Federal Court of Australia

EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 736

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to amend his notice of appeal to replace the grounds of appeal with the two proposed new grounds set out in his proposed amended notice of appeal.

2.    The appeal be allowed.

3.    Order 1 of the orders of the Federal Circuit Court of Australia made on 18 August 2020 be set aside and in lieu thereof it be ordered that:

(a)    a writ of certiorari be issued to the Immigration Assessment Authority quashing the decision made on 20 July 2018 to affirm the decision not to grant the appellant a Safe Haven Enterprise visa;

(b)    a writ of mandamus be issued to the Immigration Assessment Authority requiring it to exercise the power under s 473CC of the Migration Act 1958 (Cth) according to law.

4.     On or before 4:30 pm on 11 July 2022, the parties file and serve submissions of no more than 3 pages as to the appropriate order as to:

(a)    the costs of the appeal; and

(b)    if relevant, the costs of the proceeding in the Federal Circuit Court of Australia.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) dismissing an application for judicial review of a decision of the Immigration Assessment Authority. By its decision, the Authority affirmed a decision of a delegate of the respondent Minister not to grant the appellant a Safe Haven Enterprise Visa (SHEV).

2    For the reasons set out below, I would uphold the appeal, on the basis of ground one.

Background

3    The appellant is a citizen of Bangladesh. He is also a Muslim of Bengali ethnicity. He arrived in Australia on 24 March 2013 as an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth) (the Act). An officer of the Minister’s Department interviewed him on 21 April 2013. He was then in his mid-twenties. Some three years later, in March 2016, the Department invited the appellant to lodge a visa application. With the assistance of his migration agent, he lodged an application for a SHEV in May 2016.

4    In support of his application, the appellant claimed that he had been attacked and abused by supporters of the Awami League (the governing political party in Bangladesh) on account of his affiliation with the Bangladesh National Party (BNP), and that his attackers had stolen money from his father’s shop while he was working there. In a statement accompanying his application, the appellant said:

… Politically, I was not an active person, even though I was supporting Bangladesh National Party (BNP).

… I left Bangladesh, because my life was in danger from political gangsters and local terrorists, who were members of the ‘Awami League’ (who are the current rulers of the country), who were trying to extort money from me.

… I believe that I would continue to be harmed and mistreated by the same or similar people, if I returned to my country. They would continue to abuse, mistreat, beat and torture me. I even fear that they would [] kill me. I believe that my life would be endangered, if I didn’t pay money to those people who would try to extort money from me. …

Also in this statement the appellant claimed that he was attacked about five times between about 2010 and 2012, as a result of which he made the journey from Bangladesh to Australia. The appellant stated that his life would continue to be in danger wherever he went in Bangladesh “because gangsters and terrorists from Awami League could find and harm me everywhere”.

5    Some two years after filing his visa application and five years after his arrival in Australia, the appellant was invited, by a letter dated 13 March 2018, to attend a telephone interview with a Departmental officer. The interview was fixed for 27 March 2018, and was to proceed with the assistance of a Bengali interpreter. The letter was sent to both the appellant and his migration agent. The letter advised the appellant that if he was unable to attend the interview, he should advise the Department as soon as possible. The letter further advised that he “may be required to provide evidence as to why [he] cannot attend the interview” and that a “rescheduled interview may not be offered”.

Remand

6    At the time the appellant received the 13 March 2018 letter, he was being held on remand awaiting trial for common assault and assault occasioning actual bodily harm. He had in fact been in remand since 3 November 2016, and the Department had been so advised at the latest by 4 April 2017.

7    Less than three weeks after the date scheduled for his Departmental interview, the appellant was tried in the Local Court of New South Wales. On 16 April 2018, the Local Court dismissed the more serious charge. The appellant was convicted of common assault, but the Court did not impose a penalty. The Court did, however, impose a two-year apprehended domestic violence order on him.

8    On his release from criminal custody on that day, 16 April 2018, the appellant immediately re-entered immigration detention.

The interview

9    The appellant attended the scheduled interview on 27 March 2018 while still in remand “via telephone hook-up with the video conference room” at the remand centre. He was assisted by a Bengali interpreter. His migration agent also attended via “telephone hook-up”. What occurred at that interview is set out below in some detail as this is important to assessing part of the appellant’s case on appeal.

10    The transcript of his interview shows that the appellant informed the case officer at the very outset that he was not willing to participate in the interview prior to his forthcoming trial. The interview commenced at 12.05 pm on the scheduled day as follows:

Applicant:    I am not prepared to undertake the interview due to my court case and it should be finalised in the next few months then I will undertake the interview.

Case Officer:    Are you unwilling to take part in this interview today?

Applicant:    I am asking for more time for this process to go through until the other thing is finalised and I am going through a lot of interview[.] I am not prepared for this process.

…

Case officer:     If you want to decline the interview that is up to you and I can make a decision on the information before me or otherwise I intend to continue.

Applicant:    Because of being 2 years in prison, I have lost all my memory, I am mentally half dead because of my condition, I could not answer for two years I live in this country.

Case officer:    How is your situation going to change after your court case?

Applicant:    I am under so much pressure and let that settle down and if you people give me that much pressure and I am going to harm myself[.]

Case officer     Can I confirm that if you[r] protection interview is not postponed until after your court case you are threatening self-harm?

Applicant:    I am politely asking, lowering myself to you and I cannot take that much stress at this time, I am so down and I cannot do anything at this time.

….

Applicant:     Because I cannot handle two matters and the other pressure. I am not in the mental status. I expect that the other matter will come to an end soon …

11    The case officer informed the appellant that if he did not engage in the interview, the case officer could make “a negative credibility finding” about him and make a decision on his visa application based on the information then before him. The case officer also warned the appellant about the restrictive nature of subsequent processes. The appellant remained adamant, however, that he would “not do the interview until after [his] court case”. At 12:30 pm, the case officer paused the interview for about ten minutes, to allow the appellant to speak with his migration agent.

12    The appellant did not change his position when the interview resumed at 12.42 pm. The transcript recorded that the appellant’s migration agent asked the appellant: “[i]f we can get the case officer to postpone the interview for a week or two will you engage with the interview then?”. The appellant replied: “I will not do the interview until after my court case or if I get a negative outcome until after I get out of gaol”.

13    Subsequently and apparently in response to the case officer, the appellant stated that he had a medical condition that prevented him undertaking the interview.

Applicant:    I cannot undertake this now as I have a medical condition.

Case officer:    What medical condition, I have no information before me of a medical condition?

Applicant:    Two times I was attacked in the prison by inmates who were provoked by Blacktown [sic] police and I attend[ed] hospital.

Case officer:    I mean any psychological conditions that you are inferring you have?

Applicant:    I am not mad that I need … psychological treatment, I am not a mad man.

14    When the case officer sought the appellant’s consent to make an audio recording of the conversation, the appellant answered, “until my court case, I leave it to my agent until this process finishes and if I am found guilty I will do the immigration process once I have finished gaol”. The case officer warned him that “that it is not going to occur that way”. The appellant responded by saying that “I cannot make a decision and I do not know what yes or no means … you can ask the agent” and “I don’t understand anything, I am not feeling well and you better … talk to my agent about any of your questions”. The case officer made it clear, however, that he was “not going to interview [his] migration agent”.

15    After this the appellant said that he was not feeling well, as the following exchange shows:

Applicant:    I have [a] fever and headache[.]

Case officer:    Can I confirm that you do not want to undertake the interview today as you have a fever and [a] headache?

Applicant:    Yes

Case officer:    Do [you] realise this is inconsistent with the information you have just provided?

Applicant:    I have been feeling sick and I don’t have any money to call back home and I cannot eat the food in prison and I don’t have money to buy any food.

Case officer:    Did you present to the medical practitioners at the gaol [this morning] for you[r] stated illness?

Applicant:     No I didn’t attend but I had [a] Panadol and some creams to heal my injuries but I didn’t attend medical[.]

16    When the case officer indicated that his intention was to proceed with the interview, the appellant said “[i]f you send me a negative decision you will get my dead body back”. The appellant’s migration agent intervened at about this stage, to ask whether it was “possible to postpone for ten days with all of those reasons so he can prepare”. The case officer declined to do so, saying:

The applicant stated that he would not engage with the process until after his court case so he has stated no reason why this interview should be postponed.

17    Before the interview concluded at 1:10 pm the case officer made his position clear in the following exchange:

Agent:        He has stated the medical condition.

Case officer:    He has not presented to the doctors. He is in a prison so he can do this at any time and he has not avail[ed] himself of medical assistance or psychological treatment. He has been inconsistent about why he does not want to proceed and I do not find his claim[] about his headache and fever credible. I intend to now ask him for the last time if he is willing to be interviewed and if he refuses, I will draw the appropriate credibility finding that he is refusing to take part in the process and he is refusing to have his claims tested.

Applicant:    I am [a] normal person, what can I do[.]

Case officer:    I will ask you for the last time, will you engage with the protection visa interview today?

Applicant:    I cannot make a decision, I cannot say yes and I cannot say no.

Case officer:    Are you saying I can go ahead with the interview now?

Applicant:    I am continue with the interview, I tell Immigration [to] give me more time, I hope that I win my case and I go outside and then I can go to Immigration and have this assessed but not now. I am not ready and I hope my mental situation, my parents and my religious party and I lost my contact telephone and health psychological, my decision, I cannot do anything, please … (Client cannot be understood)

Case officer:    You have now clearly stated that you are not willing to continue with the interview until after you[r] court case and if you get a negative outcome, until you get out of gaol?

Applicant:    I will cooperate after the outcome, until my other side is finalised[.]

Case officer:    I have explained the consequences of you[r] actions so I now will cease the interview and make a decision.

