Where audio recording of interview was unavailable, did the Authority err by failing to exercise it's discretion under s 473CB Migration Act, 1958 (Cth) to invite applicant to an interview to remedy non-provision of review material?
BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 (20 May 2021)
Intro:-
The recording of the sister’s protection visa interview was not given to the Authority. The Authority decided the sister’s review without exercising any of the powers given to it in s 473DC of the Migration Act 1958 (Cth). It is that course of conduct which is impugned in each appeal, including by way of a new proposed ground of appeal that was not put to the Federal Circuit Court.
Facts:-
These are joint appeals from orders made by the Federal Circuit Court dismissing each of three judicial review applications, in relation to three decisions of the Immigration Assessment Authority.
The unmarried brother, sister and married brother and his wife each fell within the definition of “unauthorised maritime arrival” in s 5(1) and s 5AA of the Migration Act, which in substance resulted in them not being able to apply for any visa, including a protection visa, unless the Minister exercised a personal power allowing them to do so. It also resulted in their protection visa applications being progressed through the “fast track” review process in Part 7AA of the Migration Act.
On 26 October 2017, the sister attended a SHEV interview before the delegate. It was the audio recording of this interview which was subsequently not provided to the Authority. The affidavit of Ms Lorilee Ann Lockhart affirmed 1 July 2019 deposes to what happened to the recording. Ms Lockhart was the delegate who decided each of the appellants’ SHEV applications. In summary, her evidence was that she accidentally deleted the interview recording.
On 20 September 2017, the appellants each appointed the same migration agent to act on their behalf. Subsequently, on 4 October 2017, each appellant submitted supplementary statutory declarations to the delegate in relation to the married brother’s involvement with the Sea Tigers and the LTTE during the 1990s. Each appellant indicated that the reason they had not previously disclosed this information was due to “anxiety and fear”. The detail given about the married brother’s involvement with the Sea Tigers varied.
Unsurprisingly, the married brother gave more detail, since the factual narrative related to him, and his statutory declaration ran to six pages. The sister’s evidence in her statutory declaration was brief. She stated she was eight years old when her brother was forcibly recruited by the LTTE and had very little memory of him being taken away. She stated she was also living elsewhere with her grandparents. She stated that she has “had no knowledge that my brother went through any training or about his day-to-day activities with the LTTE”.
On 5 December 2017, the delegate refused each appellant’s SHEV application. On 8 December 2017, the delegate’s decisions in respect of each of the appellants were referred to the Authority for review under Part 7AA of the Migration Act.
On 18 December 2017, the sister sent an email to the Authority requesting a copy of the “CD of the latest DIBP interview” so that she could make submissions. The Authority responded by telephone, informing the sister that “DIBP have not provided a copy to the IAA and DIBP have indicated they do not have a copy, but are still looking”.
Submissions were provided to the Authority by a different migration agent retained by the family. The migration agent made separate submissions in relation to each appellant, but asked that each set of submissions be considered by the Authority together with the submissions made on behalf of the other review applicants. The migration agent emphasised the claims were interrelated.
In the submissions on behalf of the sister, the migration agent stated in the first paragraph that the sister fears returning to Sri Lanka “because of her brother [name redacted – the married brother’s] involvement in the LTTE”. He then repeated in substance the contents of the sister’s statutory declaration and contended the delegate “left out” this evidence.
Absent from the submissions is any reference to the lost audio recording of the delegate interview, despite the sister (and the brother) having been specifically informed by the Authority that it was lost, and despite their own inquiries about it. In summary then, the point to be drawn from this for the purposes of the appeal is that in the comprehensive submissions made on behalf of the appellants, it was only the contents of the married brother’s delegate interview which was emphasised as significant to the Authority. In none of the submissions was the absence of the audio recording for the sister’s interview said to affect the ability of the Authority to conduct its review.
Issue:-
Was there a “contravention” of the Secretary’s obligation in s 473CB (by the non-provision of the sister’s SHEV interview audio recording) leading to the Authority's decision without exercising any of the powers given to it in s 473DC of the Migration Act 1958 (Cth)?
Analysis:-
The Full Court’s decision in AWT19 answers this ground adversely to the appellants. It can be accepted that a consequence of the non-provision of material such as an audio recording, created by a delegate through the delegate’s decision-making process, is whether the Secretary has complied with the duty imposed by s 473CB(1).
In the absence of some kind of allegation of a conscious attempt to mislead the Authority or to withhold information from it, the legal consequence on judicial review (if any) of the Secretary’s non-compliance with the s 473CB(1) duty will rest upon the effect of the absence of the material concerned on the Authority’s conduct of the review. That is what the Full Court said in AWT19. Not every instance of non-compliance will have an effect, or a possible effect, on the Authority’s performance of its statutory task.
There is no basis in the Authority’s reasons, or in the other materials before it (such as the migration agent’s submissions) to consider that the sister’s explanation may have been differently assessed by the Authority if it had access to her SHEV interview recording. It was not suggested to the Authority in the migration agent’s submissions that there was material evidence given by the sister during the SHEV interview that had been overlooked by the Authority. The only evidence the submissions contended had been overlooked was what was in the sister’s October 2017 statutory declaration, which was before the Authority.
To adopt the language used in AWT19, the missing audio recording had no material importance to the Authority’s task, given it had rejected the principal claim of the married brother.
Conclusion:-
The appeal must be dismissed.