Federal Court of Australia

FPK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 723

ORDERS

THE COURT ORDERS THAT:

1.    Application dismissed.

2.    The applicant is to pay the first respondent's costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant is a Vietnamese citizen who arrived in Australia as an irregular maritime arrival in 2013, and was invited to apply for a Safe Haven Enterprise visa (SHEV).

2    A delegate of the Minister refused the application, and in accordance with the regime established under Part 7AA of the Migration Act 1958 (Cth), that refusal decision was reviewed by the Immigration Assessment Authority (Authority).

3    The Authority affirmed the delegate's decision, and the applicant sought review of the Authority's decision by the Federal Circuit Court of Australia. The primary judge dismissed the application.

4    The applicant seeks an extension of time in which to appeal from the orders of the Federal Circuit Court, and seeks leave to raise a ground not raised before the primary judge.

5    The ambit of the proposed appeal ground is narrow.

6    The delegate's reasons disclose that the applicant and his uncle made similar protection claims in their visa applications, insofar as the claims referred to their attendance at a protest in  June 2013 in Hanoi about a Chinese ship that had 'rammed' a Vietnamese boat. During the course of the delegate's interview with the applicant, and with the applicant's consent and apparently that of the uncle, the delegate spoke to the delegate who was interviewing the uncle (second delegate). The delegate interviewing the applicant then put certain inconsistencies to the applicant, arising out of that conversation. The applicant was also provided with an opportunity to file any submissions after the interview addressing matters that had been raised with him, including those inconsistencies.

7    Having considered a number of matters, including country information about the protest, inconsistencies in the applicant's evidence, and inconsistences between the applicant's evidence and information from the second delegate about the uncle's evidence, the delegate did not accept that the applicant was present at the protest and ultimately rejected the applicant's protection claim.

8    The delegate was not satisfied that the applicant was a refugee within the meaning of s 5H(1) of the Migration Act, and was not satisfied that the complementary protection criteria in s 36(2)(aa) of the Migration Act were satisfied.

9    Under the Part 7AA regime, the Secretary to the responsible Department is obliged to provide relevant material to the Authority for the purpose of the review: s 473CB of the Migration Act.

10    The ground of appeal that the applicant seeks to pursue, and that was not raised in the Federal Circuit Court, alleges, in effect, that the primary judge erred in failing to find jurisdictional error in circumstances where the Secretary failed to consider the relevance of and provide material to the Authority under s 473CB, and in circumstances where such material could have affected the outcome of the review. The applicant contends that the Secretary should have considered and taken a reasonable view as to whether any other file notes or audio record of the discussion between the delegate and the second delegate or the uncle's Departmental file were relevant, and failed to do so, or unreasonably determined that the material was not relevant.

Extension of time

11    There was no issue between the parties as to the appropriate principles to be applied on an extension application.

12    Relevant considerations include the length of the delay, any explanation for the delay, any prejudice to the respondent and whether the application for review would have any prospect of success if the extension were granted: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349; and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

13    Ordinarily, caution is required in assessing the merits of an application at an interlocutory stage of the proceeding, and in determining what significance or weight to give to the resulting conclusion: Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9] (Brennan CJ and McHugh J), [66] (Kirby J); and MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63]. The applicant's proposed grounds should be considered on their face and examined at a 'reasonably impressionistic level'. If it appears from such an examination that the application is not sufficiently arguable or has no realistic prospect of success, it would not ordinarily be in the interests of justice to grant an extension of time.

14    The delay in instituting an appeal was of some substance. The primary judge dismissed the application on 28 April 2020. The application for an extension of time was filed on 8 September 2020, some 105 days out of time. The explanation given for the delay was that the applicant did not know about the 28 day time period in which to appeal; that he acted once he found out in June 2020 that his visa had expired; that he sought legal advice in August 2020; and that the delay between seeking advice and filing the application was a result of awaiting solicitor's and counsel's advice.

15    The Minister opposes the extension application, describing the delay as substantial and weighing heavily against the grant of an extension.