18    Some two days later, by letter dated 29 March 2018 emailed to the appellant’s migration agent, the Department asked the appellant to provide additional information in support of his application, within 14 days. This deadline was just 18 days before his trial.

19    By email dated 10 April 2018, the appellant’s migration agent advised:

I would appreciate if you could grant us a further 2 weeks of time as I have not been able to contact my client please.

20    The Departmental case officer replied by email on 12 April 2018 that:

By regulation I can give you 7 days but I am on leave with my first day back at work being 30 April 2018.

So I will not be able to make a decision about this case until after 29 April 2018.

21    As already noted, the appellant was discharged from remand on 16 April 2018 and re-entered immigration detention the same day. By email dated 1 May 2018 the appellant’s migration agent advised the case officer that:

I tried to contact [the appellant] through Metropolitan Remand & Reception Centre (MRRC), Corrective Services in Silverwater, NSW and finally found out that he is no longer in the custody of the MRRC.

As a result, I will not be able to provide any additional information from him please.

The delegate’s decision

22    By letter dated 7 June 2018 addressed to the appellant at the remand centre (rather than Department’s own immigration detention facility where he had been detained since he was discharged from remand in April) the Department advised the appellant that his application had been refused and that this decision had been referred to the Authority for review. A copy of this letter was also sent by email to his migration agent. I set out below the delegate’s reasons for decision in some detail as they are also important in assessing part of the appellant’s challenge to the Authority’s decision.

23    Under the heading “Findings of Fact” the delegate specifically found that certain parts of the appellant’s narrative were implausible. In particular, the delegate found it implausible that the migration agent was unable (as he claimed) to locate the appellant, so that the agent might respond to the Department’s invitation to provide further information after the failed interview. The delegate found that “NSW Corrective Services would have been able to inform him where his client was located”. The delegate added:

Once the applicant was taken to immigration detention the applicant would have been free to call his agent. I find that the applicant refused to take part in the SHEV interview as he did not want … his claims to be scrutinised and I find that he did not respond to the Section 56 invitation for the same reason.

24    As to the appellant’s claim that he was attacked in his father’s shop because he was a BNP supporter, the delegate did “not find it plausible that the applicant refused to give[] these men money on all five occasions if each time he refused they beat him, took the money and destroyed the shop”. The delegate said:

I do not find it plausible that the applicant would refuse to give five to seven men, one armed with an axe, what they demanded. I also do not find it plausible that the applicant would continue to refuse to give these men money if he knew that it would lead to him being seriously harmed, the money being taken and the shop being destroyed. I also do not find it plausible that once he had been attacked a few times he did not look to change his employment or take other protective action such as relocating.

…

Based on country information, I find it plausible that his father’s business was required to pay some money to the local AL party. I find that the applicant did not refuse these payments and I find that he was not attacked five times by these men. I find that this was generalised extortion on a local business and was not targeted towards the applicant or his family.

25    The delegate did not accept the appellant’s claims that his family home had been attacked by members of the Awami League in 2013 and found that when the appellant left Bangladesh he was not of adverse interest to any group or individual. The delegate said:

I do not find it plausible that a non-active supporter would be targeted wherever they moved to in Bangladesh. I do not find it plausible that the rest of his family would remain in the same village after there was an attack on their lives and the possessions. The applicant has refused to take part in the application process so he has not submitted any further information about why his family would still be living in the same village. Based on information before me, I find that his family’s house was not attacked by members of the AL in 2013. Therefore, I find that when the applicant left Bangladesh he was not of interest to any group or individual for any reason.

26    Under the heading “Australia’s protection obligations”, the delegate was not satisfied that the appellant faced a real chance of persecution as a returned failed asylum seeker or on any other basis. The delegate stated:

I do not accept [that] the applicant was of adverse interest to authorities before his departure or that they have developed a profile of interest to them while abroad. On 16 April 2018 the applicant was found guilty of common assault and he was convicted under Section 10A under the Sentencing Procedure Act 1999 with no penalty imposed. A two year apprehended Domestic Violence Order was imposed on the applicant. There is no information before me that the authorities in Bangladesh are aware of his conviction for common assault on 16 April 2018.

27    The delegate also found that as a non-active supporter of the BNP, the appellant “does not have a profile of interest to the Bangladeshi authorities, the A[wami] L[eague] or any other actor”, and the chance that he would face serious harm on account of his actual or perceived political opinion was remote.

28    Also under this heading, the delegate found that the appellant’s father’s shop was the subject of “generalised extortion” in the area, and that if the appellant returned to Bangladesh “he would be able to subsist and ... undertake other forms of employment if he was unable or unwilling to pay the extortion required of businesses in his area”. Having made these findings, the delegate held that the appellant did not satisfy ss 5H(1) and 36(2)(a) of the Act.

29    Under the heading “Complementary protection criteria assessment”, the delegate rejected the proposition that there was a real risk of significant harm to the appellant for the purpose of s 36(2)(aa) of the Act if he returned to Bangladesh as a failed asylum seeker from a western country or on account of extortion. The delegate’s reasons in this regard were much the same as his reasons for rejecting the appellant’s s 36(2)(a) claim.

30    With respect to s 36(2)(aa) of the Act, the delegate also gave detailed consideration to the appellant’s criminal liability on return to Bangladesh and, in particular, whether the criminal charges laid against him in Australia might give rise to a real risk of significant harm on his return there. The delegate recorded that:

Only limited information could be found on the treatment of criminal returnees. DFAT indicates that most returnees are not subjected to adverse attention but high-profile individuals who have engaged in political activities outside of Bangladesh, [may be] of interest to the authorities. Any crime that may be seen as a political crime may increase their risk of arbitrary detention.

(Citations omitted)

31    The delegate considered the law of Bangladesh with respect to double jeopardy, noting that “[n]o reports of people being harmed on return to Bangladesh for the crimes that they have committed overseas could be located”. While finding that the death penalty was a part of the law in Bangladesh, the delegate also found that “there is not a real risk [that] the applicant will suffer significant harm in [] the form of the death penalty or any type of other significant harm ... as a necessary and foreseeable consequence of being removed to Bangladesh”. The delegate concluded that:

The applicant’s conviction is of [a] non-political nature. There is no information before me to indicate that the Bangladeshi authorities are aware of the applicant’s conviction. The Bangladeshi government would not have access to the evidence which was used against the applicant at his criminal trial in Australia. There is no evidence before me that Bangladesh [sic] nationals who have committed crimes overseas, which do not involve Bangladeshi law enforcement are prosecuted on return to Bangladesh. Based on the information currently before me, I am not satisfied that there is a real risk of the applicant suffering significant harm as a necessary and foreseeable consequence of being removed to Bangladesh as required by Section 36(2)(aa) for this reason.

32    Ultimately the delegate concluded that the applicant was unable to satisfy the complementary protection criteria set out in s 36(2)(aa) of the Act.

The Authority’s decision

33    By letter dated 14 June 2018, the appellant was notified that the delegate’s decision had been referred to the Authority for a review. This letter also informed him that:

The IAA will proceed to make a decision on your case on the basis of the information sent to us by the Department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.

These latter documents apparently accompanied the letter.

34    On 17 June 2018 the appellant emailed the Authority, relevantly stating that:

[M]y English is very week [sic], I can’t speak as well please could you contact with me an BENGOLI [sic] interpreter, I have need to talk with you …

35    On 22 June 2018 the appellant, assisted by a Bengali interpreter, had a conversation with an officer of the Authority, in which he requested an interview. A file note of this conversation recorded that:

He stated that he felt he did not have the opportunity to tell his side during his initial application with the Department and wanted to be given that opportunity now. I stated that the review of the protection visa application that occurs with the IAA happens “on the papers”. I explained that this means there is generally not an interview with the IAA, rather the reviewer looks at all the information that the Department refers to us from the original application, and may consider documents the applicant sends to us (submissions or new information).

He repeated the request for an interview on a number of occasions during the phone call, and I repeated that we generally don’t provide interviews and the reasons for this but if he wished to make this request he can send it through in writing, and I provided him with the IAA email address when requested. He asked how long the review would take, and that this was a very stressful, “do or die” situation for him. I told him that whilst we endeavour to finalise cases within six weeks, this depends on the circumstances o[f] the case. ...

36    The appellant emailed the Authority again on 28 June 2018, stating in part that:

I am sending some documents that is my court released certificate please see that, I let you know something on my protection Visa immigration didn’t take my interview because I was in police custody.

The documents attached to this email included the appellant’s release certificate dated 16 April 2018, the apprehended domestic violence order made by the NSW Local Court that day, and an advice of court result.

37    On 5 July 2018 the appellant, assisted by an interpreter, made phone contact with the Authority and again requested an interview. A file note dated 6 July 2018 made by the officer who took the call recorded that:

... I further explained that the review with the IAA was for his protection claims only. He repeatedly asked me if he was found not guilty of domestic violence why was the IAA keeping him in detention. I responded that the IAA is only involved in the review of his protection claims and I was unable to answer this question. He then went on to tell me that the Dept had denied him the opportunity to an interview because they thought he was guilty of domestic violence, and he asked me how was it fair that they came to their decision without being given the opportunity to tell his story. ... He then requested that he would be allowed to give his side of the story to the IAA [by] means of an interview. I explained that the IAA typically completed their review without an interview and it would be at the Reviewer discretion if they required an interview, otherwise they would make a decision on the papers. He repeatedly told me that the IAA was unfair and that we were not allowing him a fair opportunity to present his story. ...

38    By letter dated 20 July 2018, the Authority notified the appellant that it had decided to affirm the delegate’s decision. Under the heading “Information before the IAA”, the Authority stated that it had had regard to the material referred to it by the Secretary under s 473CB of the Act.

