Federal Court of Australia

AWB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 983

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

Raper J:

Introduction

1    This is an appeal from an ex tempore decision of the (then) Federal Circuit Court of Australia (FCCA): AWB19 v Minister for Immigration and Border Protection and Another made on 11 September 2019 (J).

2    In the primary decision, the primary judge dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (IAA), made under Part 7AA of the Migration Act 1958 (Cth) on 5 February 2019. The IAA had affirmed the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made on 12 December 2018, refusing to grant the appellant a Safe Haven Enterprise (Subclass 790) visa (SHEV) pursuant to s 65 of the Act.

3    By notice of appeal filed 14 October 2019, the appellant appeals from the decision of the FCCA to this Court. Whilst the notice contains two grounds of appeal, the appellant only presses his first ground, namely that the primary judge erred in finding that the IAA had not committed jurisdictional error in deciding not to exercise its powers under s 473DC of the Act to get new information, namely a translation of a document provided to it by the appellant.

4    For the reasons set out below, I dismiss the appeal.

Background

5    The appellant is a Sri Lankan national who arrived in Australia by boat on 14 November 2012 as an unauthorised maritime arrival.

6    The appellant claimed that he was entitled to a protection visa as a refugee pursuant to s 36(2)(a) of the Act, or on the basis that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia, there was a real risk that he would suffer significant harm for the purposes of s 36(2)(aa) of the Act.

7    The appellant claimed to fear harm by reason of his Tamil ethnicity and his perceived links to the Liberation Tigers of Tamil Eelam (LTTE). The appellant moved to Vanni as a baby and his family have lived there since. Vanni is in the Northern Province of Sri Lanka, which the appellant asserts constitutes a “former LTTE controlled area”.

8    In the appellant’s statement, which was provided to the delegate, the appellant described his experiences which led to his belief that it was no longer safe for him to live in Sri Lanka. Under the heading “My fears if I am returned to country of origin”, he stated:

27.    If I am returned to Sri Lanka, I am afraid that I will be subjected to serious harm including threatening me, beating me, indefinitely detaining me or even shooting me. I am afraid of this harm from the CID and the army.

28.    I have already experienced physical violence, intimidation and harassment.

29.     I cannot relocate to Colombo because that is where the CID and other government offices are. They have records of everyone that they suspected as being members of the LTTE. From the time I come to the airport, they will suspect me. I also do not speak Sinhala properly and have no family or relatives there.

30.     I am afraid that I would not be protected by anyone, including the authorities, because they support the army and the CID. Even when I tried to file a police report in 2012, the police would not let me.

9    The appellant’s claims for protection were summarised in Part 4 of the delegate’s decision and were understood to comprise his submission that his personal circumstances supported a finding that there was a real chance he would be persecuted or suffer significant harm in the reasonably foreseeable future if he were to return to Sri Lanka. The appellant submitted that the authorities would detain, interrogate and torture him because of:

(a)    his Tamil ethnicity;

(b)    his actual and/or imputed political opinion and profile as a LTTE supporter;

(c)    his status as a person who left Sri Lanka illegally and sought asylum in Australia; and

(d)    his status as a returned asylum seeker with actual links and sympathies to the west due to his protracted residence in Australia.

10    He further submitted that members of his family including his cousin, brother in law and father were involved in, or supported, the LTTE and that his brother had been taken by the LTTE as a fighter and was killed in 2008.

The delegate’s decision

11    The delegate considered, relevantly, evidence that was given in relation to two separate occasions of interrogation and assault by the Sri Lankan Police’s Criminal Investigation Department (CID). The appellant made the following submission, among others, to the delegate, which were included in the delegate’s decision:

•    In 2008, he [the appellant] and his family were stopped by the army, whilst travelling from Puthumathalan. They checked their IDs and then took them to a school 2 or 3 kilometres away. At the school, they separated them and started interrogating them. He was taken to a separate room with three members of the Criminal Investigation Department (CID) where they all started to ask questions about whether he was involved in the LTTE. They hit him with their hands, a wooden stick, a steel rod and their rifles on his back and his face for about three hours and later they forced them to take a bus a [sic] camp in Vavuniya.

•    After about a month of staying at the camp in Menik Farm, two members of the army asked him for his ID and started scolding and hitting him with the pole of the tent, their shoe and their gun. The CID came to their tent at the camp and told his father they had plans to detain him because they knew he had been in the LTTE. They extorted money from his father.

…

•    In 2010, a senior army officer called them to the army camp and interrogated them for about 1 or 2 hours.

•    In September 2012, whilst working in his father's… Restaurant, a number of CID officers refused to pay for their food. The police came to the restaurant and he asked if he could make a report. The police officers said there was no problem and that he could not make a report. After this, he decided he could not live safely in Sri Lanka anymore and he left for Australia. His father became afraid and closed the restaurant in 2013.

•    Since his departure in November 2012, the army have returned to his family’s home and asked about his whereabouts on 4 occasions, most recently in October 2018.

12    The delegate made a finding of fact that she did “not accept he cannot relocate to Colombo”.

13    The delegate found that:

Having considered the above issues, I do not find that the applicant’s circumstances would amount to significant harm as defined in section [36(2A)] of the act.

The applicant has raised no other claims, nor are there any reasons to consider that he would face significant harm for any other reason if he returns to Sri Lanka.

…

I am not satisfied that [the applicant] is a refugee as defined by s5H (1) of the Act. Therefore, I am also not satisfied [the applicant] is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act.

…

I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed to Sri Lanka, there is a real risk they will suffer significant harm as defined in s36(2A) of the Act.

Therefore, [the applicant] is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act.

The IAA Procedure

14    The delegate’s decision was referred to the IAA for review pursuant to s 473CA of the Act:

473CA  Referral of fast track reviewable decisions

The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

15    The IAA may affirm the decision or remit the decision for reconsideration in accordance with such directions or recommendations of the IAA as are permitted by regulation: s 473CC(2) of the Act. The review is conducted on the papers (s 473DB of the Act) but is subject to natural justice requirements pursuant to s 473DA of the Act:

Subdivision A—Natural justice requirements

473DA Exhaustive statement of natural justice hearing rule

(1)     This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)     To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

16    Section 473CB imposes a duty on the Secretary to the Department that is administered by the Minister to give the IAA specified “review material” in respect of each fast track reviewable decision that is referred by the Minister.