16    Ignorance of time periods for appeals is not of itself generally an excuse. Laypersons are generally not aware of the Court' timeframes: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]. I also accept, as counsel for the applicant submitted, that the applicant did not 'sit on his hands', and took some steps to progress the matter. I do not consider the delay of itself would deny an extension, but it is of some weight and I take it into account in reaching an overall decision.

17    The more central question in this case, however, is the prospect of success of the proposed appeal. That in turn depends upon whether or not leave should be granted to rely upon an issue that was not raised before the primary judge.

Leave to raise new argument

18    The applicant accepted that leave is required to rely on the proposed ground of appeal.

19    The Court may grant leave if some point is advanced that was not taken below, but which clearly has merit, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused: Coulton v Holcombe (1986) 162 CLR 1 at 7-8; and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [48].

20    Leave to argue a new issue on appeal will only be granted where the Court considers that it is expedient in the interests of justice to entertain the issue. The principles were addressed by the Full Court in CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362:

[36]    There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

See also SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68; [2014] FCA 686 at [55] (Flick J).

[37]    In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave, which have been applied in numerous decisions. One consideration weighing against a grant of leave in the present case is that the appellant did not provide an explanation for the failure to raise the proposed new ground before the Federal Circuit Court. While the fact that the appellant had legal representation below can be seen to weigh against a grant of leave, it is not decisive. A new ground of appeal may be allowed even where the proceedings below have been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant's lawyers in the hearing below: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J).

21    It is also well recognised that allowing an applicant or appellant to pursue a fresh argument on appeal has the potential to undermine the scheme for regulation of judicial review of refugee determinations established by the Migration Act, a scheme that ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court, followed by a more cursory review by the High Court. As Perram J said in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452:

[14]    If this Court, in substance, determines a case at first instance by entertaining fresh grounds … this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

22    Further, as the Full Court observed in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292, having cited Perram J in AAM15:

[29]    The approach adopted by his Honour in AAM15 is consistent with the fact that following the advent of special leave to appeal to the High Court, intermediate courts of appeal ought in general to be regarded as the final courts of appeal: Morris v R (1987) 163 CLR 454 at 475 (Dawson J) cited with approval in Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194 at 217-218 (the Court).

23    The Minister relied on the absence of any practical right of appeal in opposing the application for leave.

24    However, both the applicant and the Minister focussed on the merits of the proposed ground, accepting that the merits were central to the Court's consideration of whether leave ought to be granted.

The delegate's reasons

25    The delegate's reasons include the following relevant summary of the applicant's protection claim:

•    On 1 June 2013 the applicant travelled to Hanoi to sit his entrance exams for technical university;

•    The applicant stayed with his Uncle in Hanoi who told him about the aggressive behaviour of Chinese ships in the South China Sea. The applicant's Uncle suggested that he take part in a protest against the Chinese government the next day;

•    The applicant attended the protest on 2 June 2013 in the central district of Hanoi with his Uncle;

•    The police attended the protest and started arresting people and putting them onto a bus. The applicant was one of the people that was put on the bus. The applicant's Uncle escaped out of the bus window and the applicant followed him and ran away. The applicant then caught a bus back to the south of Vietnam and stayed with another Uncle in his parent's village;

•    The police attended the applicant's parent's house every one or two days asking about his whereabouts;

•    The applicant's parents arranged for him to leave Vietnam. The applicant travelled to Australia with the Uncle he attended the protest with;

•    Since the applicant left Vietnam the police continue to come to his parents' house two to three times a year with a summons requesting him to attend the police station;

•    The applicant fears he will be identified and imprisoned on return to Vietnam due to his political views and as a failed asylum seeker;

…

26    The delegate observed:

It was noted that the applicant's claims for protection were closely linked with his [uncle]'s claims for protection. The applicant was asked at the commencement of the SHEV interview if he had any objection to his case being discussed with his [uncle]. The applicant responded and advised that he had no objection to his case being discussed with his [uncle]. The applicant was advised during the SHEV interview that his [uncle] had also consented to his case being discussed with the applicant.