39    Noting that the appellant had requested an interview, the Authority stated that:

[4]    The IAA must generally review a fast track reviewable decision without accepting or requesting new information, and without interviewing the applicant. There is no duty to get, request or accept new information. However, the IAA does have the power to get new information, including at an interview, and I have considered whether to exercise that discretion to invite new information from the applicant.

[5]    The applicant was invited to attend an interview with the [Department] on 27 March 2018 to discuss his visa application and claims for protection. At that time, the applicant was held on remand in a correctional facility. Before me is a written record of the discussion between the applicant, his migration agent and delegate on 27 March, the applicant having refused consent for an audio recording. This exchange took place with the applicant appearing by video-link from the correctional facility and his migration agent present by telephone. It appears from the record that the applicant essentially indicated he was not prepared to participate in an interview until after his upcoming court case or, in the event of a negative outcome at court, until after he was released from prison. The written record is detailed and written in the style of a transcript and I have no reason to doubt it is an accurate account.

[6]    The record indicates that the applicant gave a number of reasons for not being willing to proceed. He referred to needing more time and being unprepared, the impact of having been in prison for two years, including memory loss, being under pressure, unable to take further stress and being down. He made threats of self-harm. The applicant also said that he had a medical condition, that he had been attacked in the prison and attended hospital, was feeling unwell with a fever and headache, was feeling sick and was unable to eat prison food.

[7]    The agent twice proposed that the interview be postponed. The first time, the agent made this suggestion to the applicant and the applicant reiterated that he would not participate until after his court case or ultimate release from gaol. Later, the agent requested a postponement of ten days so the applicant could prepare on the basis of the applicant’s medical condition and other reasons he had given. The delegate refused this request, referring to the applicant’s indication he would not engage with the process until after his court case, failure to seek any medical or psychological treatment, inconsistent explanations for not proceeding with the interview and the delegate’s doubt over his claimed headache and fever. After further discussion, the delegate ultimately [indicated] that he would cease the interview.

40    The Authority referred to the Department’s letter inviting the appellant to provide additional information, his migration agent’s response, the Departmental officer’s reply and the migration agent’s advice that he was unable to contact the appellant: see [18]-[21] above. Respecting the 27 March 2018 interview and the appellant’s subsequent failure to provide any further information, the Authority found that:

[9]    In phone conversations between the applicant and the IAA case officers on 22 June and 6 July 2018 the applicant requested an interview. He also referred to the lack of an interview in an email sent to the IAA on 28 June 2018. In his communication with the IAA, the applicant has said that he was not given the opportunity to tell his side during his application with the Department, that he was in a stressful ‘do or die’ situation. He claimed the Department unfairly denied him the opportunity of an interview because they thought he was guilty of domestic violence (of which he said he was found not guilty). He referred to self-harm. In his email of 28 June, he claimed that he had not been interviewed because he was in police custody ...

[10]    The invitation to the 27 March interview was sent to the applicant’s migration agent two weeks prior to the interview, and the material before me indicates it was also sent to the correctional facility to be given to the applicant at that time. It is not apparent that either the applicant or his agent attempted to contact the Department prior to the interview to request a postponement. At the time of the interview, when requesting it be rescheduled, the applicant did not indicate when he expected the criminal matters to be resolved, other than saying that it should be ‘finalised in the next few months’ and that he expected it would ‘come to an end soon’, but said that in any event he would be unwilling to participate not only pending the trial, but until his ultimate release from prison. The applicant was advised by the delegate of the consequences of declining the interview. He was told that the delegate would make a decision on the information before him and that he may make a negative credibility finding if the applicant failed to engage in the interview. He was also advised of the limitations of the IAA’s ability to consider new information, in the event his visa was refused. The applicant was given time to confer with his migration agent to consider the situation.

[11]    Information in the delegate’s decision indicates that the applicant was convicted on 16 April 2018 and taken into immigration detention upon his release. Given the applicant was in the correctional facility at the time of the invitation to provide additional information, and on 10 April when his migration agent requested further time to respond, it is not apparent why the migration agent was unable to contact him during that period as he claimed in his email of 10 April. The agent’s email of 1 May 2018 indicating there would be no response to the s.56 invitation is vaguely worded, giving no indication as to when he learnt the applicant was no longer in the correctional facility, if he knew or had made inquiries as to where the applicant was, or if any contact had in fact taken place between them. There is no record before me of the Department receiving any further contact from the applicant or his agent in relation to his protection visa application.

41    In relation to these matters, the Authority concluded:

[12]     In my view the applicant’s claims to the IAA that the Department denied him an interview because he was in police custody or otherwise because of any criminal matters are without basis. Before the delegate, the applicant referred to matters relating to his mental and physical health and upcoming trial and ongoing remand detention as an explanation for his refusal to participate in the scheduled interview. This is one possible explanation. Another explanation, which the delegate found to be the reason for both the decision not to participate in the interview or provide further information in response to the s 56 invitation, is that the applicant was attempting to avoid scrutiny of his claims. There may also be other explanations.

[13]     The applicant was put on notice by the delegate of the consequences of failing to participate in the interview. He was represented by a registered migration agent. No medical or other evidence was submitted regarding the applicant’s (in)capacity to engage in the interview either before or after the scheduled interview. The applicant was given a further opportunity to provide evidence relating to his claims in writing. While I take into account that at the time of the invitation and initial response date he was still awaiting his trial, I consider it significant that there was a period of over six weeks between resolution of the criminal matters and the delegate’s decision. It is not apparent that the applicant took any steps in that time to request a rescheduled interview, provide additional information or to otherwise contact the Department about his protection visa application. I am of the view that the applicant was given an opportunity to give evidence to the Department regarding his claims firstly at an interview and later in writing, but chose not to avail himself of that opportunity. Considering the particular circumstances of this case, I have determined not to invite any new information from the applicant at an interview or otherwise.

42    The Authority referred to the documents regarding the appellant’s trial that had accompanied his 28 June 2018 email, finding that this “new information” was not relevant to his protection claims “except insofar as it relates to consideration of whether there is a risk of the applicant being harmed in Bangladesh because of criminal matters in Australia, an issue not claimed by the applicant but considered by the delegate”; that the information did “not relevantly add” to the material already before the Authority; and that the Authority was “not satisfied there are exceptional circumstances that would justify considering this new information”.

43    After setting out the appellant’s claims, the Authority addressed the particular claim of extortion by supporters of the Awami League due to the appellant’s support for the BNP. The Authority said:

[21]    Country information indicates that the Awami League were in power at the time of the events the applicant describes and remain in power following elections in 2014 and their relationship with the BNP is one of longstanding enmity. Some branches of the league are reported to be involved in violence, extortion and other criminal activities, and while much of their attacks are linked to ‘vested interests’, they have also been reported against ‘ordinary citizens’. In rural areas, members and associates of the Awami League have been reported to have extorted business owners affiliated with the BNP, threatening them with violence if they do not comply with demands for money. They enjoy impunity from their crimes due to political influence.

[22]     On his own claims, the applicant’s support for the BNP was non-active and, according to his evidence at the arrival interview, did not include any association or involvement with them. It is not apparent from the evidence that the persons who attacked the applicant made any reference to his support for the BNP. The extortion demands on the applicant at his business are said to have occurred on five occasions over a period of around three years, from 2010 until 2012. They were irregular, the first occurring in August 2010, the second in November or December 2010, two attacks in June or July 2011, and one at some point in 2012. The attack at the home was in March 2013. The intermittent nature of these events suggests to me that they were random, opportunistic and criminal and did not reflect a particular interest in the applicant or his family. While I consider the applicant’s claims to have been extorted and attacked plausible in the context of the above country information, I am not satisfied on the evidence that the persons who demanded money and attacked the applicant and, on one occasion, his mother, did so because of his real or imputed political views or because his father was a refugee from India, or for any reasons other [than] criminal motives such as to obtain money.

[23]     These events were now over five years ago. The applicant has not claimed that there have been any similar incidents more recently or that he would return to work in his family shop if he returned to Bangladesh and I consider the chance of the applicant being extorted and seriously harmed in the reasonably foreseeable future to be less than a real one. Furthermore, even if the applicant were to again experience such harm, I am not satisfied on the evidence that it would be anything other than purely random, opportunistic and criminal. It would not be essentially and significantly for any of the reasons specified in s.5J(1)(a), including membership of a particular social group relating to the applicant having a business or working in a shop (even if this could be considered a ‘characteristic’ of one of the types required by s 5L, which I do not accept). The applicant has said that the police did not assist him because they were under pressure from the Awami League and are under their control and I accept that may again occur. However, although occurring in the context of the impunity afforded to the Awami League, as mentioned in the country information above, I am not satisfied it is a persecutory selective and discriminatory withholding of protection from the applicant for reasons of race, religion, nationality, membership of a particular social group or political opinion in the sense identified by the High Court. I am not satisfied there is a real chance of the applicant being persecuted for any of the reasons in s 5J(1)(a).

    (Citations omitted)

44    The Authority accepted that the appellant would continue to support the BNP in the future, and referred to country information which indicated that “the political atmosphere in Bangladesh is violent”. Nonetheless, the decision-maker said that:

[26]     I do not accept that the past harm the applicant experienced was directed at him because of his real or imputed support for the BNP and am not satisfied on the evidence he has otherwise been harmed for that reason. The applicant is not a member of the BNP, was not active in his support and has not claimed to have been involved in any political demonstrations, meetings or other such activities. I find the prospect of the applicant being targeted for or otherwise caught up in political violence to be no more than remote. There is not a real chance of the applicant being harmed by persons associated with the Awami League or any other persons for reasons of his support for the BNP.