17    The review material includes a statement that: (a) sets out the findings of fact made by the person who made the decision; (b) refers to the evidence on which those findings were based; and (c) gives reasons for the decision: ss 473CB(1)(a)(i) – (iii) of the Act. Importantly, the review material also includes “material provided by the referred applicant to the person making the decision before the decision was made” (s 473CB(1)(b) of the Act) and “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”: s 473CB(1)(c) of the Act.

18    The IAA is guided by practice directions which are made pursuant to the powers under s 473FB of the Act. Pursuant to ss 473FB(2), the directions may:

(a)     relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or

(b)     set out procedures to be followed by persons giving new information to the Authority in writing or at interview.

19    Pursuant to s 473FB, the IAA is also required to comply with its own practice directions:

473FB  Practice directions

…

(3)     The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision.

(4)     If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.

(5)     The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.

20    Relevant to this appeal, the IAA is empowered by s 473DC to obtain new information:

Subdivision C—Additional information

473DC Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)     were not before the Minister when the Minister made the decision under section 65; and

(b)     the Authority considers may be relevant.

(2)     The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)     Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)     in writing; or

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

21    Moreover, the IAA may consider new information in exceptional circumstances as set out in s 473DD of the Act:

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)     the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)     the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)     was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)     is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

22    The form of review undertaken by the IAA is a “limited form of review” (s 473BA of the Act), which is not equivalent to the merits review undertaken by the Administrative Appeals Tribunal and is “sui generis”: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; 253 FCR 448 at [85]. Nonetheless, when conducting such a review, as observed by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [17], whilst not concerned with the correction of error on the part of the Minister or delegate, the IAA is:

… engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits.

Correspondence between the IAA and the appellant

23    The IAA sent a letter dated 17 December 2018 to the appellant advising him that the delegate’s decision had been referred to the IAA for review. The letter advised that the IAA would:

…make a decision on [the appellant’s] 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.

24    The letter attached a Practice Direction and an information sheet. The Practice Direction, in effect from 7 February 2017 and attached to the IAA’s letter, set out the following relevant provisions:

21.     Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should:

•    be no longer than 5 pages,

•    be easily legible using a font size of at least 11 point with standard margins of at least 2.54cm, and

•    should be provided to us within 21 days of your case being referred to us by the Department.

22.     We may return longer submissions or submissions that do not comply with these requirements. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.

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

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

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

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

25.     Your explanation should be no longer than 5 pages and must accompany any new information you give to us. If you provide to us, or refer in your submission to any new information, your explanation must specify why that new information is relevant to the review.

26.     If you provide or refer to new information such as country information reports or media articles, you must provide a copy of that information or extract part(s) of the information on which you rely. You must identify the source of the information. Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable.

27.     All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.

28.     Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral.

29.     We may separately invite you to provide new information or to comment on new information that may be adverse to your case.

•    If we invite you to provide new information, you must provide that information within the period specified in the invitation.

•    If we invite you to make comments on new information, you must provide those comments within the period specified in the invitation.

30.     You do not need to give us any information or document that you previously gave to the Department.

31.     Reviews will generally be completed within six weeks of referral from the Department.

The email containing the untranslated document

25    On 7 January 2019, the appellant sent an email to the IAA, which referred to having received a letter from the Colombo police, and which the appellant sought to tender to the IAA as new information. The appellant attached a photo of the document purporting to be a letter from the Colombo police to the email (the untranslated document). His email is extracted in full:

Dear Sir/Madam,

I have to disagree with the verdict which is asking me to go & live in Colombo, Sri Lanka as I do not feel safe living there for the following reasons;

•    CID have gone to my house recently & investigated about me. I have received a letter from the Colombo police which is in Sinhala(please see attached) since the Srilankan Government has stopped providing translated copies in English I am unable to provide a copy in English. However, I will be able to provide a translated copy through a certified translator from here if required.

•    My National Identity Card (NIC) indicates that it was granted in Vanni & states the details of my birth place, which is a give away for the Colombo police.

•    Finally, my Tamil accent differs to the Tamil that is spoken in Colombo, people can easily tell that I’m from the North or East of Sri Lanka, which makes life even harder for me in Colombo as I have to lead a life in fear of getting arrested.

(Emphasis added).

26    The IAA did not respond to this email or seek a certified copy of the translation of the untranslated document.

27    By letter dated 5 February 2019, the IAA provided the appellant with its decision to affirm the decision of the delegate and attached its statement of reasons and a fact sheet relating to the IAA decision.

The IAA’s decision

28    In the IAA’s reasons at paragraph [4], it rejected the untranslated document on the following basis:

The applicant has submitted to the IAA an untranslated copy of a Sri Lanka Police Force message form from the T.I.D. Colombo station with the date 2018/12/05 which is new information. He states that the [sic] he has received this letter which is in Sinhala and that since the Sri Lankan government stopped providing translated copies in English, that he is unable to provide a copy in English but he will be able to provide a translated copy through a certified translator from here if required. The IAA Practice Direction for Applicants, Representatives and Authorised Recipients (which is available on the IAA’s website) clearly states that all documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters. It states that both the documents and the translations should be provided. I note the applicant’s SHEV application indicates that he can speak, read and write English and I consider that he should have been aware of this requirement. Furthermore, it is obvious that the IAA would not be able to place any more than very limited weight upon a document in a foreign language unless it was translated. I note that in reviewing fast track reviewable decisions, the IAA is required to pursue the objective of providing a mechanism of limited review that is efficient, quick free of bias and consistent with Division 3 of Part 7AA of the Migration Act 1958. I note that there is no general duty on the IAA to obtain translated copies of documents or accept untranslated copies of documents. Given all this, I have decided not [sic] get a translation from the applicant under s.473DC. As the document is untranslated, it is of very little probative value and I cannot place any weight on it. I am not satisfied there are exceptional circumstances to justify considering this material.

(Footnotes omitted, emphasis added).

29    The IAA accepted a greater number of the appellant’s claims about his experience in Sri Lanka than which had been accepted by the delegate. This is evident when comparing “Part 5: Findings of fact” of the delegate’s decision with paragraph [10] of the IAA’s decision. In particular, at paragraph [10] of the IAA’s reasons, the IAA accepted, along with other submissions, that:

(a)    The appellant’s cousin was involved in the LTTE as a captain in the Charles Antony Brigade. He was detained after the war. He has a current court case that arose after attempting to flee the country.

