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Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14 (15 April 2021)

Intro:-

The plaintiff seeks constitutional writs, a writ of certiorari and other relief in respect of a decision made by a delegate of the defendant, the Minister for Home Affairs ("the delegate"), on 12 June 2020 to refuse to grant the plaintiff a protection visa ("the impugned decision"). The plaintiff claimed protection on the basis that he feared persecution in Pakistan on account of his homosexuality.

The delegate made a finding, among others, that the evidence, including "open source social media", did not support the view that the plaintiff was a known homosexual in Pakistan. The plaintiff's principal complaint is that the delegate failed to comply with s 57 of the Migration Act 1958 (Cth) because the delegate failed to disclose the open source social media or provide particulars of that information to the plaintiff to enable him to understand why that information was relevant to consideration of his application for a protection visa.

 

Facts:-

The plaintiff is a citizen of Pakistan. On 23 March 2018, the plaintiff applied for a protection visa, claiming he left Pakistan because, among other things, he faced torture and violence from his family as a result of his homosexuality.

During the interview, the plaintiff was asked to comment on photographs The delegate did not expressly state, or even allude to, any adverse inferences that might be drawn from the photograph. The delegate's question about whether the plaintiff was in contact with a previous partner on social media was also open-ended.

The delegate also sent the plaintiff a letter that contained an invitation to comment on unfavourable information that the delegate considered would be the reason, or part of the reason, for refusing to grant a protection visa in purported compliance with s 57 of the Migration Act. The letter referred to "[o]pen source social media information" and "social media information". The plaintiff was not provided with a copy of the "[o]pen source social media information" or the "social media information" that was "before the Department".

The plaintiff provided the delegate with "additional documentation as part of [his] protection visa application" which included what was described as an untranslated "[d]ocument related to disinheritance". The plaintiff told the delegate that he would be able to provide an official certified translation of the disinheritance document immediately after he received his next fortnightly salary on 15 June 2020.


The next day, 12 June 2020, and without waiting for a translation of the disinheritance document, the delegate made the impugned decision.


Issue:-

Was the plaintiff denied procedural fairness by failing to disclose to the plaintiff the open source social media so that he could meaningfully comment on it as required under s 57 of the Migration Act; and then concluding that the open source social media did not support the view that the plaintiff was a known homosexual in Pakistan thereby denying the plaintiff the opportunity to ascertain the relevant issues and respond to adverse information that was credible, relevant and significant to the decision to be made.

Was the delegate correct in not attributing any weight to the disinheritance document the plaintiff submitted, not referring to the plaintiff's request for further time to provide a translation of the disinheritance document and not consider the claim?

 

Analysis:-

It is necessary to state what it is that s 57 of the Migration Act requires: namely, that (1) where information is before the Minister that would be the reason, or part of the reason, for refusing to grant a visa and the information is specifically about the applicant or another person and was not provided by the applicant ("relevant information"), (2) the Minister must "give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances", "ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application", and "invite the applicant to comment on it".


What is required for the Minister to discharge his or her obligations under s 57(2) depends on the facts and circumstances of the case. The "relevant information" cannot be divorced from the context in which it appears. The required degree of disclosure about that surrounding context will depend upon the individual case. In some cases, disclosure of the substance of the relevant information may be sufficient, whereas in other cases, it may be necessary for an entire document – the "source" of the relevant information – to be provided to an applicant. This reflects that, in each case, compliance with s 57 will only be achieved if what has been provided is sufficient to ensure the applicant understands why the information is relevant to consideration of the application and can meaningfully respond.

In the present case, neither the interview between the delegate and the plaintiff, nor the letter to the plaintiff dated 7 May 2020, provided particulars of the relevant information – the open source social media information – sufficient to enable the plaintiff to understand why the information was relevant so he could meaningfully respond.

 

Other grounds:-

Although the conclusion reached in relation to the first ground of review is sufficient to dispose of the application, it is further to be noted that the delegate did not address or answer the plaintiff's statement in his letter of 11 June 2020 that he was able, within a few days, to provide a translation of a document that he had provided to the delegate relevant to a claim that he had been disinherited by his father and, instead, the delegate proceeded immediately to dismiss his other claims without otherwise addressing the plaintiff's claim that he had been disinherited by his father.

 

Decision:-

a) Pursuant to s 486A(2) of the Migration Act 1958 (Cth), the period within which an application may be made for a remedy to be granted in relation to a decision made by a delegate of the defendant on 12 June 2020 is extended to 29 January 2021.
b) Pursuant to r 4.02 of the High Court Rules 2004 (Cth), the time fixed by rr 25.02.1 and 25.02.2(b) be enlarged in respect of this application.
c) A writ of certiorari issue to quash the decision made by a delegate of the defendant on 12 June 2020 to refuse to grant the plaintiff a protection visa.
d) A writ of mandamus issue directed to the defendant requiring the defendant to determine the plaintiff's application for a protection visa according to law.

 

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Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 (10 March 2021)

Intro:-

This appeal concerns the meaning and operation of s 501CA(3) of the Migration Act 1958 (Cth), which requires the Minister to give a person whose visa has been cancelled particular information and an invitation to make representations within the period and in the manner ascertained in accordance with the Migration Regulations 1994 (Cth). The Minister appeals from a decision of the Full Court of the Federal Court of Australia, which held by majority that (i) the sub-section required that the recipient be capable of understanding the information and invitation and (ii) the information and invitation be given to the recipient by the Minister, or the Minister's delegate, personally.