45    While the Authority accepted that the derogatory remarks about the Indian background of the appellant’s father would be upsetting to the appellant, the decision-maker did not accept that this amounted to serious harm. The decision-maker was not satisfied that there was a real chance that the appellant would be “otherwise harmed by persons associated with the Awami League or other persons because of his father’s background”.

46    Under the heading “Departure from Bangladesh, criminal matters in Australia, return to Bangladesh as a failed asylum seeker”, the Authority noted that the delegate had addressed whether: (1) the appellant’s conviction in Australia would expose him to criminal liability in Bangladesh; and (2) he would be harmed as a failed asylum seeker returning from a western country, even though the appellant had not raised these issues.

[29]    Country information cited by the delegate indicates that the law of Bangladesh extends extra-territorial jurisdiction to crimes committed by a citizen of Bangladesh which are punishable under Bangladesh law. While there is a prohibition on double jeopardy, a judgment of the Bangladesh Supreme Court cited by the delegate suggests this does not apply to offences prosecuted overseas. In my view the case cited by the delegate, while indicating it is legally possible for a person to be prosecuted for an offence for which they have already been punished overseas, is not indicative of any practice on the part of Bangladesh authorities to investigate and prosecute returning citizens for crimes committed abroad. ... There is no evidence before me that Bangladesh authorities routinely investigate and prosecute citizens over offences committed abroad. DFAT states that authorities may take an interest in returnees to Bangladesh who have engaged in political activities outside Bangladesh or been convicted of war crimes in absentia, but does not suggest any interest in returnees who have committed or been accused of crimes while abroad.

[30]    Regarding returning asylum seekers more generally, DFAT states that Bangladesh accepts both voluntary and involuntary returnees ... DFAT has no evidence to suggest that returnees have received adverse attention from authorities or others. I note that DFAT further indicates it is an offence under the law of Bangladesh to depart Bangladesh other than in accordance with the procedures laid down in the law, relevant here because the applicant has said he departed Bangladesh unlawfully without a passport. However, DFAT has previously reported that it is not aware of any cases where those provisions have been enforced, and its more recent report does not refer to any such cases. Other material cited by the delegate suggests that Bangladesh authorities are generally sympathetic to irregular migrants.

[31]    There is no evidence before me to suggest that the Bangladesh authorities are aware of the applicant’s conviction, history and circumstances in Australia and considering the information set out above I find there is no more than a remote prospect they would prosecute or otherwise harm the applicant because of these matters even if they were aware of them. The applicant has not claimed to fear harm from other persons because of his criminal matters in Australia and there is no evidence to suggest that these matters have come to adverse attention in Bangladesh. Having regard to this and the above country information, I consider it remote that the applicant would be prosecuted, punished or otherwise harmed because of convictions, offences or alleged conduct in Australia. I am also not satisfied on the information set out above that there is anything but a very remote chance of the applicant being harmed because he departed Bangladesh illegally and/or claimed asylum in Australia. I find there is not a real chance of the applicant being harmed in connection with his time in Australia including his criminal history, because he departed Bangladesh illegally or claimed asylum, or any combination of these matters.

    (Citations omitted)

47    The Authority concluded that the appellant did not have a well-founded fear of persecution within the meaning of s 5J of the Act; was not a “refugee” within s 5H(1) of the Act; and therefore did not meet the criterion for a protection visa in s 36(2)(a) of the Act. For much the same reasons, the Authority found that the risk of harm to the appellant did not meet the definition of “significant harm” in s 36(2A) of the Act and therefore he did not meet the criterion in s 36(2)(aa) of the Act. Accordingly, the Authority affirmed the delegate’s decision not to grant the appellant a protection visa.

Federal Circuit Court proceeding

48    The appellant filed an application, subsequently amended, for judicial review in the Federal Circuit Court. Amongst other things, the amended application sought a declaration that the appellant was not an “unauthorised maritime arrival” within the meaning of s 5AA of the Act. The appellant’s case was that, in this event, the delegate’s decision would not have been a “fast track decision” and that the Authority would not have had jurisdiction to conduct a review. A judge of the Federal Circuit Court dismissed the application on 18 August 2020.

49    The reasons of the primary judge indicate that, besides relying on his notice of appeal ground, the appellant, who was unrepresented at the hearing, also made some other submissions, including, relevantly, that “because of the visa cancellation and his imprisonment, he was deprived of the contact that he had had with his immigration lawyer”: see EIL18 v Minister for Immigration & Anor [2020] FCCA 2675 (PJ) at [40]). His Honour continued:

He said that since that time, he has been under pressure, he has been attacked in prison by other prisoners, he now has chronic illness and high blood pressure, and he has not had the opportunity to express himself as he would have liked to have done. One of his complaints is that he was not given the opportunity to be interviewed by the Delegate who was assisting [sic] his SHEV application.

50    The primary judge observed that “the Applicant’s criminal matters were finalised on 18 April [sic] 2018, which was some five or six weeks before … the Delegate made the decision”, during which time there appeared to be no contact between him and the Department (PJ [44]). Respecting the appellant’s subsequent requests for an interview with the Authority, the primary judge stated (PJ [49]):

The decision as to whether the IAA should interview an Applicant is very much a discretionary one. The IAA in this case looked at all of the circumstances and came to the decision that considering what the Applicant had done with regard to his interview with the Delegate, that in those circumstances the IAA would not invite any new information from the Applicant.

51    The primary judge held that this exercise of discretion by the IAA was not affected by jurisdictional error (PJ [50]). His Honour rejected some further submissions made by the appellant, none of which are presently relevant, and dismissed his application with costs (PJ [57]).

This Appeal

Leave to amend proposed amended grounds of appeal

52    The appellant filed a notice of appeal against this judgment without legal assistance. There were four grounds of appeal, all challenging the primary judge’s conclusion that the Authority’s decision was not affected by jurisdictional error. Mr Matthew Albert of the Victorian Bar subsequently accepted a referral under r 4.12 of the Federal Court Rules 2011 (Cth) and thereafter he represented the appellant on a pro bono basis. The Court is indebted to him for his assistance in this regard.

53    Application was made on the appellant’s behalf for leave to amend the notice of appeal, to replace his original grounds with the following:

1.    The Second Respondent’s decision was infected by jurisdictional error by reason that it was legally unreasonable not to invite the Appellant to an interview under s 473DC(3) of the Migration Act 1958 (Cth) in all the circumstances of this case.

2.    The Second Respondent’s decision was infected by jurisdictional error by reason that it was legally unreasonable or was infected by a reasonable apprehension of bias by reason that the Second Respondent regarded as relevant and then determined a protection claim not raised by the Appellant relying on information which was highly prejudicial to the Appellant, in circumstances where he was never asked whether, and never indicated that, he wanted to pursue such a claim under s 36 of the Act.

54    The appellant submitted that the Court should grant leave to the extent necessary. The appellant acknowledged that the proposed grounds were not included in the grounds set out in his judicial review application in the Federal Circuit Court, but relied on the fact that the primary judge in his reasons for judgment specifically considered whether the Authority’s decision not to interview the appellant gave rise to jurisdictional error: PJ at [49]-[50]. The appellant also referred to the fact that, in the proceedings below, he had only had the benefit of legal assistance briefly and had no legal representation at the hearing before the primary judge. The appellant also referred to the fact that the new grounds did not involve consideration of any new facts or evidence (although he went on to say that the documents constituting “GRE-1”, which were not before the primary judge, strengthened his case under ground 2: see [57]-[58] below); and that there could be no relevant prejudice to the respondents if leave were granted. Referring to SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 120; 129 FCR 137 at [42] (Finkelstein J), the appellant further submitted that, in a case of this kind, the Court would not prevent him from raising “a legitimate argument”.

55    Noting that the appellant had the benefit of legal assistance in the Federal Circuit Court, the Minister opposed the grant of leave, referring to the need to protect the appeal process and the statutory scheme for the hearing and determination of applications for judicial review of decisions under the Act.

56    It is well-established that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the primary judge implicitly recognised, whether it was open to the Authority to refuse to interview the appellant in the circumstances before it is a clear and significant issue in this case. So too is the question of whether there was relevant error in the Authority’s consideration of the potential significance of his criminal conviction in Australia for his return to Bangladesh. It is not suggested that the appellant failed to raise his proposed new grounds to obtain some strategic advantage. Nor does the Minister claim that he will suffer any particular prejudice if the appellant is permitted to raise the new grounds. The Full Court said in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], “[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated”. This proposition has been regularly applied in this Court in circumstances like the present. The fact that the appellant had legal assistance at some point prior to the hearing should not prevent him from raising grounds that evidently merit consideration. I would therefore grant the appellant leave to amend the notice of appeal so as to substitute the two proposed new grounds for his original grounds.

Additional evidence

57    At the hearing of the appeal, the Minister sought leave to read the affidavit of Georgina Roberta Ellis affirmed on 7 December 2021, to which was annexed “GRE-1”. Counsel for the Minister, Mr G J Johnson, explained that the documents in this annexure were part of the Departmental file, which would have been part of the review material provided to the Authority by the Secretary under s 473CB of the Act and, save for their accidental omission, would have been included in the material placed before the primary judge in the proceeding below. Mr Johnson explained that the Minister sought to place the documents annexed to Ms Ellis’ affidavit before this Court only to “correct the record”. He also noted that it might be relevant to the second of the appellant’s new grounds.

58    At the hearing, the parties were ordered to confer about the reception of this evidence. After conferring, the parties agreed that only the documents constituting “GRE-1” should be received into evidence on the basis that these documents were before the Authority at the time it made its decision. Bearing in mind that this latter fact was not in dispute, it seems to me appropriate to exercise the discretion conferred on the Court by s 27 of the Federal Court of Australia Act 1976 (Cth) to receive annexure “GRE-1” as further evidence on the appeal. In so concluding, I have had regard to the principles set out in District Council of Streaky Bay v Wilson [2021] FCAFC 181; 394 ALR 33 at [149], citing Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16], where the Full Court noted, “[t]he power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry”.