27    The delegate then described the applicant's evidence about the Hanoi protest. The delegate relevantly recorded the following:

(a)    the applicant claimed he joined the protest because his uncle told him about it;

(b)    the protest was a 10 minute walk from where he was staying with his uncle;

(c)    the protest took place near Hoan Kiem Lake but he could not see the lake;

(d)    the applicant could not remember the road the protest was on but he followed his uncle;

(e)    he could not recall how many people were there were, but there were 'a lot' (in contrast to his statement of claims in which he indicated there were a 'few thousand' people at the protest);

(f)    he handed out papers that said 'China get out of Vietnam';

(g)    they were standing and shouting and only moved 'a little bit';

(h)    after 30 minutes the police came and he was arrested - more than 30 people were randomly arrested;

(i)    they were put on a bus and their identification details were recorded, but someone broke a window on the bus with a hammer and he and his uncle were able to escape; and

(j)    they got on a bus and left Hanoi.

28    The delegate then noted the following, based on the applicant's own evidence and the country information:

The applicant advised that his Uncle had more information about the protest on a USB that he had brought to his interview. The applicant was asked what information was on the USB and the applicant stated that it had the details of the protest including photos, video clips and a newspaper article. The applicant stated that there is a photo of him and his Uncle on the bus. The applicant then submitted a copy of the photo he was referring to and identified that the person standing in the photo in the white shirt was him.

Given the poor quality of the image the applicant was advised that it was not possible to identify him. The applicant was questioned about the photo and was asked if he was holding a mobile phone in the photograph and he said he was not. It was pointed out that another person in the photograph was also holding a mobile phone. It was put to the applicant that it did not look like a photo of people who had been arrested as the people in the photo were standing casually. The applicant was asked where he got the photo from and he stated that his Uncle found it on a website.

The following adverse country information about the protest was put to the applicant for comment at the SHEV interview. The country information states that the protest started with everyone sitting down. It was also put to the applicant that you could see the lake in photographs of the protest. There were about 150 people present at the protest. The large protest with over 1000 people attending was held in Ho Chi Minh City. The applicant responded and stated that maybe the person who made that report was on the other side of the road at a different angle. The applicant stated that he was sure that he couldn't see the lake. In regards to the number of people present at the protest the applicant stated that maybe the person who made the report did not see the whole protest.

(footnotes omitted)

29    It is at this point that the delegate refers to her discussion with the second delegate, recording as follows:

A break was held in the interview at this point in time so that the applicant's case could be discussed with his Uncle's.

The applicant was advised after the break that his case had been discussed with the delegate interviewing his Uncle. The applicant was advised that the videos, photographs and media articles that he claimed his Uncle had on a USB were general videos, photographs and media articles of the protest and not related to the applicant or his Uncle specifically. The applicant was not present in any of these videos, photographs or media articles.

It was put to the applicant that there were concerns about the photo he had submitted at the SHEV interview and that it did not look like it was a photo of people being arrested and held on a bus. The applicant advised that he would provide more information about this photo after the interview.

The applicant was advised that his Uncle had said a couple of different things about the protest and the applicant was invited to comment on this information. The applicant was advised that his Uncle stated that you met at a café opposite the lake before the protest and that you could see the floating restaurant on the lake. Your Uncle stated that you were waiting at the café for people to bring the banners and then you surged towards the lake area. Your Uncle also stated that you travelled together by motorbike from your Uncle's house to the protest and that it took 30 minutes to get to the protest.

30    The delegate's record of decision then sets out that the applicant was told there were significant differences in the information about the protest, and that the delegate doubted whether he was present. The applicant was invited to comment and said that he would give details after 'because maybe he had made a mistake about the protest'. He said that he would comment about the differences after the interview. When asked why he would not respond when asked, the applicant said that 'he had to confirm with his Uncle as this information was not in his mind'.