For the reasons below, the Minister's grounds of appeal on these two issues should be upheld. But the appeal should be dismissed on the basis of the respondent's notice of contention; the decision of the Full Court should be upheld because the invitation to make representations did not provide a way to ascertain the period within which the representations were required to be made by the Migration Regulations.


Facts:-

The respondent to this appeal, EFX17, is a citizen of Afghanistan. He arrived in Australia in 2009, and on 16 December 2009 he was granted a protection visa. In 2016, he was convicted of the offence of committing acts intended to cause grievous bodily harm under s 317 of the Criminal Code (Qld). He was sentenced to seven years' imprisonment.

On 3 January 2017, a delegate of the Minister made a decision to cancel the respondent's visa under s 501(3A) of the Migration Act. the delegate explained, among other things and by reference to various provisions of the Migration Act, that under s 501(3A) of the Migration Act the Minister was required to cancel the respondent's visa because the delegate was satisfied that the respondent had a "substantial criminal record", having satisfied the requirement of being sentenced to a term of imprisonment of 12 months or more.

The letter and enclosures were handed to the respondent by an officer of the Queensland Department of Corrective Services on 4 January 2017. The case note that described the provision of the letter and enclosures to the respondent described a number of matters which the respondent was told orally, including that his visa had been cancelled due to his substantial criminal record and that he could request a revocation of the cancellation by writing to the Australian Border Force within 28 days. The author of the case note also observed that the respondent "advised that he can understand English while talking, but cannot read or write well. He also advised that he wishes to leave Australia and will not be seeking a revocation of the cancellation."

The respondent signed the formal acknowledgement of receipt, and he dated that acknowledgement 4 January 2017. But although the respondent provided the formal acknowledgement of receipt of the letter and enclosures, it appears that he was confused about the contents. His native language is Hazaragi. He spoke broken English, his ability to read or write in English was limited, and he had been suffering from a schizophrenic illness due to substance abuse and traumatic events at the hands of Taliban soldiers. A further case note entry on 4 January 2017 recorded that the respondent "expressed concern with reading and understanding the deportation documentation provided to him during the interview".


Issue:-

First, must the Minister have regard to the facts that established the respondent's incapacity to understand the letter and enclosures? It was submitted that the Minister was required to have regard to circumstances of incapacity by the requirements in s 501CA(3) that the Minister "give" the notice to the respondent, give "particulars", and "invite" the respondent to make representations and that this was to be done "in the way that the Minister considers appropriate in the circumstances".

Secondly, must the delivery of the letter and enclosures to the respondent be a delegate of the Minister under s 496 of the Migration Act?

Thirdly, is the Minister required under s 501CA(3)(b) to specify the date by which representations must be made?


Analysis:-

The relevance of the respondent's capacity to understand

The starting point is the common or ordinary meanings of the verbs "give" and "invite" in s 501CA(3). Those common meanings are, respectively, to deliver or hand over[21] and to request politely or formally[22]. The use of "give or deliver unto" in legislation has been described as the "exact equivalent" of "has been served on" in a context where a document "had come to the hands of the applicant"[23]. Section 28A of the Acts Interpretation Act 1901 (Cth) is also premised upon the assumption that verbs such as "give", when used in Commonwealth legislation, are alternatives to "serve" so that one manner in which giving a document can be satisfied is "by delivering it". The verbs "give" and "invite" connote only the performance of an act rather than the consequences of that performance such as the recipient's capacity to comprehend the content of the English notice given or the English invitation made.

"The Act does not distinguish between notification given to a person in the position of the appellant and any other visa applicant. Nor does it distinguish between applicants with differing levels of education or literacy."

The assumption that merely requiring the Minister to give these particulars and to invite comment does not require the applicant to understand their contents is reflected in s 57(2)(b), which contains an additional requirement for the Minister to "ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application".


Is the Minister or delegate required personally to perform the duties in s 501CA(3)?

S497(2) of the Migration Act ensures that the delegate who exercised the power to cancel the respondent's visa under s 501(3A) was not required personally to give the respondent the written notice, particulars, or invitation required by s 501CA(3).
1. The general principle based in part on administrative necessity is extended by s 497(2), which permits a delegate to act through a duly authorised officer of the Department in the performance of any task in connection with the cancellation of a visa other than the taking of a decision to cancel the visa. The Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth), which introduced s 497(2), provided that a purpose of the amendment was to "put beyond doubt that a delegation to cancel visas does not require the delegate to personally perform any task except taking the decision as to whether the visa should be cancelled"[35].


The notice of contention: the incorrect time period

But the words of s 501CA(3)(b) which require the Minister to invite a person to make representations "within the period and in the manner ascertained in accordance with the regulations" also require that there be sufficient information on the face of the invitation to permit the person to determine this period correctly. This conclusion is further supported by the condition upon the Minister's power to revoke the cancellation decision that representations be made within the prescribed time limit. It can hardly be supposed that Parliament intended that a person whose visa had been cancelled would not be given the information that would reveal the date by which representations must be made if the person is to avoid the strict consequences of failing to make representations[37].

For these reasons, an invitation to make representations "within the period ... ascertained in accordance with the regulations" must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation such as "28 days from the day that you are handed this document". The invitation in the letter from the delegate of the Minister did not do so. The notice of contention should therefore be upheld.

Conclusion:-

The appeal should be dismissed. The Minister undertook to pay the costs of the respondent in this Court.