The parties’ submissions on new ground 1 – invitation to an interview

59    The appellant submitted that in the circumstances of his case it was legally unreasonable for the Authority not to have exercised its power under s 473DC(3) of the Act to invite him to an interview. He added that since there had been no interview at which information could have been received, no question arose as to the application of s 473DD of the Act.

60    The circumstances to which he referred in written submissions were said to be the following:

[23]    The Appellant waited five years and three days to be heard by a delegate of the Minister in respect of his protection claims.

[24]    When the hearing was scheduled, it came just days before he was due to have a series of criminal charges determined at a trial. From gaol, in repeated and increasingly distressed terms, he made the simple request for an adjournment ‘politely asking, lowering myself to you’. He expressly sought only an adjournment until his trial was over ‘soon’.

[25]    The delegate refused. His parting words to the Appellant were: ‘I have explained the consequences of you[r] actions so I now will cease the interview and make a decision’.

[26]    As it turned out, that was not what occurred. It then took a further 10 weeks before an adverse decision arrived.

[27]    In the meantime, an invitation for more information was sent to the email address of the Appellant’s migration agent. That migration agent later told the delegate that he had lost contact with the Appellant after he was discharged from remand immediately following his trial.

[28]    That refusal to adjourn or reconvene the interview by the delegate with the Appellant, and the discussion preceding the refusal were before the IAA. By the time the matter reached the IAA, it was plain that the reason that the adjournment had been sought – the pending trial – had passed by months. Indeed, the IAA received and refused to consider material indicating when exactly that pressure on the Appellant had lifted.

[29]    The Appellant made repeated, direct requests for a hearing before the IAA.

(Citations omitted)

61    In written submissions filed on the appellant’s behalf, it was submitted that the Authority’s determination not to invite the appellant to an interview was made for reasons that “defie[d] common sense”. Reference was made to BRF038 v Republic of Nauru [2017] HCA 44; 349 ALR 67 at [43] and Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 1571; 140 FCR 137 at [35]. Reference was also made to the Authority’s statement that it declined to invite the appellant to an interview, amongst other reasons, because he had not asked the delegate for another interview, given additional information, or made any other contact with the Department: Authority’s reasons at [13], set out at [41] above. The appellant submitted that his response was in fact “a natural and inevitable consequence” of the delegate’s rejection of his repeated and impassioned requests for a rescheduled interview and the fact that the delegate had ultimately told him that the delegate would “cease the interview and make a decision”. It was further submitted that, as the Authority acknowledged, there was also nothing to show that the delegate’s invitation to provide more information had “ever reached” the appellant, and that it was “inherently implausible that a person who had made impassioned pleas for an opportunity to provide the delegate with more information would then make no use at all of an opportunity to do so at the very time he said he would be able to do so”.

62    At the hearing, Mr Albert, counsel for the appellant, emphasised that the appellant was in prison at the time of the failed interview before the delegate, and was “stressed and distressed about his predicament at that exact point in time”. Referring to the record of interview that was before the Authority, Mr Albert submitted that it was “readily apparent from this record that [the appellant was] under extraordinary subjective stress in objectively stressful circumstances”. This was, he submitted, “the one and only interview” for the appellant “despite the ... many years of [him] being detained for this process”. Mr Albert also noted that the record of interview indicated that the stated positions of the delegate and the appellant remained the same through-out the interview.

63    In written submissions in reply, the appellant accepted that he did not have a right to an interview. Rather, he submitted that s 473DC of the Act gave the Authority the power to displace the default position (in which the Authority made its decision on review without interviewing the applicant) with a different process (in which the Authority invited a person, such as the applicant, to an interview to give new information for the purpose of making that decision).

64    The Minister did not dispute that an unreasonable failure on the Authority’s part to obtain new information under s 473DC of the Act may result in a decision that was unauthorised by the Act, citing Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 at [82]. The Minister submitted, however, that the Authority’s reasons gave an evident and intelligible justification for determining not to exercise the power in s 473DC(3) of the Act to invite the appellant to an interview. Citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [28], the Minister contended that the Authority turned its mind to the relevant question, considered the material before it, and made a decision that was open to it in the circumstances of the case.

65    Referencing Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [45]-[47], the Minister submitted that, in such a case as this, the reasons given by the decision-maker for the challenged decision were the “focal point” in assessing whether the decision was unreasonable in the legal sense. The Minister submitted that the Court should not assume that the appellant had “good or justifiable reasons for refusing to participate in the delegate interview”. The Minister submitted that it could be inferred from the record of the failed interview that “the delegate had significant concerns that the appellant was being uncooperative, and was not being genuine about his health concerns”. The Minister also submitted that the delegate concluded the interview by indicating that the delegate would proceed to make a decision “because the appellant steadfastly refused to participate” but “did not indicate that any further information ... would not be considered”. The Minister also contended that “the information before the Authority indicated that the appellant had other opportunities to give information, and those opportunities were not taken”, and that it was not for the Authority to assist an applicant make out a case.

66    At the hearing, Mr Johnson, for the Minister, emphasised that on the Authority’s review of a delegate’s decision, the applicant had no “right to be heard”. He submitted that the Authority was evidently aware that the appellant “had not been interviewed on his claims by the delegate” and had requested an interview. He submitted that the Authority engaged with the question of whether it should get new information at an interview and had given reasons for its decision not to do so. The Minister submitted that these reasons supported the conclusion that it was open to the Authority not to invite the appellant to an interview. The Minister also drew attention to the fact that “a hearing is just one way that a fast track review applic[ant] might give new information” but that it was “not the only way”; the delegate had notified the appellant about the consequences of not participating in the interview with him; that it might “readily” be inferred that the delegate “had significant concerns that the appellant was being uncooperative, and was not being genuine about his health concerns”; and that the appellant had not sought to see a doctor at the prison.

67    The Minister submitted that the Authority had “placed weight” on the fact that the appellant “had had an opportunity to submit further information to the delegate after the unsuccessful attempt at an interview”. He submitted that the delegate’s statement at the end of the interview with him that he would cease the interview and make a decision was in response to the fact that the appellant had “steadfastly refused to participate”. He noted that the delegate did not state that no further information would be considered. The Minister also submitted that the Authority had information indicating the appellant had “other opportunities to give information, and those opportunities were not taken”, referencing Abebe v The Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [187] and AQF17 v Minister for Immigration and Border Protection [2018] FCA 966 at [53].

68    At the hearing, Mr Johnson further submitted that the appellant had sent the Authority information relating to the result of his trial but no information concerning his protection claim. Mr Johnson submitted that he could have done so “and the Authority would have needed [] to have considered any new information provided about the appellant’s claims in a context where the Authority was aware that the appellant hadn’t participated in the interview that the delegate offered”. Mr Johnson submitted that, in this context, “it’s problematic for the appellant here to place too much emphasis upon the importance of the interview where the statutory scheme provides an interview before the Authority as being simply one mechanism whereby new information might be given”. He submitted that the appellant should be taken to have chosen not to provide any additional information about his protection claims.

69    At one point in the hearing, Mr Johnson submitted that the Court should not “assume that the appellant was stressed and distressed” at the interview before the delegate, although he subsequently retreated from this submission, saying:

What I am suggesting is that, in the circumstances where the delegate has a function to perform under the Act and was asking questions to the appellant and seeking clarification from the appellant about him justifying the reasons to delay the process, it was an available option, indeed, to the delegate to proceed in that way, but, importantly, for the Authority to appreciate that these were some of the factors in play when the appellant was given that opportunity to speak with the delegate.

They’re all matters of, of course, impression and judgment conducted by various officers at different times, but what was clear from the delegate’s interaction with the appellant is that the delegate was not convinced – obviously not convinced that the appellant was unable to proceed with the interview for the reasons that he gave and, in those circumstances, decide to proceed to make a decision. The appellant [] never said to the delegate that he couldn’t provide any further information, notwithstanding the somewhat resolute closing given during that interview, but what’s clear is that the case officer there – the delegate had attempted, over a short period of time, to persuade the appellant to speak about his claims, and as my friend has said – and I think it’s fair to say – neither the appellant nor the delegate were movable in relation to their respective positions.

70    In this context too, Mr Johnston emphasised that the appellant took no other steps to initiate contact with the Department, although he was “very keen to advance his claims orally”. Counsel also referred to the fact that “there may be cases where it is to the advantage of a visa applicant not to cooperate with departmental officers and the giving of information in connection with his or her visa application such as to prolong his or her stay in Australia”, especially where the applicant “has no and knows that he or she has no credible basis to assert entitlement to a visa”, leaving the Authority “in the invidious position of needing to exercise their extraordinary powers to get new information in circumstances where opportunities were presented in the usual way for the person to give information at first instance to the Department”.

71    Mr Johnson concluded with following observations:

[T]here might have been a number of reasons for the appellant to have declined to participate in the interview with the delegate and one of the explanations addressed from the fourth-last line in paragraph 12 which the Authority noted the delegate found to be the reason was that the appellant was attempting to avoid ... his claims. Now, if that was what the Authority properly understood the delegate’s concern to be and was concerned also that the Authority considered [that it] was an available explanation for the appellant’s reluctance to be interviewed on that occasion, then that’s a very different scenario and my point is that it’s one of the available scenarios that the Authority was contemplating in deciding whether to exercise the power.

