Federal Court of Australia

CPR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1212

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed

2.    The order made by the primary judge on 23 December 2019 dismissing the application for judicial review be set aside and in lieu thereof, there be the following orders:

(a)    a writ of certiorari issue quashing the decision of the Immigration Assessment Authority (the Authority); and

(b)    a writ of mandamus issue directed to the Authority requiring it to review the referred fast track reviewable decision in relation to the applicants according to law.

3.    The parties be heard as to the costs of the proceeding and of the appeal.

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

REASONS FOR JUDGMENT

BESANKO J

Introduction

1    This is an appeal from orders made by the Federal Circuit Court of Australia on 23 December 2019. On that day, the Federal Circuit Court made an order that the appellants’ application for judicial review be dismissed. The appellants had sought judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 17 May 2017 to affirm a decision made by a delegate of the Minister on 12 January 2017 to refuse protection visas to the appellants. The Federal Circuit Court dismissed the application for judicial review because it held that the Authority’s decision did not involve jurisdictional error (CPR17 & Ors v Minister for Immigration & Anor [2019] FCCA 3767).

2    There are three grounds of appeal. For the reasons which follow, I have decided that Ground 1 should be upheld, but that Grounds 2 and 3 should be rejected. The appeal must be allowed, the orders of the primary judge should be set aside, and constitutional writs directed to the Authority should be issued.

Background

3    There are three appellants and they are all citizens of Vietnam. The first and second appellants are husband and wife and they left Vietnam illegally and arrived in Australia by boat in 2013. The third appellant is the biological daughter of the first and second appellants and she was born in Australia in 2015.

4    As will become clear, the grounds of appeal mean that in terms of the facts, the focus is the first appellant’s activities in Australia. In the circumstances, only a brief summary of the appellants’ other claims to refugee status and complementary protection is necessary.

5    First, the first appellant claimed that he is the son of a former soldier in the army of South Vietnam and, by reason of that fact, he is discriminated against in Vietnam.

6    Secondly, the first appellant claimed that he was involved in a peaceful protest in Ho Chi Minh City/Saigon in 2012. He said that he joined a protest in relation to a territorial dispute between Vietnam and China about certain islands, which the primary judge described as “(omitting diacritical marks) Hoang Sa (the Paracels) and Truong Sa (the Spratlys)”. The first appellant said that as a result of his involvement in the protest he received a summons from the police, but that he did not attend in response to the summons. He claimed that in 2013 he was working as a truck driver and he had his driver’s licence confiscated by the police. He decided to leave Vietnam and he and the second appellant travelled to Australia.

7    Thirdly, the first and second appellants claimed that since their arrival in Australia, they have participated in protests, prayer masses and an event in Adelaide on 30 April 2016. The date of 30 April commemorates the fall of Saigon in 1975 and the reunification of the country. For many Vietnamese living overseas, the day is commemorated in a day of protest. I will refer to this as the 30 April anniversary event.

8    Finally, the appellants also claimed that they feared harm if they were returned to Vietnam for a number of reasons, being the following: (1) they are Catholics; (2) the third appellant was born in Australia; (3) a so-called data breach; (4) the first and second appellants’ departure from Vietnam was illegal; and (5) their status as failed asylum seekers. They also claimed that if they are returned to Vietnam, they will be unable to pray at the gravesite of their son who died in Australia.

The Relevant Events Before the Delegate and the Authority

9    The appellants did not raise the first appellant’s involvement in Australia in protests, prayer masses and the 30 April anniversary event in their combined application for protection visas dated 8 January 2016. The first time those matters were raised as a topic was at a protection visa interview of the first appellant conducted by the delegate on 17 October 2016. The matter of the first appellant attending protests in South Australia arose in passing in the course of the interview when the first appellant was being asked about his involvement in the Viet Tan Party, which is a reform group. The first appellant made no express reference to the 30 April anniversary event during the protection visa interview.

10    After the delegate had refused the application, the Minister referred the delegate’s decision to the Authority on 17 January 2017. The Authority has certain powers under Part 7AA of the Migration Act 1958 (Cth) (the Act). Those powers include a power to get new information and, for that purpose, to invite a person to an interview in order that the person give new information. Subject to the satisfaction of certain requirements, the Authority also has the power to consider new information for the purpose of making its decision.

11    It is convenient to set out the relevant sections of the Act at this point:

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.

12    The Authority decided to exercise the statutory power in s 437DC of the Act. On 11 April 2017, the Authority wrote to the first appellant in the following terms:

I am writing to you in relation to your application for a protection visa and the review conducted by the Immigration Assessment authority (IAA).

You are invited to attend an interview to provide the following information:

•    Information relating to your claims that you have participated in a protest since your arrival in Australia.

Please note that the IAA can only consider any new information you provide if there are exceptional circumstances. During the interview you may be asked to explain:

•    why the above information could not have been given to the Department of Immigration and Border Protection before it made the decision to refuse you a protection visa

OR

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

13    The Authority interviewed the first appellant on 19 April 2017. A transcript of the interview is before the Court. It comprises just over 12 pages. Both parties referred to the transcript in detail and, for reasons which will become clear, it is necessary to set out various passages in the transcript in these reasons. For convenience, I will describe the relevant passages as follows:

(1)    Introductory;

(2)    Protest activity if returned to Vietnam;

(3)    Involvement in the 30 April anniversary event; and

(4)    Concluding comments.

In between topics (2) and (3), the first appellant gave evidence of his attendance at two protests and two prayer masses in Australia. I do not need to set out any passage in relation to those matters.

14    The passage which I have described as Introductory, is as follows:

(LH: the Reviewer; VXN: the first appellant; I: Interpreter)

LH    …

Okay let’s just talk about why I’m interviewing you today. It’s important that you understand that this interview is not an opportunity to resubmit your claim. Or present arguments in relation to your case. The purpose of this interview is for me to obtain information about particular matters. And the particular matters I set out to you in the letter requesting you to attend today. In that letter I set out that I was requesting you to attend for you to provide further information regarding your claims that you have participated in protests since your arrival in Australia.

 VXN    Yes.

 LH    Yes go ahead.

 VXN    Can I ask a question?

 LH    Sure.

VXN    My question is, why do you want more information in regard with my participation in protests since my arrival to Australia?

LH    Sure, in order for me to consider your case fully, I would like to ask you some more questions about that because it’s my understanding of the protection visa interview that it was only briefly discussed.

 VXN    Yes.

