Aai20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 28
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAI20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 28
File number: SYG 5 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 27 January 2022 Catchwords: MIGRATION – application for an extension of time to seek judicial review of Immigration Assessment Authority decision – extension of time granted – whether Secretary breached s 473CB(1)(c) of Migration Act 1958 (Cth) – whether breach was material – whether Authority misinterpreted applicant’s claims for protection – whether factual findings of the Authority were unreasonable, illogical or irrational – whether Authority’s non-exercise of discretion in s 473DC(3) of Migration Act to get new information at an interview was unreasonable – no jurisdictional error – application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190
Migration Act 1958 (Cth), ss 5AA, 5H, 36, 46A, 57, 65, 473CA, 473CB, 473DC, 473DD, 473EA, 476, 477
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AJN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1277
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367; [2019] FCAFC 61
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127
DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43
EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299; [2019] FCAFC 20
Minister for Home Affairs v DUA16 (2020) 385 ALR 212; [2020] HCA 46
Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenshipv SZMDS (2010) 240 CLR 611; [2010] HCA 16
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Parker v Minister for Immigration and Border Protection [2016] FCAFC 185
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Division: Division 2 General Federal Law Number of paragraphs: 180 Date of hearing: 24 September 2021 Place: Perth Counsel for the Applicant: Mr D Taylor Solicitor for the Applicant: Sydney West Legal and Migration Counsel for the First Respondent: Mr T Reilly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
SYG 5 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAI20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
27 JANUARY 2022
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) (Migration Act), the 35 day period prescribed by s 477(1) of the Migration Act for making an application for relief under s 476 of the Migration Act in relation to the decision of the second respondent made on 16 November 2018 is extended to 2 January 2020.
2.The applicant is refused leave to rely on the further amended application dated 23 September 2021.
3.The application made under s 476 of the Migration Act, filed on 2 January 2020 and as amended by the further amended application dated 21 September 2021, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant seeks an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Migration Act) for judicial review of a decision made by the Immigration Assessment Authority (Authority). On 16 November 2018 the Authority affirmed a decision made by a delegate of the Minister not to grant the applicant a protection visa. The original application to this Court was filed on 2 January 2020, meaning the length of the extension of time required by the applicant is over one year.
For reasons explained below, I am satisfied that it is appropriate to make an order extending the time for the applicant to file the application to this Court. However, I have ultimately found that there is no jurisdictional error in the Authority decision, and I therefore dismiss the application for judicial review.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia at Christmas Island by sea in November 2012 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 22 September 2016 the Minister’s Department sent to the applicant an invitation to apply for a protection visa. The letter advised the applicant that the Minister had exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented him from applying for a protection visa.
On 28 September 2017 the applicant lodged a valid application for a protection visa. He claimed that he would face harm in Sri Lanka on account of his involvement with the Liberation Tigers of Tamil Eelam (LTTE) for whom he had been forced to work. He further claimed that he had been abducted, tortured and interrogated by the Tamil Makkal Viduthalai Pulikal (TMVP). He claimed he had been harassed due to his political activities with the Tamil National Alliance (TNA) and that he would face harm if he returned to Sri Lanka because of his activities with the TNA in 2012.
The applicant attended an interview conducted by an officer of the Minister’s Department on 2 February 2018 to discuss his claims for protection. The applicant was assisted by a migration agent and the migration agent submitted submissions on the applicant’s behalf before and after the protection visa interview.
A delegate of the Minister made a decision on 16 May 2018 to refuse to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 10 July 2018 the applicant’s solicitor and migration agent provided a written submission to the Authority. The applicant’s solicitor and migration agent provided a further written submission, addressing recent developments in Sri Lanka, to the Authority on 1 November 2018.
The Authority affirmed the decision of the Minister’s delegate to refuse to grant the applicant a protection visa on 16 November 2018.
DECISION OF THE AUTHORITY
The Authority had regard to the material provided by the Secretary in accordance with s 473CB of the Migration Act and both submissions provided by the applicant’s representative. The Authority also had regard to the new information provided by the applicant, which comprised updated country information, having found that the requirements of s 473DD of the Migration Act were met because the new information could not have been provided to the Department before the delegate’s decision was made and there were exceptional circumstances to justify considering the new information.
The Authority accepted that the applicant was a 32 year old Tamil male of Sri Lankan nationality. The Authority accepted that the applicant legally married his wife in 2012 and has two sons. However, the Authority found that there were inconsistencies in the applicant’s evidence regarding his marriage, and was not satisfied that he delayed registering the marriage out of safety concerns for himself or his family.
The Authority did not accept the applicant’s claims regarding his fears of harm on account of his involvement with the LTTE. While the Authority accepted that the applicant may have been subjected to occasional questioning by the authorities as a young Tamil male living in east Sri Lanka during the war, it did not accept that he was targeted by the Sri Lankan army on suspicion of actual LTTE involvement. The Authority did not accept the applicant’s claims to have been detained, beaten, tortured and forcibly recruited by the LTTE in 2004, as it considered his evidence on this aspect of his claims to be inconsistent and implausible. The Authority was, however, willing to accept as plausible that on one occasion prior to mid-2007, while working as a fisherman, the applicant was forced to transport stranded LTTE cadre by sea.
The Authority found the applicant fabricated his claims of abduction and torture by the TMVP. This finding was based on the Authority’s rejection of the applicant’s evidence as to how his parents knew where to find him after the incident, and because the Authority did not consider the applicant would be of adverse interest to the TMVP, given its earlier findings in relation to his LTTE involvement.
The Authority did not accept as credible the applicant’s claims that he was interrogated by the TMVP or that he identified a LTTE member who was later killed. It also did not accept as credible claims that he was detained in Sri Lanka for three days after being deported from
Malaysia.
The Authority was not satisfied the applicant had campaigned for the TNA due to the applicant’s apparent lack of knowledge of the TNA.
The Authority considered a submission made on behalf of the applicant about his mental health, but was not satisfied that he suffered a mental health illness owing to the absence of evidence to support a diagnosis.
The Authority did not accept that the applicant would face a real chance of serious harm or a real risk of significant harm as a result of his Tamil ethnicity, his illegal departure from Sri Lanka or as a failed asylum seeker.
Taking into account its findings and relevant country information, the Authority was not satisfied that the applicant would face a real chance of serious harm in Sri Lanka. As a result, the Authority concluded that the applicant did not meet the definition of a refugee in s 5H(1) of the Migration Act and therefore did not meet the requirements of s 36(2)(a). The Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there is a real risk that he would face significant harm. This complementary protection finding was largely based on the same findings of fact relied on in relation to the Authority’s assessment under the refugee criteria in s 36(2)(a) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
I set out below the procedural history of this matter in some detail, as the procedural history is relevant to at least one of the issues that I need to determine.
The applicant filed his application to this Court over one year outside the 35 day time limit imposed by s 477(1) of the Migration Act. He requires, and has sought, an extension of time.
The application was accompanied by an affidavit deposed by the applicant on
31 December 2019 (applicant’s 31 December 2019 affidavit). This affidavit simply annexed a bundle of documents, including:
(a)a statement by the applicant setting out his claims for protection;
(b)documents relating to an application for a bridging visa;
(c)a copy of the delegate’s decision made on 16 May 2018 and incorporating some hand written comments;
(d)various documents in relation to the review conducted by the Authority, including the notification of decision and decision record of the Authority, a copy of the Authority’s practice direction of February 2017, a freedom of information request for documents, a form appointing an authorised representative to act on behalf of the applicant, and information sheets;
(e)a statutory declaration made by the applicant on 18 December 2018 authorising a particular person to lodge his appeal papers in the Sydney Registry of the Federal Circuit Court of Australia;
(f)an application for review by the Administrative Appeals Tribunal of the Authority’s decision, dated 20 December 2018; and
(g)six documents in a language other than English.
At the time the applicant filed his application, he was self-represented. He then obtained legal representation, with his lawyer going on the record on 28 February 2020, the same day that Judge Dowdy made an Order to progress the matter to hearing. The Order made by Judge Dowdy required the applicant to file and serve any amended application and affidavit evidence by 17 April 2020 and any written submissions 14 days before the hearing of this matter. Notwithstanding that the applicant had a lawyer on the record since 28 February 2020, he did not file any amended application or further affidavits by 17 April 2020, as required by the Order of Judge Dowdy.
The applicant was not in immigration detention at the time his application was filed, so there was no reason known to the Court to expedite the hearing of this matter. In an email sent to the Court on 30 July 2021, the applicant’s lawyer advised that the applicant was detained in immigration detention and requested that the hearing be expedited. The Court then listed the matter for hearing on 24 September 2021 and the parties were advised of this listing by email sent on 17 August 2021.
On 2 September 2021 the applicant’s lawyer sent an email to my chambers requesting an adjournment of the hearing. An affidavit sworn by the applicant’s lawyer on 1 September 2021 was attached to the email to support the request for an adjournment. In summary, the applicant’s lawyer deposed that he was acting pro bono for the applicant in this matter, and he had also been acting for the applicant on a pro bono basis since February 2020 in relation to a High Court special leave application and a proceeding in the Supreme Court of New South Wales, both of which are unrelated to the migration application before this Court. The lawyer deposed that the preparation of the other cases had taken ‘many hundreds of hours’, and requested an adjournment to November or December when it was anticipated that the other applications would be filed.