(b)    His brother-in-law was involved in the LTTE including performing sentry duty, undertaking defence training, providing food and storing weapons for the LTTE. He committed suicide about one year before the IAA’s decision after the problems he had with the CID.

(c)    His father supported the LTTE by providing food.

(d)    In 2007, his oldest brother was taken by the LTTE to join them as a fighter and that he was killed in 2008.

(e)    In 2008, the appellant and his family were taken to a school and then separated, interrogated and assaulted. The CID extorted money from the appellant’s father.

(f)    In 2010, a senior army officer called them to the army camp and interrogated them for about one or two hours.

(g)    In September 2012, an incident involving the CID occurred at his father’s restaurant and the appellant was denied the opportunity to make a police report.

30    The IAA, at paragraph [14] of its reasons, explained what aspects of the appellant’s claims it did not accept:

I do not accept that the applicant is of any adverse interest to any of the Sri Lankan authorities (including the army and CID) now or that he would be upon his return to Sri Lanka. I do not accept that since his departure in November 2012, the Sri Lankan army have returned to his family’s home and asked about his whereabouts and why he left most recently in 2017. I do not accept that his parents said they were not in contact with him. I do not accept that his parents have told him about four other occasions where members of the army have asked about him. I do not accept that in October 2018, different CID officers came to his home and asked about him as his name was on the family card. I do not accept that his mother said that she did not have contact with him and the CID took a photograph of him when they left. I find it implausible and not credible that the Sri Lankan authorities (army and CID) would have continued to come to look for him for so many years given all the circumstances. The applicant had just turned 16 years old in May 2009 when the war ended and many years have passed since that period. He was not involved in the LTTE in any way either during or after the conflict, other than receiving some self-defence training at school for 1-2 days many years ago. The applicant was interrogated by the Sri Lankan authorities on a number of occasions in 2008-2010 and whilst I have accepted that he was physically mistreated and that his father paid a bribe on one occasion, he was not detained or charged with any offence and he was released from the camp in 2010 which strongly indicates that he was not of continuing adverse interest to them for any reason including suspected support and/or involvement with the LTTE.

31    With respect to these findings, it is apparent that the IAA determined that the incidents occurred a long time ago. Having regard to the country information and the appellant’s history in Sri Lanka, the IAA did not accept that the appellant would face a real chance of serious harm on account of these matters. The IAA found that there was no risk of serious harm on account of the appellant’s failed asylum bid to Australia, the appellant did not pose any adverse interest to Sri Lankan authorities, including the CID, upon return to Sri Lanka, and there was no real chance that he would be perceived by Sri Lankan authorities as being a threat to the state on account of his activities in Australia.

32    Accordingly, the IAA determined that the appellant did not face a real chance of serious harm on account of these claims and considered that the appellant did not meet the requirements of the definition of refugee in ss 5H(1) as required by s 36(2)(a) of the Act.

Application before and reasons of the primary judge

33    In an amended application filed in the FCCA on 12 September 2019, the appellant sought an order that the decision of the IAA be quashed and a writ of mandamus be issued requiring the IAA or Minister to re-determine the application according to law, pursuant to s 476 of the Act.

34    The first ground ventilated before the FCCA was that the IAA had failed to make a lawful determination pursuant to its powers in s 473DC of the Act to request new information from the appellant, namely a translation of the untranslated document. The particulars of that ground comprised:

In refusing to exercise the power, the IAA committed a jurisdictional error in inflexibly applying the Practice Direction for Applicants Representatives and Authorised Recipients (the Practice Direction), not considering the particular circumstances of the case, not giving proper, realistic and genuine consideration to the [appellant’s] claims and/or in not providing any evident or intelligible justification for its decision.

35    The second ground concerned that in rejecting the “Harassment Evidence” on the basis of the applicant’s supposed lack of credibility, the IAA failed to take into account relevant considerations and thereby committed a jurisdictional error. The particulars of that ground comprised:

The IAA failed to take into account that the applicant’s family members had significant links to the LTTE and/or that his brother-in-law has committed suicide in 2018 after suffering CID harassment.

36    Given the confined nature of the present appeal, I will set out only that portion of the primary judge’s reasons regarding the first ground.

37    In relation to the first ground, the primary judge recounted in his Honour’s ex tempore reasons, (at J [26]), that counsel for the appellant advanced in his submissions (which are not before this Court) that:

… the authority might have its reasons read on the basis that it assumed that it had no discretion other than to reject the request for the exercise of the power under section [473DC] because of the failure to comply with the practice note.

38    Counsel for the appellant submitted in the alternative (as recounted in the reasons of the primary judge at J[29]) that:

… the authority had failed to take into account the whole of the circumstances in exercising the discretion under section [473DC], and referred to the authority list concerning the exercise of discretion, including, in particular, the learned Thawley J in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462, relevantly at paragraph 60, as well as to the decision of the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, and, in particular, 92 through to 102.

39    With respect to the first submission, the primary judge reasoned that the IAA’s reasons should not be read with a “keen eye for error”: at [27]. His Honour noted that the IAA did not consider in its reasons that it had no discretion because of the appellant’s non-compliance with the Practice Note. The primary judge pointed to the direction in s 473FB(5) that the IAA was not required to accept new information or documents from a person where the Practice Note is not complied with. His Honour then determined, at J [28], that:

There is no basis for the court to conclude that the authority erroneously believed it had no discretion, and, indeed, its reasons in paragraph 4, on a fair reading, clearly reflect an understanding that the authority was considering whether or not to exercise the discretion. The authority provided logical, rational reasons in support of its refusal to exercise the discretion under section [473DC]. The authority did not err by applying, inflexibly, the practice direction.

40    In respect of the alternative argument, the primary judge reasoned that the IAA was not required to refer to all of the appellant’s claims and circumstances expressly in determining whether or not to exercise the power under section 473DC. Therefore, the primary judge held that the refusal to exercise the discretion could not be said to lack in evident and intelligible justification: at J [30]. His Honour ultimately determined in relation to ground 1, at J [34]:

The authority’s reasons for not exercising the section [473DC] power in the circumstances of the present case cannot be said to be illogical, irrational or legally unreasonable, given that the authority provided logical, rational and reasonable reasons in support of the refusal to exercise the discretionary power. No jurisdictional error, as alleged in ground 1, is made out.