LH    Okay, so, for me to consider your case fully, I need to just understand the details of what you have done so I can take that into consideration if I believe it is new information in my decision. Okay, that’s why I have to reiterate with you that this is not an interview to go over all your claims. It’s an opportunity for you to present further information for me to consider in relation to claims that I don’t think you’ve adequately been able to address at your interview.

15    The passage which I have described as Protest activity if returned to Vietnam is as follows:

LH    Okay. Alright talking about the two protests that you were involved in, do you believe you could be engaged in such conduct or be engaged in such protests on your return to Vietnam?

VXN    My apology I don’t understand the question.

LH    Sure no that’s alright. Okay so here you’ve told me that in Australia you’ve participated or engaged in these protests. If you were to return to Vietnam, would you also continue to engage in such activities?

 I    Can I clarify that?

 LH    Sure.

VXN    If I was returning to Vietnam and was to be able to be alive then I would still continue to be involved in such similar activity of the protest to against the government so in general to hope that the communist party to be gone.

LH    Okay, are you aware of any laws that would prohibit you from being involved in such protests in Vietnam?

 VXN    No, no, totally not aware.

LH    And what do you think the Vietnamese government, if you continue to engage in the conduct that you have here in Australia, how do you think that would be viewed by the Vietnamese government if you were to engage in the same conduct in Vietnam?

VXN    ah imprisonment, in prison it is what actually would happened, that nearly happened.

LH    So just to confirm if you undertook the same conduct you did here in Australia you believe you will be imprisoned in Vietnam.

LH    Okay, so if you believe if you did what you did here in Australia you would be imprisoned in Vietnam, why then would you do it?

VXN    If my family got sent back to Vietnam we wouldn’t have any opportunity to be survive. Because you know we’ll be sooner or later we’ll be facing the death so we’d rather choose that what I have told you.

LH    I don’t believe that that’s answered the question I asked. The question was, you have been involved in conduct here in Australia that you have stated you would continue to do on return. But you said if you’re involved in that conduct in Vietnam you will be imprisoned. Therefore I want to understand then why would you be involved in such conduct in Vietnam if you know what the consequences are?

VXN    I will give you an example in order for you to understand.

LH    Sure.

VXN    In my case to leave everything behind together with all my family to come to Australia in order to find freedom. And then, even when we arrive here and then still the Australian government still send us back to Vietnam. Therefore I have to find the way in order to expect all the [inaudible] so that won’t happen to us.

 I    You seem that you don’t understand.

LH    Um, so the last bit, so you’ve found freedom and even if you’re sent back to Vietnam you have to find another way to escape?

VXN    So all the solution that I could think of is you know it would have to be flee the country again.

LH    I’m sorry I don’t believe again that that’s answered the question I asked. I’m trying to understand why you would be engaged in the same conduct that you’ve done here in Australia knowing that you would be imprisoned for that conduct in Vietnam.

 I    Can I clarify that?

 LH    Sure.

VXN    So to publish event in those activities we just hope that there will be change, the change might not happen in my children’s generation but at least they don’t have to suffer you know the confusion like what we are facing now.

16    The passage which I have described as Involvement in the 30 April anniversary event is as follows:

LH    Now again we’ve gone through today that you’ve been involved in two protests and two praying sessions since your arrival in Australia and they’re activities you believe may be perceived to be critical of the Vietnamese government. Is there any other activities since your arrival in Australia that you need to advise me of that may also be perceived to be activities critical of the Vietnamese government?

VXN    I did attend what’s called anniversary for the event of the soldiers [April] and on that anniversary on that event I did have a speech when I talked about the differences between [inaudible] in the country and in the reality here [inaudible].

 LH    Okay

 VXN     And therefore for people to understand the story of war.

 LH    Where was this held at?

VXN    At the Vietnamese community, the South Australian Vietnamese community centre.

 LH    And who organised it?

 VXN    That would belong to the Vietnamese community organisation.

 LH    And what’s the significance of the 30th of April?

VXN    The 30th April in Vietnam people call it as an independence day for the [South] Vietnam.

 LH    Okay and what year was this?

 LH    What year did you attend?

 VXN    30th of April 1975.

 LH    No I’m asking what year that you went to this activity, was it last year?

 VXN    2016.

LH    Again this information was not brought up at your protection visa interview you spoke about participating in protests.

 VXN    That was my fault, yes.

 LH    Why did you not think to tell the Protection visa officer of this activity?

 VXN    So in general I had had no advice and no instruction for me to what to disclose.

 LH    How many people attended the event?

 VXN    Sorry.

 LH    How many people attended the event?

 VXN    There was many people at that event.

 LH    How many is many?

 VXN    Around hundred.

 LH    Okay. And why did you decide to give a speech?

VXN    I, the reason I want to speak because I want to inform the Vietnamese people who have been here for a very long time for them to be aware about what the reality is in Vietnam.

 LH    Do you have pictures of you speaking at this event?

VXN    I not in that event I don’t have any photo however there was a kind of camera man at that event recording but I’m not sure who has that tape.

 LH    Okay. Is there any other activities you‘ve been involved in?

17    The passage which I have described as Concluding comments is as follows:

LH    Okay. Look I’m going to have to finish the interview today. Okay um I will put to you that I do have serious concerns about the information you’ve given me today. You were told very clearly in the information provided to you by the Department that it was up to you to provide all your claims to the Department Officer in order for your claims for protection to be assessed. Okay, I’ve listened to the interview, the interview with yourself and the delegate it did go for a period of I think approximately a couple of hours. She asked you at the end whether you had any further information, she even asked you at the beginning of the interview whether you had any new information. While I acknowledge at the interview you did talk about being involved in a couple of protests there was no other information provided particularly in relation to the 30th of April speech and it raises serious concerns with me as to why you’ve been involved in such activity given your claims of only participating in one protest previously in Vietnam. Do you have any last comments coz I do have another hearing after this?

 VXN    I have an article from a newspaper here.

 LH    What’s the article say?

 VXN    It’s in English.

 LH    Okay. Does it relate to you?

 VXN    Not directly.

LH    Okay, look, given the period of time that we’ve got now and I’ve explained to you that this is not for you to resubmit your claims. You have the contact information for the IAA, it is up to you to provide all evidence in support of your claims and I suggest that you provide it to me but I can’t necessarily indicate to you until I see the information whether I will take it into account or not. Okay you need to be aware that I can only consider any new information that you provide to me in exceptional circumstances. So it’s up to you to provide that information to me if you wish to have it considered by the IAA but you need to be aware that it can only be considered in circumstances where we believe there’s been reasons why we should consider exceptional. Alright I will need to conclude the interview because there is another hearing, I‘ll consider the information that you’ve provided to me today. Okay.