On 6 September 2021 my associate sent an email to the parties advising that I declined to grant the adjournment and that any further request for an adjournment should be made by way of an application in a case. The email also indicated that unless signed consent orders were provided to the Court to vary the existing orders, I expected the parties to file submissions in accordance with the Order made by Judge Dowdy on 28 February 2020.
With the hearing listed on 24 September 2021, the applicant’s submissions were due on 10 September 2021.
The applicant filed:
(a)an affidavit sworn by the applicant on 7 September 2021 and filed on 8 September 2021 (applicant’s 7 September 2021 affidavit), annexing:
(i)photographs of scarring from, amongst other things, torture that he claimed to have suffered in Sri Lanka, and which he deposed he wanted to, but was unable to, show to the delegate and the Authority;
(ii)copies of his prison health records; and
(iii)the 2018 Department of Foreign Affairs and Trade (DFAT) country information report for Sri Lanka;
(b)an affidavit sworn by the applicant’s solicitor on 9 September 2021 (9 September 2021 solicitor affidavit), which deposed to steps taken since 28 August 2021 to obtain from the Minister’s lawyers a copy of the applicant’s enhanced screening interview conducted on 3 December 2012, annexed medical documents in relation to the applicant, annexed a proposed amended application and deposed that the applicant needed more time to prepare his case to the Court; and
(c)an affidavit sworn by the applicant on 12 September 2021 and filed on 13 September 2021 (applicant’s 12 September 2021 affidavit), in which the applicant deposed that he was denied a support person during his protection visa interview and, as a result of being denied a support person, he became distressed and suicidal and this impacted his ability to participate in the interview.
At this point, the parties provided a signed consent order to the Court. I made an Order by consent on 15 September 2021 which, amongst other things, gave the applicant leave to rely on any affidavit filed and served on or before 13 September 2021, gave the applicant leave to rely on the amended application annexed to the applicant’s lawyer’s affidavit of
9 September 2021, extended the time for the applicant to file written submissions to
20 September 2021 and extended the time for the Minister to file written submissions to
23 September 2021.
Following the Order of 15 September 2021, the applicant filed:
(a)an affidavit sworn by his solicitor on 20 September 2021 (20 September 2021 solicitor affidavit) annexing a transcript of the applicant’s protection visa interview held on 2 February 2018 and various country information reports;
(b)an outline of submissions filed on 21 September 2021;
(c)an affidavit sworn by the applicant’s solicitor on 21 September 2021 (21 September 2021 solicitor affidavit) which annexes a proposed further amended application;
(d)an affidavit sworn by the applicant on 21 September 2021 (applicant’s 21 September 2021 affidavit) deposing to how he felt at the time of the protection visa interview;
(e)an affidavit sworn by the applicant’s solicitor on 22 September 2021 (22 September 2021 solicitor affidavit) which annexes a psychological report in relation to the applicant; and
(f)an affidavit sworn by the applicant’s lawyer on 23 September 2021 (23 September 2021 solicitor’s affidavit) annexing various country information reports and an unsigned statement from Mr James Stephens, who was to be the applicant’s support person at his protection visa interview.
The Minister filed submissions on 23 September 2021 in accordance with the Order made on 15 September 2021.
At 3.38pm AEST on the afternoon prior to the hearing, the applicant sent an email to the Court annexing a further proposed amended application dated 23 September 2021.
I have significant concerns about the way this matter has been progressed by the applicant’s lawyer. The Court appreciates that the applicant’s lawyer has been willing to act pro bono, and the Court is most grateful to lawyers who appear before the Court on a pro bono basis. However, lawyers who act on a pro bono basis are still generally expected to comply with orders made by the Court: see, for example, ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [68].
The conduct of the applicant’s lawyer in this case, including the failure to progress the case in a timely manner, the piecemeal presentation of the case in the lead up to the hearing and the apparent disregard of Court orders raises concerns that he has failed to act in his client’s best interests.
HEARING ON 24 SEPTEMBER 2021
The matter came before me for hearing on 24 September 2021. The applicant was represented by Mr Daniel Taylor and the Minister was represented by Mr Tim Reilly of counsel.
At the hearing, the applicant’s lawyer indicated that he still requested an adjournment to give him further time to prepare, but had prepared on the basis that the hearing would proceed on 24 September 2021. I declined to adjourn the hearing, noting that the applicant had had ample opportunity already to prepare his case.
The various issues that arose for determination at the hearing are set out below, along with my consideration of those issues.
LEAVE TO AMEND APPLICATION
The Order made on 15 September 2021 gave the applicant leave to rely on the amended application annexed to the affidavit filed on 9 September 2021. However, there have been two further amended applications provided to the Court since then, dated 21 September 2021 and 23 September 2021 respectively, and an issue arose as to whether the applicant should be granted leave to rely on the further amended applications.
At the hearing, the Minister did not oppose the applicant being granted leave to rely on the amended application dated 21 September 2021 and I made an order granting the applicant leave to rely on that amended application.
The Minister opposed the applicant being granted leave to rely on the further amended application dated 23 September 2021. The proposed grounds in that application are as follows, with the underlined text indicating the proposed changes from the amended application dated 21 September 2021 (otherwise transcribed without alteration):
1.The Authority’s statutory task under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate’s decision miscarried because of the failure of the Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act.
Particulars:
a.The Secretary did not, at the time delegate’s decision was referred to the Authority, consider or form a view on the relevance to the review of certain documents falling within the description of ‘other material’ in s 473CB(1)(c) then in the Secretary’s possession and control.
a.These documents included the audio recording of the enhanced screening interviews and case assessment & biodata interview.
b.In the alternative, if the documents were part of the domain of materials before the delegate, they were not forwarded to the IAA.
c.In the event that contrary to the above, the enhanced screening interviews and case assessment & biodata interviews did form part of the review materials, the Authority failed to consider those materials as part of its mandatory review under s.473DB(1).
d.The documents were material to the assessment in that there could have been different findings on credibility and of fact; and/or there could have been a different outcome.
e.The Applicant said the following in the ESP interview:
I was taken by the LTTE in June 2004 and made to work during the time of the tsunami.
f.This was an integer claim of the applicant which was not considered by the Respondent, being his provision of an earlier date as the date that he started working for the LTTE at an earlier date.
g.The s.57 information put to the applicant about the date that he started working for the LTTE did not refer to his provision of an earlier date that he started working for the LTTE indicated in the SHEV interview.
i.If this information had been before the Authority in considering the claims of the applicant, it would have supported the claims of the applicant to have been associated with the LTTE after the defection of Karuna and Pillayan, including being with the LTTE when it was hunting down and killing the Karuna and Pillayan group members
The Applicant stated [at 475-477]:
Interpreter OK so the LTTE were present,-I need to clarify. Ok so just before the LTTE left our area they were hunting down members of the TMVP or Karuna group and killing them, and at the time I was with the LTTE.
2.The finding at [16] of the Authority’s reasons that the applicant was not kidnapped and tortured lacked a logical basis; failed to consider relevant country information supporting his claims, and failed to intellectually engage with the profile of adverse interest of the applicant at the time as arising from his transportation of stranded LTTE cadres in the course of warfare;
Particulars
i.The Delegate accepted that the applicant had been rounded up, interrogated and beaten by the SLAF, [CB189], though did not accept the seriousness of the harm [191]
The Delegate had found [at CB 189]
I accept: the applicant is a young Tamil male who originates from the Eastern Province of Sri Lanka; he lived in Sri Lanka from the time of his birth until 2012; he was rounded up, interrogated and beaten by the SLAF during the Sri Lankan civil war; …
The Delegate had found [at CB191]
The applicant does not claim he was a member of the LTTE, the applicant claims his association with the LTTE only lasted for a short period of time, and he only provided assistance to the LTTE under duress. …
The authority found [at 16]:
… Given my earlier findings regarding the applicant’s LTTE involvement, I consider it highly questionable that the applicant was a person of adverse interest to the paramilitary group. I find the applicant has fabricated his claim of abduction and torture by the TMVP and his subsequent admission to hospital.
Transportation of stranded cadres
ii.The finding that the claim concerning the kidnapping and torture was fabricated, rather than simply not been accepted, meant that the Authority would have had to have had a higher standard of probative evidence and reasoning to justify the finding, but there was no such probative evidence or reasoning, nor is there even a finding as to whether the TMVP knew, or did not know, of the applicant’s provision of assistance to the LTTE.