The parties’ submissions on new ground 2 – prejudicial material

72    The appellant’s primary submission was that the Authority’s consideration of the claim that the appellant may be owed protection because Bangladeshi authorities may know of and act adversely to him because of his criminal changes and conviction in Australia was legally unreasonable. It was also said that this gave rise to a reasonable apprehension of bias, although Mr Albert acknowledged that this need not be considered if the Court accepted the appellant’s submission on unreasonableness. He also submitted that the prejudicial nature of the material was relevant to the materiality of error.

73    Citing numerous case (Minister for Immigration & Multicultural & Indigenous Affairs v WAAG [2003] FCAFC 60 at [13], SZBLY v Minister for Immigration and Citizenship [2007] FCA 765; 96 ALD 70 at [25], Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982; 179 ALR 425 at [28], CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [25], Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534 at [61]; NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [14]; and NBMB v Minister for Immigration and Citizenship [2008] FCA 149; 100 ALD 118 at [8]), it was submitted that a reasonable apprehension of bias arose because there was a reasonable possibility that a fair-minded and appropriately informed lay person might reasonably apprehend that the Authority might not bring a fair, impartial and independent mind to the determination of the matter on its merits. The appellant submitted that the delegate had invented this particular claim, which had “materialised” without notice to the appellant; that there was nothing to indicate that the appellant “even knew of the possibility of it”; and that he was not heard on it. The appellant noted that the only claims he made were set out in his statements at his entry interview on 26 April 2013 and accompanying his visa application in May 2016, both of which pre-dated the criminal charges laid against him.

74    Relying on s 5AAA of the Act, ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44; 283 FCR 164 at [58], SZTAD v Minister for Immigration and Border Protection [2014] FCA 1256 at [16]-[17] and NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15], the appellant submitted that the Act and the claims actually made by a visa applicant defined the decision-maker’s task. The appellant noted that the appellant provided no particulars and no evidence regarding the supposed claim.

75    The appellant also submitted that the Authority was not necessarily bound to consider all the issues addressed by the delegate, referring to BYR17 v Minister for Immigration & Border Protection [2018] FCA 1324 at [51] and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [60] and [62]. In this case, so the appellant said, the delegate and the Authority considered a claim that had never been made by the applicant before them and in so doing exceeded their power. The appellant submitted that this was also unreasonable in the legal sense and, in this way, material to the Authority’s decision.

76    The appellant submitted that the claim in question was based upon the receipt and consideration of highly prejudicial material: that is, that the appellant had been charged with and convicted of offences concerning violence against a female child. At the hearing, Mr Albert submitted:

The prejudicial character is being charged not only with a criminal offence, but a series of criminal offences. And no[t] only with an offence that is inherently troubling, being assault offences, but involves a minor female. So one, I think, can safely say an inherently vulnerable group when one is dealing with an adult male.

77    Referring to the delegate’s statements about the appellant’s criminal convictions, the appellant submitted that this material was “both prejudicial and totally irrelevant to his actual protection claims”, and yet received “detailed engagement and consideration by the delegate ... whose reasons are engaged with by the IAA to consider the invented claims”. Further, the appellant submitted that “it would be surprising, if he knew about that claim having been invented by the delegate, for him not to want to address the IAA on it to disown the claim, most likely, given it was never made, or to explain”.

78    In his written submissions in reply, Mr Albert submitted that the further evidence in annexure “GRE-1” (see [57]-[58] above) strengthened the appellant’s case on his second ground, because this evidence showed that the Authority knew that the appellant was also charged with “aggravated sexual assault [of a] victim under the age of 16 years”; and that the alleged victim had made a statement concerning the assault, but that the statement “may have [been] withdrawn”.

79    At the hearing, Mr Albert for the appellant submitted that no such claim as that addressed by the delegate and the Authority arose on the material before them, and that the Authority recognised as much. He submitted that the material was irrelevant to the claims the appellant actually made. He further contended that:

By the creative endeavours of the delegate, the [Authority] came to view the same material as relevant and proceeded to engage with it without, at any point, affording the Appellant the chance to respond to whether it was a claim at all, let alone what he wanted to say about it if it was.

80    Mr Albert relied on FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 at [21]-[22], [32], [42]-[44], arguing that since jurisdictional error in the form of apprehended bias was found in that case where the Authority purported to disregard material concerning similar criminal offences to this case, then a fortiori it should be found here because this was a more extreme case, where the Authority engaged with every claim “without any input” from the appellant.

81    In his written submissions in reply, Mr Albert summed up the appellant’s second ground with the following submission:

The First Respondent was right to describe the position of the Appellant as “unusual” in his reliance on authority concerning integers of protection claims to criticise the decision-maker who considered an invented integer in his case. That unusual course is responsive to the unusual approach taken by the IAA. That approach was to consider in detail and determine a protection claim invented entirely by the delegate on which the Appellant was never heard. Reading the existing authorities –especially Bromberg J in SZTAD – and applying them to this case leads to one result: the IAA was acting outside its statutory task which was itself legally unreasonable.

(Citation omitted)

82    Regarding the appellant’s second ground, the Minister submitted that, in the discharge of its statutory task, the Authority was obliged to consider all of the claims advanced by an applicant, including claims that were not expressly articulated but that arose “squarely on the material[s]”, citing NABE at [58], referring to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]. In this instance, so the Minister submitted, the material before the delegate and the Authority “prompted” both decision-makers to consider whether the appellant risked harm on return to Bangladesh due to criminal conviction in Australia.

83    The Minister submitted that there was a degree of inconsistency in the appellant’s contention about the “highly prejudicial” character of the Authority’s consideration of that “claim” in circumstances where the appellant had unsuccessfully sought to provide the Authority with “new information” concerning the outcome of his trial. The Minister also submitted that, because the “country information … indicated that the law of Bangladesh extended extra-territorial jurisdiction to crimes committed by a Bangladeshi citizen which were punishable under Bangladesh law”, the Authority did not err in considering the claim “in the appellant’s interests”. The Minister submitted that the present case was distinguishable from FSG17 because “the appellant’s criminal history in Australia was directly relevant to a claim that the appellant might face harm if returned to Bangladesh”. The Minister submitted that the Authority made it clear that the appellant’s criminal history was not relevant to the determination of his protection claims “except to the extent they related to consideration of whether there was a risk of the appellant being harmed in Bangladesh because of those criminal matters”.

84    At the hearing, Mr Johnson, for the Minister, also contended that, on the basis of the material before the delegate, “the delegate was properly concerned that, by reference to the appellant having been charged with offences, some serious offences, in Australia, although they didn’t proceed to conviction, that might be a matter that would put the appellant at risk”. He submitted that the delegate had considered this information “because it might point to a real risk of the appellant suffering harm in Bangladesh”. Had the delegate not considered these matters, this omission, so the Minister submitted, “might have led to a claim that the claim squarely arose but [was] not properly engaged with and the statutory task not performed”. Mr Johnson submitted that ESQ18 supported the proposition that the Authority would have erred had it not taken this possibility into consideration.

85    In response to the appellant’s submission to the effect that the appellant was unaware that consideration would be given to the risk of harm due to his criminal history, citing Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482, the Minister submitted that the delegate had identified the claim and referred to relevant country information, that the appellant had had an opportunity to make submissions to the Authority about the delegate’s reasons, and had sought to provide additional material to the Authority about his criminal history. The Minister submitted that, in view of this, the appellant was aware of the claim and had the opportunity to address the Authority but chose not to do so.

86    Finally, Mr Johnston submitted at the hearing that “consideration of a claim – of an unarticulated claim leading to jurisdictional error through a legal unreasonableness avenue ... is not supported by any authority and in the circumstances of this case does not point to any material prejudice to the appellant”. He added:

My submission is that the decision by the delegate of this claim was squarely within NABE bounds. It wasn’t in the nature of a creative or fanciful adventure by the delegate to identify some irrelevant claim. It’s not to the question, as my friend puts it, that the risk relating to his criminal history in Australia was unconnected to his political claims that he advanced. That’s not the point. The point is that the delegate was aware of information, the delegate had both the information about the history and had information about potential risk to individuals in Bangladesh who had committed offences overseas, and that was the information that before the delegate created the obligation under the statute to consider a claim that was not articulated ...

Now, if that’s wrong my friend still needs to establish materiality, and to an extent he does it by reference to prejudice. That tends to engage then in the next strand of the argument, which is the FSG17 or CMY17 bias cases where it’s said that there was some form of prejudice to the consideration of the claims by the Authority, but it must be remembered that those cases were based upon factual scenarios where what was at issue was not the consideration of an unarticulated claim. What was at issue was the fact that the Secretary of the Department had provided irrelevant and prejudicial material pursuant to section 473CB(1)(c) of the Act, that is, material that the Secretary makes a judgement about that would be relevant to the review. Now, the information about the criminal record was in the delegate’s decision. It was review material under section 473CB(1)(b), the authority had to look at it.

Consideration

Ground 1 – Invitation to an interview

87    Consideration of the appellant’s first ground necessarily depends on the statutory context in which the Authority made its decision not to invite the appellant to an interview. In assessing whether a challenged exercise or non-exercise of power is unreasonable, it is first necessary to identify the decision in question, and the terms, scope and purpose of the statutory source of the power to make it: see, for example, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [79].

88    The Authority was required to review the delegate’s decision, because it was a fast track reviewable decision referred to it by the Minister under s 473CA: see s 473CC of the Act. In undertaking such a review, the Authority was primarily required to consider the review material provided to it by the Secretary under s 473CB without accepting or requesting new information and without interviewing the referred applicant: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22]. The Act provides for exceptions to this general rule, however. Relevantly here, s 473DC confers a discretionary power to receive “new information”. Section 473DC is in the following terms:

(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.

