FEDERAL COURT OF AUSTRALIA

ANO16 v Minister for Immigration and Border Protection [2019] FCA 59

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a citizen of Afghanistan. He arrived in Australia without a visa in November 2012. He is an “unauthorised maritime arrival” as that term is defined in s 5AA of the Migration Act 1958 (Cth) and so was precluded by s 46A(1) of the Act from making an application for a visa. On 20 May 2015, the Minister for Immigration and Border Protection made a determination under s 46A(2) that s 46A(1) did not apply to the appellant in respect of a particular kind of protection visa. In accordance with that determination, the appellant lodged an application for a Temporary Protection (subclass 785) visa on 30 June 2015. The appellant was, with respect to that application, a “fast track applicant” within the meaning of s 5(1) of the Act.

2    Section 65(1)(b) of the Act imposed a duty on the Minister to refuse to grant the visa if not satisfied, relevantly, that the criteria prescribed for the visa had been met.

3    In support of his application, the appellant claimed that that he had a well-founded fear of persecution by reason of his religion, relevantly at the hands of “extremist religious groups”, and so was a refugee to whom Australia owed protection obligations. As such, he claimed that he fulfilled the criterion prescribed in s 36(2)(a) of the Act.

4    The appellant was interviewed in relation to his claims by a delegate of the Minister with the aid of an interpreter. The delegate disbelieved the appellant’s claims and refused to grant the visa. The Minister referred that decision to the Immigration Assessment Authority for review in accordance with Pt 7AA of the Act. The Authority formed an adverse view of the appellant’s credit (including by reference to the record of interview conducted by the Minister’s delegate) and affirmed the delegate’s decision to refuse to grant the visa.

5    The appellant applied to the Federal Circuit Court of Australia for judicial review of the Authority’s decision. On that application, the onus was on the appellant to demonstrate that the Authority’s decision was affected by jurisdictional error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

6    The appellant relied upon four grounds for judicial review, each of which was rejected by the primary judge: ANO16 v Minister for Immigration & Anor [2017] FCCA 2633. This is an appeal from that judgment.

7    The four grounds of appeal are substantively to the effect that the primary judge committed appealable error by failing to uphold the appellant’s arguments in the proceedings below.

8    For the reasons that follow, no appealable error on the part of the primary judge is established. It follows that the appeal must be dismissed.

GROUND 1

9    This ground is expressed as follows:

1.    The learned Judge erred in failing to find that the decision of the Immigration Assessment Authority (IAA) was affected by jurisdictional error in that the second respondent acted on the decision of the delegate in circumstances where that decision was itself affected by error arising from the denial of procedural fairness to the applicant.

10    Subject to exceptions contained in Pt 7AA of the Act, the Authority must review a fast track reviewable decision by considering material provided to it under s 473CB of the Act and without interviewing the referred applicant: s 473DB(1). The information provided to the Authority included a record of the appellant’s interview with the delegate.

11    Argument on this ground of appeal proceeded from the premise that the Minister’s delegate had failed to comply with s 57(2)(b) of the Act and so denied the appellant procedural fairness in the conduct of the interview. As a legal consequence, it was submitted, the Authority was “not permitted to rely” on the record of the interview “without remedying the procedural unfairness suffered by the appellant”.

12    Section 57 of the Act relevantly provides:

Certain information must be given to applicant

(1)    In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

  (a)    would be the reason, or part of the reason:

    (i)    for refusing to grant a visa; or

(ii)    for deciding that the applicant is an excluded fast track review applicant; and

(b)    is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

  (c)    was not given by the applicant for the purpose of the application.

Note:    Excluded fast track review applicant is defined in subsection 5(1).

(2)    The Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

  (c)    invite the applicant to comment on it.

13    The failure to comply with s 57(2)(b) is said to arise by reason of the delegate’s identification of two discrepancies in the appellant’s evidence. The first discrepancy concerned the appellant’s claim that he had friends who had been killed by religious extremists. The delegate was, it was submitted, obliged under s 57(2) to warn the appellant that the discrepancy in his evidence on that topic might cause the delegate to form an adverse view about his credibility, and to provide the appellant with a meaningful opportunity to respond. It was submitted that although the delegate had raised the discrepancy with the appellant, the appellant had not been given an opportunity to respond because inadequacies in interpretation had rendered him unable to understand what was being put to him.