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40]. Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362
iii.The Authority’s negative finding as to the applicant’s adverse interest to the TMVP at the time he claimed he was kidnapped and tortured by them was based on either (1) an assumption that the TMVP knew of the applicant’s provision of material support to the LTTE cadres in the course of warfare but excused him as acting under duress; or (2) an assumption that the TMVP did not know or suspect the applicant’s provision of material support to the LTTE cadres in the course of warfare.
iv.Such a finding that the TMVP would excuse the applicant for providing material assistance to the LTTE in the course of warfare without so much as interrogating and torturing him lacked a logical basis and was in the context of the relevant country information, unreasonable and perverse.
v.If in the alternative and contrary to the above the Authority’s finding was based on the assumption of the TMVP not suspecting the applicant of transporting the LTTE cadres in the course of war then it was based on impermissible backward reasoning, circular reasoning, reverse engineered findings, in that the rejection of the torture based on credibility was the basis for the finding that the TMVP did not know about the transportation of the cadres.
vi.In finding that the applicant’s claims that his mother found him unconscious after he was tortured in 2008, the Authority failed to engage with the applicant’s claims [transcript lines 435-438] that the location that he was taken to when he was abducted was “in the island”.
vii.In finding that the applicant had not been kidnapped and tortured, the Authority’s reasoning did not engage with the integer of the applicant’s claims in relation to that event, being the subsequent attempted hanging and slashing of his wrist immediately thereafter (in Sri Lanka at the time) as a result of having been tortured by the TMVP.
viii.The Authority’s findings in respect of the applicant’s statements about his wife and wife’s family were wholly irrelevant to the question of his LTTE membership in the peacetime.
ix.Arguably the Delegate did not reject the applicant’s claim to have been associated with the LTTE and hence the Authority ought to have taken this into consideration in making its findings on credibility and fact.
The Authority’s failure to have regard to corroborative country information:
x.The country information in the 2015 OHCHR - OISL report (referred to by the Delegate) states at paragraph 642:
Once recruited, the individuals were trained in one of the LTTE camps, with women separate camps for women. Victims forcibly recruited for LTTE forces were made to serve in various capacities, including fighting, as nurses/paramedics for wounded cadres, logistical and administration activities. Those who were assigned to administrative positions or who were already engaged in other activities supporting LTTE would not be sent to the frontlines. …
xi.The report “Tainted peace - Torture in Sri Lanka since May 2009, referred to in Applicant’s submissions to the Delegate, indicated that forced recruits were not all assigned to combat roles: and states at page 24:
All forced recruits said that they received physical and self-defence training and many were also trained to use weapons although they said they had not been forced to use them and most did not undertake full combat training. They were involved in a variety of other roles either in LTTE camps or in the community. Those held in camps described preparing food, cutting logs, digging bunkers and trenches, filling sandbags, transporting the wounded and dead from battle lines to field hospitals, treating the wounded, loading and transporting supplies and equipment, administrative duties and guard duties. Those working for the LTTE on an involuntary basis but living in the community described been involved in fundraising, transporting goods, delivering letters and other errands, supplying fuel and equipment, distributing food, supplying medicines, gathering intelligence and giving shelter to LTTE members.
xii.The report “Tainted peace - Torture in Sri Lanka since May 2009, referred to in Applicant submissions to the Delegate, states at page 36:
2.9 Duration of detention
2.10 Escape or release from detention
One hundred and five of the 148 people said they were only able to secure release from their latest episode of detention after family members had located them and were able to bribe officials to secure their release (71% of all cases).
xiii.The Report “Torture in Sri Lanka – ‘Many times I would lose consciousness’
Referred to by the Delegate indicates that extortion was also a reason for detention/release from detention.
While Thevan was in prison wondering what would happen to him, his family was saving money to pay for a lawyer and navigate a complicated local system of bribes to get him out of the prison.
They claim these bribes are the reason he was eventually released. …
“The only reason I’m out of prison is because my family paid. I was kept detained to get money from my family. There was never an official charge. No attempt was ever made to investigate the abuses I suffered. We don’t feel will get justice out of the system,” he says.
3.The Authority unreasonably failed to consider inviting the applicant to provide further information;
Particulars
i.The Applicant was prevented by being in prison without access to photo and communication devices, and also due to his severe mental health conditions, from showing the evidence of his injuries, being scarring on his body, according with his written claims [at CB62 paragraph 19] about the torture which was inflicted on him, and the classic torture signatures of the regrowth fingernail, physical scarring on feet, head, mouth, and the suicide attempt scarring on his wrist.
ii.The Applicant’s mental distress in the PV interview was readily apparent to the delegate from the outset.
iii.The Authority’s finding that the applicant had fabricated claims of harassment of his mother in Sri Lanka by the authorities respect of him, was based on an unreasonable expectation of the applicant in those circumstances [at 26].
iv.The PV interview was carried out in a manner which in the circumstances failed to fulfill the duty under s.57 to give to the applicant information in an appropriate, or fair manner, and this had the effect of giving the applicant the impression that the decision maker had already made up his mind to refuse the visa.
v.Further the applicant was not afforded a fair opportunity to understand and respond to the s.57 concerns in person during the interview.
vi.The PV interview was carried out in such a way that the applicant, due to his mental health situation, in combination with the manner in which the interview was conducted, did not have a fair opportunity to participate.
vii.The Authority’s finding [at 14] that the applicant would not be able to negotiate with the LTTE was a new concern not put to the applicant by the Delegate in respect of which the Authority was obliged to consider exercising the discretion to invite comment.
viii.In rejecting the claim which was accepted by the Delegate that the applicant had been interrogated and beaten, the Authority unreasonably failed to consider inviting the applicant to provide further information.
ix.In finding that the applicant had not been kidnapped and tortured, the Authority was disabled or impeded in conducting the review by the applicant’s mental health condition and inability to provide evidence of the scarring on his physical body as evidence of his torture, and subsequent suicide attempt as a result of that torture.
x.The process by which the Authority came to its decision was in the circumstances substantially and procedurally unfair.
4.The Authority’s statement [at 14] about its “earlier findings regarding the applicant’s LTTE involvement,” were affected by a failure to consider a claim, and a comprehensive misunderstanding of the claims of the applicant with respect to his service to the LTTE while they were hunting down and killing the Karuna and Pillayan group members, and of the relevant country information:
Particulars
i.The Authority did not consider, or alternatively comprehensively misunderstood, the claims of the applicant to have been associated with the LTTE after the defection of Karuna and Pillayan, including being with the LTTE when it was hunting down and killing the Karuna and Pillayan group members
The Applicant stated [at 475-477]:
Interpreter OK so the LTTE were present,-I need to clarify. Ok so just before the LTTE left our area they were hunting down members of the TMVP or Karuna group and killing them, and at the time I was with the LTTE.
ii.The Authority misunderstood the claims of the applicant [at 14] in that the split referred to by the applicant, and the applicant’s leaving of the service of the LTTE, were referenced to the time when the LTTE was forced to flee from the area, meaning the Eastern Province, because of the Karuna faction fighting together with the Sri Lankan army which occurred only after the end of the Cease Fire Agreement and in the course of the military defeat of the LTTE in Eastern Province through to 2007.
[Lines 283-292]
Officer alright. Can you remember when you stop driving for the LTTE.
Interpreter OK so it was at the time that the LTTE split so they split and Karuna and Pillayan were one faction and the LTTE fled from the area and it was I would say when the split happened and when the LTTE fled from this area was when I left everything and went back home.
Officer so did you go back home after the split between Karuna group from the northern leadership with the LTTE
Interpreter [55:49] OK initially I had permission to go home but when the fight between the karuna and the LTTE took place and they fled and Karuna aligned himself with the government then there after I had nothing to do with them with the LTTE.
Line 295-299
Officer OK so we have the split between the Karuna group and the northern leadership of the LTTE. so did you stop supporting the LTTE immediately after the split.
Interpreter yes so when the Karuna group and the LTTE split fought the LTTE fled they left this area and they fled and when Karuna became aligned with the government that’s when I had nothing more to do with the LTTE I left everything and went home
iii.the Authority is simply wrong in the face of the evidence before it, in saying that the Karuna Group and Sri Lankan armed forces fought against the LTTE in 2004 [at 14] as this was contrary to the relevant analysis reports referred to by the Delegate and Authority by which it was common knowledge that there was an extant Cease Fire Agreement between LTTE and the Sri Lankan Armed Forces in place and operative throughout 2004 (breaches notwithstanding).
iv.The Authority [at 14] assumed, without basis that the applicant had claimed that he had been able in fact to “opt out of fighting” when that was only what he claimed that he had said to the LTTE at the start of his time with them.
I deferred making any orders in relation to the further amended application of
23 September 2021 and indicated that I would address the question of whether leave should be granted to rely on that further amended application in my written reasons.
It appears to me that the further amendments are intended to include in ground 2 an assertion that, in reaching its finding at [16], the Authority should have, but did not, consider particular country information that might, on one view, have supported the applicant’s case. It further appears that the applicant is asserting that the Authority’s failure to consider this country information was unreasonable, illogical or irrational.
I do not grant leave to the applicant to amend ground 2 in the manner indicated in the proposed further amended application dated 23 September 2021. The amendment is proposed very late, in circumstances where the applicant’s lawyer was on the record for over 18 months prior to the hearing, and had already amended the application twice in the weeks before the hearing. No explanation is offered as to why these particulars were not included in either of the earlier amended applications.
Mr Reilly for the Minister was able to respond to the proposed amendment orally at the hearing. Mr Reilly’s ability to address the proposed amendment orally may have lessened to some degree the prejudice to the Minister arising from the late proposed amendment. However, it remains of concern that the Minister was asked to respond to a further iteration of the applicant’s case on the eve of the hearing.
Case management considerations, including the considerations summarised in cases such as Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, and the overarching purpose set out in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, weigh against the grant of leave to the applicant to rely on the further amended application dated 23 September 2021.