31    The delegate continued:

The applicant was requested to comment during the interview. The applicant responded and stated that ok he was at the coffee shop for a few minutes and left out a few details. The applicant said that he only saw houses and not the lake.

The applicant was advised that country information states that the protest started at the lake. The applicant responded and stated that he did not think so. He then stated that it was his first day there and he had never seen the lake before. The applicant stated that he only remembers walking 10 minutes to the place to protest.

32    The applicant was advised at the end of the interview that he had seven calendar days to provide further information about the photograph and to provide further information 'about the adverse information that was put to him for comment during the interview'.

33    After the interview the applicant provided an email submission that said in full (without editing):

I said it took me 10 minutes to walk to protest from my uncles house it may have taken longer depending where at the protest we went and it was 5 years ago hard to remember now.

I don't remember seeing a lake but I think it was one street away, it was my first visit to this place.

The newspaper took photo but have to be careful not to seem to be promoting the protest because police check before they print the paper.

34    The delegate concluded by rejecting the applicant's claim that he was present at the protest, observing:

The information that the applicant has provided in the above submission does not address the inconsistencies put to the applicant for comment during the SHEV interview. For the following reasons I do not accept that the applicant was present at the 2 June 2013 protest held in Hanoi:

•    The applicant gave a vague description of the protest which was not consistent with country information or consistent with his Uncle's account of the protest;

•    The applicant stated that he walked to the protest which took 10 minutes or maybe longer whereas his Uncle stated that they travelled by motorbike to the protest taking 30 minutes;

•    The applicant stated that the protest was on a main road where as country information and his Uncle stated that the protest began at the lake. A photograph in a newspaper article regarding the protest shows the protesters standing right next to the lake and not on a main road as described by the applicant;

•    There is no evidence that the copy of the photograph that the applicant submitted is from a newspaper article or of the arrested protesters or of the applicant. The photograph is of regular bus [commuters], showing people seated and standing casually, looking at mobile phones and carrying a shopping bag;

•    The applicant's ability to escape with his Uncle out the window of the bus is implausible. Furthermore there is no country information regarding those being arrested escaping.

As I do [not] accept that the applicant participated in the protest in Hanoi I will not be discussing this claim any further as part of this assessment. As I have not accepted that the applicant participated in this protest then it follows that I do not accept any of his claims associated with the protest. I have concluded that the applicant does not have a political profile of any kind nor is he of any interest to the Vietnamese authorities.

(footnotes omitted)

35    There are a number of matters to note from the delegate's reasons.

36    First, the applicant consented to his claim being discussed with the second delegate.

37    Second, the delegate claimed only that there was a break during the interview and during the break there was a 'discussion' with the second delegate. There was no suggestion of other communications with the second delegate or of any recorded exchange.

38    Third, prior to the discussion the applicant had provided information about his presence at the protest and the photograph. He raised what was said to be on the uncle's USB flash drive.

39    Fourth, information that could properly be described as adverse - the country information and the information provided by the second delegate - was put to the applicant for comment.

40    Fifth, the applicant had the opportunity after the hearing to rebut the adverse information that on its face arose out of the discussion with the second delegate or to otherwise challenge or contradict what was allegedly said by the uncle or what appeared on the USB, but provided only the email that is recorded above.

41    In short, nothing that is recorded in the delegate's reasons suggests that there was communication between the delegate and the second delegate except for the disclosed discussion; the discussion occurred during a break in the hearing and not afterwards; it is apparent that there were inconsistencies in information provided by the second delegate and those inconsistences were put to the applicant (for example, the use of the motorbike); it is apparent that there were differences in the country information and the applicant's claims, and those differences were put to the applicant (for example, the significant difference in the number of people said to have been present); and it was apparent that there were differences in the reports in the media about the protest and applicant's description (for example, the proximity of the protest to the lake).

42    It is then necessary to consider the question of the information that was provided to the Authority for the purpose of its review of the delegate's decision.