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Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 (4 March 2021)

Intro:-

This is an appeal against the decision of the Federal Court whereby her Honour considered that the failure by the primary judge to have his oral reasons for judgment translated for the benefit of the first respondent constituted a denial of procedural fairness, and that undoing this denial required the setting aside of the judgment of the Federal Circuit Court.

 

Facts:-

The first respondent is a citizen of Pakistan who, in 2014, applied for a Protection (Class XA) visa after his application for a Student (subclass TU-572) visa was refused. His protection visa application was rejected in 2015 by a delegate of the appellant Minister. In 2016, the Administrative Appeals Tribunal ("the Tribunal") affirmed the delegate's decision. The first respondent sought judicial review of that decision in the Federal Circuit Court of Australia. The first respondent was not represented before the Federal Circuit Court, but had asked for, and obtained, the assistance of an interpreter because, inferentially, he does not speak English.

The primary judge dismissed the application and delivered an ex tempore judgment. Whilst the Federal Circuit Court's orders were translated for the benefit of the first respondent, the oral reasons for judgment were not. The first respondent appealed from that judgment to the Federal Court of Australia. The primary judge delivered written reasons for judgment after the first respondent filed his notice of appeal in the Federal Court.

On appeal in the Federal Court, the first respondent was again unrepresented. For that reason, Mortimer J, exercising the Federal Court's appellate jurisdiction as a single judge, reviewed the reasons of the Tribunal and of the Federal Circuit Court "at a level broader than the express grounds of appeal, in order to ensure there is no obvious jurisdictional error" attending the Tribunal's decision. At a general level, Mortimer J concluded that the written reasons of the Tribunal and the primary judge did not disclose "any possible error deserving of close consideration" by the Federal Court, and that there was otherwise no error affecting the Tribunal's decision.

Nonetheless, Mortimer J allowed the appeal, set aside the orders made by the Federal Circuit Court and remitted the matter to that Court to be reheard by a different judge. Mortimer J so decided because her Honour considered that the failure by the primary judge to have his oral reasons for judgment translated for the benefit of the first respondent constituted a denial of procedural fairness, and that undoing this denial required the setting aside of the judgment of the Federal Circuit Court.

 

Issue:-

This appeal is not concerned with whether an unrepresented litigant, who does not understand English, is always entitled to have oral, or written, reasons for judgment translated for her or his benefit. The first respondent made no such general claim.

The first respondent's complaint was directed at the more narrow proposition that, in his precise circumstances, procedural fairness for the purposes of considering, and then exercising, his appeal rights required the primary judge's ex tempore reasons to be translated or written reasons to have been provided more promptly.

 

Analysis:-

The first respondent made no attempt to obtain a transcript of the ex tempore reasons for judgment. Nor did he make any such attempt after filing the notice of appeal.

In addition, the first respondent never sought to amend his grounds of appeal to take account of the published reasons of the Federal Circuit Court.

Underlying the Federal Court's decision, and the first respondent's submissions in this Court, was a conception of procedural fairness that exceeds the range of matters with which that concept is concerned. In this case, as the Minister rightly submitted, the final instance of any right or entitlement of either party arising from the primary judge's obligation to afford procedural fairness occurred at the time the parties made their concluding submissions. Thereafter, the trial having finished, procedural fairness had no role to play in respect of the matters the subject of the primary judge's decision. As a matter of general fairness, rather than independent legal duty, the first respondent ought to have had the benefit of translated ex tempore reasons or written reasons at an earlier time. But to the extent that the practical manifestations of the first respondent's entitlement to be accorded procedural fairness were diminished as a result of the primary judge's failure to translate his ex tempore reasons or to produce written reasons timeously, any consequent practical unfairness[36] to the first respondent could only logically arise in the conduct of the first respondent's appeal to the Federal Court.

The failure in the present case to interpret the primary judge's ex tempore reasons was, in a general sense, unfair. So much may be accepted. However, with respect, rather than setting aside the decision of the primary judge, in the circumstances here, Mortimer J could have:

(1) adjourned the hearing of the appeal so that the transcript of the ex tempore reasons could be obtained; or

(2) invited the first respondent to amend his appeal grounds to address the contents of the published reasons, and, if necessary, adjourned the hearing of the appeal to permit this to take place.

Either or both courses of action (depending on the needs of the first respondent) would have supplied the practical justice or fairness needed given the first respondent's inability to understand the ex tempore reasons delivered by the primary judge. Setting aside the orders of the primary judge, however, and remitting the matter to be reheard went beyond that which was necessary to provide practical justice.

It follows that the first respondent was not deprived of the opportunity to formulate his argument on appeal because of the fact that the primary judge's ex tempore reasons were not translated, nor was he denied the opportunity to investigate any difference in substance between those reasons and the published reasons. The first respondent never demonstrated that the ex tempore reasons were, on the facts here, the operative reasons of the Federal Circuit Court.

The Federal Court found that the primary judge's published reasons contained no error. More emphatically, the Federal Court also reviewed the reasons of the Tribunal for error and found none. .

 

Conclusion:-

The appeal should be allowed. The grounds of the notice of contention are rejected.

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DQU16 v Minister for Home Affairs [2021] HCA 10 (7 April 2021)

Intro:-

Section 36(2) of the Migration Act 1958 (Cth) relevantly provides two criteria for the grant of a protection visa: that the applicant is a non-citizen in Australia "in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee" under s 36(2)(a); and, if the applicant does not satisfy that criterion, that the applicant meets the complementary protection criterion under s 36(2)(aa), which gives effect to some of Australia's non-refoulement obligations under international instruments.