Further, and importantly, the proposed amendments lack merit. At a reasonably impressionistic level, the proposed amendments do not have any realistic prospects of success. The applicant appears to be asserting that the Authority should have relied on different country information when making its decision. It is well-established that the choice of country information and the weight to be given to that country information is a matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (NAHI) at [11]. More specifically, the proposed amendments are introduced as particulars to a ground asserting unreasonableness, irrationality or illogicality in relation to the finding at [16] of the Authority’s reasons. That paragraph addressed the applicant’s claim that he was abducted, interrogated, beaten and tortured by 10-12 members of TMVP, lost consciousness and woke up in a private hospital with his parents present. The Authority found that the applicant had fabricated these claims, and considered that it was highly questionable that the applicant would be of adverse interest to the paramilitary group. The country information referred to by the applicant in the particulars added to the proposed further amended application is of no direct relevance to the Authority’s findings at [16].
Even assuming that the proposed amendments are intended to assert unreasonableness, irrationality or illogicality with the Authority’s decision more broadly, on the basis that there is other country information that might support the applicant’s case, the ground does not have any meaningful prospects of success at a reasonably impressionistic level.
The challenge to the finding at [16] is said to incorporate a challenge to the finding that the applicant had not been involved with the LTTE, as the Authority had referred to its findings in relation to the applicant’s lack of profile as a LTTE supporter at [16]. At a reasonably impressionistic level, the applicant appears to be suggesting that country information exists which might lend support to his claims and it was unreasonable for the Authority not to rely on this country information. This is nothing more than an impermissible challenge to the merits of the Authority decision.
Although I have declined to grant leave to the applicant to further amend the application in the manner proposed on 23 September 2021, some of the submissions made by the applicant in relation to the proposed amended version of ground 2 appeared to address ground 4 as well. Where the submissions made were relevant to the existing grounds, they have been considered by the Court.
EVIDENCE
There were a number of objections to the affidavits relied on by the applicant. I heard the objections and indicated that I would rule on the objections in my judgment. I treated the affidavits as read subject to the resolution of objections to the evidence. An indication of the affidavits that the applicant read, and my rulings on objections to those affidavits, is set out below:
(a)Applicant’s 31 December 2019 affidavit – The Minister accepted that some parts of this affidavit would be relevant to the extension of time application, but otherwise objected to the balance of the affidavit on the basis that it was irrelevant. I have summarised the content of this affidavit at paragraph [21] above. I am willing to treat the following parts of the affidavit as relevant and admissible:
(i)the copy of the delegate’s decision of 16 May 2018;
(ii)the various documents in relation to the review conducted by the Authority;
(iii)the statutory declaration made by the applicant on 18 December 2018 authorising a particular person to lodge his appeal papers in the Sydney Registry of the Federal Circuit Court of Australia; and
(iv)the application for review by the Administrative Appeals Tribunal of the Authority’s decision.
I otherwise uphold the objection to the applicant’s 31 December 2019 affidavit.
(b)Applicant’s 7 September 2021 affidavit – The Minister objected to this affidavit on the basis of relevance. The applicant submitted it was relevant to whether the Authority unreasonably failed to exercise the discretion in s 473DC of the Migration Act to invite the applicant to provide new information at an interview. I find that paragraphs 1-6 of the applicant’s 7 September 2021 affidavit and annexures SB1 and SB2 are irrelevant and therefore inadmissible. These paragraphs and annexures relate to evidence of injuries that the applicant now says he wanted to, but did not, put before the Authority. Any assessment of whether the Authority acted unreasonably in the non-exercise the discretion in s 473DC to obtain new information must be based on the state of affairs at the time of the exercise or non-exercise of the discretion, and requires the Court to look at the particular circumstances of the exercise or non-exercise of the statutory discretion: Minister for Home Affairs v DUA16 (2020) 385 ALR 212; [2020] HCA 46 (DUA16) at [26]. There was never any suggestion made to the Authority that the applicant had evidence of physical injuries that he wished to provide to the Authority, and the information in paragraphs 1-6 and annexures SB1 and SB2 cannot be relevant to the question of whether there is jurisdictional error in the Authority’s decision. Paragraph 8 and annexure SB3 relate to the applicant’s health records from the time he was in prison, which includes the time of the Authority decision and the time the application for judicial review was filed. I find that these parts of the affidavit are relevant to the applicant’s application for an extension of time. Paragraph 9 of the affidavit and annexure SB4 refers to a DFAT report which was before the Authority and is admissible in this proceeding.
(c)9 September 2021 solicitor affidavit – The applicant read this affidavit other than paragraphs 1, 3 and 4 and their corresponding annexures, which relate to an exchange of correspondence between the parties’ legal representatives. The Minister objected to the other paragraphs in the affidavit on the basis of relevance. Paragraphs 2, 5, 6 and 7 of the affidavit relate to the applicant’s request for a copy of records of his enhanced screening interview and annexure DRT2 comprises the written record of that interview. This is relevant to ground 1 of the application. At the time the objections were argued, Mr Taylor had indicated that the applicant was not pressing ground 1, but in the course of his oral submissions, he changed his mind and decided he would press ground 1. With ground 1 being pressed, paragraphs 2, 5, 6 and 7 and annexure DRT2 are relevant and admissible. Paragraphs 8 and 10[1] relate to a request to the Minister’s lawyer for another document and paragraphs 14 and 15 relate to the further steps that the applicant’s lawyer proposed to take in preparing for the hearing. While these paragraphs may be relevant to some of the procedural issues that were live at one stage, they are not relevant to the issues that the Court needs to determine in the extension of time application or the substantive application. Paragraphs 11 and 12 and annexures DRT5 and DRT6 contain medical records and are relevant to the extension of time application. They are admissible. Paragraph 13 and annexure DRT7 relate to the amended application dated 9 September 2021. While not inadmissible, it is not necessary to consider them further as the applicant no longer relies on the amended application at annexure DRT7.
(d)Applicant’s 12 September 2021 affidavit – The Minister objected to this affidavit again on the basis that it was not relevant. In this affidavit, the applicant deposes to his mental state during the interview with a delegate, the absence of a support person at the interview, and his desire to show his injuries to the delegate. This evidence can only relate to ground 3, regarding whether the Authority acted unreasonably in not inviting the applicant to attend an interview. As indicated above, the reasonableness of the exercise or non-exercise of the Authority’s discretion in s 473DC is to be assessed based on the particular circumstances of the exercise or non-exercise of the discretion. The evidence that the applicant now seeks to put before the Court is not information that was known to the Authority in the course of the review, and it is not relevant to whether there is jurisdictional error in the Authority’s decision.
(e)20 September 2021 solicitor affidavit – This affidavit annexes a transcript of the protection visa interview and various country information reports. It was read without objection.
(f)Applicant’s 21 September 2021 affidavit – The Minister objected to this affidavit on the basis of relevance. This affidavit, which addresses the applicant’s feelings at the time of his protection visa interview, falls into the same category of evidence as the applicant’s 12 September 2021 affidavit and I find that it is irrelevant for the same reasons.
(g)22 September 2021 solicitor affidavit – This affidavit annexes a psychological report in relation to the applicant, based on his mental health in the period since January 2021, and is said to be relevant to the extension of time application. The Minister has again objected on the basis of relevance. When questioned about the relevance given it relates to a period after the application was filed, Mr Taylor for the applicant submitted that the applicant’s mental health issues are ongoing and the medical report shows continuity of the applicant’s mental health issues. I consider the affidavit to be relevant and therefore admissible. However, when assessing the weight to be given to this report, I have taken into account that it does not directly address the applicant’s mental health during the period between the Authority decision and the filing of the application to this Court.
(h)23 September 2021 solicitor’s affidavit – Paragraphs 1-3 and the country information reports annexed in those paragraphs were read without objection. Paragraphs 4 and 5 relate to a telephone statement given by Mr James Stephens, who was to be the applicant’s support person at his protection visa interview, and the affidavit annexes an unsigned statement from Mr Stephens. The Minister objects to the admissibility of the paragraphs relating to Mr Stephens and the unsigned statement on the basis that they are not relevant to establishing jurisdictional error in the Authority decision. I uphold the objection. Again, the purpose of adducing this evidence could only be in relation to the ground alleging an unreasonable failure to exercise the discretion in s 473DC of the Migration Act. Evidence of the applicant’s mental state before and after the protection visa interview, which was not known to the Authority, is not relevant to assessing whether the Authority acted unreasonably in failing to exercise the discretion in s 473DC.
[1] Paragraph 9 contains no content other than a full stop.
I also marked the court book as exhibit 1 and a publication by the United Nations High Commissioner for Refugees (UNHCR) titled ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’, dated 21 December 2012, as exhibit 2. Exhibit 2 was before the Authority for the purposes of the review.
EXTENSION OF TIME APPLICATION
As indicated above, the applicant requires an extension of time to seek judicial review in this Court. The applicant has included in his further amended application the following grounds indicating why he considers it is necessary in the interests of the administration of justice to grant the extension of time:
1.Applicant was in custody in long Bay correctional centre where there is a lack of assistance with immigration matters.
2.Applicant English language skills are limited and he believed he had completed the necessary paperwork adequately and lodged it successfully on 17.12 dot 2018 as evidenced by when he signed the paperwork.