The present appeal

41    By the appellant’s notice of appeal in this Court, filed on 14 October 2019, the appellant claimed two grounds of appeal. However, in the appellant’s submissions, filed on 23 June 2022, the appellant only pressed the first ground of appeal. On the day before the hearing, the appellant alerted the Court of his intention to seek leave to file an amended notice of appeal, including an additional ground (the new ground 2).

42    By ground 1, the appellant contends that that the primary judge erred in failing to find that the IAA had committed jurisdictional error by deciding not to exercise its powers under s 473DC of the Act to request information from the appellant, namely a translation of the untranslated document.

43    By the proposed new ground 2, the appellant contends that the IAA committed jurisdictional error by failing to get new information, by way of interview, under its powers pursuant to s 473DC of the Act in relation to the IAA rejecting the appellant’s claim that the Sri Lankan army had visited his family’s home on four occasions between 2012 and 2018. The delegate had accepted this claim but the IAA decided differently and did not accept the claim. Given this difference, the appellant claims the IAA should have conducted an interview pursuant to s 473DC(3).

The absence of a translation

44    It is a curiosity of this matter that the appellant, legally represented before the primary judge and on appeal, has not provided a translation of the very short document which forms the basis for his case. This is concerning. No explanation was provided as to why a translation has not been provided. Accordingly, this Court, like the IAA and the primary judge, is left in a very difficult position.

45    There have been a number of authorities that have considered the extent of any obligation on decision-makers to obtain translations in a variety of contexts under the Act: see Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 per Wilcox, Whitlam and Marshall JJ at [24] – [25]; X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3; 116 FCR 319 at [28] – [34] per Gray J and [53] – [57] per Moore J; S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 at [49] (affirmed in S14/2002 v Refugee Review Tribunal [2004] FCAFC 171); SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321 at [9] – [18] per Rares J.

46    Relevantly, the authorities reveal that a Tribunal or review body is not required to translate material or consider large volumes of material whose relevance is not explained: Cabal at [25], cited with approval in X at [28]. Moreover, a review body is not obliged to obtain a translation of documents provided by an applicant where the review body, usually through the use of an interpreter, is able to determine the “gist of the material” if it is significant: S14/2002 at [49].

47    By referring to the appellant’s failure to provide a translated copy of the untranslated document to the primary judge or this Court, this Court is not expressing the view that it is always necessary that the Court have a translation before it. So much is clear from the authorities referred to above. It may be that the document, on its face, discloses its relevance. However, as is the case here, the failure to provide a translation is problematic where the document’s relevance is not apparent on its face. The present case therefore can be distinguished from X, where the Full Court had the benefit of a copy of the translation before it in order to be able to decipher the significance of the new information.

Disposition of Ground 1

48    The disposition of ground 1 involves a consideration of the nature of the power under s 473DC and whether the IAA’s refusal to exercise its power under this ground was “legally unreasonable”.

49    The appellant contends that the IAA committed jurisdictional error by its unreasonable refusal to exercise its power under s 473DC to obtain “new information” in the form of the translation.

50    In order for the appellant to succeed, he must establish, as identified by Thawley J in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38], the following:

There may be circumstances in which it would be legally unreasonable to fail to consider exercising the discretion under s 473DC: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82]; DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 at [70]; Minister for Immigration & Border Protection v DZU16 (2018) 253 FCR 526 at [80], [81]. In this regard, the appellant bears the onus of establishing:

(1)     the factual foundation for the conclusion that the Authority did fail to consider exercising the discretion: VAAD v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] (Hill, Sundberg and Stone JJ);

(2)     that there was jurisdictional error in failing to consider exercising the discretion: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] (Gummow J)

51    The parties agree that the discretion to obtain or not obtain “new information”, whilst not involving a duty to get any new information, involves a discretion that must nevertheless be exercised in a legally reasonable way: ABT17 v Minister of Immigration and Border Protection [2020] HCA 36; 269 CLR 439 at [3], DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 388 ALR 389 at [19] – [21]. An unreasonable failure to exercise the power will render invalid a purported performance by the IAA of the duty imposed on it by s 473CC to conduct a review and therefore jurisdictional error: Plaintiff M174/2016 at [21]. The discretion must be exercised with regard to the particular circumstances of the case: EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [60(7)].

52    The appellant contends that in determining the unreasonableness of the exercise under challenge, the Court’s attention must be placed on “those reasons”, which in this case are those of the IAA, to understand why the power was exercised as it was: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47] and to treat those reasons as a “complete explanation” of the decision-maker and to not go beyond that explanation: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317 at [60] – [61].

53    In particular, the appellant contends that there were “three components” to the IAA’s reasoning at paragraph [4] of the IAA’s decision (as extracted above at [28]) which did not provide an “evident and intelligible justification”. I do not accept the appellant’s oversimplification of the IAA’s reasoning but will address the purported “components” as they form the bases for the appellant’s contentions.

54    The first purported “component” of the IAA’s reasoning which is said not to provide an “evident and intelligible justification” was the reference to the appellant’s non-compliance with the Practice Direction. The appellant asserts that, in effect, the IAA committed jurisdictional error by taking non-compliance into account because compliance with the Practice Direction was not “mandatory”. The appellant submitted that it could be inferred that the IAA considered compliance with the Practice Direction a mandatory requirement even though it did not say so. In a similar vein, the appellant contended that the IAA treated the Practice Direction as being “prescriptive” and had the effect of excluding proper consideration as per King v Minister for Immigration and Border Protection [2014] FCA 766; 142 ALD 305 at [22].

55    However, none of these bases can be made out. It is evident when one reads the whole of paragraph [4] of the IAA’s reasons, including its conclusionary words that there was a decision “not [to] get a translation” indicates that the IAA did not treat compliance as “mandatory”. There was no use of the imperative verb “must” but rather, consistent with the Practice Note, the IAA used the auxiliary verb “should”, which connotes advice or a recommendation. The IAA, at paragraph [4] of its reasons, notes the circumstances, including the fact that appellant was English-speaking. The IAA goes on to state that there is no “general duty” to obtain translated copies or accept untranslated copies. Both observations would be unnecessary if the IAA had understood the Practice Direction as prescribing a mandatory requirement. The IAA thereafter, decides, “given all this”, “not [to] get a translation”. None of the reasoning bespeaks the inference the appellant suggests.