The differences in the text, context and purpose of s 36(2)(a) and s 36(2)(aa) and, thus, in the construction and application of the separate criteria in s 36(2)(a) and s 36(2)(aa) compel the conclusion that the principle in Appellant S395 in relation to s 36(2)(a) (whether as that provision was framed at the time of the decision or as now in force) does not apply to the statutory task when considering the complementary protection criterion in s 36(2)(aa).


Facts:-

The first appellant, an Iraqi national, sought a protection visa relying on s 36(2)(a) and s 36(2)(aa) of the Migration Act. The first appellant said he feared persecution, and would suffer significant harm, if returned to Iraq because, while in Iraq, he sold alcohol, which is banned by local law in some parts of Iraq and considered "immoral" and "un-Islamic" by Sunni and Shi'ite extremists. The Immigration Assessment Authority ("the Authority") found that the first appellant had not been personally targeted for reasons relating to the sale of alcohol, that he did not face a real risk of harm if returned to Iraq because he had sold alcohol previously, and, critically for this appeal, that if the first appellant returned to Iraq he would not continue to sell alcohol. The Authority affirmed the decision of the delegate of the then Minister for Immigration and Border Protection ("the Minister") not to grant the appellants protection visas. The Authority's approach to, and determination of, the first appellant's claim under s 36(2)(a) was not in issue in this Court.

Issue:-

The sole question raised by this appeal is whether the Authority committed jurisdictional error in failing to apply the principle in Appellant S395 when considering the first appellant's application for complementary protection under s 36(2)(aa) of the Migration Act, 1958 (Cth).


Analysis:-

Appellant S395 and the statutory task under s 36(2)(a)

In Appellant S395, this Court was concerned with a claim for protection based on a person's refugee status under what became s 36(2)(a) of the Migration Act[9]. Central to the reasoning in Appellant S395 was the definition of "refugee" in Art 1A(2) of the Convention.

The rationale for the principle is that a person who would otherwise be entitled to protection under s 36(2)(a) will not, and should not, lose that protection if it can be shown that the person would or could avoid persecution by sacrificing a protected attribute under the Convention. The principle, and its rationale, ensure that "the very protection that the Convention is intended to secure" for those facing persecution because of a protected attribute is not undermined, or surrendered, by requiring such a person to conceal that attribute on return to their home country[16].

The question that s 36(2)(a) asks is whether a person is owed protection obligations because they are a refugee. The statutory definition of "refugee" in s 5H directs attention to whether a person is unable or unwilling to avail himself or herself of the protection of his or her country of nationality, or unable or unwilling to return to the country of his or her former habitual residence, owing to a well-founded fear of persecution for one of the reasons set out in s 5J(1). Section 5J(3) provides exceptions to what constitutes a well-founded fear of persecution. It provides that a person does not have a well-founded fear of persecution "if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country", unless the modification, among other things, relates to fundamental, innate or immutable characteristics. The qualification has the effect that s 5J(3) is not inconsistent with the principle in Appellant S395.

 

Statutory task under s 36(2)(aa)

Section 36(2)(aa), which implemented the regime for "complementary protection" and with which this appeal is concerned, was inserted into the Migration Act[21] to provide an additional basis to s 36(2)(a) for the grant of a protection visa.

The question s 36(2)(aa) asks is whether the decision-maker has substantial grounds for believing that there is a real risk that a person will suffer significant harm, as defined in s 36(2A) and subject to the matters in s 36(2B) and (2C), as a "necessary and foreseeable consequence" of the person's return to a receiving country. The inquiry is prospective. There are three elements that must be satisfied for the prospective harm to satisfy s 36(2)(aa): (1) the decision-maker must have substantial grounds for believing (2) that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, (3) there is a real risk that the non-citizen will suffer significant harm.

 

Principle in Appellant S395 does not apply to complementary protection claims

As is self-evident, the text of s 36(2)(a) and s 36(2)(aa) is different and therefore, unsurprisingly, the statutory questions are different: they are not interchangeable. And they are different because the purpose of the inquiry under each provision is different[30]. Determining whether a person has a well-founded fear of persecution for a Convention reason under s 36(2)(a) is a fundamentally different inquiry to the question in s 36(2)(aa). Section 36(2)(a) seeks to define when a protection visa will be granted to a person seeking refuge. Under s 36(2)(aa), the question is whether a person can be returned to a particular State: and the provision is formulated by reference to the consequences of a non-citizen's removal to a particular State.

The decision in Appellant S395, therefore, does not apply to a claim for complementary protection. The rationale for the principle in Appellant S395 does not, and cannot, apply to the inquiry under s 36(2)(aa), which requires an assessment of the "necessary and foreseeable consequence[s]" of a person returning to a receiving country.

 

Authority's consideration of s 36(2)(aa)

The Authority then turned to consider the first appellant's claim for complementary protection under s 36(2)(aa). The Authority correctly identified the statutory question: whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the first appellant being removed from Australia to Iraq, there was a real risk that he would suffer significant harm within the meaning of s 36(2A). Relevantly, and critically for the purposes of the present appeal, having earlier found that the first appellant would not work as an alcohol seller upon his return to Iraq, the Authority found that he did not face "a real risk of harm" in Iraq on that basis. Accordingly, the Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the first appellant being returned to Iraq, there was a real risk that he would suffer significant harm of a kind listed in s 36(2A). And, as has been explained, the Authority did not commit jurisdictional error in not applying the principle in Appellant S395 when considering the first appellant's application for complementary protection under s 36(2)(aa).