3.Applicant immediately attempted to re submit the paperwork when he advised that the paperwork was not successfully lodged with the assistance of Long Bay CC psychologist Anushka Somasunderan on 31.12.2019.
4.It is necessary in the interests of justice
5.The Applicant was not informed by the Authority that all of the relevant materials were not forwarded to, requested by, or considered by, the delegate or IAA.
6.The Applicant suffered from and continues to suffer from significant diagnosed mental health illnesses.
The terms of s 477(2) of the Migration Act do not on their face require the Court to take into account or ignore any particular factor when determining whether it is in the interests of the administration of justice to make an order extending the time for the applicant to file an application: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127 at [65]. Ordinarily, the Court will have regard to factors such as the length of the delay, the explanation for the delay, any prejudice that the respondents would face and the merits of the proposed substantive application: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. The merits of the proposed substantive application are to be assessed at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 (MZABP) at [62]-[63].
Length of the delay
The length of the delay in this case is over one year. This is a significant delay and weighs against the grant of an extension of time.
Explanation for the delay
On balance, and not without some reservations, I am satisfied that the applicant has provided an adequate explanation for the delay. For reasons explained below, I am satisfied that the applicant thought he had taken steps to file his application within time, and I am willing to accept that he had mental health issues that contributed to the delay. I also take into account the applicant’s limited English language skills and that he was in prison at the time of the Authority decision.
The applicant’s 31 December 2019 affidavit contains an application to the Tribunal and a statutory declaration authorising another person to file his application at the Federal Circuit Court. I am satisfied from these documents that the applicant took some steps to file an application for judicial review within time, although he mistakenly prepared an application to the Tribunal instead of the Court. There is no evidence before the Court as to whether the Tribunal application was actually filed, and if so, when the Tribunal communicated with the applicant in relation to that application. There is also no evidence of any decision by the Tribunal, which would most likely be a decision that it did not have jurisdiction to review the Authority’s decision. There is no evidence of any steps taken by the applicant to follow up the progress of the Federal Circuit Court application that he had purportedly attempted to file. The absence of evidence of these things is problematic.
It may be partially explained by the applicant’s mental health issues, but the evidence is lacking in this regard too, and the Court is left to draw inferences.
The medical evidence in annexure SB3 to the applicant’s 7 September 2021 affidavit shows that the applicant has been diagnosed with post-traumatic stress disorder (PTSD), schizophrenia and depression, with the earliest record available dated in 2016. The most relevant records for the purposes of the extension of time application are those dated between 16 November 2018, being the date of the Authority decision, and 2 January 2020, being the date on which the applicant filed his application to this Court. There is only one record within this date range in annexure SB3 to the applicant’s 7 September 2021 affidavit, and that is a record dated 4 August 2019. In this record, it was noted that the applicant had a mental health history but was on medication and was stable. He guaranteed his own safety and had no thoughts of suicide or self-harm. The record showed that the applicant suffered from nightmares.
Annexure DRT5 to the 9 September 2021 solicitor affidavit contains International Health and Medical Services (IHMS) records in relation to the applicant dated 5 March 2020 and
9 April 2020 respectively. These records both post-date the filing of the application for an extension of time and therefore do not directly relate to the reasons the applicant was late in filing his application. However, the reports do address the applicant’s mental health history, which makes reference to the applicant having a history of major depressive disorder while in prison, a history of PTSD and nightmares. The record also refers to two suicide attempts made by the applicant while he was in prison.
Annexure DRT6 to the 9 September 2021 solicitor affidavit comprises a letter from the applicant’s general practitioner dated 7 December 2020. The letter indicates that the general practitioner has known the applicant since February 2020 and the letter is largely related to the difficulties occasioned by the applicant’s prolonged detention. I give this letter little weight in assessing whether the applicant has an adequate explanation for the delay in filing his application to this Court.
Annexure DRT1 to the 22 September 2021 solicitor affidavit is a psycho-social assessment dated 22 September 2021 prepared by a senior counsellor at Association of Services to Torture and Trauma Survivors (ASeTTS). The assessment is said to be based on 14 sessions attended by the applicant since January 2021. The assessment refers to the applicant having a severely depressed and anxious state, impaired cognitive functioning and impaired memory and concentration. The report indicates that the applicant presents with moderate to severe levels of PTSD and depressive symptoms as a result of past traumatic experiences and the compounding trauma of indefinite detention. This report does not, and cannot, address the reasons for the delay in filing an application to this Court, and so can only be given limited weight. I do, however, give the report some weight insofar as it confirms that the applicant has a history of depression and PTSD.
There is no medical evidence before the Court that directly addresses the impact of the applicant’s mental health on his ability to file an application to this Court during the period from the Authority decision to the time the extension of time application was filed. I do, however, accept that the applicant was suffering from mental health conditions during that time, including depression and PTSD. I am willing to accept that these mental health conditions may have contributed to the delay in filing his application.
On its own, the evidence in relation to the applicant’s mental health would not be sufficient to persuade me to accept that he has an adequate explanation for the delay. However, when I consider collectively the applicant’s mental health issues, his limited English language skills, the fact that he was in prison during the time between the Authority decision and the filing of the application to this Court and may therefore have had limited migration assistance, and that he did make some attempt to file an application within time, I accept that he has provided an adequate explanation for the delay.
Prejudice to the Minister
I accept that there is some prejudice to the Minister based on the interest in finality in administrative decision-making. However, the Minister does not claim any substantive prejudice and I am not satisfied that the Minister would face any substantive prejudice beyond that associated with the interests in the finality of administrative decision-making.
Merits of the proposed substantive application
For the purpose of deciding whether to grant an extension of time, I am required to assess the merits of the proposed substantive application at a reasonably impressionistic level: MZABP at [62]-[63].
I am satisfied that at least one of the grounds has merit at a reasonably impressionistic level. By ground 1, the applicant asserts that the Authority’s decision is affected by jurisdictional error as a result of the Secretary’s failure to properly comply with s 473CB(1)(c) of the Migration Act. This provision requires the Secretary to provide to the Authority ‘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’. The applicant points to the audio recordings of the enhanced screening interview and case assessment and biodata interview and submits that this information was relevant to the review.
The Court has before it a written record of an enhanced screening interview, which records answers given by the applicant in that interview, including in relation to his reasons for leaving Sri Lanka. It is not disputed that this document was not provided to the Authority.
The information in the record of the enhanced screening interview includes information about the applicant’s claims to have been forcibly recruited by the LTTE. At a reasonably impressionistic level, this appears to be directly relevant to the issues that the Authority was required to determine. The failure of the Secretary to provide the record of the interview to the Authority appears to be in breach of s 473CB(1)(c) of the Migration Act. Existing case law clearly establishes that a breach of s 473CB(1)(c) by the Secretary can result in jurisdictional error in the Authority’s decision if the breach is material: see, for example AJN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1277.
It thus appears that the resolution of this ground will turn on an assessment of the materiality of the error. .At a reasonably impressionistic level, the applicant has raised an arguable case that the breach by the Secretary was material.
In circumstances where I have found that one of the grounds is reasonably arguable, I have not addressed the merits of the other grounds at a reasonably impressionistic level.
The assessment of the merits at a reasonably impressionistic level is a factor that weighs in favour of granting the extension of time.
Overall conclusion on extension of time application
On balance, I find that it is necessary in the interests of the administration of justice to extend the time for the applicant to file his judicial review application and I exercise my discretion to make an extension of time order. While the length of the delay is significant, the applicant has offered an adequate explanation for the delay and at least one of his grounds is reasonably arguable.
CONSIDERATION OF SUBSTANTIVE APPLICATION
Ground 1
As indicated above, s 473CB requires the Secretary to provide certain materials to the Authority for the purpose of conducting its review. These materials include the decision made under s 65 of the Migration Act and any statement of reasons in relation to that decision, any documents provided by the referred applicant for the purposes of the assessment of the referred applicant’s visa application, any other materials in the Department’s possession or control that the Secretary considers to be relevant to the review, and contact details for the applicant.
The breach alleged in the present case is a breach of s 473CB(1)(c) of the Migration Act, which requires the Secretary to provide to the Authority any other material in the Secretary’s possession or control which the Secretary considers to be relevant to the review at the time of the referral. For the purposes of s 473CB(1)(c), material will be relevant if it ‘is logically probative of the issues which arise on the applicant’s visa application as they appear at the date of the referral’ and ‘any material which tends to prove or disprove any of the issues would be relevant’: CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367; [2019] FCAFC 61 at [107].
The applicant’s case as pleaded asserts, relevantly, that the Secretary failed to comply with s 473CB(1)(c) because the Secretary did not form a view as to whether the audio recordings of the enhanced screening interview and case assessment and bio data interview were relevant to the review to be conducted by the Authority. The evidence before the Court includes a written record of the enhanced screening interview and there are no audio recordings in evidence before the Court, and no evidence to confirm that the audio recordings were in the Secretary’s possession and control at the time of the referral to the Authority. In these circumstances, I have interpreted this ground as asserting that the alleged breach of s 473CB(1)(c) extends to the written record of the enhanced screening interview. This would also be consistent with the applicant’s oral submissions, in which it was asserted that the breach was to fail to forward to the Authority a copy of the enhanced screening interview, ‘or even a written record of it’.