89    Plainly enough in this context, “new information” is information not before the Minister or delegate at the time of the decision under review, which the Authority considers may be relevant: Plaintiff M174 at [24]. As we have seen, the appellant argued that, in the circumstances of his case, it was legally unreasonable for the Authority not to have determined to get new information from the appellant by inviting him to an interview in exercise of its discretionary power under s 473DC(3)(b), and that this gave rise to jurisdictional error.

90    The authorities establish that the discretionary powers conferred on the Authority by Div 3 of Pt 7AA of the Act, including the power to get new information under s 473DC, were “conferred on the implied condition that they are to be exercised within the bounds of reasonableness in the sense explained in … Li”: see Plaintiff M174 at [21], [86]; CRY16 at [82]; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196 at [15]; Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49; 269 FCR 70 at [22]-[26]; and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407 at [3]. Broadly speaking, a decision will not be a lawful exercise of power where, having regard to the terms, scope and purpose of the statutory source of the power, the decision: (1) has an insufficient rational foundation or evident or intelligible justification; or (2) is “plainly unjust, arbitrary, capricious”; or (3) plainly lacks common sense: see, for example, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11]. Another way of stating the test is to ask whether the exercise of power was such that no decision-maker, acting reasonably, could have exercised the power in that way, having regard to the statutory context and the attendant factual circumstances: SZVFW at [52]. Plainly enough, an exercise or non-exercise of a discretionary power will not be legally unreasonable simply because minds might rationally differ about its exercise.

91    As may be seen, the parties referred to a number of earlier decisions in which the Authority’s non-exercise of the power in s 473DC of the Act was challenged on the unreasonableness ground. The salient circumstances were in some instances quite different from the present case. In some instances, the focus was on the Authority’s failure to consider an exercise of power under s 473DC at all, rather than on a determination, with reasons, not to exercise the power as in this case. In CRY16, for example, a Full Court of this Court held that the Authority’s decision to affirm the decision under review on the basis that CRY16 could relocate within Lebanon was unreasonable, in circumstances where the previous decision-maker did not consider relocation at all and the Authority did not consider whether to exercise its power under s 473DC to give him an effective opportunity to address the issue. In that circumstance, the Court held (at [82]) that “[t]he failure to consider the exercise of that discretionary power lack[ed] an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation”.

92    In DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134, the Full Court held that the decision of the Authority to affirm the delegate’s decision was unreasonable, again because the Authority failed to consider whether to exercise its power under s 473DC. In the course of its reasons, the Authority made adverse credit findings about DPI17’s sexual assault claims. These were contrary to the delegate’s findings. Given that the delegate’s acceptance of the claims was based on assessment of DPI17’s demeanour, their Honours concluded that, in the absence of a sufficient independent basis to support a contrary conclusion, it was legally unreasonable for the Authority not to consider whether it should exercise its powers under s 473DC: DPI17 at [45]-[46] (Griffith and Steward JJ), [126] (Mortimer J).

93    In some other cases, in which it was said that a failure to exercise the power in s 473DC of the Act was legally unreasonable, the Authority has given reasons for its determination not to exercise the power. These reasons became the focus of the Court’s subsequent consideration of the ground. In DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222; 267 FCR 69, for example, a Full Court rejected the appellant’s submission that the Authority had acted unreasonably in the exercise of its power under s 473DC(3) by not inviting the referred applicant to an interview because it assessed the reasons the Authority gave for its conduct as “reasonable and rational” in the circumstances. At [65]-[66], the Court said that:

[I]n this case that at [7] the IAA did provide an explanation of its decision for its decision not to interview the appellant, including that:

•    it was conducting a fast track review on the papers under s 473DB of the Migration Act;

•    it did not consider it an appropriate exercise of its discretion to invite the appellant to an interview in circumstances where the appellant was essentially seeking a second opportunity to discuss his claims generally;

•    it was not persuaded by the submission that the appellant was not given an opportunity to fully discuss his claims — rather the IAA considered that the appellant was given a full opportunity to do so before the delegate;

•    notwithstanding some issues with translation by interpreters, no instances of misinterpretation were identified which materially affected the participants’ understanding of the SHEV interview, and in any event the appellant conducted a considerable amount of the SHEV interview in competent English;

•    the IAA noted that the interview of the appellant by the Minister’s delegate was very long — approximately five hours — and the IAA listened to it all; and

•    irrespective of complaints by the appellant concerning the Minister's delegate, the IAA was making its own assessment of the appellant's evidence.

In our view these reasons are both reasonable and rational.

94    The Court rejected the appellant’s unreasonableness challenge, holding that the Authority’s reasons provided an intelligible basis for its refusal to invite the referred applicant to an interview. It explained (at [67]-[68]) that:

[T]he fundamental question in considering whether the IAA has acted reasonably in deciding not to require the appellant for an interview and/or seek new information from him in respect of his claims ... is whether there is an intelligible basis for that decision on the part of the IAA. In this case there clearly is. The IAA referred to the lengthy (five hours) interview conducted by the delegate, and listened to the audio recording of that interview. The IAA noted — and accepted — the appellant's submission that he was reticent to speak in detail of his rape claims to the female interpreter at the delegate interview. Nonetheless, it is evident from the reasons of the IAA that, notwithstanding that reticence, the appellant took advantage of the opportunity to provide extensive evidence to the delegate, and the IAA could, and did have, regard to that evidence in respect of these aspects of the appellant's claims.

The appellant cavils with the IAA's findings against him in respect of his credibility. However there was no reason for the IAA to anticipate any additional or new evidence being put to it in an oral interview, which would influence the view the IAA had taken in respect of credibility. The case before the IAA here is very different from that in CRY16. In CRY16 the possibility of internal relocation to a particular place within Lebanon had never been identified to the visa applicant before or during the review, and the IAA knew that it did not have (but the visa applicant was likely to have) information in respect of his particular circumstances and the impact upon him of relocation. The Court in that case found that, as a result, the failure to consider the exercise of its discretionary power meant that the IAA had disabled itself from considering what was reasonable, in the sense of “practicable” in terms of relocation (at [86]).

The Court added (at [71]) that:

Unlike in CRY16, there is nothing in this case to suggest that the appellant did not have an adequate opportunity to advance any evidence or submissions he wished to in support of his claims, or that the IAA had disabled itself in some way from considering an issue.

95    There have since been numerous challenges to the Authority’s determination not to exercise its power under s 473DC(3) of the Act. There is little to be gained by a detailed consideration of them all. They illustrate that “legal unreasonableness is invariably fact dependent and requires evaluation of the evidence”: see SZVFW at [84] (Nettle and Gordon JJ); Singh at [47]. To illustrate this point reference may be made in this context to the relatively recent cases of BQQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 268 at [79], [86]; ATD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 576; DFL16 v Minister for Immigration and Border Protection [2021] FCA 936 at [38], [41]; and EEE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 629 at [50].

Whether the Authority’s conduct was legally unreasonable in the circumstances

96    This is an extraordinary case. The record of the appellant’s entry interview contained a very brief summary of his claims (only a few paragraphs, scattered throughout the document). Save for this, the appellant had no opportunity speak, through an interpreter, in support of his protection claims for over five years after his arrival in Australia. I also note, lest it be forgotten, that he clearly had no facility in written English. When he was ultimately given the chance to speak, through an interpreter, with a Departmental officer about his claim, he was about to stand trial. At this trial he was to be found guilty of only one offence and to receive no penalty with respect to it. Further, it should be borne in mind that the appellant had not only a very limited command of English, he had evidently little knowledge of Australian norms and expectations.

97    The written account of the appellant’s failed interview with the officer (who was also the delegate) indicates that he was distressed when the interview commenced and became increasingly distressed as it progressed to the point where he became unintelligible. The appellant told the delegate that he was finding the pressure of the forthcoming trial coupled with the interview too great to bear. He explained his position rationally at the outset and then in increasingly irrational terms. His response to these events was unsurprising, bearing in mind what was at stake for him, his lack of English language, his unfamiliarity with Australian legal and governmental systems, that he was in prison awaiting trial, and that he had been waiting for a Departmental interview about his protection claims for a long time. From his perspective at least, his initial request to adjourn the interview until after the “soon” upcoming trial was simple enough, given the passage of time between his arrival (24 March 2013) and the scheduled interview date (27 March 2018). The delegate’s response may well have seemed to him inexplicably unbending to his personal predicament. Be that as it may, I would emphasise that this case does not call into question the delegate’s decision. Rather, the appellant’s first appeal ground challenges the Authority’s decision not to invite the appellant to an interview. The question is whether, in the particular circumstances of the case, the Authority’s decision was legally unreasonable.

98    The answer depends to a large extent on whether the reasons the Authority gave for not acceding to the appellant’s repeated requests for an interview were themselves rational and intelligible.

99    In its reasons at [13], the Authority relied on three discrete kinds of considerations in declining the appellant an interview. The first set of considerations related to the appellant’s own conduct at the failed interview before the delegate, the delegate’s conduct, and the limited participation by telephone of the appellant’s migration agent. It may be accepted that it was open to the Authority to regard these considerations as contextually relevant to its decision whether to invite the appellant to an interview before it.

100    The second set of circumstances considered by the Authority related to the fact that the appellant had not sought to obtain another interview, to provide further information (whether evidence of his medical condition or otherwise), or to contact the Department in the six weeks between the end of his trial and the delegate’s decision. The Authority did not, however, take account of what had happened at the failed interview and in particular how it ended. That is, it did not refer to the delegate’s consistent rejection of the appellant’s request, where the appellant said he was “politely asking, lowering myself to you” to defer the interview, initially, until after his trial. Nor did the Authority refer to the delegate’s final statement to the appellant that “I now will cease the interview and make a decision”. When account is taken of the way the interview progressed and concluded, it is evident that the appellant might reasonably have understood that there was no point asking the delegate for another interview or for a further opportunity to provide information.