VXN    Can I just ask a question about the photo and the information that I want to say that to you does it have a deadline?

LH    No you need to get it to me as soon as possible. You’ve been advised that the deadline to provide information passed a long time ago. I’m unable to give you a date when my decision will be made but I’m seeking to make that by the end of the week. So I suggest that if you can provide that to me you need to get that to me as soon as possible. Okay alright I do need to conclude I’m sorry but it wasn’t expected that this would continue for this period of time. Okay. I now conclude the interview at 2.08 Brisbane time. Thank you.

18    The appellants did provide additional information to the Authority, including photographs both at and shortly after the interview, but the photographs related to the protests, not the 30 April anniversary event.

19    The Authority provided reasons for its decision to affirm the delegate’s decision on 17 May 2017. It is not necessary to refer to all aspects of those reasons. It is sufficient to refer to those aspects of the reasons which are relevant to the grounds of appeal.

20    The Authority considered that the information provided at the interview about the protests, prayer masses and the 30 April anniversary event was new information within s 473DD of the Act because the information satisfied the requirements of exceptional circumstances to justify considering the information (s 473DD(a)) and the new information was not and could not have been provided to the delegate before the delegate’s decision was made (s 473DD(b)(i)). The Authority expressed itself as follows (Authority at [6], [7] and [38]):

6    On 11 April 2017, pursuant to s.473DE of the Act, the IAA invited the first applicant to attend an interview to provide new information about his claims that he had been involved in protests since his arrival in Australia.

7    On 19 April 2017, the first applicant attended the interview conducted by the IAA. The first applicant provided details and reasons for his involvement in protests, prayer masses and a 30 April event since his arrival in Australia. The information provided at the IAA interview is new information. I consider the first applicant was not provided with the opportunity to present to the delegate specific information in relation to his claims regarding his activities since his arrival in Australia and he referred to photographs in support. I am satisfied that the information was not and could not have been provided to the delegate. I am also satisfied there are exceptional circumstances to justify consideration of the new information.

38    The first applicant’s claims regarding his involvement in protests in Australia was not provided in his protection visa application. The applicant made the claims at the protection visa interview but the delegate sought only brief details in response. The delegate made no mention of the claims in her decision. On this basis, the applicant was invited to attend an IAA [sic, interview] to provide specific information in relation to the claim.

21    The Authority accepted the first appellant’s evidence of his attendance at two protests and two prayer masses since arriving in Australia. The Authority found that the protests occurred in May and December 2016 respectively and that the prayer masses occurred in 2016. The Authority found that the first appellant had not engaged in those activities solely for the purpose of strengthening his claims for protection (Authority at [44] and [46]). However, the Authority did not accept that those activities gave rise to a real chance of harm on the first appellant’s return to Vietnam “now or in the reasonably foreseeable future” (Authority at [50]).

22    The Authority did not accept that the first appellant attended or gave a speech at the 30 April anniversary event, that is, the event said to have occurred on 30 April 2016. In a paragraph which is critical to a consideration of Grounds 1 and 2 of the appeal, the Authority said (Authority at [45]):

45    However, I do not accept the first applicant gave a speech at a 30 April event organised by the Vietnamese Community of South Australia. The claimed date for this event was before the first applicant’s protection visa interview. There was no mention of his participation in the 30 April event at the protection visa interview. No photographs or evidence of his attendance and the speech he gave at the 30 April event have been provided. At the IAA interview, the first applicant was asked why he had not provided this information previously. He stated he had no advice or instruction and did not know what to disclose. The first applicant was also asked, like the protests and prayer masses, whether he had any evidence of his participation in the 30 April event. He stated he did not take any photographs at the 30 April event but that he believes there was a person taking photographs but he is not sure where the photographs are. I am not satisfied that the first applicant’s explanations for the absence and lack of supporting evidence sufficiently address my concerns. I am not satisfied he attended or gave the speech at the 30 April event as claimed.

23    As to the evidence the first appellant gave at the interview about Protest activities if returned to Vietnam, the Authority made the following findings (Authority at [51]):

51    At the IAA interview, the applicant stated he would engage in similar activities on return. I do not accept the applicant would engage in protest activities on return to Vietnam. The applicant stated his reasons for participating in the one protest in Vietnam was that it was coincidental, he was passing by, saw the protest, participated for 15 minutes and then went on to have coffee. He stated his reason for participating in the protest and masses in Australia was because it was a way to express empathy for the people in Vietnam and deliver to the Australian people information about human rights and how bad it is for the Vietnamese people. At the protection visa interview when asked why he would engage in protest activities on return. He stated if my family got sent back to Vietnam I would not have the opportunity to survive. The applicant was again asked why he would engage in protest activities on return. He stated he came to Australia to find freedom and if Australian government sent him back he would have to find a way to escape and solution would be to flee the country again. The question was again repeated. The applicant stated if he participated in protest activities he hoped there would be change for his child’s generation. The applicant had difficulties answering why he would engage in protest activities on return and I found his answers to be vague without conviction. I am not satisfied the reasons provided for his participation in the protests give rise to the applicant holding a political conviction or opinion which he would act upon on his return to Vietnam.

It is common ground that the reference in the fifth sentence in this passage to “protection visa interview” should be a reference to the Authority’s interview of the first appellant.

The Grounds of Judicial Review in the Federal Circuit Court

24    The first ground of judicial review in the Federal Circuit Court was that the Authority’s decision was affected by jurisdictional error because it involved unreasonableness or illogicality or both. The appellants’ argument was based on the following propositions: (1) the statutory provisions for the receipt of new information by the Authority are contained in Subdivision C, Division 3 of Part 7AA of the Act and include as one of the requirements before new information is considered by the Authority a requirement that the new information “was not and could not have been provided to the Minister before the Minister made the decision under section 65” (s 473DD(b)(i)); (2) the Authority found that the information the first appellant provided to it at interview about his involvement in protests, prayer masses and the 30 April anniversary event in Australia was new information because, inter alia, it was information that was not and could not have been provided to the delegate. The Authority found that the first appellant was not provided with “the opportunity to present to the delegate the specific information in relation to his claims regarding his activities since his arrival in Australia and he referred to photographs in support”; (3) the Authority gave as a reason for rejecting the first appellant’s evidence that he attended or gave a speech at the 30 April anniversary event as claimed, the fact that the first appellant made no mention of his participation in the event at the protection visa interview; (4) this reasoning is illogical or it means that the decision is unreasonable or both; and (5) the error was a material error as that concept has been described in the authorities.