In his written submissions on this ground, the applicant did not address the error that he alleges occurred, and instead addressed only whether the error was material. In his oral submissions, Mr Taylor asserted that its ‘fairly well-established’ that a breach of s 473CB(1)(c) of the Migration Act occurred, but did not elaborate.
Mr Reilly for the Minister submitted that the onus is on the applicant to establish the breach of s 473CB(1)(c) of the Migration Act. When pressed by me at the hearing, he conceded, appropriately, that the record of the enhanced screening interview did appear to be relevant.
I am satisfied that the written record of the enhanced screening interview is a record that was in the Secretary’s possession at the time of the referral and that it was a document that was relevant to the review. The record of the enhanced screening interview records information provided by the applicant upon his arrival in Australia as to why he left Sri Lanka. This includes, relevantly, information about the applicant’s claims to have been involved with the LTTE. This information is logically probative of the issues that the Authority was required to determine. There is therefore a breach of s 473CB(1)(c) of the Migration Act in relation to the written record of the enhanced screening interview.
I am not satisfied on the evidence before the Court that the audio recordings of the enhanced screening interview and the case assessment and biodata interview were documents within the Secretary’s possession and control at the time of the referral to the Authority. The alleged breach of s 473CB(1)(c) of the Migration Act in relation to the audio files is not established.
Materiality
A breach of s 473CB(1)(c) of the Migration Act will only amount to a jurisdictional error if the breach could realistically have deprived the applicant the opportunity of a successful outcome: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [2]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [45]; EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299; [2019] FCAFC 20 at [42]; and Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40 at [33].
The applicant submits that the Secretary’s failure to provide to the Authority the record of the enhanced screening interview means that the Authority did not have access to the information regarding the applicant’s claims to have been taken by the Karuna movement since 2004. In his written submissions, the applicant says:
57 Had the Authority had the information, it would have shed light on the applicant’s claims to have been with the LTTE at the time that it was hunting down and killing the Karuna group members.
58Consideration of the applicant’s claim in the ESP interview to have been taken by the LTTE in June 2004 would also have shed light on the confusion surrounding the word “split” as used by the Delegate and the Authority, contrary to the manner in which the Applicant used it to refer to the subsequent period after the end of the cease fire agreement and the resumption of hostilities between the Sri Lankan armed forces (with Karuna Group) against the LTTE in which the LTTE was expelled from the area. This is the period referred to by the Delegate as the period concluding in August 2007 when the LTTE was militarily defeated in the eastern province. It is this period which is clearly referenced by the applicant when he claimed to have left the LTTE when the Karuna and SLAF attacked and expelled the LTTE. When the applicant referred to the earlier period when the LTTE was hunting down and killing the Karuna group members he clearly stated that he was with the LTTE at that time…
It is clear from this that the applicant submits that, had the Secretary provided a copy of the enhanced screening interview record to the Authority, it might have affected the Authority’s consideration of the applicant’s claims insofar as they relate to his asserted involvement with the LTTE. There are two parts of the enhanced screening interview record that refer to the applicant’s claimed involvement with the LTTE. The first is on page 8, where, in response to the question, ‘What are your reasons for coming to Australia?’ it is recorded that the applicant said:
In 2004 when the tsunami hit our area, I was displaced and in that camp. At that time the LTTE was getting people to do work relief work to do with the tsunami and I was working for them and because I was working for them I was suspected as being involved with them.
The second reference comprises the following exchange on page 9:
When exactly in 2004 did you start working for the LTTE?
I was taken by the LTTE in June 2004 and made to work during the time of the tsunami.
What did the LTTE make you do, how did you work for them?
I had to cook for them, and watering the gardens and such tasks. Then my mother came and pleaded with them to release me.
And did they?
Yes because my mother pleaded with them.
How long were you with the LTTE?
For three months.
In his oral submissions, Mr Taylor took a more expansive approach to materiality. Instead of limiting his materiality submission to whether the information could realistically have affected the Authority’s findings into the timing of the applicant’s claimed involvement with the LTTE, he submitted that it should be inferred from the Authority’s reasons that the Authority drew a significant adverse inference against the applicant because he had failed to raise claims about the LTTE prior to his written claims. He further submitted that the existence of earlier claims relating to the LTTE, if known by the Authority, would lead to a positive credibility inference in the applicant’s favour.
The Minister submitted that, even if the applicant establishes that there has been a breach of s 473CB(1)(c) of the Migration Act, that breach is not material. Mr Reilly submitted that the information contained in the enhanced screening interview report is inconsistent with the applicant’s claims as they were advanced before the delegate and the Authority. The inconsistencies were said to relate to the time the applicant was taken by the LTTE, the nature of the work he did for them and the length of time that he assisted the LTTE.
I find that the failure of the Secretary to provide the written record of the enhanced screening interview, to the Authority, in breach of s 473CB(1)(c) of the Migration Act, could not realistically have deprived the applicant of the opportunity of a successful outcome. In reaching this conclusion, I have carefully considered the reasons given by the Authority for rejecting the applicant’s claims to have been involved with the LTTE in the way in which he claimed. The applicant’s claims in relation to the LTTE are summarised at [13] of the Authority’s reasons and the Authority’s reasons for rejecting those claims are set out at [14] of the reasons. It is useful to reproduce these paragraphs in full. These paragraphs read:
13. The applicant claimed that it was after the tsunami occurred on 24 December 2004 that he was approached to join the LTTE. He stated in his written evidence that he refused to join as he was the only one supporting his wife and his father. The applicant claimed that on refusal to join he was detained and kept in a bunker for three months. He was beaten and threatened that if he did not cooperate with them he would be killed and thrown into the forest. He told the delegate that he was refused food and water and the ground in the bunker was uneven. It was on account of these conditions that he eventually agreed to assist the LTTE, however he refused to carry weapons and told them he would not fight so they allocated him as a driver on account of having a driver’s licence. During the period he worked for the LTTE he would put up banners and transport LTTE members from one office to another and go to the market and buy vegetables and meat for them. He continued to perform this work until the Karuna Group formed and defected from the LTTE. He told the delegate at interview that after the split the Karuna Group aligned itself with the government and the LTTE fled and he did not have anything to do with them after this time.
14.I found there were a number of anomalies with the applicant’s statements. Firstly, the applicant claimed that it was sometime soon after the tsunami in December 2004 that he was approached by the LTTE and refused to work for them. He claimed that he was supporting his wife and father at this time as a fisherman however the applicant’s evidence indicates his wife was only twelve years old at the time and he did not claim to have married her in an informal capacity until 2008. Secondly, the applicant claimed that he was detained for three months, beaten, deprived of food and water, and threatened due to his refusal to work for the LTTE. Despite this treatment, when the applicant succumbed to the LTTE demands he was able to negotiate his position within the organisation as a driver and opted out of fighting in the war. I am not satisfied that a LTTE prisoner would be in a position to negotiate his role in the organisation nor opt out of combat had the LTTE required him to do this. I find the applicant’s claim implausible. Finally, country information indicates that Colonel Karuna broke away from the LTTE in March 2004, which was nine months before the December 2004 tsunami and before the applicant purportedly joined the LTTE. At interview the delegate put this timeline discrepancy to the applicant who reasoned that the Karuna Group had split from the LTTE in March 2004 but it was not until later that they joined the Sri Lankan government in fighting against the LTTE. The applicant’s representative provided the same reasons for the inconsistency in a post interview submission and provided an article from British Broadcasting Company (BBC) News in support of these claims. I am not satisfied that the article assists the applicant’s claims. It states that it was in 2004 that Colonel Karuna defected and began fighting alongside government forces against the Tigers which is incongruent to the applicant’s timeline of claimed events.
I do not accept the applicant’s written submission that the information in the enhanced screening interview would have supported his claim to have been involved with the LTTE at the time of the split with the Karuna group. The information in the enhanced screening interview suggests that the applicant joined the LTTE in June 2004. The information before the Authority was that the applicant had said that he did not have anything further to do with the LTTE after the Karuna group split from the LTTE. The Authority had regard to country information, which it appeared to accept, that Colonel Karuna broke away from the LTTE in March 2004. It can be inferred from this that the Authority would have had the same concern about the inconsistency in the applicant’s timeline whether he claimed to have been taken by the LTTE in June 2004 or December 2004. In both cases, the time the applicant claimed to have become involved with the LTTE is after the time that the country information relied on by the Authority suggests that the Karuna group split from the LTTE. It follows that, had the information about the applicant’s claim to have been taken by the LTTE in June 2004 been before the Authority, there is no realistic possibility that the outcome of the Authority review could have been any different.
The information in the enhanced screening interview sheds no light whatsoever on any events in 2007 and does not, contrary to the applicant’s written submission, shed any light on the use of the word ‘split’. Accordingly, I do not accept that the breach of s 473CB(1)(c) of the Migration Act could realistically have deprived the applicant of the opportunity of a successful outcome in this regard.