101    The third consideration, so far as the Authority was concerned, was the fact that the appellant had been given an opportunity to give evidence to the Department “at the interview and later in writing”, but “chose not to” use these opportunities. In fact, the material before the Authority would have shown that the appellant’s migration agent had advised the Department, by emails sent on 10 March and 1 May 2018, that the agent had been unable to contact the appellant to take advantage of the proffered opportunity to provide further information. There was no objective basis to believe that the appellant was aware at any point before the delegate made a decision that the delegate had offered this further chance. There was also no objective basis for the delegate’s finding that the appellant did not respond to “the Section 56 invitation” because he did not want his claims to be scrutinised. Similarly, there was little, if anything, to support the delegate’s finding that, for the same reason, the appellant also refused to take part in the interview.

102    Whether the migration agent could have done more to locate the appellant or given a better explanation of his inability to find him had no apparent bearing on the appellant’s lack of knowledge. To place the migration agent’s suggested deficiencies in context, I observe that the Department itself was apparently unaware that the appellant had re-entered one of its own facilities prior to June 2018, when it sought to advise the appellant by letter mistakenly addressed to the remand centre (where he had been prior to his trial) that his visa application had been refused and that the delegate’s decision had been referred to the Authority.

103    According to the written record of the failed interview, the Authority was incorrect to state that the delegate and the appellant spoke “by video-link”: see reasons at [5]. The written record of that interview stated that the delegate and the appellant spoke only by telephone and not “by video-link” contrary to the Authority’s understanding: cf ABT17 at [31]. This was consistent with the Department’s 13 March 2018 letter requesting that the appellant attend an interview “via telephone”.

104    There was little, if anything, to support for delegate’s finding that the appellant did not take part in the interview before him or provide further information because “he did not want … his claims to be scrutinised”. Similarly, there was also no objective basis for the suggestion, at [12] of the Authority’s reasons, referencing the delegate’s reasons, that the appellant may have been “attempting to avoid scrutiny of his claims”. In fact, this was inconsistent with the appellant’s repeated requests to the Authority that the Authority interview him about his protection claims. Similarly, as we have seen, there is no objective basis for the finding, at [13] of the Authority’s reasons, that the appellant “was given a further opportunity to provide evidence relating to his claims in writing”, when there was no evidence before the Authority that the letter ever reached the appellant.

105    It is worth recalling in this context that the appellant emailed the Authority on 17 June 2018 to ask the Authority to contact him “with ... an BENGOLI [sic] interpreter” as he had a “need to talk with you”. The appellant, with the assistance of an interpreter, then telephoned the Authority on 22 June 2018, and a file note recorded that the appellant “repeated the request for an interview on a number of occasions during the phone call”. The appellant subsequently contacted the Authority again by way of email on 28 June 2018 and by telephone on 5 July 2018 where he is recorded to have “requested that he would be allowed to give his side of the story to the IAA in [sic] means of an interview”. The Authority would have known about the appellant’s repeated requests. This case is therefore relevantly different from those where the referred applicant did not in fact seek an interview from the Authority, and complained of the lack of opportunity thereafter: cf BQQ19 at [79]; EEE16 at [50].

106    Having regard to the above matters, the Authority’s reasons for not inviting the appellant to an interview in exercise of its power under s 473DC(3) of the Act cannot be characterised as “reasonable and rational” as was the case in DPI17. Examination of other aspects of the Authority’s reasons confirms the impression that the Authority’s determination in this particular case not to invite the appellant to an interview was unreasonable in the legal sense. This decision had no sufficient rational foundation, and it was plainly unjust. No decision-maker, acting reasonably, could have exercised the power under s 473DC(3) in this way, having regard to the statutory context and the attendant factual circumstances.

107    First, it must be borne in mind that to assess a claim for protection (or for complementary protection) properly, the facts must be ascertained, bearing in mind that the existence of a well-founded fear of persecution depends on “questions of fact and degree”, as indeed does the availability of complementary protection: compare Republic of Nauru at [43]. We must keep in mind that the appellant was not interviewed about his protection claims by either the delegate or the Authority.

108    Second, the Authority’s reasons disclose the likelihood that the appellant would have been able to provide “new information” within the meaning of s 473DC of the Act had it invited him to an interview, and that some, if not all, of this information would have satisfied the conditions for its receipt in s 437DD of the Act. This is because the delegate’s decision in the appellant’s case was made on the basis of extremely limited information. This case can be contrasted with the more usual case where a referred decision is made after a Departmental interview and following the provision of further information at the delegate’s request. As already stated, in this case, the appellant had not provided information about his protection claim at an interview before the delegate, through an interpreter; and had apparently not known of the opportunity to provide further information.

109    Apart from the brief record of his entry interview, the appellant’s account of the events that led him to leave Bangladesh and claim protection in Australia was contained in the statement accompanying his visa application lodged in May 2016. The appellant could not reasonably have anticipated at that point all the pertinent information a decision-maker might subsequently consider relevant to deciding his claim. This does not usually matter because, at an interview, Departmental officers (usually delegates) can acquire relevant personal or other information that they consider relevant to the proper assessment of protection claims and also evaluate an applicant’s credibility, often on the basis of an assessment of the manner in which the applicant gives an account. The information acquired at an interview can therefore be crucial to the success or failure of an application. The High Court recognised this in ABT17 where the plurality held, at [25], that the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview “in order to gauge his or her demeanour for itself before it decides to reject an account given by a referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given”.

110    In considering the appellant’s narrative as set out in his May 2016 statement, which had not been augmented by an interview before the delegate, the Authority drew attention in its reasons to matters that the appellant had not addressed. For example, at [22], the Authority stated that “[i]t was not apparent from the evidence that the persons who attacked the applicant made any reference to his support for the BNP”, concluding that it was not satisfied that the appellant was attacked “because of his real or imputed political views”. The Authority also recorded, at [23], that the appellant had not claimed similar events had occurred “more recently”; or that, if returned to Bangladesh, he would take up working in his father’s shop once more. These matters demonstrate the serious lack of information before the Authority (see [105] above). This information deficit was attributable wholly or in large part to the absence of an interview at which the appellant would have had the opportunity to explain his protection claim and answer relevant questions about his explanation.

111    The delegate also noted numerous informational deficiencies in the material, including about the circumstances of the appellant and his family. For example, the delegate noted that the appellant had not submitted “any further information about why his family would still be living in the same village” after the claimed attack on them. Such deficiencies were, however, virtually inevitable in the circumstances of this case. Because of these deficiencies, the delegate made findings adverse to the appellant; and, as we have seen, so did the Authority, notwithstanding the appellant apparently sought to do everything within his capability to rectify the situation before the Authority.

112    Considering the appellant’s case as a whole, acting reasonably, the Authority could not disregard the fact that there were significant deficiencies in the information before it as a consequence of the fact that, save perhaps for his entry interview prior to his visa application, the appellant had never been interviewed about his protection claims.

113    In most cases, where a decision is referred to the Authority under s 473CA of the Act, a delegate of the Minister has previously interviewed the applicant; and, having regard to s 473DB of the Act, it may be presumed that the efficiency of the Authority’s review is therefore not imperilled by a review “on the papers”. In this particular case, however, there was no interview at which the delegate invited the applicant to give an account of his claims and asked him questions by way of clarification, to test his credibility or otherwise to assist in evaluating his account. In consequence, the material before the delegate left some significant factual deficiencies. These included factual questions that the appellant could presumably have answered, one way or another. They also included some significant credibility issues, since the plausibility of numerous of his claims was called into question.

114    Further, respecting credibility issues, it should be borne in mind that insofar as the delegate made assessments of credibility, the delegate had little, if anything, on which reliably to base them, since the failed interview of 27 March 2018 proceeded by telephone only and the material before the delegate on the appellant’s protection claims was slight. I interpolate here that this is not an “information gap” case of the kind considered in ABT17 and, more recently in this Court, in ATD19. Rather, this case concerned the absence of information before the delegate due to disabling circumstances affecting the appellant at the time of the delegate’s decision-making.

115    To proceed without an interview in the circumstances of this case when the applicant was persistently seeking to be interviewed and an interview in some form could readily be given was not efficient: cf. s 473FA(1) of the Act. In the particular circumstances of this case, it was plainly unjust. No decision-maker, acting reasonably, could have exercised the power under s 473DC(3) in this way, having regard to the statutory context and the attendant factual circumstances. Notwithstanding s 473DB(1), it should have been apparent to the Authority, acting reasonably, that in this particular case an interview with the appellant was necessary to ensure that his claim for protection was efficiently determined consistently with Division 3 of Part 7AA, as required by s 473FA(1).

116    For these reasons, I would conclude that ground one of this appeal should be upheld and that there is jurisdictional error shown in the Authority’s decision in this case.

117    As indicated earlier in these reasons, whenever a question arises as to whether the Authority has failed to comply with the implied condition of reasonableness in the exercise of a power affecting its review, the answer largely depends on the particular facts of the case, having regard to the statutory context in which the exercise or non-exercise of power falls to be considered. Consistently with this, I would emphasise that this particular case turns almost entirely on its own facts, and in consequence analogical reasoning by reference to other cases is unhelpful.

Ground 2

118    In view of the conclusion I have reached on ground one, it is unnecessary to discuss the appellant’s second ground. I note, however, that the questions that this second ground presented would not have arisen if the Authority had invited the appellant to an interview at which the relevance of his conviction and related matters if returned to Bangladesh could have been discussed.

Disposition

119    For the reasons stated, the appeal should be allowed and orders made accordingly. The parties will be given an opportunity to make submissions as to the costs of the appeal and, if relevant, of the proceeding below.

Associate:

Dated:    27 June 2022