The Secretary's obligation - legislative framework

43    Part 7AA of the Migration Act provides a limited form of review of certain decisions, called 'fast track decisions', to refuse protection visas to some applicants. This includes applicants who are unauthorised maritime arrivals who entered Australia on or after 13 August 2012 but before 1 January 2014, and so includes the applicant in this case.

44    Division 2 of Part 7AA provides the mechanism by which fast track reviewable decisions are to be referred to the Authority. Section 473CA requires the Minister to refer such a decision to the Authority as soon as reasonably practicable after the decision is made. An obligation is placed on the Secretary to provide relevant materials to the Authority for the purpose of its review.

45    For present purposes, the relevant provision is s 473CB. It provides:

Material to be provided to Immigration Assessment Authority

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

(a)    a statement that:

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

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

(iii)    gives the reasons for the decision;

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

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

(d)    the following details:

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

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

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

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

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

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

46    Division 3 of Part 7AA of the Migration Act concerns the conduct of the review. Relevantly, the review is to be undertaken on the papers: that is, by considering the review material provided to the Authority pursuant to s 473CB without accepting or requesting new information and without interviewing the applicant: s 473DB(1) of the Migration Act.

47    In limited circumstances the Authority may obtain and consider documents or information, called 'new information', that was not before the delegate and that it considers may be relevant: s 473DC and s 473DD of the Migration Act. It was not suggested by the applicant in this case that the Authority should have exercised any powers under these sections.

48    The manner in which Part 7AA operates is the subject of a number of High Court authorities: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [13]-[38]; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [3]-[17]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [2]-[8]; Minister for Immigration and Border Protection v CED16 [2020] HCA 24; and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34.

49    In ABT17 the majority of the High Court described the purpose of the obligation to provide the review material as follows:

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

The Authority's decision

50    The Secretary provided material to the Authority under s 473CB. So much is to be inferred from:

(a)    the delegate's letter of 31 May 2018 informing the applicant of the outcome of the application, and informing him that the Department had referred the decision to the Authority. It was also stated that the Department had provided to the Authority the decision record, any material provided by the applicant prior to the date of the refusal decision and 'any other material the Department considers to be relevant to the review'; and

(b)    the Authority's reasons which specify that the reviewer 'had regard to the material given by the Secretary under s 473CB of the Migration Act' and state that no further information had been obtained or received.

51    The Authority does not set out in its reasons the material it received from the Secretary, but it is apparent from the content of the Authority's reasons that it received the SHEV application and statement of claims, copies of documents that had been provided by the applicant in support of the SHEV application, evidence relating to his arrival interview, the transcript of the interview before the delegate, country information and media articles.

52    The Authority addressed the circumstances in which the delegate considered the information from the discussion with the second delegate.

53    The Authority summarised the applicant's evidence arising from his statement of claims and observed that at the SHEV interview the delegate questioned the applicant in some detail. The Authority recorded the evidence given by the applicant in the interview and noted that there were inconsistencies with the evidence in the statement of claims regarding whether the protest was a sitting demonstration or not, and the length of time they chanted for before police intervened. The Authority noted that the applicant said he appeared in videos on his uncle's USB and that he appeared in the photo that he provided to the delegate. The Authority said it shared the delegate's concern that it was not possible to identify the applicant in the photos, and noted that the delegate put to the applicant her concerns about the photo, in particular that it did not look like a photo of people being arrested and held on a bus, and the applicant said he would provide more details and documents.

54    The Authority referred to the media articles and the adverse country information that had been put to the applicant during the interview. In particular, the Authority said:

14.    … [The delegate] referred to being able to see the lake in media photographs of the protest, the reports mentioning about 150 people. The applicant said that maybe the person who made the report is at a different angle, on the other side of the road, he confirmed that from where he was standing he could not see the lake, and suggested in regard to the number of people that the person who made the report did not see the whole protest. The delegate also referred to a number of differences between the information he provided and that provided by [Uncle] during his SHEV interview, in particular that [Uncle] said: the applicant and he travelled together by motorbike from home to the protest and it took 30 minutes to get there; they met at a café that was opposite the lake before the protest, and he could see the floating restaurant on the lake; they were waiting for people at the café to bring the banners and then they surged towards the lake area to start the protest. The delegate suggested there were quite significant differences in how the applicant described the protest, and that those differences make her wonder if in fact he was present at the protest. When the delegate invited comments from the applicant the applicant initially said he would give details in a document about this, and during the protest maybe he made a mistake, or there is something missing. Then he said he would comment on the differences after confirming with his uncle, because what the delegate had told him was not in his mind. The delegate suggested he did not need to confirm with his uncle as she is telling him what his uncle said, and only then did the applicant state that they stayed at the coffee shop, but only a few minutes. When asked why he did not mention that previously he said he left out the detail. The delegate also referred to the café being right opposite the lake, and the applicant initially said he only saw houses, not the lake, but when the delegate noted country information stating the protest started next to the lake the applicant said ‘It was my first day there, I never saw the lake before, maybe I saw it but I did not know that is the lake'.

55    The Authority relevantly concluded:

16.    The applicant provided no meaningful explanation during the SHEV interview, or in his later submission, regarding the inconsistencies with the media reports, or the differing version of events provided by himself and [Uncle]. At the end of the SHEV interview he appeared to change his evidence to accord with [Uncle's] account and the country information referenced by the delegate. The applicant was unable to provide any information about where the house he stayed in with his uncle in Hanoi was located, any specific details about the location of the protest, or any landmarks around the area of the protest, nor was he able to specify which day of the week the protest occurred on. Overall I consider his evidence about attendance at the protest was vague and unpersuasive. With regard to the photo provided by the applicant, I consider there is nothing in the photograph to suggest the bus is transporting people who are in custody, and it appears to be merely a picture of people travelling on a bus. In addition, I find the description provided by the applicant of he and his uncle escaping out the window of the bus, in the circumstances where the applicant describe there being eight or nine police officers (some in plainclothes), and the media reports noting that security officers outnumbered protesters, to be entirely implausible.

17.    Considering all the information before me, including the country information reports regarding the protest, and the significant inconsistencies between the applicant's evidence and [Uncle's] evidence, I am not satisfied the applicant is describing events he actually took part in …

56    It is apparent that the non-acceptance by both the delegate and the Authority of the applicant's claim that he attended the protest informed their rejection of his protection claim based on fear of harm resulting from his political opinions.

57    Having regard to the proposed ground of appeal, however, it is not the Authority's reasoning that is in question, but the information upon which it relied. Whilst it is apparent from the Authority's reasons that it had (amongst other things) the transcript and the delegate's reasons, I infer from the lack of any reference by the Authority to any additional evidence from the Secretary by way of any file note or audio of the discussion between the delegate and the second delegate or any production of the Department's file relating to the applicant's uncle that no such information was provided to it. Had such information been provided, I would expect it to have been referred to by the Authority. I should add that it is apparent that the Authority had the transcript because its description of exchanges during the interview with the delegate goes beyond that recorded by the delegate in her reasons.

The Federal Circuit Court

58    The applicant raised a number of grounds before the Federal Circuit Court that were dismissed and are not relied upon on this application for an extension of time. The applicant does not seek to pursue an appeal that raises the grounds agitated before the Federal Circuit Court. Accordingly, it is not necessary here to traverse the grounds of review and reasons, but see: FPK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 953.

Principles

59    The effect of a failure by the Secretary to comply with s 473CB of the Migration Act on the Authority's jurisdiction to conduct a fast track review and make a decision under s 473CC of the Migration Act has been addressed in a number of cases.

60    In EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299, the Full Court considered two issues: first, the effect of a failure by the Secretary to comply with s 473CB(1)(b) of the Migration Act on the Authority's jurisdiction to conduct a fast track review and make a decision under s 473CC of the Migration Act; and secondly, whether, in the circumstances of the case, the Secretary's failure to comply with s 473CB(1)(b) resulted in jurisdictional error on the part of the Authority in making its decision.