56    Furthermore, the appellant rightly conceded that it was relevant for the IAA to take into account what was contained within the Practice Direction as well as the information sheets that were provided to the appellant as part of the referral process. Indeed, the appellant appropriately alerted the Court to the fact that it was mandatory for the IAA to do so with respect to the Practice Direction: see s 473FB(3).

57    The second component of the IAA’s reasoning that is purportedly incapable of intelligible justification, was the IAA’s reference to the nature of its powers of limited review under Part 7AA, and particularly, its restatement s 473FA. I do not accept this submission. It was entirely appropriate for the IAA to refer to the nature of its powers of review under the legislative scheme when considering whether to exercise them. The reference is not “circular” nor illustrative of a failure to comply with Division 3, which concerns “conduct of review”. This reference does not exhibit flawed reasoning.

58    As to the third component, namely the IAA’s reference to there being no general duty on the IAA to obtain a translation, such a reference does not demonstrate error but rather refers to the orthodox view evident from the legislation and the authorities including Cabal at [25] and S14/2002 at [49].

59    It is clear that the IAA considered that it was open for it to ask for a translated copy but it did not do so for the reasons expressed. Accordingly, the submission that there was “an unlawful inflexible application of policy” is not correct. As part of that consideration and its discretion, the IAA noted the particular circumstances of the appellant, including the fact that he could speak, read and write in English, the fact of what was contained in the Practice Direction (which made clear that translations “should be” provided), and the fact that there was no general duty to obtain a translation.

60    In essence, the appellant’s claim appears to be a disagreement with the merits as to the outcome of the exercise of the power. To the extent that the appellant points to other factors that the authority could permissibly have taken into account but did not, such an exercise is not enough to reveal jurisdictional error.

61    The height of the appellant’s claim is that given the IAA’s finding in paragraph [14] of its reasons that “it [was] implausible and not credible that the Sri Lankan authorities (army and CID) would have continued to come to look for [the appellant] for so many years given all the circumstances”, the IAA should have obtained a translation of the untranslated document. This was said to be so given the IAA, according to the appellant’s submission during the appeal:

… was presented with a communication from… one TID Department of the Sri Lankan Police to another that obviously concerned the appellant and that referred to a date that was entirely consistent with the date he had contended was the date on which his family had been visited by the CID in relation to him, being the late October date…

62    However, as considered above, there is a great difficulty in this case because the appellant did not provide a translation to the primary judge or this Court.

63    This difficulty is compounded by the fact that the appellant’s description of the untranslated document is different from how it appears on its face. The appellant, who speaks, reads and writes in English, described the untranslated document in his email to the IAA attaching it as a “letter” he had “received…..from the Colombo police”. However, the untranslated document is not a “letter” addressed to the appellant. There is no evidence on its face as to how this internal document came into his possession. On its face, it is an internal communication between the “T.I.D Colombo” and the “T.I.D Vavunija”. The appellant’s counsel now relies upon the fact that it contains a date “2018.10.25” embedded in the fifth or sixth lines of text in Sinhala as being in some way corroborative of what he had said to the delegate about the CID having gone to his family’s house, including in October 2018. The appellant did not bring this to the IAA’s attention when it provided the untranslated document to it. One is not able to decipher anything from the fact of the date at all, contrary to the appellant’s submission to this Court.

64    It was for the appellant to explain to the IAA its relevance. The appellant made no reference in his email to the IAA as to the significance of the date embedded in the untranslated document. The absence of a translation of the six lines of the untranslated document placed the primary judge and this Court in a very difficult position given that, on its face, the untranslated document (absent a translation) does not appear capable of satisfying the IAA of its potential relevance. There was nothing on the face of the untranslated document to indicate that the CID attended the appellant’s house in 2018.

65    Accordingly, I find that it was within the IAA’s power to not “get” the “new information” in the form of the translation. Ground 1 is dismissed as no error has been established by the appellant.

Disposition of the new ground 2

66    At the hearing, the appellant sought leave to amend his notice of appeal to include an additional ground.

67    By the new ground 2, the appellant contends that the IAA’s purported failure to obtain new information within its powers under s 473DC, in the form of an interview with the appellant in relation to his claim that the Sri Lankan army have visited his family’s home in Vanni on four occasions between 2012 and 2018 constitutes jurisdictional error. By the appellant’s particulars to the ground, the appellant submits more expansively that:

(a)    the delegate had accepted the appellant’s evidence that he had been the subject of investigation by the Sri Lankan army;

(b)    the IAA rejected that evidence on the basis that it did not consider that the appellant’s account in this regard was credible;

(c)    before reaching this conclusion, the IAA should have conducted an interview with the appellant pursuant to its powers under s 473DC of the Act; and

(d)    the failure of the IAA to do so constituted jurisdictional error.

Application for leave to pursue a new ground

68    The appellant is required to seek leave to pursue this new ground 2 on the basis that the “interests of justice” demand it: O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319; Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [93] – [94]; Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79]. Notably, it is fundamental to the administration of justice that the substantial issues between the parties are dealt with at trial and those proceedings are not reduced to a “preliminary skirmish”: Coulton v Holcombe (1986) 162 CLR 1 at 7. It is regrettable that this practice of raising new matters on appeal has emerged in some migration matters: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48]. This is particularly so where the appellant was represented both before the primary judge and on appeal.

69    The appellant seeks leave on two bases: (a) by reason of his reliance on the reasoning in ABT17, which was a decision that was not handed down until almost a year after this proceeding was heard by the primary judge; and (b) alternatively, on the basis of representative error – an “oversight” on the part of Counsel, rather than arising from a forensic decision not to run the point.