14    The second “discrepancy” concerned the appellant’s evidence that he was unable to correctly identify people outside of his ethnicity and so could not tell Tajiks and Pashtuns apart. It is submitted that the delegate was obliged under s 57 of the Act to inform the appellant that the “discrepancy” in this aspect of his evidence was one that might cause the delegate to form an adverse view of his credit. It was submitted that the delegate had not raised this issue with the appellant at all and so had not afforded him an opportunity to make submissions as to why the discrepancy should not affect the delegate’s assessment of his credibility.

15    The appellant was represented by a migration agent before the Authority. In written submissions, the migration agent drew the Authority’s attention to the asserted defects in the delegate’s interview, including portions of the interview record that were said to demonstrate the alleged inadequacies in interpretation. The Authority summarised the appellant’s arguments on this topic at [8] of its own reasons. It dealt with the submissions as follows:

The 2015 Protection visa interview

13.    … states that the evidence given by the applicant at the 2015 Protection visa interview was not heard as a Dari interpreter was provided and the applicant is a Hazaragi speaker, and Dari is not his main language.

14.    Prior to the 2015 Protection visa interview the applicant indicated (in Part C of his Protection visa application at questions 30 to 31) that his only language is Dari and that if called for an interview he would require an interpreter in the Dari language. At his Irregular Maritime Arrival Entry Interview conducted on 17 November 2012 (the 2012 entry interview) the applicant also indicated that his only language was Dari. At the 2015 Protection visa interview the applicant indicated that he understood, and had no objections to, the interpreter provided. Asked what languages he speaks applicant replied Dari Hazaragi. He was asked why on his application form he has stated that he speaks only Dari. He replied that he speaks Dari with the accent of Hazaragi. At this point the interpreter stated the applicant was speaking Dari with an accent the same as his own.

15.    The submission to the IAA states that an exchange during the 2015 Protection visa interview is evidence that the applicant was not properly heard. In this exchange the applicant is asked about a statement he made at the 2012 entry interview. The applicant does not initially appear to comprehend that this is what is being put to him. However, the applicant then reaches an understanding of what is being said and asks for the statement to be read back to him. The applicant states that he never made the statement in question. The exchange trails off with an apparent misunderstanding regarding the delegate’s asking for confirmation that Nawabad is on the road to Ghazni, while the applicant confirms his own preceding assertion that many of his friends have been killed on the way to Kabul and Ghazni. It is evident in this exchange that there are moments when the applicant required clarification from the delegate in order to understand some of his questions and statements. But I am satisfied from that the applicant understood the Dari interpreter, and that the interpreter understood the applicant, and that he was able to put forward his claims.

16    The Authority went on to form an adverse view about the appellant’s credit by reference to the interview record, at least in respect of one aspect of the his claims.

17    The primary judge rejected the contention that the Authority’s decision was affected by jurisdictional error by reference to any failure of the delegate to comply with any obligation imposed by s 57 of the Act. The primary judge said (at [19]) that even if there had been difficulties in the delegate’s process, it was the process and decision of the Authority that was the subject of judicial review. His Honour said (at [20]) that there may be some cases in which the conduct of proceedings before a delegate of the Minister give rise to issues that require the Authority to take particular steps in order to properly deal with the matter before it “or at least to consider the method by which it should proceed”.

18    His Honour continued:

21.    In this case, the IAA was aware of the issues relating to the interpreter, and clearly had taken time to carefully review the materials, setting out the reasons for ultimately concluding that the applicant sufficiently understood the interpreter and the interpreter the applicant, that the applicant was able to put forward his claims.

22.    The applicant has not filed a transcript of the relevant interview in this Court, nor has the applicant filed an affidavit addressing these issues. It is difficult to conclude that the IAA failed in its obligations or in some way acted unreasonably in circumstances where the IAA clearly had careful regard to the nature and quality of the evidence given through an interpreter (as set out in its reasons) and formed a view that it was able to rely upon that evidence, albeit with a critical eye as to parts that may not be satisfactory because of some difficulties with interpreting.

23.    The IAA was clearly aware of the issue, considered it, and gives reasons which appear adequate to explain why the IAA proceeded to adopt the approach that it did, and the reasoning upon which it relied to utilise some parts of those interviews. Whilst the IAA has the power to obtain new information (s.473DC) it cannot be said that the IAA has failed to consider the nature and quality of the information in this case, and following those considerations the circumstances did not give rise to the need to obtain new information, no doubt as a result of the findings at para.15 and at para.8. In the circumstances, I am not satisfied that the applicant has made out these grounds.