61    In that context the Full Court said as follows:

[32]    The language of s 473CB(1) is mandatory. The Secretary must give the Authority the material set out therein including the material provided by the applicant to the delegate before the delegate's decision was made: subs (1)(b). That obligation is to be considered in light of the objective purpose of Pt 7AA and the prescriptive way in which the Authority is required to carry out its review.

[33]    The intent of Pt 7AA is to provide an efficient, but fair, process of review in accordance with the terms of the Act: see [18]-[19] above. The Authority is expressly required to pursue that objective by providing a 'mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3': s 473BA. Division 3 sets out the way in which the Authority is to conduct the review. It expressly confines the material to which the Authority may have regard in undertaking its review to the material provided by the Secretary under s 473CB and, except in the limited circumstances set out in Subdiv C of Div 3, without accepting or requesting new information or interviewing the applicant. Further, in undertaking its review, the Authority is not concerned with the correction of error on the part of the Minister or delegate but undertakes a de novo consideration of the merits of the decision referred to it. It is required to consider the application afresh and determine for itself whether the criteria for a protection visa have been met: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 at [17].

[34]    That there be a fair review, free of bias in which the Authority considers the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA of the Act, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance by the Secretary with his or her obligations under s 473CB(1), and in particular, s 473CB(1)(b) of the Act, such that the Authority has all of the material before it that was provided by the applicant to the delegate.

[35]    What then is the consequence of a failure to comply with s 473CB(1)? A failure by the Secretary to comply with s 473CB(1)(b) of the Act may prevent the Authority from conducting the 'review' contemplated by Pt 7AA such that jurisdictional error on the part of the Authority is established. But the parties were agreed, and we accept, that not every breach of s 473CB(1) of the Act will result in jurisdictional error. Rather, whether that is so will depend upon the gravity of the breach.

62    The Full Court then cited the observations of the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 and the need to assess materiality when considering a failure by a decision-maker to comply with a statutory condition or obligation.

63    Having considered the application of those principles to Part 7AA, the Full Court considered that there will be jurisdictional error because the Authority was prevented from conducting the review contemplated by Part 7AA if the documents which the Secretary failed to provide to the Authority could have affected the outcome of the review: at [40]-[42]. Whether that is so should be considered by reference to an applicant's claims and the Authority's reasons: at [42].

64    In EVS17, it was accepted that medical records had not been provided by the Secretary to the Authority and that as a result the Authority was prevented from conducting its review under Part 7AA of the Migration Act such that jurisdictional error was established.

65    The test identified in EVS17 that consideration is directed to whether the documents that were not provided by the Secretary could have resulted in the making of a different decision has been applied in a number of subsequent cases.

66    In Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379, a priest's letter was not provided to the Authority, in contravention of s 473CB and in circumstances where the Full Court upheld the determination of the Federal Circuit Court that on the balance of probabilities, the material could realistically have resulted in a different outcome: at [32]-[33], [38]. In EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 174, where EVS17 was applied in the context of s 473CB(1)(c), part of the recording of the visa applicant's arrival or entry interview was said to be 'not available' and therefore not given to the Authority. It was held that the appellant had not proven a contravention of s 473CB(1)(c), and even if he had done so, the absence of part of the recording did not deprive the appellant of the possibility of a different outcome on the review. See also AHV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 6 at [44], [67]-[75].

67    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58, an audio recording of an earlier interview with the visa applicant was not produced by the Secretary, the apparent explanation being that it had been 'corrupted' in some manner. The Authority conducted a further interview, which gave rise to questions as to whether or not it had received new information. The facts are not particularly analogous to the present case. However, the Full Court considered the meaning of 'review material' for the purpose of s 473CB, stating as follows:

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

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

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

(Citations omitted.)

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

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

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

Consideration

68    It is important to note that the applicant did not pursue a ground of appeal that had originally been anticipated in his application, to the effect that the Authority failed to exercise its powers to obtain new information under s 473DC(3). Rather, the ground that the applicant seeks to pursue is limited to the role of the Secretary under s 473CB, and, it can be inferred, the effect of the Secretary's conduct on the Authority's review.