As the first appellant's wife and child did not make their own claims for protection, the Authority found that they did not meet the family unit criteria in s 36(2)(b)(i) or (c)(i).

Conclusion:-

For those reasons, the Authority did not make the jurisdictional error the appellants alleged. The appeal should be dismissed with costs.

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DVO16 v Minister for Immigration and Border Protection; BNB17 v Minister for Immigration and Border Protection [2021] HCA 12 (14 April 2021)

Intro:-

These appeals from judgments of the Federal Court of Australia concern the effect on a review by the Immigration Assessment Authority under Pt 7AA of the Migration Act 1958 (Cth) of errors in the translation of questions asked and answers given at an interview between a referred applicant and a delegate of the Minister for Immigration and Border Protection conducted after the applicant applied for a protection visa and before the delegate decided to refuse the applicant a protection visa.


Facts:-

BNB17 - The appellant is a Hindu Tamil from Sri Lanka. He claimed in his written application for a protection visa to fear persecution by reason of imputed links to the Liberation Tigers of Tamil Eelam ("LTTE"). The appellant participated in a protection interview with the delegate who later refused the protection visa. He was legally represented. The interview was audio-recorded and the recording was evidently provided to the appellant's legal representative.

The appellant's legal representative made a "post-hearing submission" to the delegate. The legal representative wrote in the post-hearing submission that she had reviewed parts of the recording of the interview with the assistance of a Tamil interpreter and had concerns about the accuracy of the translation. The legal representative gave three examples of interpretation errors.

In his written reasons for his decision refusing a protection visa, the delegate directly addressed the concerns about the accuracy of the translation that had been raised by the legal representative in the post-hearing submission and rejected them as not "credible". The delegate noted that the interview had been conducted with the assistance of an accredited Tamil interpreter, recorded that "[f]or the most part during the interview it appeared that all parties were able to communicate clearly", and stated that he was "satisfied that the [appellant] was able to understand the interpreter and that he provided detailed responses to questions asked of him".

After referral by the Minister of the delegate's decision to the Authority for review and provision by the Secretary of the recording of the protection interview to the Authority as part of the review material, the appellant's legal representative made a written submission to the Authority drawing attention to the concerns about the accuracy of the translation that had been raised in the post-hearing submission. The legal representative requested that the Authority itself interview the appellant if it had concerns about his credibility.

The Authority made its decision to affirm the decision of the delegate without conducting the requested interview. The Authority explained in its reasons for decision that it was not satisfied that the circumstances of the case required it to invite the appellant to attend an interview but that it had borne the appellant's legal representative's post-hearing submission in mind in making its decision.


DV016 - In his written application for a protection visa, the appellant raised two overlapping claims to protection. He claimed to fear persecution resulting from the failure of the Iranian state to protect him from harm inflicted by another tribal group in Iran (described as the Jalali or Chanani tribe) resulting from a specific incident on a bus by reference to which he was alleged to have had physical contact with a woman from that other tribe. He also claimed to fear persecution resulting from the failure of the Iranian state to protect him more generally from harm inflicted by another tribal group by reason of his ethnicity as an Ahwazi Arab. The appellant participated in a protection interview with the delegate who went on to decide to refuse him a protection visa at which the appellant spoke an Arabic dialect from the Khuzestan region of Iran. The interpreter spoke urban Levantine Arabic. The interview was audio-recorded.

Expert evidence later adduced in the Federal Circuit Court on the appellant's application for judicial review of the decision of the Authority revealed mistranslation of a question asked by the delegate about the appellant's claim to fear harm resulting from the failure of the Iranian state to protect him from persecution inflicted by reason of his ethnicity. The result of the mistranslation was that the delegate, and later the Authority, misapprehended that the appellant did not understand what was meant by "ethnicity". The truth was that the appellant did not understand what was meant by "persecution". The delegate then said that the interview would "start again", which the interpreter failed to interpret. In an exchange imperfectly interpreted, the delegate then went on to ask the appellant what exactly he feared would happen to him if he were to return to Iran, to which the appellant responded that he feared that he might be killed by members of the Chanani tribe. In later exchanges, the delegate also asked a number of open-ended questions giving the appellant the opportunity to give evidence about whether there was anything he feared if he were to return to Iran "apart from issues to do with the Chanani tribe". In response to each question, the appellant referred back to the tribal dispute or otherwise failed to say anything to establish his claim of persecution on the basis of ethnicity.


Issue:-

BNB17 - In light of the alleged 3 interpretation errors (which the Authority was aware off), was it was legally unreasonable for the Authority not to exercise its power under s 473DC to obtain new information either by obtaining a proper interpretation of the interview, or at least the relevant exchange, or by reinterviewing BNB17?.

DV016 - Was the decision of the Authority (who was unware of the translation error) in affirming the decision of the delegate correct?


Analysis:-

BNB17 - The Authority had the recording of the protection interview as part of the review material and was made aware of the three examples of translation errors set out in the post-hearing submission. Those errors were not so grave or extensive as to compel the Authority to the conclusion that it was incapable of assessing the appellant's claims by reference to the recording. The Authority, moreover, was entitled to place weight on the delegate's opinion that the translation errors had not impeded clear communication during the interview. The choice of the Authority to proceed on its own assessment of the appellant's claims as recorded and translated in the protection interview rather than conduct a new interview with the appellant was well within the bounds of reasonableness.

DV016 - The Authority recorded in its reasons for decision that the appellant claimed that he feared persecution by reason of his ethnicity. The Authority went on to explain in its reasons for decision that, having regard to country information which it specified and to aspects of the appellant's circumstances which it also specified, it was not satisfied that the appellant would face a real chance of serious harm on return to Iran as an Ahwazi Arab.