70    For the following reasons, leave is refused.

71    First, there has been no adequate explanation for the appellant’s failure to advance the point before the primary judge below. The appellant’s reliance on the applicability of the reasoning in ABT17 is misguided. For the reasons set out at paragraphs [72] – [90] below, the circumstances of that case were largely different to the present case and are distinguishable. Secondly, the appellant incorrectly describes the state of the law prior to ABT17 as being altered in a marked way by the advent of the ABT17 decision. ABT17 arose from a particular factual scenario (where the IAA listened to, and questioned, the appellant’s account by reason of an audio-recording) and applies the law to those circumstances. Given that ABT17 may be distinguished from the present case, there is doubtful merit to the new ground. Thirdly, the Minister raised, and I accept, that there is necessarily prejudice suffered by a party where the scheme of review would be subverted and the Minister would be effectively deprived of the opportunity for appellate review on this ground, if leave is granted. As stated by Lander J in SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30], there are good reasons why this Court should not be made a de facto court of original jurisdiction. Lastly, the fact of representative “oversight”, in the face of these other bases, does not weigh the balance in favour of the discretion being exercised. This is particularly so given the weaker the merit of the proposed ground, the greater the need for other discretionary factors to be in the appellant’s favour: Han v Minister for Home Affairs [2019] FCA 331 at [15].

72    Furthermore, I consider the new ground has limited merit, which goes against leave being granted.

73    In support of the new ground, with respect to why the IAA committed jurisdictional error by its purported failure to obtain new information within its powers under s 473DC, in the form of an interview, the appellant relied on an inconsistency between the IAA’s reasoning at paragraphs [10] and [14] of its reasons. As extracted below, at paragraph [10] of its reasons, the IAA largely accepted that the applicant was consistent and “generally credible with his claims of his and his relative’s experiences”:

The applicant has been consistent and generally credible with his claims of his and his relative’s experiences during the time he lived in Sri Lanka. They are also supported by a number of documents provided by the applicant (a certificate regarding residentship, a relief assistance card from Vavuniya camp, a letter of support from Reverend Father… , a death certificate of brother, a release certificate from an IDP camp and return form). I accept the following:

•    He was born in Chavakachcheri, Jaffna District, Northern Province and he moved to Vanni with his family when he was a baby. His parents still live in Vanni, in the former LTTE controlled area.

•    His cousin… was involved in the LTTE as a captain in the Charles Antony Brigade. He was detained after the war. He has a current court case that arose after attempting to flee the country.

•    His brother-in-law… was involved in the LTTE including performing sentry duty, undertaking defence training; providing food and storing weapons for the LTTE. He committed suicide about one year ago after the problems he had with the CID.

•    His father supported the LTTE by providing food.

•    In 2007, he and his family were displaced for about three years to Puthu Muripu, Kilinochichi, Tharmapuram and Puthumathalan. During this time he was also kept in an army camp in Vavuniya for about four or five months with his family.

•    In 2007, whilst living in Kilinochichi, his oldest brother… was taken by the LTTE to join them as a fighter. He was killed in 2008.

•    In 2008, he and his family were stopped by the army, whilst travelling from Puthumathalan. They checked their IDs and then took them to a school two or three kilometres away. At the school, they separated them and started interrogating them. He was taken to a separate room with three members of the CID where they all started to ask questions about whether he was involved in the LTTE. They hit him with their hands, a wooden stick, a steel rod and their rifles on his back and his face for about three hours and later they forced them to take a bus to a Internally Displaced Persons (IDP) camp in Vavuniya.

•    After about a month of staying at the camp, two members of the army asked him for his ID and started scolding and hitting him with the pole of the tent, their shoe and their gun. The CID came to their tent at the camp and told his father they had plans to detain him because they knew he had been in the LTTE. They extorted money from his father.

•    In 2009 or 2010, he and his family were released from the camp with the assistance of the UNHCR and the IOM. The UNHCR took all of their details and they were given UNHCR documents including an ID at the camp in Puthumathalan. Once they were released, they went to Jaffna for about four months and then in 2010, they had returned back to their family home in Vanni.

•    In Vanni, they had to build their house again because it had been destroyed by the war. The army was constantly monitoring them by taking photographs, checking their IDs and patrolling the streets.

•    In 2010, a senior army officer called them to the army camp and interrogated them for about one or two hours.

•    In September 2012, whilst working in his father's restaurant, 4-5 CID officers refused to pay for their food and threatened the applicant. One of them hit the applicant and they left without paying. The police came to the restaurant and he asked if he could make a report. The police officers said there was no problem and that he could not make a report. After this, he left for Australia.

•    The CID continued to cause problems at the restaurant and his father has told him that the CID person he had with [sic] the confrontation with would come back and ask where he was [sic] gone. His father became afraid and closed the restaurant in 2013.

74    However, by contrast, at paragraph [14] of the IAA’s reasons, the IAA rejected the appellant’s claim that he was of “adverse interest to any of the Sri Lankan authorities (including the army and CID) now” (emphasis added), as follows:

I do not accept that the applicant is of any adverse interest to any of the Sri Lankan authorities (including the army and CID) now or that he would be upon his return to Sri Lanka. I do not accept that since his departure in November 2012, the Sri Lankan army have returned to his family’s home and asked about his whereabouts and why he left most recently in 2017. I do not accept that his parents said they were not in contact with him. I do not accept that his parents have told him about four other occasions where members of the army have asked about him. I do not accept that in October 2018, different CID officers came to his home and asked about him as his name was on the family card. I do not accept that his mother said that she did not have contact with him and the CID took a photograph of him when they left. I find it implausible and not credible that the Sri Lankan authorities (army and CID) would have continued to come to look for him for so many years given all the circumstances. The applicant had just turned 16 years old in May 2009 when the war ended and many years have passed since that period. He was not involved in the LTTE in any way either during or after the conflict, other than receiving some self-defence training at school for 1-2 days many years ago. The applicant was interrogated by the Sri Lankan authorities on a number of occasions in 2008-2010 and whilst I have accepted that he was physically mistreated and that his father paid a bribe on one occasion, he was not detained or charged with any offence and he was released from the camp in 2010 which strongly indicates that he was not of continuing adverse interest to them for any reason including suspected support and/or involvement with the LTTE.

(Emphasis added).

75    The appellant’s claim relates to the IAA’s rejection, as emphasised immediately above, of his claims relating to the purported ongoing interest by the Sri Lankan authorities in him, including his claim of the authorities coming to his home in October 2018 and asking about him. This finding is contrasted with the finding of the delegate, in Part 5 of her reasons, that:

Since his arrival in Australia on 14 November 2012, the army has returned to his family’s house in Vanni four times and asked about his whereabouts, the las [sic] time being in October 2018.

76    Contrary to the premise underlying the appellant’s submission, the IAA was not required to notify the appellant that it was considering taking a different view, adverse to the appellant, from the material considered by the delegate: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [72].