69    The difficulty for the applicant in this case is that there is no evidence that the delegate did anything during the break in the interview with the applicant other than have a discussion with the second delegate. There is no suggestion that any file note or audio recording of that conversation exists. However, that does not mean that any relevant parts of that conversation have not been reported or presented to the applicant: the delegate returned to the interview and put certain matters to the applicant, disclosing to the applicant that the source of the information being put was the conversation with the second delegate. Therefore, it can be inferred that the transcript provides a record of those parts of the conversation that the delegate considered was relevant (including adverse) information that it was necessary to put to the applicant for comment. The applicant has not pointed to any 'informational gap': AWT19 at [51]. The applicant has not pointed to any part of the delegate's reasons or anything said during the interview that suggests that the delegate relied on anything said in the conversation with the second delegate apart from the matters that were disclosed and put to the applicant during the interview, and which are therefore recorded in the transcript of the interview.

70    Rather, the applicant's case is based on supposition that there may have been a file note or may have been an audio recording. In the particular circumstances of this case, where the delegate's reasons clearly indicate that there was a break in the interview, state the purpose of the break and explain that the delegate then proceeded to put certain matters to the applicant said to arise from what the delegate had been told during the break, I consider that on its face there is insufficient basis upon which to infer that a file note must have been taken or that the respective delegates recorded their conversation.

71    The applicant has not persuaded me that there is any real prospect of establishing on appeal that the Secretary did not meet their obligation to provide to the Authority 'material' that was in their possession or control and that was considered to be relevant to the review, within the meaning of s 473CB(c). I do not consider that the applicant has any real prospect of refuting the argument that the information from the discussion that was considered adverse to the applicant or otherwise relevant came to be recorded in the transcript, and that the transcript was part of the material properly provided by the Secretary to the Authority.

72    Finally, I note that counsel for the applicant suggested that the Secretary should have made the uncle's whole Departmental file available to the Authority for the purpose of the applicant's review. There is no evidence that the uncle's file was before the delegate who interviewed the applicant. Accepting that the material that is relevant to a review before the Authority may go beyond that which was before the delegate, I do not consider there is a basis upon which it might readily or responsibly be inferred that the Secretary should have considered that the uncle's separate Departmental file would have contained further information relevant to the applicant's review in circumstances where:

(a)    although there is no suggestion the delegate sought to review the uncle's file, the delegate sought information as to the uncle's version of the circumstances of the applicant's attendance at the protest by way of the conversation with the second delegate, and had put that information to the applicant in the interview;

(b)    the applicant had the opportunity to put on any evidence from the uncle that he contended was consistent with his claim for the purpose of his application but did not do so; and

(c)    the applicant had the opportunity after the interview to put on any further submissions raising or challenging any matter that might have been said by his uncle about the protest but he did not relevantly do so, other than in the limited manner by the email already disclosed.

73    In those circumstances, I do not consider the applicant has reasonable prospects of establishing that the Secretary failed to take reasonable steps to consider the uncle's file or to locate potentially relevant documents within the uncle's file, or to give any such information to the Authority.

74    In considering whether leave to raise a new ground of appeal should be given in the present case, I take into account that the applicant was not legally represented before the Federal Circuit Court, and the significance of this application for the applicant. However, I am of the view that the proposed ground would not succeed and lacks sufficient merit to justify a grant of leave. I have also given some weight to the fact that it is a new ground and the issues agitated below have been abandoned. This prejudices the Minister in the manner described above (at [21]-[22]). Whilst I do not consider that, of itself, that prejudice would be sufficient in this case to deny the opportunity to the applicant to pursue the new ground, viewed together with the lack of sufficient merit, that prejudice reinforces a conclusion that leave to raise the new ground of appeal should not be granted.

75    Weighing all the factors referred to above, I consider that it is in the interests of justice to refuse the extension of time: I do not consider the appeal on the proposed new ground would have any real prospect of success.

Associate:

Dated:    30 June 2021