19    The reasons of the primary judge do not address an important antecedent question: was the delegate obliged to bring discrepancies in the appellant’s testimony to his attention and afford him the opportunity to comment upon them? In my view, it was not.

20    In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, French CJ and Kiefel J considered the meaning of s 424A of the Act. It imposes an obligation on the Administrative Appeals Tribunal, cast in terms that are relevantly identical to the obligation imposed on the Minister by s 57. In SZGUR the Tribunal had written to a review applicant seeking comment in relation to inconsistencies it had identified in the review applicant’s testimony and submissions. Their Honours said (at [9]):

Despite the language of the Tribunal’s letter, the existence of ‘inconsistencies’ and ‘contradictions’ in an applicant’s testimony and written submissions to the Tribunal is not ‘information’ of the kind to which s 424A is directed. As was explained by the plurality in SZBYR v Minister for Immigration and Citizenship, the term ‘information’ in s 424A does not extend to the Tribunal’s ‘subjective appraisals, thought processes or determinations’. Their Honours said:

‘However broadly ‘information’ be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.’

The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.

(Footnotes omitted)

21    The same must be said of s 57 of the Act. The delegate in the present case was under no obligation to “warn” the appellant of the existence of discrepancies or other shortcomings in his evidence of a kind that might cause the delegate to reject it. Accordingly, if there were inadequacies in interpretation of a kind that deprived the appellant the opportunity to comment on the discrepancies, that could not have the legal consequence that the delegate had breached the rules of procedural fairness, and so could not have the consequence that the Authority was obliged to “remedy” any such breach.

22    It is inapt, in any event, to speak of the Authority curing a breach of a statutory condition by a delegate by whom a fast track reviewable decision is made. The operation of Pt 7AA of the Act is explained at some length by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 and the salient principles need not be restated here. It is sufficient to conclude that the delegate did not err in the manner alleged by the appellant and so it is not necessary to consider the impact any such error might otherwise have on the discharge of the Authority’s own statutory obligations.

23    For completeness I will deal with the argument that the primary judge erred in finding that the Authority had not committed jurisdictional error by failing to detect inadequacies in the interpretation affecting the appellant’s interview with the delegate. The short response to that submission is that the record of the interview was not in evidence before the primary judge. Nor had the appellant adduced affidavit or other evidence to establish that there had in fact been inadequacies in interpretation. The Authority dealt with the appellant’s submissions concerning inadequacies in interpretation by reading and drawing inferences from the record of the interview itself. It seems to me that the question of whether or not it was lawfully open to the Authority to draw the inferences and reach the conclusions that it did could not be decided by the primary judge without reference to the same interview record to which the Authority had referred.

24    The primary judge nonetheless correctly concluded that the appellant had not discharged his onus on the application for judicial review in respect of the relevant ground of review. In my view, that conclusion was correct, although I would respectfully reason to that result by a different path to that taken by the primary judge.

GROUND 2

25    The second ground of appeal asserts:

2.    The learned Judge erred in failing to find that the decision of the IAA was affected by jurisdictional error because the second respondent proceeded on a wrong legal principle and failed to take into account relevant information.

26    Div 3 of Pt 7AA is titled “Conduct of review”. Together with s 473GA and s 473GB (neither of which require attention in this case), Div 3 of Pt 7AA is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: see s 473DA of the Act.

27    In accordance with s 473DB of the Act, material was provided to the Authority for the purposes of its review of the delegate’s decision. As mentioned earlier, subject to Pt 7AA, the Authority was required to review the delegate’s decision by reference only to the review material, without accepting or requesting new information and without interviewing the appellant: s 473DB.

28    Section 473DC and s 473DD prescribe the circumstances in which the Authority may get and consider new information. They provide:

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.

29    In BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221, White J said of these provisions:

42    The proper construction of the term ‘exceptional circumstances’ in s 473DD should take account of the context in which the term is used. The scheme of Pt 7AA of the Migration Act is to provide a means of ‘fast track’ review of the refusal of certain applications for a protection visa. Particular elements of the scheme are that all ‘fast track reviewable decision[s]’ are to be referred to the IAA as soon as reasonably practicable after the decision is made (s 473CA), the task of the IAA is, prima facie, to review the decision on the papers and without accepting or requesting new information and without interviewing the applicant (s 473DB) and, while the IAA has a discretion to ‘get’ new information, it may consider it only in the limited circumstances specified in s 473DD. Plainly, applicants for a protection visa are expected to present all their claims and all available evidence to the Minister in relation to the decision under s 65.