The mistranslations indicated by the expert witness could not have borne on the reasonableness of the course adopted by the Authority in reaching its decision. Nor did the mistranslations result in the Authority failing to understand and consider the substance of either of the appellant's claims


Conclusion:-

The conclusion reached in each case, by the Federal Circuit Court and again on appeal by the Federal Court, was that such translation errors as had occurred at an interview between the applicant and the delegate did not result in the decision of the Authority being affected by jurisdictional error. The conclusion was in each case correct.

Added a product 

The AISLES Australian Law Network provides to Lawyers and Law Firms Virtual Paralegal Services which are provided by Law Graduates who have not yet got their practicing certificates.  The services are delivered remotely by the Paralegal under contract with your firm. 

You will be presented with a number of choices to select from,  with the first week as a trial and after that the contract is month to month. 

ATO loses JobKeeper test case in the Full Federal Court

A sole trader has been granted access to JobKeeper after the Full Federal Court unanimously ruled that the ATO had erred in its decision not to grant the business more time to establish its eligibility.

“As is made plain by government announcements and the provisions of the legislation, the JobKeeper payment was intended to benefit taxpayers in Mr Apted’s general circumstances,” said Honourable Justice Thomas Thawley.

“The commissioner, in his reasons, did not point to any good reason not to exercise the discretion in s 11(6) in Mr Apted’s favour; it is clear that the real reason for the commissioner’s refusal to exercise the discretion was the lack of ABN registration on 12 March 2020.

“But this was the very thing which lay the foundation for the exercise of the discretion. Of itself, this was not a proper basis to refuse to exercise the discretion.”

Honourable Justice John Logan also pointed out that the Australian Business Registrar —  the Commissioner of Taxation in another guise — had accepted that Mr Apted was carrying on an enterprise before 12 March 2020, giving “pause for thought as to why Mr Apted has been put to so much bother in relation to his eligibility to receive a payment the object of which ‘is to provide financial support directly or indirectly to entities that are directly or indirectly affected by the coronavirus known as COVID-19’.”

“The broader application is that in every decision that the commissioner has made where he has refused to exercise a discretion, he now needs to go back and check it because the Full Federal Court has said you’ve taken a far too narrow approach in exercising the discretion and you need to look at the facts of the taxpayer,” Ms Williamson told Accountants Daily.

“A lot of state relief was based on the fact that you needed to be registered for JobKeeper, so there’s going to be flow-on issues if businesses can now get it.”


JobSeekers’ pay CUT if children not vaccinated

Welfare support recipients risk losing access to Centrelink payments if their children are not vaccinated according to government requirements, a Services Australia official has confirmed.

Children of welfare recipients of up to 20 years old must have the relevant immunisation jabs, Services Australia general manager Hank Jongen said.

 
 

'Dead' man in breach of COVID-19 restrictions rants at magistrate, slapped with $5,000 fine in Kiama court

Asked to identify himself in court Mr Liske claimed he was a "dead entity" and referenced numerous conspiracy theories relating to his arrest in July last year.

"This is not Mr Liske. Mr Liske is dead. He is a dead entity," Mr Liske said.


A nine-month extension to the Victorian government's state of emergency powers has passed parliament with the support of three crossbench MPs.

David Leyonhjelm loses appeal bid, must pay $120,000 for defaming Sarah Hanson-Young

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The Doctrine of informed consent operates at common law within Australian Health law.

The Doctrine commenced with the seminal Schloendorff decision, where it was held the need for Informed Consent is a prerequisite to the Doctor-Patient Relationship.  Meaning if you have not provided informed consent to the medical practitioner for a procedure (including vaccinations) then there is no "Doctor-Patient" relationship that exists for that procedure. 

With Justice Cordozo stating “In the case at hand, the wrong complained of is not merely negligence. It is trespass….and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages.”

For further information on Informed Consent please read Contemporary Challenges regarding Informed Consent & Vaccination in Australia.

 

NOTHING IN THIS FORUM IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING FOR EDUCATIONAL PURPOSES, IT IS A CONDITION OF ENTRY INTO THIS FORUM THAT IF YOU INTEND TO ACT UPON ANY INFORMATION YOU FIND IN THIS FORUM THAT YOU BRING IT TO A LAWYER AND SEEK INDEPENDENT LEGAL ADVICE.

COVID-19 vaccinations & the workplace

The Fair Work Ombusdman makes it clear that things are unclear.
 
That in itself creates sufficient uncertainty for employers to want to avoid taking action against employeees who do not wish to be vaccinated.

This is a very significant matter to be determined, and because it was heard in the UK, it will also apply to Australia as a precedent.

Many contractors do not realised that they fail the Personal Services legislation, that requires a true contractor to dervice more than 10% of their income from more than one source, and the Control Test, which most fail also.

This is a good outcome, as many so called contractors, such as myself being a finance broker, in accordance with this UK case, would be employees.

The real estate industry in WA has to pay their agents $300 per week base.

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Following the extension of the Commercial Tenancy Relief Scheme until 28 March 2021, the Victorian Government has launched the Commercial Landlord Hardship Fund Round 2.

Grants of up to $3000 per tenancy are available to eligible small landlords who reduce commercial rent for their tenants under the Commercial Tenancy Relief Scheme.

Full program guidelines and information on how to apply are available at Commercial Landlord Hardship Fund Round 2.