25    The second ground of judicial review in the Federal Circuit Court was that the Authority’s decision was affected by jurisdictional error in that there was an error “in the finding of fact about the evidence in support and the basis for disbelief”. The elements of this contention were as follows.

26    First, the appellants referred to the following particular passage in the first appellant’s evidence concerning the 30 April anniversary event:

 LH    Do you have pictures of you speaking at this event?

VXN    I not in that event I don’t have any photo however there was a kind of camera man at that event recording but I’m not sure who has that tape.

 LH    Okay. Is there any other activities you‘ve been involved in?

27    Secondly, the Authority’s findings which are linked to that evidence are set out in the last three sentences of paragraph 45 of its reasons (set out above at [22]).

28    Thirdly, the errors said to follow from the above elements are identified by the appellants as follows:

2.5.    In the absence of any question on that issue and its apparent acceptance in the interview, and given that it was not inherently implausible:

2.5.1.    there was a denial of procedural fairness in the interview by assenting in the course of the interview to the applicant’s answer, and later rejecting his account without allowing him to explain why he did not have the recording; or

2.5.2.    it was unreasonable in the circumstances to reject the explanation the applicant had provided as a basis for concluding he had not given the speech.

29    Finally, the errors were both jurisdictional and material errors within the authorities.

30    The third ground of judicial review in the Federal Circuit Court was that the Authority’s decision was affected by jurisdictional error in that there was a failure to comply with s 473DE(1)(b) of the Act, a denial of procedural fairness, the taking into account of an irrelevant consideration and unreasonableness. The elements of this contention were as follows.

31    First, the first appellant was invited to an interview by the Authority to provide information relating to his claims that he had participated in a protest since his arrival in Australia.

32    Secondly, the first appellant attended the interview by the Authority on 19 April 2017. He was asked by the Authority about protests in Australia since his arrival here, but then he was asked whether he would engage in “such protests” on his return to Vietnam. The relevant passage in the interview is set out above (Protest activities if returned to Vietnam).

33    Thirdly, the appellants referred to the findings made by the Authority with respect to this and other evidence set out in paragraph 51 of its reasons (see above at [23]).

34    The jurisdictional errors which the appellants alleged arose from these matters were as follows:

3.6.    The conclusion of the Authority with respect to that matter was affected by jurisdictional error by reason that:

3.6.1.    there was a denial of procedural fairness arising from the combined failure to advise the applicant of the issue in advance of the interview, the raising of that new topic at the interview, the question on that topic not being understood by the applicant and the subsequent reaching of an adverse conclusion concerning his credit on that topic;

3.6.2.    the decision was unreasonable by combination of:

3.6.2.1.    the failure to advise the applicant of the issue in advance;

3.6.2.2.    to raise a new topic at the interview;

3.6.2.3.    to then reach an adverse conclusion to his credit where he did not understand the question he was asked; and

3.6.2.4.    to make a finding of credit based on demeanour (“conviction”) when he undertook his interview through an interpreter and did not understand the question.

35    Finally, the appellants alleged that the error was a material error within the authorities.

The Primary Judge’s Reasons

36    With respect to the first ground of judicial review, the primary judge accepted the Minister’s submission that, on a fair reading of the Authority’s reasons, it should be concluded that the doubts about the first appellant’s credibility related only to his attendance and participation in the 30 April anniversary event by making a speech. Furthermore, although the Authority observed, correctly, that the first appellant did not mention the 30 April anniversary event at his protection visa interview, the gravamen of its criticism of the appellants’ claim in this respect is that the first appellant did not provide the Authority with supporting evidence, such as photographs, of his participation in the 30 April anniversary event, “when it might be expected that the first [appellant] would bring such evidence forward if it existed and when he had provided such photographic evidence of his attendance at the protests and masses” (primary judge at [22]). The primary judge said that the acceptance by the Authority that the first appellant had not had an opportunity to provide details and reasons for his involvement in protests, prayer masses and the 30 April anniversary event to the delegate, and not accepting that the first appellant had attended and made a speech at the 30 April anniversary event because he did not provide corroborative evidence to the Authority, is not inconsistent (primary judge’s emphasis).

37    The primary judge recorded the fact that by reason of evidence produced by the appellants after the Authority’s decision, it transpired that there was corroborative evidence in existence, but the first appellant had not obtained it and had not sought it prior to the interview with the Authority or, despite being given an opportunity to provide it by “the end of the week” or “as soon as possible”, immediately after the interview. The primary judge noted that it was accepted at the hearing before him that a video of the first appellant giving a speech at the 30 April anniversary event had since been obtained by the first appellant. The primary judge said that the fact that the conclusion of the Authority was incorrect did not mean that the conclusion was illogical or unreasonable. His Honour said that the first appellant’s failure to provide the evidence to the Authority in the circumstances constituted an evident and intelligible basis for its conclusion.

38    With respect to the second ground of judicial review, the primary judge described it as a complaint that the interview was conducted in a way which was unfair as a matter of procedure and that involved, or led to, the exercise of a power in a manner which was legally unreasonable. The primary judge noted that the appellants referred to the passage in the transcript which I have described as Concluding comments.

39    The primary judge expressed his conclusions with respect to the second ground of judicial review in the following way:

31    In my view, there was neither procedural unfairness nor unreasonableness in the way the member spoke to or interviewed the first applicant. I do not accept that the passage shows the member accepting the applicant’s claim that there was a photographic record of him speaking at the 30 April event. The use of the word “Okay” appears to be merely a conventional utterance or phatic expression rather than one carrying any particular meaning. The member used the word elsewhere in the interview in a similar way (see affidavit of Emily Grace Rutherford, annexure EGR1). The subsequent discussion between the member and the first applicant can have left him in no doubt that it was important to provide photographic or other corroborative evidence if it was available. His question about any deadline indicates he was aware of this.

32    Read as a whole I do not accept that the applicant was denied procedural fairness or that the conduct of the interview was unreasonable.

40    With respect to the third ground of judicial review, after referring to the respective submissions of the parties, the primary judge said the following:

42    In my view, the applicant's answers to the question about whether he would protest against the government were he to return to Vietnam were unresponsive after the Authority asked him why he would protest if he knew he might be imprisoned. Taking the exchange between the Authority and the first applicant as a whole I consider that it was fair to describe the content of his answers on this issue as vague and without conviction. In my view the Authority’s remarks were not about the first applicant’s demeanour but the nature of the answers themselves. The first applicant appeared to understand the member’s questions and was unable to satisfactorily answer the questions about why he would protest in Vietnam if he faced imprisonment. There was nothing unfair or confusing in the questioning. I am not satisfied the interview was conducted in a procedurally unfair or, to the extent there is overlap, in a legally unreasonable manner.