77    The appellant’s reliance on ABT17 as being supportive of his claim that the IAA’s failure to “get information” from the appellant, in the form of an interview, was legally unreasonable, is misguided. Recently, in CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502, O’Bryan J considered a number of occasions where it was argued to be legally unreasonable for the IAA to not get new information. At [46], O’Bryan J observed the following:

On a number of occasions, the Court has considered whether a failure by the Authority to seek additional information from a visa applicant under s 473DC when conducting a review is unreasonable in the legal sense. Each case turns on its own facts. However, it is possible to distil the following principles from the decisions:

(a)    The legislative scheme of review established by Pt 7AA (review by the Authority) differs from the legislative scheme of review established by Pt 7 (review by the Administrative Appeals Tribunal). In particular, under Pt 7, the Administrative Appeals Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. In those circumstances, procedural fairness requires the Tribunal to inform the applicant of potentially adverse conclusions that are not obvious on the materials and the nature and content of the adverse material: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [32] . However, those principles are not directly applicable to a review under Pt 7AA given the different statutory requirements for the review. Pt 7AA of the Act is an “exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews by the Authority”: DGZ16 at [69] per Reeves, Robertson and Rangiah JJ.

(b)    As a general proposition, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration & Border Protection (2018) 267 FCR 69 at [74] per Collier, Middleton and Rangiah JJ It is open to the Authority to reach a decision based on the review material even if the referred applicant is unaware of the significance of that material: CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 at [55] –[57] per Thawley J.

(c)     However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant. Legal unreasonableness is not to be assessed through the lens of procedural fairness to the applicant; rather, a conclusion in this regard requires close focus upon the particular circumstances of exercise of the statutory power: Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, citing CRY16 at [67] and Li at [76]. An example is afforded by CRY16. The Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation (CRY16 at [82] per Robertson, Murphy and Kerr JJ). CRY16 was a case where additional information (as to the reasonableness of relocation) was “necessary in order to complete the review”: DGZ16 at [70].

(d)    Similarly, the case of Minister for Immigration & Border Protection v DZU16 (2018) 253 FCR 526 concerned a decision of the Authority to affirm the refusal of a visa application on the basis that the visa applicant could relocate to another area within his home country. The Authority had considered new country information in determining the visa applicant’s ability to relocate (to an area of his home country other than that considered by the delegate at first instance). The Full Court (Robertson, Murphy and Kerr JJ) applied CRY16 in finding that it was legally unreasonable for the Authority not to have considered whether to exercise its discretion under s 473DC of the Act to invite the visa applicant to an interview to give new information in respect of whether relocation to that area was practicable (at [81], [85]).

(e)    Another example is afforded by DPI17 v Minister for Home Affairs (2019) 269 FCR 134 (DPI17). In that case, the delegate had made a positive assessment of the appellant’s demeanour at the interview and the delegate’s acceptance of certain claims by the delegate was based primarily on the delegate’s assessment of the appellant’s demeanour (DPI17 at [46]). Further, during the course of the delegate’s interview with the applicant, the delegate indicated that certain discrepancies in the applicant’s evidence were not major and that she would not put a lot of weight on those discrepancies. In reliance upon those statements, the applicant did not address the inconsistencies in his post-interview submissions to the delegate. The Authority reviewed the decision and made various credibility findings adverse to the applicant based on the discrepancies in the evidence. The Full Court found that, in circumstances where the Authority must have been aware of the delegate’s positive assessment of the applicant’s demeanour in the interview, it was legally unreasonable for the Authority not to consider exercising its power under s 473DC to invite the applicant to give new information when it was minded to give weight to the discrepancies in the applicant’s evidence and come to a different conclusion on the claim (at [46] per Griffiths and Steward JJ and [58] per Mortimer J).

(f)    In ABT17 v Minister for Immigration & Border Protection (2020) 269 CLR 439 , the Authority listened to an audio recording of an interview that the delegate had conducted in person with the appellant. The Authority affirmed the delegate’s decision, and in doing so rejected a central part of the appellant’s account which the delegate had accepted as plausible. The majority of the High Court (Kiefel CJ, Bell, Gageler and Keane JJ) held (at [24]–[25]) that while the Authority is not required to interview a referred applicant merely because credibility is in issue, the Authority will be found to have acted 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 the referred applicant in an audio recorded interview, and accepted by the delegate, wholly or substantially on the basis of its own assessment of the manner in which that account was given.

(g)    Most recently, in DVO16 v Minister for Immigration & Border Protection [2021] HCA 12; 388 ALR 389 , the plurality (Kiefel CJ, Gageler, Gordon and Steward JJ) made the following observations about the potential for the Authority to breach the reasonableness condition in connection with its power to seek further information (at [20]):

Faced with translation errors in a recording of a protection interview revealed or suggested by the review material provided by the Secretary, considered alone or in light of such submissions as might be made on behalf of the referred applicant during the course of the review, the Authority would have the potential to breach the reasonableness condition implied into its powers to get and consider new information were it to fail to exercise those powers to interview the referred applicant and then to consider the referred applicant’s testimony as correctly translated. Equally, the Authority would have the potential to breach the reasonableness condition implied into its duty to review the referred decision by considering the review material were it to make findings adverse to the referred applicant with knowledge of translation errors without having exercised its procedural powers to get and consider new information which might address those errors.

(Emphasis in original)

78    Particular attention needs to be given to the facts of a particular case and not a superficial reliance on a particular case. In this regard, ABT17 concerned a situation where a delegate had interviewed the applicant and had found his evidence was plausible and broadly consistent with country information. However, the delegate refused the application for a protection visa on more recent country information referring to the improved circumstances for people of Tamil ethnicity in Sri Lanka. Then, when the IAA conducted its review, it took a different view from the delegate after listening to an audio recording of the referred applicant’s interview. The IAA found that the applicant’s evidence was “generally lacking in detail” and sounded “at times vague and hesitant” (at [15]) and rejected the applicant’s account of having been detained, beaten and sexually tortured by the Sri Lankan Army on suspicion of having been an LTTE supporter: at [27].