The Victorian Government offers other support for businesses, landlords and tenants. Details are available at Business Victoria COVID-19 business information.

Information on additional land tax relief for landlords can be found at  State Revenue Office Land Tax Relief.

Please share this message with your members and networks who might be interested.


Added a post 
If you are in Victoria and have a Commercial Lease and your business has been affected by COVID Lockdowns then you can apply for Rent Relief.
 
So long as you complete the Rent Relief Application you will receive a proportional reduction in your rent pro-rata to the reduction in your business turnover over the period demonstrated by BAS Statements or other accounting methods.

It is vital that this application for rent relief is completed and compliant with the legislative requirements and so long as you do that the landlord MUST : 
 
  1. Grant a reduction in the rent proportional to the decrease in turnover eg: Turnover dropped 70% means a 70% reduction in the rent.
  2. From that 70% Reduction in Rent 50% of it must be waived by the landlord altogether and the remaining 50% is on a deffered payment.
  3. The Victorian Small Business Commissioner is authorized by the Legislation to make a binding order on parties who do not participate in the process.
For more information visit the Victorian Small Business Commission website.
 
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Peniamina v The Queen [2020] HCA 47 (9 December 2020)

This case involves the appellant charged with murder by killing his wife. The appellant now questions the Court’s interpretation of S.304(3) of the Criminal Code.

Facts:

This appeal concerns the partial defense of provocation, which operates to reduce what would otherwise be murder to manslaughter, under S.304 of the Criminal Code. The contest between the parties in this Court is thus a contest as to the proper construction of S.304(3) of the Code.

S.304(3) of Criminal Code excluded defense of provocation in case of unlawful killing of accused's domestic partner where sudden provocation "based on" anything done, or believed to have been done, by deceased to end or change nature of relationship or indicate in any way that relationship may, should or will end or change.

The appellant argued that the majority in the Court of Appeal erred because the "sudden provocation" to which S.304(3) refers can be identified only by reference to the particular provocative conduct relied on by the accused for the purpose of raising the partial defense under S.304(1). Because the conduct of the deceased which the appellant identified as having caused the "sudden provocation" was the deceased brandishing a knife and then cutting the appellant's hand, S.304(3)(c) could not be engaged.

The respondent submitted that the language of S.304(1), which speaks of the act which caused death being "caused by  sudden provocation", stands in stark contrast with the language of S.304(3), which contemplates that "the sudden provocation is based on anything done by the deceased".

The respondent submitted that the difference in language reflected a legislative intention to exclude the availability of the partial defence of provocation where, upon the factual inferences available on the evidence, the circumstances referred to in sub-s (3) cannot be excluded by the accused as having contributed to the killing of the deceased.

Issue: Did the Court of Appeal err in interpreting S.304 of the Criminal Code?

Law:

  • Criminal Code S.304(1), (2), (3), (7).

Analysis:

In S.304(3)(c), the phrase "sudden provocation ... based on anything done by the deceased" refers not to the motivation of the victim that informs or explains his or her conduct toward the accused, but to the potency of the acts of the victim as a possible foundation of the temporary loss of self-control on the part of the accused.

The text of S.304(3)(c) allows of the possibility that the "anything done" by the deceased might have occurred a considerable time before the act of the accused so long as it is one of the motivating factors which the sudden provocation is "based on".

So understood, S.304(3) refers neither to the motivation of the deceased in provoking the accused, nor to the immediate trigger of the accused's loss of self-control, but rather to the potency of acts of the deceased as a basis or foundation of the accused's loss of self-control that excludes the application of S.304(1).

It has been noted that the trial judge's directions were erroneous insofar as they put to the jury the prosecution case that the brandishing of the knife by the deceased was itself an ending of, or change to the nature of, the domestic relationship between the appellant and the deceased. However, the only ground of appeal in this Court was whether the operation of S.304(3) is limited to the provocative conduct identified by the appellant as the cause of his loss of self-control. Special leave was not granted to agitate a complaint about the terms in which the trial judge directed the jury in relation to the prosecution case, and no attempt was made in this Court to expand the appellant's grounds of appeal in that regard.

Conclusion: Therefore, the court orders to allow the appeal, the appellant's conviction be set aside and a new trial be had.

Ms Teffaha, from Advocate Me, had submitted one of the children allegedly taken by the syndicate had been “let down” by the police and judiciary and the court was “enabling” his abuse.

“In my view Ms Teffaha … (those comments) may be prejudicial to or diminish the public confidence in the administration of justice,” Magistrate Gett said.

“There may be a breach of your fundamental duty as a solicitor practising in the state of Queensland.”

Chinese-Australian billionaire Chau Chak Wing has been awarded $590,000 in damages after his "fine, unblemished and unquestioned reputation" was besmirched in an ABC Four Corners program.

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Raina v CIC Allianz Insurance Limited [2021] NSWSC 13 (25 January 2021)

This case involves the plaintiff challenging the decision of a Motor Accidents Medical Assessment Service Review Panel alleging that he was denied procedural fairness due to the lack of medical literature provided to him.

Facts:

The plaintiff, Mr. Roshaan Raina, challenges the validity of the decision of a Motor Accidents Medical Assessment Service Review Panel (“Review Panel”) whose members are named jointly as the third defendant in these proceedings. The Review Panel was convened by the proper officer of the second defendant, the State Insurance Regulatory Authority of New South Wales (“SIRA”) under s.63(3)  Motor Accidents Compensation Act 1999 (“the Act”). Mr. Raina is the claimant for motor accident damages for injuries he suffered in a motor accident.