I am also not satisfied that the information given by the applicant in the enhanced screening interview could realistically have deprived the applicant of the opportunity of a successful outcome on the basis that it might have caused the Authority to make different findings in relation to the applicant’s credibility. There is nothing in the Authority’s reasons to suggest that the Authority made any adverse credibility inference against the applicant as a result of his failure to refer to any involvement with the LTTE at an earlier stage, such as in his entry interview. Further, the information in the enhanced screening interview could only realistically cause the Authority to view the applicant’s credibility in a more positive light if the information was consistent with the other information provided by the applicant which was before the Authority. The Minister in his submissions has identified a number of ways in which the information the applicant provided in the enhanced screening interview was inconsistent with the other information he provided to the Authority. I accept that these inconsistencies are so significant that the Secretary’s failure to provide the written record of the enhanced screening interview could not realistically have deprived the applicant of the opportunity of a successful outcome.
I find that the breach of s 473CB(1)(c) of the Migration Act is not material and therefore does not amount to jurisdictional error. Ground 1 is not established.
Grounds 2 and 4
I deal with these grounds together because, at the hearing, Mr Taylor reframed ground 4 to treat it as particulars to ground 2.
Essentially, these grounds assert unreasonableness, illogicality or irrationality in relation to certain findings of fact made by the Authority, and also include a suggestion that the Authority has misinterpreted or misunderstood the applicant’s claims.
The principles relating to reasonableness in fact finding were summarised by the Full Court of the Federal Court in BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24 at [30], where McKerracher, Colvin and Jackson JJ said:
The following principles, as stated in Vo v Minister for Home Affairs [2019] FCAFC 108 at [43] (Derrington, Banks-Smith and Colvin JJ) when considering whether there had been jurisdictional error by the Administrative Appeals Tribunal by reason of a breach of the implied standard of reasonableness in making factual findings, apply equally to the review of a decision by the Authority:
(1) the test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11], [52], [135];
(2) where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]‑[47];
(3) unreasonableness will not be demonstrated on the basis of a complaint about the weight given to particular evidence or material because determination of the weight to be given to evidence or material is a matter entrusted to the Tribunal: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [4]‑[5];
(4) it is for the Tribunal to reach conclusions about credibility and unreasonableness is not shown by complaints about credibility findings alone, but may be demonstrated where a finding on credit on an objectively minor matter of fact is used as a basis for rejecting the entirety of the claimant’s evidence (a conclusion to be reached with a high degree of caution): CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]‑[45] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30];
(5) generally speaking, the Tribunal has the authority to reach conclusions about the inferences that might be drawn from particular evidence or material;
(6) the Tribunal is not required to refer to every piece of evidence placed before it: ETA067 v The Republic of Nauru [2018] HCA 46 at [13];
(7) ...
(8) mere strong disagreement with factual reasoning does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40];
(9) a decision (not just a part of a decision) which lacks an evident and intelligible justification is unreasonable: SZVFW at [10], [82];
(10) a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others the category is not limited to such instances: SZVFW at [10], [59], [82], [89], [133]; and
(11) there must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised: Hossain at [25], [30]‑[31].
The applicant has failed to establish jurisdictional error by ground 2 and 4.
Ground 3
Ground 3 alleges that the Authority unreasonably failed to consider exercising the discretion in s 473DC(3)(b) of the Migration Act to invite the applicant to provide new information at an interview. The basis on which it is said that the Authority’s failure to consider inviting the applicant to an interview was unreasonable comprises, in summary, the following considerations:
(a)the applicant had been unable to show evidence of his physical injuries, as a result of him being in prison without access to photo and communication devices, and as a result of the interview with the delegate being conducted by telephone rather than video;
(b)the applicant exhibited mental distress in the course of the protection visa interview and had mental health issues that denied him a fair opportunity to participate in the interview;
(c)the interview by the delegate was conducted in a harsh manner and this impeded the applicant from freely articulating and developing his claims;
(d)the applicant was denied the opportunity to have a support person with him at the protection visa interview;
(e)the delegate had failed to invite the applicant to comment on information as required by s 57 of the Migration Act in a way that was fair to the applicant; and
(f)the Authority made findings of fact which differed to those findings made by the delegate.
In the present matter, there is nothing in the Authority’s reasons to indicate whether or not the Authority considered inviting the applicant to an interview. The requirement under s 473EA of the Migration Act to give reasons for its decision does not extend to procedural issues and there was no obligation on the Authority to give reasons for any decision to exercise or not exercise its discretion to invite the applicant to an interview: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 (BVD17) at [16]. It follows that it cannot be inferred merely from the absence of reasons that the Authority failed to consider exercising the discretion to invite the applicant to an interview: BVD17 at [40]. I am not satisfied that the Authority did not consider the exercise of the discretion in s 473DC(3) of the Migration Act.
However, even if it could be inferred that the Authority did not consider exercising the discretion in s 473DC(3)(b) of the Migration Act to invite the applicant to attend an interview, I would find that any failure of the Authority to consider exercising the discretion was not unreasonable for any of the reasons articulated, whether considered individually or cumulatively. In reaching the views that I expressed below, I have been mindful that the reasonableness of the Authority’s exercise of its discretions should be assessed at the time of their exercise: DUA16 at [26]; Parker v Minister for Immigration and Border Protection [2016] FCAFC 185 at [77].
Applicant’s desire to show evidence of his physical injuries to the Authority
The applicant submits that he was unable to present evidence of scarring on his body, which is said to support his claims to have been tortured, because of his incarceration and because the protection visa interview was conducted by telephone. It can readily be accepted that:
(a)the applicant was incarcerated at the time of his protection visa interview;
(b)the protection visa interview took place by telephone; and
(c)the applicant did not present any evidence to the delegate of any scars on his body said to be related to his claims for protection.
However, these facts do not of themselves make it unreasonable for the Authority not to invite the applicant to an interview where he can show evidence of his scarring, or otherwise to invite him to provide evidence of his scarring. The applicant’s written claims for protection were included in a statutory declaration provided with his application for protection. At no point in this statutory declaration does the applicant refer to scarring. Nor is there any mention of scarring in the record of the entry interview that was before the Authority. The applicant had a solicitor who assisted him with his application for a protection visa, and the solicitor provided two submissions to the Department prior to the delegate’s decision. There is no mention of the applicant having scarring on his body in either of the submissions, let alone any desire to put that information to the delegate. I have also reviewed the transcript of the protection visa interview. At no stage in the interview did the applicant refer to scarring on his body or a desire to show the delegate scarring on his body. Neither of the two submissions provided by the applicant’s solicitor and migration agent to the Authority refer to scarring on the applicant’s body or any desire by the applicant to show the Authority the scarring on his body.
The Authority is not under any obligation to make an applicant’s case for him, nor can it be expected to be a mind reader. There was simply no evidence before the Authority that the applicant had scarring on his body or that he wanted to show this scarring to the Authority. Any failure by the Authority to consider inviting the applicant to an interview to enable him to show his physical injuries, in circumstances where the Authority had no way of knowing about the existence of the injuries or any desire on the part of the applicant to show them, cannot be unreasonable.
Mental health issues
The starting point for considering whether any failure by the Authority to consider inviting the applicant to attend an interview due to mental health considerations is the Authority’s own comments in relation to the applicant’s mental health. At [28] of its reasons, the Authority said:
The applicant stated on at least three occasions during the SHEV interview that if he did not receive a positive outcome from his SHEV application and he was forced to return to Sri Lanka that he would commit suicide. Two of the occasions he vocalised suicidal ideations to the delegate was in response to being provided adverse information regarding inconsistencies with his evidence. The applicant informed the delegate that he had met with health professionals and that they thought he had a mental illness. The applicant provided no medical reports or documentation to support this claim. I have had regard to the fact the applicant was, at the time of the SHEV interview and continues to be, incarcerated for committing a criminal offence in Australia. A submission to the IAA argues that the applicant’s mental health, as well as his incarceration should have been given greater weight when evaluating his claims. With regard to his mental health, the IAA submission states that the applicant did not know how he could obtain reports from his doctors whilst in prison to present to the delegate for consideration. However, I consider that the applicant has had ample opportunity to provide evidence to support a mental health diagnosis. The applicant’s legal representative at primary stage provided the delegate with a range of documentation to support the applicant’s claims, yet no evidence relating to his mental health was provided. I note also that he is represented for this review and yet still no supporting documentation regarding his mental health has been submitted. On the evidence before me I am not satisfied that the applicant is suffering from a mental health illness.
The Authority’s own comments in relation to the applicant’s mental health weigh against a finding that any failure by the Authority to consider inviting the applicant to attend an interview because of his mental health situation was unreasonable. I have reviewed the transcript of the protection visa interview in its entirety and I am satisfied that the Authority has accurately summarised the evidence in relation to the applicant’s mental health given at the interview.
I am satisfied from my review of the transcript of the protection visa interview that there was nothing said at the interview that would give rise to any inference that the applicant was unable to participate in that interview in a real and meaningful way. The applicant appeared to understand what was being said to him throughout the interview and gave answers to questions that corresponded to the questions asked. There is nothing that I have identified in the transcript of the protection visa interview to suggest that the applicant was prohibited in any way from giving evidence at that interview because of concerns related to his mental health. Although the transcript of the protection visa interview was not before the Authority, it appears that the Authority listened to the audio of that interview, as it referred to evidence from the interview that was not summarised in the delegate’s decision.