43    Further, account must be taken of the reference to the exceptional circumstances being such as to ‘justify’ consideration of the new material. In this respect, account should also be taken of the purpose of the IAA decision, namely, to affirm the refusal of the visa or to remit for reconsideration in accordance with such directions or recommendations as are permitted by regulation (s 473CC). That suggests that exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances.

30    By the second ground of appeal, the appellant contends that the Authority erred in its interpretation and application of these provisions in relation to new information the appellant asked the Authority to consider. The information was of a general nature concerning the security situation in Afghanistan at various times. As such, it was not “personal information” and so did not fall within s 473DD(b)(ii): BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [25]. The Authority correctly proceeded on the basis that the information was “new information” because it was relevant and not before the Minister’s delegate: see s 473DC(1). The Authority dealt with the request to consider the subject information by reference to written submissions made to the Authority dated 8 February 2016. It concluded (at [11]):

The submission to the IAA … also states that delegate [sic, Authority] should have had regard to number of other pieces of information. These are: 2005 and 2012 studies of Afghanistan; news reports published in October 2015 on an attack which took place in that month upon a Shia religious hall in the Kabul locality of Chindawol on 9 October 2015, responsibility for which was claimed by Islamic State (or Daesh); information published in November 2015 on the beheading of abducted Hazara hostages; and September and April 2015 information regarding the activities of foreign fighters from Pakistan and Uzbekistan in Afghanistan. It is submitted that the applicant could not have provided information regarding the October 2015 attack, the November 2015 beheadings, or the reports on foreign fighters, because these reports were not available to the applicant at the time of his Protection visa interview of 13 September 2015. All of the aforementioned information was published before the delegate refused to grant the visa on 18 January 2016. The applicant was not limited to providing information to the Minister following the Protection visa interview of 13 September 2015, and could have done so at any time after that until the time the decision was made. It is evident that the information pertains to reporting on the security situation in Afghanistan and for Shia Hazara, and that it is not personal information. As such it does not satisfy s.473DD(b)(ii). I am not satisfied that the information falls within s.473DD(b)(i) or s.473DD(b)(ii), I therefore have not considered this new information.

(Emphasis added)

31    There are two aspects to the appellant’s argument.

32    First, it is submitted that the Authority erred in refusing to consider the information on the basis that it could have been provided to the Minister before the delegate’s decision was made, and so did not satisfy the requirements of s 473DD(i). The Authority is said to have misunderstood the submissions of the agent (emphasised above) and should have proceeded on the basis that no explanation had been provided in respect of the information at all. The appellant argues that the Authority erred in adopting a too narrow construction of the phrase “could have been provided”, particularly by confining its consideration to the dates upon which the reports were published.

33    Second, it was submitted that the Authority’s decision was affected by legal unreasonableness in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, particularly by reason of the Authority’s failure to consider whether to exercise the power under s 473DC. More specifically, it was said that the Authority erred by failing to seek an explanation from the appellant (whether through his agent or otherwise) for the information not having been provided to the Minister’s delegate before the original decision was made. It was submitted that the Authority ought reasonably to have apprehended that the appellant’s agent had proceeded on the wrong footing that the information was not “new information” and for that reason had not given an explanation for not providing the information to the delegate.

34    I reject these arguments.

35    Turning first to the application of s 473DC, it may be accepted that there may be circumstances in which it is legally unreasonable for the Authority not to consider the exercise of the discretionary power in s 473DC(3) to get new information: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [70] (Reeves, Robertson and Rangiah J); Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82] (Robertson, Murphy and Kerr JJ). However, an explanation that may be given by a referred applicant as to why “new information” was not previously provided cannot, of itself, be “new information” to which the discretionary power conferred by that provision may apply. The suggestion that the Authority erred by failing to consider the exercise of the discretion to “get” an explanation from the appellant or his agent is simply not in accordance with the statutory scheme. In my view, the obligation to afford a referred applicant an opportunity to provide material relevant to the condition in s 473DD(b) is necessarily implicit in the provision itself. The provision anticipates that where the applicant gives the Authority “new information” as defined, the referred applicant is to be afforded an opportunity to make submissions and adduce evidence to satisfy the Authority that the pre-conditions for the Authority’s consideration of the new information are fulfilled. Whether or not the applicant may make submissions and give evidence for that purpose is not a matter for the Authority’s discretion under s 473DC.