The Relevant Statutory Provisions and Principles

41    I have already set out the section empowering the Authority to get new information (s 473DC) and the requirements which must be satisfied before the Authority considers new information for the purposes of making a decision (s 473DD). These sections appear in Division 3 of Part 7AA of the Act which deals with the conduct of the review which the Authority is required to undertake by reason of s 473CC. Subject to the provisions dealing with new information, the Authority is to review a fast track reviewable decision referred to it on the material provided to it by the Secretary of the Department under s 473CB and without accepting or requiring new information, or interviewing the referred applicant (s 473DB). In addition to a power to get new information, the Authority has a statutory obligation to refer new information which has been considered, or is to be considered, by the Authority to the referred applicant for his or her comments where the new information would be the reason, or part of the reason, for affirming the fast track reviewable decision. Section 473DE of the Act is in the following terms:

473DE Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

   (i)    in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

   (b)    is non disclosable information; or

   (c)    is prescribed by regulation for the purposes of this paragraph.

Note:    Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

42    This section is a statutory reflection, or at least a partial reflection, of the common law requirement to give a party affected by a decision an opportunity to comment on adverse material which is relevant to the decision (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL)). The referred applicant’s comments may be sought in writing or by way of interview.

43    The conduct of interviews by the Authority, either to get new information (s 473DC) or for the purposes of giving the referred applicant the opportunity to comment on adverse new information (s 473DE), is the subject of s 473DF which is in the following terms:

473DF Invitation to give new information or comments in writing or at interview

(1)    This section applies if a referred applicant is:

(a)    invited under section 473DC to give new information in writing or at an interview; or

(b)    invited under section 473DE to give comments on new information in writing or at an interview.

(2)    The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.

(3)    The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.

(4)    If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:

(a)    without taking any further action to get the information or the referred applicant’s comments on the information; or

(b)    without taking any further action to allow or enable the referred applicant to take part in a further interview.

44    The Migration Regulations 1994 (Cth) address the new information prescribed for the purposes of identifying new information not covered by s 473DE(3)(c) (reg 4.41) and prescribed periods under s 473DF(2) (reg 4.42). Regulation 4.41 is in the following terms:

4.41 New information not required to be given to referred applicant

For paragraph 473DE(3)(c) of the Act, new information given to the Immigration Assessment Authority by a referred applicant for the purposes of the Authority’s review of a fast track reviewable decision in relation to the referred applicant is prescribed.

45    The effect of reg 4.41 is that, if in the process of getting new information, new information is provided by the referred applicant for the purposes of the Authority’s review, then the statutory obligation in s 473DE does not apply to that new information.

46    In this case, the Authority referred to s 473DE (Authority at [6]), but it is clear on all the material that that is an error and the invitation was given by the Authority pursuant to s 473DC, not s 473DE.

47    Section 473DA provides that, subject to qualifications not presently relevant, Division 3 of Part 7AA is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.

48    The type of jurisdictional error alleged in Ground 1 of the appeal is legal unreasonableness or illogicality/irrationality. Having regard to the nature of the error alleged by the appellants, I will approach Ground 1 by reference to the doctrine of illogicality or irrationality rather than legal unreasonableness. Whether illogicality/irrationality is a freestanding ground of jurisdictional error or a subset of legal unreasonableness need not be addressed. Nor is it necessary to address the precise extent to which the doctrine of legal unreasonableness applies to matters beyond decisions made in the exercise of a statutory discretion. (As to both these matters, see Vo v Minister for Home Affairs [2019] FCAFC 108; (2019) 269 FCR 566 at [43]; Aronson M, Groves M, Weeks G, Judicial Review of Administrative Action and Government Liability, (6th ed, Thomson Reuters (Professional) Australia Limited, 2017) at 4.16, 5.2, 5.3 and 6.8).

49    In order to amount to jurisdictional error, the irrationality or illogicality must be serious in that it must be such that no reasonable person could have reached the same conclusion on the same evidence (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] per Crennan and Bell JJ).

50    Grounds 2 and 3 of the appeal raise, among other issues, an issue as to whether the incidents of the obligation to afford procedural fairness apply in the case of decisions taken and conduct undertaken under Part 7AA of the Act. Section 473DA(1) is significant in this context and, in particular, the words in the subsection, “in relation to reviews” conducted by the Authority. These words may be contrasted with the words “in relation to the matters it deals with” in s 422B which deals with Part 7 reviewable decisions.

51    In BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091 (BVD17), the plurality (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) said that the effect of s 473DA(1) is that the provisions in Division 3 of Part 7AA are a codification of the Authority’s obligations of procedural fairness. The plurality went on to say that not all implications were precluded by s 473DA(1) and, in particular, an implication that the powers in Division 3 are to be exercised within the bounds of legal reasonableness. The plurality said (at [34]):

The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court constituted by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 and in Minister for Immigration and Border Protection v DZU16. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the “lens” through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.

(Citations omitted.)

52    The plurality gave the following examples of the obligations that might arise as incidents of an obligation to exercise statutory powers in a legally reasonable manner (at [36]):

…The prescription in s 473DA(2), it will be recalled, is to the effect that nothing in Pt 7AA requires the Authority to give to a referred applicant any material that was before the Minister when making the decision under s 65. There might be circumstances in which the prescription would not prevent the Authority being required to provide material that was before the Minister to a referred applicant as an incident of a legally reasonable exercise of the discretion conferred on it by s 473DC(3). Similarly, there might be circumstances in which the prescription would not prevent the Authority being required to provide such material to a referred applicant as a consequence of a legally reasonable exercise of the discretion conferred on it by s 473GB(3)(b)…

(Citation omitted.)

53    Two other authorities concerning the obligation to exercise statutory powers within the bounds of legal reasonableness should be mentioned.

54    In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (Plaintiff M174/2016), Gageler, Keane and Nettle JJ said (at [21]):

There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.

(Citation omitted.)

55    In BMV16 v Minister for Home Affairs [2018] FCAFC 90; (2018) 261 FCR 476 (BMV16), the Full Court of this Court held that it was a legally unreasonable exercise of the power in s 473DF(2) to require comments by a referred applicant on new information immediately at an interview conducted by the Authority under s 473DE of the Act. The Court’s conclusions are set out in the following passage (at [95]):

It would be legally unreasonable to exercise the power in s 473DF(2) in a manner which denied the appellant the very opportunity which s 473DE contemplated. The opportunity to comment afforded by s 473DE was restricted by the terms of ss 473DE and 473DF and more generally by Div 3, which is taken to be an exhaustive statement of the natural justice hearing rule: s 473DA(1) (ss 473GA and 473GB which are also referred to in s 473DA(1) are not presently relevant). Restrictions included that the referred applicant need only have been given particulars of the new information as opposed to the new information itself. A further restriction was that the most time the Authority could allow for the comment to be given was 14 days. That the opportunity to comment afforded by s 473DE was restricted does not mean that it could be wholly or substantially denied through an unreasonable exercise of the power contemplated by s 473DF(2).

