs order below will take effect.

Associate:

Dated:    11 April 2018