36    Whether or not a review applicant has in fact been afforded an opportunity to address the conditions in s 473DD(b)(i) or (ii) in respect of the new information is a different question. It is a question of fact, upon which this ground of appeal turns.

37    By letter dated 19 January 2016, the Authority explained to the appellant that it would only consider new information in limited circumstances. The circumstances are described in a Practice Direction which formed an enclosure to the Authority’s letter. It relevantly states:

22.    We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

23.    If you want to give us new information, you must also provide an explanation as to why:

•    the information could not have been given to the Department before the decision was made, or

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

24.    Your explanation should be no longer than 5 pages and must accompany any new information you give to us.

38    The content of the Practice Direction reflects the entitlement of a review applicant to be afforded an opportunity to address the conditions in s 473DD and prescribes the means by which that opportunity may be taken.

39    It is clear from the agent’s submissions that the agent was aware of the requirements of s 473DD. Indeed, the agent’s submissions to the Authority addressed the elements of the provision in relation to other categories of information that do not form the subject matter of this ground of appeal.

40    It may well be the case that the appellant’s agent furnished no submissions concerning the application of the statute to the general country information because the agent failed to comprehend that the information fell within the definition of “new information” for the purposes of s 473DD of the Act. However, there was no evidence before the primary judge to make good that factual assertion, and no application to adduce new evidence on this appeal to make it good either. An error on the part of the agent of that kind could not in any event demonstrate legal unreasonableness on the part of the Authority, whether described as a legally unreasonable failure to consider the exercise of the discretion conferred by s 473DC of the Act or otherwise. In light of the provision of the Practice Direction to the appellant, it was open to the Authority to conclude that he had been afforded an opportunity to make submissions in respect of the condition in s 473DD(b)(i), and to infer that he had said all that he wished to say about it.

41    The remaining arguments on this ground of appeal focused on the meaning of the phrase “could not have been provided” in s 473DD. The construction of that phrase advanced by Counsel for the appellant is best articulated in written submissions as follows (at [47]):

The criterion in sub-s 473DD(b)(i) that information ‘was not and could not have been’ provided to the Minister prior to making of the decision under s 65 does not erect a test of theoretical possibility. The words ‘could not have been’ are not to be read as erecting a requirement of actual impossibility. The question is one of practicality. It requires consideration of all the relevant circumstances to determine whether, as a matter of practical reality, the information could have been put before the Minister or delegate. Those circumstances will necessarily include the personal circumstances of the applicant, including matters such as whether the applicant is detained or in the community, whether the applicant was represented at the relevant time, the applicant’s English language skills and the nature and source of the information.

42    It was from this starting point that the appellant argued that the Authority was “required” to consider whether to exercise the discretion under s 473DC to “get new information about why the appellant had not presented the country information to the Delegate before the decision was made”.

43    I have already rejected the latter argument. In my view, the rejection of that argument renders it unnecessary to decide the question of construction raised by the appellant. In the circumstances I have described, the Authority was entitled to determine the questions arising under s 473DD on the material before it. The Authority was under no obligation to seek out and obtain additional material bearing on the questions to be decided. The material before the Authority included the dates on which the new information had been published. Those dates preceded the delegate’s decision. There was nothing in the material to suggest that the reason the new information was not provided to the Minister’s delegate was a practical inability on the part of the appellant or his agent to become aware of it or to access it or to provide it to the delegate. In the circumstances, and in light of what I have said at [37] – [40] of these reasons, the failure of the Authority to consider the possible significance of any difficulties of that kind is hardly surprising. The failure does not evidence an error of construction. Rather, it reflects the absence of any factual foundation upon which the question of construction now sought to be agitated before this Court (and before the primary judge) might conceivably arise.

44    As I have said, the appellant adduced no evidence before the primary judge as to the explanation he might have provided to the Authority had he been given what would have been a second opportunity to explain. There is nothing upon which the primary judge might have concluded that the explanation, if accepted, might fall within the condition prescribed in s 473DD(b)(i) in any event and so nothing to demonstrate that any error on the part of the Authority in construing s 473DD(b)(i) could have affected the outcome.

45    None of that is to say that the question of construction raised by the appellant is unimportant or that the submissions of the appellant in respect of it are wholly lacking in merit. It is simply to emphasise that an error of construction cannot be properly categorised as a jurisdictional error unless the error is shown to be material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [29] and [31] (Kiefel CJ, Gageler and Keane JJ), and Shrestha v Minister for Immigration and Border Protection [2018] HCA 35, (2018) 359 ALR 22 at [10] (Kiefel CJ, Gageler and Keane JJ). The question of construction will remain undecided.