Counsel for the plaintiff argued that the Review Panel denied Mr. Raina procedural fairness. He submitted that the Review Panel considered 22 studies, of which only 2 had been referred to in the evidence placed before them. Counsel argued that the failure to put Mr Raina on notice of their intention to utilize the studies in informing their decision amounted to a denial of procedural fairness. Further, Counsel submitted that the Review Panel did not give Mr. Raina notice of the questions it had for him and so denied him the opportunity to respond. Mr. Robinson submitted that by operation of cl 16.16, 16.19.6 and 16.21 the panel has the power to request further information and the Review Panel failed to avail itself of this opportunity. Mr. Robinson further submitted that it was a requirement of cl 1.41 of the Guidelines that where there were inconsistencies between the medical assessor’s clinical findings and any medical records that the injured person must be given the opportunity to respond to the inconsistencies.

Counsel for the defendant submitted that the Review Panel did not deny Mr. Raina procedural fairness by referring to peer reviewed articles in making its assessment. He argued that it was unnecessary for the Review Panel to refer to the articles on which it relied but in demonstrating its process of reasoning it chose to outline and summarize the materials it relied upon. Further, Mr. Rewell argued that the material was not a “critical factor” in the Review Panel’s decision.

Issue: Was the plaintiff denied procedural fairness due to the lack of medical literature provided to the plaintiff?

Law:

Analysis:

A decision-maker must advise the person affected “of any adverse conclusion which would not obviously be open on the known material”. It is clear that the conclusions adverse to Mr. Raina, drawn from its review of the medical literature, was not drawn to his attention by the Review Panel. He was not asked to comment or allowed the opportunity to make further submissions.

While the court finds plaintiff’s argument that the contents of peer reviewed medical literature forms part and parcel of an expert’s special knowledge, which could be brought to bear in an expert assessment without express mention, the process adopted here was somewhat different. The Review Panel did not draw upon their accumulated medical knowledge including information derived from their ongoing professional development involving the reading of learned literature, just as a lawyer may enhance her or his knowledge by reading law reports. Rather, the members found it necessary to embark upon a specific, targeted review to resolve the issues they identified. Notwithstanding the other important adverse findings made, it cannot be gainsaid that that review was influential in their decision-making process. It may have informed other important findings of fact. The conclusions derived from their specific review should have been drawn to Mr. Raina’s attention for his comment and submissions. Even a court of ordinary jurisdiction may be under a similar obligation in regard to legal precedents not put before the court by the parties, but rather, representing the product of the judge’s own research.

The matter should be referred for reconsideration by a differently constituted Panel in accordance with these reasons. A different Panel should be convened because given the detailed consideration afforded the issues by the members of the previous Panel, it seems unlikely that they will be able to approach the matter entirely afresh.

Conclusion:

Court orders to set aside the medical assessment certificate issued by the third defendant and the two medical assessment certificates and to remit the matter to the second defendant for reference to a differently constituted review panel.

The Australian Government has developed a COVID-19 Vaccination Policy to guide the rollout of safe and effective vaccines across Australia.

This policy sets out the roles and responsibilities of the Australian Government and State and Territory Governments in implementing a COVID-19 vaccination program from early next year.

Should our promising vaccine candidates be found safe and effective, all Australians for which a vaccine is medically suitable will be able to be vaccinated for free.

Read more about the vaccination policy here: www.health.gov.au/n…/covid-19-vaccination-policy-endorsement

  • Miranda Mooney If it is anything like the COVID-19 tests, I’m sure there will be apprehension from some 🤷‍♀️

    The below is from the TGA itself.

    ‘The reliability of COVID-19 tests is uncertain due to the limited evidence base.

    Available evidence mainly comes from symptomatic patients, and their clinical role in detecting asymptomatic carriers is unclear.

    SARS-CoV-2 tests have undergone an expedited assessment by the TGA to enable their legal supply in Australia. These expedited assessments are based on the limited clinical and performance data currently available’ 

    https://www.tga.gov.au/covid-19-testing-australia-information-health-professionals?fbclid=IwAR07fn4BYf-c-OveIx08EmZdM5IhlSG493xdZVHiztRZR56w2ZzDJZGgU6U 


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    • Hardly something inspiring the use of the words "safe and effective".

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    • Phil Burke 'Will be available to" or *will be mandatory* is my concern. What they say is not always what they mean.

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      • Think of the No Jab No Pay/Play policy and now add to it.

        Its never mandatory.

        No Jab - No Job
        - No Travel
        - No [INSERT COMMERCIAL SERVICE]
        eg: Shopping, Sporting Activities

        Essentially NO JAB = NO LIFE

        "While the Australian Government strongly
        supports immunisation and will run a strong
        campaign to encourage vaccination, it is not
        mandatory and individuals may choose not to
        vaccinate. There may however, be circumstances
        where the Australian Government and other
        governments may introduce border entry or
        re-entry requirements that are conditional on proof
        of vaccination."

        Monitored by all things .... AIR

        "The AIR will be the unifying national system to
        monitor both overall immunisation levels and
        individual immunisation status. It will be mandatory
        for vaccination providers to make timely
        recordings of any COVID-19 vaccinations into AIR"

        So there is a national register.

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      Not logged in users can't 'Comments Post'.

      The drop in the cash rate today marks a period of medium term historically low interest rates.

      With property prices plunging in almost all states, and rental yields at all time lows on the east coast, this may trigger another housing boom, as rates should now stay low for several years.

       

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