79    The plurality, Kiefel CJ, Bell, Gageler and Keane JJ, commenced their reasoning with detailed consideration of the legislative scheme, emphasising the task of the IAA as being one of a de novo consideration of the merits of the decision and needing to consider the application for a protection visa afresh and to determine for itself whether or not it was satisfied that the criteria for the grant of the visa have been met: at [5]. As part of this de novo review, the IAA has a number of ways in which it may inform itself, including considering the information contained in the review material which the Secretary provides to the IAA, and its own powers to obtain “new” information. Their Honours noted the potential for an “informational gap” arising from the fact that the IAA only had an audio recording of the applicant’s interview with the delegate. Accordingly, “[m]issing from the review material will be a visual impression of how the referred applicant appeared during the interview – his or her demeanour”: at [13]. Such a gap had the potential to have an impact upon the IAA’s assessment of the credibility of the account given by the applicant, noting the potential importance of impressions of “demeanour”: at [14].

80    Their Honours opined that the IAA had the power to bridge that gap by exercising its powers to get and consider new information, and “the question becomes as to when if at all compliance with the implied condition of reasonableness in the conduct of the review or in the consideration and exercise of those powers might compel the Authority to adopt that course” (emphasis added): at [18]. The question is not assisted by infusing notions of procedural fairness into the implied condition of reasonableness, which is expressly excluded from Part 7AA of the Act: at [18]. Rather, the answer is found by recognising that “the implied condition of reasonableness is not confined to why a statutory decision is made: it extends to how a statutory decision is made”: at [19].

81    Compliance with this implied condition of reasonableness requires not only that the IAA’s decision have an “intelligible justification” but that it has come to that decision “through an intelligible decision-making process”: at [20]. The bounds of reasonableness may be transgressed where the IAA has treated particular information as to the reason or part of the reason for the decision without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided: at [20].

82    Importantly, their Honours noted that the mere existence of such a gap will not necessarily result in the IAA being “disadvantaged in comparison with the delegate”: at [22] quoting FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at [39]. This is so where the credibility of the referred applicant would not have a significant bearing on the IAA’s determination. It would ordinarily be open for the IAA to form its own assessment of credibility, taking into account second-hand descriptions or impressions which form part of the review material: at [23]. Accordingly, the IAA is not required to interview a referred applicant merely because credibility is in issue or merely because the IAA comes to a different view as to credibility than did the delegate: at [24].

83    Finally, the plurality, at [25] determined that the IAA:

… 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 the 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.

84    The appellant in the present case, seizing upon this paragraph of their Honours’ reasoning, submitted that:

… there was no good reason in this case not to invite the appellant for an interview, in circumstances where the delegate had accepted the credibility of his claim about the army and the authority had decided to reject his credibility in relation to the claim about the army. And as your Honour has identified, … through the process of looking at those sections a moment ago, the authority was required to receive and then consider the delegate’s decision, but nowhere in the authority’s decision does one see any reference at all to the authority acknowledging that the delegate had obviously formed a favourable impression of the appellant and the appellant’s credibility, following the interview, in relation to that particular allegation.

85    The appellant submitted that where the delegate interviews an applicant and accepts one of the applicant’s claims as credible, if the reviewer (in the present case the IAA) seeks to depart from that acceptance and reject that claim, there is an “informational gap”. In such a situation, according to the appellant, because the IAA has not seen and heard the applicant unless there is a good reason not to, the IAA should exercise its power under s 473DC(3) to interview the applicant so as to obtain the information itself in relation to the rejected claim and assess the applicant’s demeanour. I do not accept this submission as being an accurate description of what the IAA “should do”. The appellant’s partial deployment of the High Court’s language in ABT17 at [25] omits the Court’s reference to the specific circumstances of that case – the rejection of an account in an audio recorded interview which the delegate had accepted wholly or substantially on the basis of its own assessment of the manner in which that account was given.

86    There is therefore a marked factual distinction between ABT17 and the present case. The former concerned the comparative ability between the delegate and the IAA regarding demeanour-based findings. This is evident from the reasoning of Nettle J, at [66], in which his Honour described the delegate’s assessment as “based to a significant extent on the delegate’s perception of the appellant’s demeanour during the TPV [Temporary Protection Visa] interview”. Similarly, the plurality recognised the importance of the IAA’s evaluation of the appellant’s demeanour, at [15] and [17]. In ABT17, the IAA stated in its reasons for not accepting that the appellant was detained and sexually tortured that it was, in part, because of the manner in which the appellant had given evidence at the interview: at [43]. The reasoning in ABT17 makes clear that the unreasonableness arose not merely by the existence of an informational gap, different findings or a departure from favourable credit findings: at [23] and [25]. Instead, the issue was the lack of opportunity, on the part of the IAA, to visually observe the appellant to give his evidence, when the delegate had been able to, given the prominence of demeanour in its findings.

87    By comparison, in the present case, when one considers the delegate’s reasons for her decision, and the conclusions of the IAA extracted at [74] above, there is nothing in the IAA’s reasons for its decision to indicate that its finding was on the basis of a demeanour finding. Rather, in the present case, the IAA’s rejection of the appellant’s account regarding him being of adverse interest was multifactorial and was based on: (a) the age of the appellant at the time of the end of the civil war; (b) the effluxion of time since the end of the civil war; (c) the fact that the appellant was not in any substantive way involved in the LTTE; and (d) the fact that after the appellant was interrogated and physically mistreated, he was not detained or charged and he was released from a camp in 2010. There is nothing in paragraph [14] of the IAA’s reasons which concerned the manner in which the appellant gave his account, which would therefore enable him to rely on ABT17.

88    Furthermore, it was open for the IAA to take into account other information in forming its view, as was specifically contemplated in ABT17 by the plurality at [22]:

The mere existence of an informational gap will not necessarily result in the Authority being “disadvantaged in comparison with the delegate”. That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority’s determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.

(Footnotes omitted).

89    In the present case, the IAA was able, within the context of Part 7AA, to come to a different conclusion to that of the delegate, without creating an obligation to seek further information from the appellant: FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 at [60]; DGZ16 at [72].

90    Accordingly, I do not accept that in the present case the IAA transgressed into the bounds of unreasonableness by not obtaining new information within its powers under s 473DC, in the form of an interview with the appellant in relation to his claim that the Sri Lankan army have visited his family’s home in Vanni on four occasions between 2012 and 2018. Leave to pursue the new ground 2 is refused.

Conclusion

91    For these reasons, the appeal is dismissed with costs.

Associate:

Dated:    23 August 2022