56    The effect of the decision in BVD17 is that the appellants’ complaints about the interview are not to be assessed by reference to the incidents of an obligation to accord procedural fairness, but rather by reference to the doctrine of legal reasonableness. I should add that I would reject the appellants’ complaints even by reference to the incidents of procedural fairness. I also recognise, as the High Court made clear in BVD17, that there may be an overlap in terms of the characterisation of a complaint between legal unreasonableness and a departure from the incidents of the common law requirements of procedural fairness.

57    I bear in mind that the legal standard of unreasonableness is necessarily a demanding standard in order to avoid the Court impermissibly intruding into the merits of a decision and quashing a decision on a mere disagreement with the merits of the decision. This remains the case even after the High Court made it clear that legal unreasonableness is not confined to Lord Greene MR’s statement of the test in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230 (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [68] per Hayne J, Kiefel J (as her Honour then was) and Bell JJ; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [10] per Kiefel CJ; at [60] per Gageler J; at [82] per Nettle and Gordon JJ).

58    As I understood the appellants’ legal unreasonableness argument with respect to Grounds 2 and 3 of the appeal, it was that the conduct of the oral interview by the Authority was attended with legal unreasonableness. The word “interview” is not defined in the Act. Section 473DF(3) provides that the Authority may determine the manner in which the interview is to be conducted. The purpose of the interview will inform what is required in terms of applying the doctrine of legal reasonableness to the conduct of an interview. It is perhaps obvious, but nevertheless worth noting, that a complaint by a party of legal unreasonableness based substantially on the conduct of an interview must be assessed, not only by reference to the interview, but also by reference to the substantive decision actually made, the issues in play and the findings made by the decision-maker. There must be a link with an outcome, result or decision.

59    Finally, there was an attempt by the appellants in reply to identify as a decision for the purposes of the application of the doctrine of legal reasonableness, the decision of the Authority to proceed by way of an oral interview rather than by written questions. That attempt fails because there was nothing legally unreasonable in the circumstances of this case in the Authority deciding to conduct an oral interview of the first appellant.

Analysis

Ground 1

60    The appellants submit that there is an “irreconcilable contradiction” in the Authority’s reasons sufficient to meet the description of a serious illogicality or irrationality. The irreconcilable contradiction relates to whether the first appellant could have provided details of the 30 April anniversary event to the delegate. The argument is that it was inconsistent for the Authority to find on the one hand, that the first appellant could not have, for the purposes of determining whether information about the event was new information within s 473DD, which the Authority could then consider for the purposes of making a decision and then to find on the other hand, that the fact that the first appellant did not identify the event at the protection visa interview was a reason not to accept the first appellant’s account of his participation in the event. The relevant paragraphs in the Authority’s reasons are set out above (at [20] and [22]). As I have said, paragraph 45 of the Authority’s reasons is a critical paragraph.

61    The appellants submit that, properly construed, in paragraph 45 of its reasons the Authority is saying that the reason it rejects the first appellant’s account of the 30 April anniversary event is that he did not mention it at the protection visa interview.

62    The appellants submit that the primary judge also erred insofar as he held that the reason the Authority was not satisfied of the first appellant’s participation in the event was the absence and lack of supporting evidence. The appellants submit that there is no legal requirement for supporting evidence, or what might otherwise be called corroboration, and that the absence of evidence that a person was at an event does not, and could not as a matter of logic, prove that the person was not at the event (Hobbs v Tinling, Hobbs v Nottingham Journal [1929] 2 KB 1 at 21 per Scrutton LJ; De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85).

63    The Minister submits that the reasoning of the primary judge is correct. He submits that the Authority “observed” in paragraph 45 of its reasons that the claim by the first appellant concerning his attendance at the 30 April anniversary event had not been raised at the protection visa interview, but impliedly accepted the first appellant’s explanation as to why he had not provided the information about the event previously. In other words, the Authority did not use the first appellant’s failure to mention the 30 April anniversary event in the protection visa interview as a reason not to accept his evidence. The matter which the Authority did not accept was the first appellant’s explanation for a lack of supporting evidence, which it contrasted with his provision of supporting evidence in relation to his attendance at other events. The Minister’s argument raises an issue as to the proper construction of the Authority’s reasons and, in particular, paragraph 45.

64    The Minister did put what he called a secondary argument in the event that his submission as to the proper construction of the Authority’s reasons was not accepted. The Minister’s secondary argument was that even if the Authority had relied on the fact that the first appellant had not identified the 30 April anniversary event at the protection visa interview in making its findings about that event, there is nevertheless no illogicality or irrationality in the Authority’s approach because the exercise of the power in s 473DD of the Act, including the making of findings associated with the exercise, is preliminary in nature and does not bind the Authority in terms of the credibility findings it may later make. It is convenient for me to deal with this secondary argument at this point.

65    The reasons the Authority decided that the appellants could not have provided details of the first appellant’s participation in the 30 April anniversary event to the delegate are not entirely clear. The appellants’ combined application for protection visas was made on 8 January 2016 and clearly it would not have been possible to provide information about an event on 30 April 2016 at that stage. However, the protection visa interview was on 17 October 2016 and it would have been possible for the first appellant to have provided information about his involvement in the 30 April anniversary event at that interview. A possible explanation for the Authority’s approach is that the Authority considered the first appellant’s participation in protests, prayer masses and the 30 April anniversary event as one matter and found that information about that matter could not have been provided at the protection visa interview because at least one of the protests occurred in December 2016. Another possible explanation is that the Authority saw a distinction between mentioning a matter and providing details or “specific information” in relation to that matter. It is not possible to be certain about the Authority’s reasoning and, in the end, it does not matter because the Authority’s approach to the requirement in s 473DD(b)(i) is not in issue. The Authority found that the information about the 30 April anniversary event could not have been provided to the delegate. There is nothing provisional or preliminary about that finding of fact. There is nothing in the legislative scheme suggesting that different standards of proof apply at different stages of the Authority’s review exercise. I reject the Minister’s secondary argument.