46    The primary judge did not err in failing to detect jurisdictional error on the part of the Authority of the kind argued on the second ground of appeal.

GROUNDs 3 AND 4

47    Ground 3 is as follows:

3.    The learned Judge erred in failing to find that the decision of the IAA was affected by jurisdictional error in that the second respondent mistook the facts and/or acted on a wrong legal principle.

48    Upon his arrival in Australia the appellant participated in an entry interview. At that interview, the appellant said that as “a Hazara and Shia Muslim, my life was in danger by the various religious and Pashtun tribal extremist groups like Taliban”. He said that “Hazaras have been handpicked, abducted and killed on their ways to Ghazni in a number of recent incidents only for being a Hazara and Shia”. The appellant did not, in that response, identify the groups responsible for the attacks.

49    In written submissions provided to the Authority, the appellant claimed that he feared harm from Sunni extremist groups “opposed to the Taliban”. The Authority dealt with that submission at [10] of its reasons as follows:

The submission to the IAA also states that the applicant has raised specifically a fear of harm from Sunni extremist groups opposed to the Taliban. I have reviewed the applicant’s Protection visa application of 30 June 2015, his Protection visa interview, and also his 2012 entry interview with the department. The applicant speaks of fearing the Taliban, Pashtun groups, and also of harassment from Pashtun and/or Tajik men who have harassed him in Kabul. A fear of Sunni extremist groups opposed to the Taliban is not raised. As such this claim constitutes new information. The submission does not explain why this information could not have been provided … to the Minister before the decision under s.65 was made. The applicant has provided no reason as to why this information should be considered credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims. I am not satisfied that the information falls within s.473DD(b)(i) or s.473DD(b)(ii). I therefore have not considered this new information.

50    The appellant’s argument is that his claim to fear harm at the hands of Sunni extremist groups opposed to the Taliban fell within the ambit of the claims he had articulated in his entry interview and before the delegate. As such, it was submitted, the claim was not “new information” and should have been considered and determined by the Authority.

51    Ground 4 asserts that the primary judged erred in failing to find that the Authority committed jurisdictional error by failing to inform the appellant, in advance of its decision, that it “intended to exclude” the information under s 473DD.

52    The primary judge proceeded on the basis that the facts and circumstances sought to be placed before the Authority in relation to Sunni extremist groups “gave rise to a separate integer” of his claims and so constituted new information. It was, his Honour said “undoubted that this information could have been placed before the delegate should the applicant have sought to do so”.

53    There is no appealable error affecting the substantive conclusion of the primary judge that the claim to fear persecution by Sunni extremists was properly to be regarded as new information. The question of whether the appellant raised such a claim before the delegate is not to be answered by reference to the responses the appellant gave to two questions asked at his entry interview. Rather, it is to be answered by reference to the whole of the interview, in the context of all of the remaining information before the delegate. Read in context, the appellant’s statement that his life was in danger “by the various religious and Pashtun tribal extremist groups like Taliban” is to be understood as a general response to a broad question about why he had left his home country. The appellant then gave particular content to that claim in the remainder of the interview. In doing so, he said that the risk of danger arose from incidents occurring on roads controlled by the Taliban, and from Pashtun men in his home town. The past events he described concerned these two groups. They did not concern Sunni extremist groups opposed to the Taliban. The appellant concluded the interview by referring to the risk of harm from Taliban and Pashtun tribal groups.

54    The appellant pointed to no other information before the delegate capable of supporting his argument that he had made a claim to fear persecution by Sunni extremists at any time before the delegate’s decision was made.

55    The argument raised in the fourth ground of appeal was correctly rejected by the primary judge at [39] of his Honour’s reasons:

In any event, the operation of the provisions, in the context of pt.7AA, do not, in my view, give rise to a requirement to foreshadow to an applicant that information or submissions may not be new information or may not be considered as a result of s.473DD, rather, these matters should be addressed by an applicant seeking to place new information before the Tribunal. In the circumstances, the alternative argument under ground 6 must fail.

56    There is no appealable error of the kind alleged in ground 4 of the amended notice of appeal.

57    It follows that the appeal should be dismissed.

Associate:

Dated:    1 February 2019