66    I return to the Minister’s primary argument. The Minister submits that the Authority’s reliance on the lack or absence of evidence in relation to the 30 April anniversary event was not illogical or irrational. The Authority was entitled to rely on the absence of corroborative evidence in relation to the 30 April anniversary event and to contrast that with the supporting evidence the first appellant produced in relation to his attendance at other events. The Minister referred to SZDPF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 235 at [32]–[33]. The Minister submits that authorities in the criminal jurisdiction are not to the point because the presumption of innocence, and the onus and standard of proof on the Crown, are concepts which are foreign to the review process under Part 7AA of the Act.

67    The Minister submits that the evidence which was not before the Authority, but which was adduced before the primary judge to the effect that the first appellant did attend and speak at the 30 April anniversary event, does not show materiality because the error (assuming an error, which the Minister does not accept) is not an error which involves a failure to inquire. The evidence adduced before the primary judge would only be relevant if the Authority failed to make inquiries of the first appellant, to show what those inquiries, had they been made, would have revealed.

68    In my opinion, this ground of appeal should be upheld.

69    With respect, it is not easy to discern what the Authority is saying in paragraph 45 of its reasons. I must bear in mind the well-known observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271–272 that the Authority’s reasons are not to be scrutinised in an over-zealous fashion. Furthermore, it is not readily to be supposed that the Authority would fall into the trap of serious illogicality or irrationality. Nevertheless, I consider that the most natural and logical reading of paragraph 45 is that the Authority reasoned as follows. First, it had concerns about the first appellant’s credibility or reliability, or both, in relation to his involvement in the 30 April anniversary event. Secondly, there is only one matter identified by the Authority in paragraph 45 as potentially forming the basis of these concerns and that is the fact that the first appellant did not mention his participation in the event at the protection visa interview. I consider that the Authority did rely on that matter and did so in a manner adverse to the first appellant. With respect, it is irrational in a serious respect to reason in that way because it is directly inconsistent with the Authority’s earlier finding that information about the 30 April anniversary event could not have been provided to the delegate by the first appellant. It might be added, although not necessary for my conclusions, that the observations of the Reviewer in the Concluding comments (see at [17] above), supports this construction of the Authority’s reasons. Thirdly, the Authority refers to the absence of supporting evidence in a manner which is entirely orthodox and did not involve error. The problem, therefore, is with the second step in the Authority’s reasons and it involved serious illogicality or irrationality.

70    If I am wrong in my analysis of the Authority’s reasons, I do not think the Minister’s case fares any better on the alternative construction. If the Authority treated the fact that the first appellant did not mention the 30 April anniversary event at the protection visa interview as a neutral fact, then the significance of the absence of supporting evidence comes into much sharper focus and it seems to me difficult to avoid the conclusion, absent any other reason being identified, that the Authority’s reason for rejecting the first appellant’s account was solely based on the absence of supporting evidence. That would be a sufficiently serious error to constitute jurisdictional error. There is a difference between having doubts about a person’s credibility or reliability and, therefore, their evidence for certain reasons and then noting the absence of supporting evidence on the one hand, and not accepting a person’s account because there is no supporting evidence on the other.

71    I uphold Ground 1 of the appeal.

Ground 2

72    The appellants submit that the interview was carried out under s 473DE of the Act. As I have said, that is incorrect; it was carried out under s 473DC.

73    The appellants submit that the Authority’s conduct of the interview in relation to the 30 April anniversary event was unfair. The relevant passage in the transcript is set out above (at [26]). The appellants submit that it was unfair to say no more than “Okay” in response to the first appellant’s reference to a man with a camera, or a kind of cameraman being present. It is not clear to me whether the appellants are contending that the first appellant was in some way lured into thinking that his account was being accepted by the Authority due to the Authority’s use of the word “Okay”. If so, it seems to me that that argument is an impossible one in light of what the Authority said in the Concluding comments (see at [17] above).

74    The argument which was clearly pursued by the appellants on the appeal was that the Authority had an obligation to probe or question the first appellant further about the availability of supporting evidence, particularly where the absence of supporting evidence led to an adverse finding. At one point in their written submissions, the appellants, in identifying what they contend should have happened, referred to questions being repeated or “a particular matter … emphasised for exploration”. The appellants submit that had that course been pursued “[t]here is every reason to think that reasonable explanations could have been given to allay those concerns”. The appellants further submit that it was legally unreasonable for the Authority not to probe or explore further. In the alternative, the appellants submit that the decision in BVD17 does not preclude the application of the rules of procedural fairness to the interview once a decision had been made to conduct an interview and that the interview in relation to the 30 April anniversary event breached those rules.

75    The Minister submits that Part 7AA of the Act does not impose procedural fairness obligations on the Authority and he relied on BVD17 at [2], [29] and [34]. As I have said, I accept this submission. The Minister submits that insofar as legal unreasonableness is concerned, the test is necessarily stringent and extremely confined and he relied on SZVFW at [11], [52] and [135].

76    The Minister accepts that the discretion in s 473DC(3) is subject to a requirement that it be exercised within the bounds of legal reasonableness and he referred to Plaintiff M174/2016 at [21] per Gageler, Keane and Nettle JJ. However, for reasons already given, the statutory discretion to conduct an interview is not subject to the common law requirements of procedural fairness. Section 473DE, which was not enlivened in this case, is a code with respect to obligations of procedural fairness (BMV16 at [83]).

77    The Minister submits that, assuming an obligation to act within the bounds of legal reasonableness applied to the interview once the Authority had decided to conduct an interview, there was nothing legally unreasonable in the way in which the Authority conducted the interview. In support of that contention, the Minister relied on three matters. First, he relied on the reasons given by the primary judge. Secondly, he submits that the appellants’ argument is contrary to the well-established principle that a decision-maker is not required to give a person a “running commentary” upon what he or she thinks about the evidence that is given and, in that context, he referred to SZBEL at [48]. Finally, the Minister submits that, in any event, the first appellant’s evidence, so far as it went, suggested that it was unlikely that he could have obtained the film or tape.

78    In my opinion, this ground of appeal must be rejected. I am unable to see any legal unreasonableness in the exercise of the power in relation to the interview insofar as it concerned the 30 April anniversary event. The first appellant produced photographs at the interview of his attendance at one of the protests. It was made clear by the Authority in the Concluding comments that the Reviewer had serious concerns about the information the first appellant had provided. The Reviewer said that, although at the protection visa interview the first appellant had talked about “a couple of protests”, there was no other information provided “particularly in relation to the 30th April speech” and it raised serious concerns in the Reviewer’s mind as to why the first appellant had been involved in such activities. The Reviewer suggested that the first appellant should provide such information as he wished to provide, although the Reviewer may not consider it. The first appellant can have been in no doubt that if he had information, including photographs of his participation in the 30 April anniversary event, then that information should be provided to the Authority. The fact that shortly after the interview by the Authority, the appellants, through an agent, provided information to the Authority, including photographs concerning a different protest, is evidence of the first appellant’s understanding.

79    There was no legal unreasonableness in the conduct of the interview with respect to the 30 April anniversary event.

80    Ground 2 of the appeal is rejected.

Ground 3

81    The appellants submit that that part of the interview dealing with Protest activity if returned to Vietnam leading to the finding in paragraph 51 of the Authority’s reasons that the first appellant had difficulty answering why he would engage in protest activities on return and that his answers were vague and lacked conviction, was legally unreasonable and in breach of the rules of procedural fairness having regard to three matters. That part of the transcript dealing with Protest activity if returned to Vietnam is set out above (at [15]).

82    Again, as with Ground 2 of the appeal, the appellants submit that nothing in BVD17 prevents the application of the rules of procedural fairness to the interview itself, once the decision to conduct an interview has been made by the Authority. As I have said, I reject that submission.

83    The first of the three matters identified by the appellants is the lack of any notice by the Authority to the first appellant that the question whether he would protest on return to Vietnam would be raised at the interview. The notice which was given to the first appellant was that at the interview, he would be given the opportunity to provide information relating to his claims that he had participated in a protest since his arrival in Australia. Nothing was said about protest activities in Vietnam if he was returned to that country.

84    Secondly, it is clear (so the appellants argue) that the first appellant had trouble understanding the questions he was asked as evidenced by the fact that on two occasions, the interpreter asked whether she could clarify something, and at one point, the interpreter says, “You seem that you don’t understand”. This is in a context where the questions concern a hypothetical, being an event in the future which may or may not take place.

85    Thirdly, the appellants submit that the unfairness of the process was exacerbated by the findings of the Authority, based as they were on demeanour, including the dubious conclusion in a case where an interpreter was used that the first appellant’s answers lacked conviction.

86    The appellants submit that there is an analogy with the decision of the Full Court in BMV16 in that, in both that case and this case, no notice of the matter was given and the applicant’s response was not believed.

87    In response to these submissions, the Minister first submits that by reason of s 473DF(3), it is within the power of the Authority to determine the manner in which an interview is to be conducted and that is relevant to the legal standard of unreasonableness.

88    Secondly, the Minister submits that there is no legislative or other requirement for the Authority to provide the first appellant with “advance, exhaustive and specific, notice of the issue(s) that it would raise with the appellant at the interview”.

89    Thirdly, the Minister submits that the issue as to whether the first appellant would engage in protest activity if returned to Vietnam “arose naturally on the face of his protection claims, and flowed logically from the Authority’s questioning of the appellant about his protest activities in Australia”.

90    Fourthly, the Minister submits that there is no evidence of a lack of understanding on the part of the first appellant or significant confusion which was not clarified during the interview and there was nothing unfair or confusing in the questioning. In this context, the Minister referred to the affidavit of Mr Samuel Cummings, who is a solicitor employed by the Minister’s solicitors. He has listened to an audio recording of the interview conducted by the Authority and he has sworn an affidavit which establishes the following: (1) the interpreter’s statement: “You seem that you don’t understand” is the interpreter interpreting words that the first appellant said which were directed to the Reviewer; and (2) the two statements attributed to the interpreter to the effect of “Can I clarify that?” are statements of the interpreter herself, not interpretations of statements by the first appellant.

91    Fifthly, the Minister submits that there is no analogy between this case and the decision in BMV16. That case concerned an invitation under s 473DE and involved an oral invitation to the appellant to comment on new information at the interview. Acting under the power in s 473DF(2), read with reg 4.42 and s 473DF(3), the Authority required the appellant to provide his comments immediately. The Full Court held that the Authority’s decision to require an immediate response was legally unreasonable in the particular circumstances of the case. This case did not involve the first appellant commenting on new information at an interview. The information traversed at the Authority’s interview was all information given to the Authority by the first appellant and thus excluded from any obligation under s 473DE.

92    The Minister submits that where none of the individual matters identified by the appellants were legally unreasonable, it is impermissible to aggregate those matters and conclude that, viewed as a whole, the procedure of the Authority was nonetheless legally unreasonable.

93    Finally, the Minister submits that in reaching its conclusion that the first appellant’s answers were “vague without conviction”, the Authority relied on the content of the first appellant’s answers and not on his demeanour. In any event, it was open to the Authority as the decision-maker to give weight to his or her impressions taken from the first appellant’s demeanour. The Minister referred to Re Refugee Review Tribunal & Another; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [34].

94    In my opinion, this ground of appeal should be rejected. None of the appellants’ three complaints, either individually or collectively, give rise to legal unreasonableness.

95    There was nothing irregular in the Authority asking the first appellant about whether he would engage in protest activity if returned to Vietnam in the absence of notice that that would be one of the subjects of the interview. There was a clear link between the topic of the protests in Australia, whether the first appellant had the level of political conviction likely to cause him to act in a way which would bring him to the adverse attention of the authorities in Vietnam and whether the first appellant intended to protest in Vietnam if he was returned there. The testing of information provided by a referred applicant as part of an invitation by the Authority under s 473DC of the Act is by no means unreasonable and this line of questioning is of that nature.

96    The onus was on the appellants to establish that the first appellant did not understand the line of questioning, or at least had difficulty understanding the line of questioning. The appellants did not discharge that onus. In fact, on my reading of the transcript and having regard to the evidence of Mr Cummings, the first appellant seems to have understood the questions he was asked.

97    The reference by the Authority to the first appellant’s answers as being given “without conviction” does not necessarily imply a finding based on demeanour, or on demeanour alone. Such a conclusion may be based on the nature and quality of the answers given. In any event, I am not persuaded that a finding based on demeanour cannot be made even where an interpreter is used, although before doing so a decision-maker will clearly need to be alive to the possibility that language difficulties may be the reason for what might otherwise appear to be unfavourable features of a person’s demeanour.

98    Ground 3 of the appeal is rejected.

Conclusions

99    For these reasons, the appeal should be allowed and the order made by the primary judge dismissing the application for judicial review should be set aside. In lieu of that order, orders should be made that a writ of certiorari issue quashing the decision of the Authority and a writ of mandamus issue directed to the Authority requiring it to review the referred fast track reviewable decision to relation to the applicants according to law. I will hear the parties as to the costs of the proceeding and of the appeal.

Associate:    

Dated:    24 August 2020