The Authority also had the benefit of the delegate’s observations in relation to the applicant’s mental health during the interview. The delegate said in his decision:
I have taken into consideration the fact that the interview held on 2 February 2018 was conducted by phone as the applicant is currently held at Long Bay jail. I have also formed the view that the applicant was distressed at times during that interview and the applicant has asserted he may be suffering mental ill health. Although I can appreciate that the current circumstances are very challenging for the applicant, there is no evidence before me that a medical professional has diagnosed the applicant with mental illness, the applicant spoke at length during the interview about a range of matters, and his SHEV application has been prepared with the assistance of migration agents. Accordingly I find the applicant’s capacity to articulate his protection claims has not been significantly diminished because he is currently in jail, he has been feeling distressed at times and/or because he may be suffering mental ill health.
A submission provided to the Authority by the applicant’s solicitor and migration agent also makes reference to his mental health. It was never suggested to the Authority that the applicant had been unable to meaningfully and effectively participate in the protection visa interview because of mental health concerns. Rather, the submission advanced to the Authority was that the applicant’s mental health should be taken into account when assessing any inconsistencies in his evidence. In the submission provided to the Authority on 10 July 2018, the representative indicated that she had made an application for the release of the applicant’s mental health records and expected to provide them to the Authority in the near future. At the time of the Authority’s decision on 16 November 2018, some four months later, no medical records about the applicant’s mental health had been provided to the Authority.
There is no medical evidence before the Court to suggest that because of mental health concerns the applicant was unable to effectively participate in the protection visa interview, and certainly nothing before the Authority to suggest that a further interview might be required as a result of considerations relating to the applicant’s mental health. Any failure by the Authority to consider inviting the applicant to a further interview due to his mental health was not unreasonable.
Conduct of the protection visa interview
The applicant further claims that the Authority should have invited him to an interview because he was disadvantaged by the conduct of the interview before the delegate. The applicant claims that the interview proceeded in an unduly harsh and unfair manner and that he was unfairly denied the support of a support person. The applicant made no complaint about either of these matters in his protection visa interview, or in his post-interview submissions, or in his submissions to the Authority.
It appears from the documents in the court book that the delegate had approved the applicant having a fellow prisoner at the interview with him in a support person capacity in the days leading up to the hearing. On the day of the hearing this person was not permitted to attend. As I understand the materials, this was because of requirements of the prison rather than the way in which the delegate had decided to conduct the interview. The applicant made no mention to the delegate or to the Authority that he was unduly impacted because his support person could not attend.
The questions asked by the delegate at the interview were intended to give the applicant an opportunity to elaborate and expand on his claims for protection. There were certain inconsistencies that were put to the applicant out of fairness and the applicant was invited to comment on adverse information, including pursuant to s 57 of the Migration Act. The questions do not appear to me to be overly harsh and there is nothing in the questioning by the delegate at the protection visa interview that would make it unreasonable for the Authority not to consider inviting the applicant to an interview before it.
Section 57 information
Towards the end of the protection visa interview, the delegate put adverse information to the applicant so that the applicant could comment on that information. There were large amounts of information put to the applicant and on one occasion the applicant indicated that it was a lot to respond to. It is apparent from a review of the transcript that the delegate had concerns about there being limited time available to complete the interview, and so the delegate confirmed with the applicant’s representative that she had noted all the concerns and then gave her an opportunity to speak with the applicant and to provide a response to the s 57 concerns in writing. The representative did this and there is no suggestion in the submission to the delegate or the subsequent submissions to the Authority that this process was inadequate or that the applicant was denied a proper opportunity to respond to the s 57 concerns. In fact, by proceeding in this manner, the applicant may well have had a better opportunity to consider his responses than he would have had if he had been invited to respond immediately at the interview.
There is nothing in the way in which information was put to the applicant under s 57 of the Migration Act that would render it unreasonable for the Authority to fail to consider inviting the applicant to an interview. This is not a case of the type referred to in Plaintiff M174 at [49] where the Authority could be expected to use its procedural powers to overcome any deficiency in the conduct of the review before the delegate. There was simply no deficiency to overcome.
Different findings of fact made by Authority and delegate
The applicant identified the following instances of the delegate and Authority making different findings of fact, or of particular reasoning of the Authority of which the applicant was not given advance notice, as giving rise to a need to invite him to an interview:
(a)the Authority’s found at [26] that the applicant had fabricated claims of harassment of his mother in Sri Lanka by the authorities in respect of him, and the applicant submitted to the Court that this was based on an unreasonable expectation of him;
(b)the Authority found at [14] that the applicant would be able to negotiate with the LTTE, and the applicant submitted to the Court that this was a new concern which was not put to the applicant by the delegate; and
(c)the delegate accepted that the applicant had been interrogated and beaten, but the Authority did not accept this.
The Authority is required to conduct the review de novo: Plaintiff M174 at [17]. The Authority is not required in every case to alert an applicant to proposed findings that differ to those made by the delegate and invite comment from the applicant. As the Full Court of the Federal Court explained in DGZ16:
72In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. …
…
76 It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
The High Court confirmed in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [24] that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view on credibility than did the delegate.
That is not to say, however, that there are not some cases where it is unreasonable for the Authority to make certain findings of fact without giving the applicant an opportunity to comment in writing or at an interview. Cases such as DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 (DPI17) and Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 (CRY16) are examples of this.
I do not consider that any failure by the Authority to consider inviting the applicant to provide further information under s 473DC was unreasonable in the circumstances of this case. I deal with each of the factual issues referred to by the applicant in turn.
The complaint in relation to [26] of the Authority’s reasons was referred to in the application but does not appear to have been addressed in the submissions of either party. Paragraph 26 reads:
The applicant claimed in his written statement that plain clothed men he believed to be CID officers had visited his mother’s house and questioned her regarding his whereabouts. At the SHEV interview he confirmed these CID visits had occurred many times. The applicant was extremely vague in relation to these purported visits by the authorities to his mother’s house. Although the alleged visits are claimed to have occurred whilst the applicant was in Australia, I would expect the applicant to have some information of these events particularly as it directly relates to him and his claimed fear. In light of his evidence, and given my findings as to the applicant’s credibility I consider his inability to divulge further details about these incidents is due to the applicant’s fabrication of these events. I am not satisfied that the applicant’s mother has been visited by the CID or anyone else on account of the applicant’s whereabouts as he has claimed.
I infer that the complaint in relation to this paragraph is that the Authority rejected the applicant’s evidence and found that he had fabricated the claims that the CID had visited his mother on the basis that the applicant’s evidence was vague, without giving him an opportunity to provide further evidence. This does not give rise to any unreasonableness on the part of the Authority in failing to invite the applicant to an interview. It is clear from the Authority’s reasons in [26] that the applicant was invited to, and did, comment on this issue when his matter was before the delegate. It was not unreasonable for the Authority not to invite the applicant to comment on the same issue that the delegate that already given him an opportunity to address.
I next consider the Authority’s disbelief that the applicant was able to negotiate his role within the LTTE. I acknowledge that the applicant was not specifically asked at the protection visa interview with the delegate how he was able to negotiate with the LTTE in relation to the role that he undertook. However, he was clearly on notice that whether he was involved with the LTTE was in issue, and he was aware from the delegate’s decision that the delegate had not accepted his claims in relation to LTTE involvement. The applicant had the opportunity to explain his claims in relation to LTTE involvement in writing and at the protection visa interview, and did not seek to provide new information to the Authority about the factual foundation of his claims.
This is vastly different from a situation such as that in CRY16 where reasonableness of relocation had not been a dispositive issue before the delegate, but was before the Authority. It is also vastly different from a situation such as that in DPI17, where the Authority drew adverse inferences against an applicant in relation to inconsistencies in sexual assault claims, in circumstances where the delegate had accepted those claims based in part on the applicant’s demeanour and had not asked the applicant to explain any inconsistencies. In both of those cases, it was unreasonable for the Authority not to consider exercising the discretion in s 473DC(3) of the Migration Act to invite the applicant to provide further information. The type of error identified in those cases does not arise in the present case.
The final aspect of this ground is the assertion that it was unreasonable for the Authority not to invite the applicant to provide further information about his claims of abduction and torture by the TMVP. Part of the applicant’s submissions on this issue stem from the applicant’s belief that the delegate accepted that he had been abducted and tortured by the TMVP. I have already explained above why I consider that this is a misinterpretation of the delegate’s reasons and do not address it further here.
That leaves the applicant’s complaint raised primarily in relation to ground 2 regarding the Authority’s finding to the effect that it was implausible that the applicant’s mother would know where to find him following the abduction in circumstances where there was no suggestion that the TMVP members were followed and it was implausible that bystanders would know where the applicant was taken. Paragraph 16 of the Authority’s reasons makes clear that the applicant was invited to explain at the protection visa interview how his parents knew where to find him. The applicant responded, but the Authority did not accept the applicant’s explanation. Any failure by the Authority to consider exercising its discretion to get new information on this issue was not unreasonable.
In the present case, the applicant has had a full opportunity to present his claims to the delegate and Authority. The Authority has simply drawn different conclusions from the same evidence that was before the delegate. This does not give rise to a need to consider inviting the applicant to an interview.
Conclusion on ground 3
While I have given reasons as to why, in my view, the various issues raised by the applicant did not make any failure by the Authority to consider inviting the applicant to an interview to be unreasonable, I have also considered those reasons cumulatively. Even considered cumulatively, there is nothing in the circumstances of this case that would render unreasonable any failure of the Authority to consider inviting the applicant to provide further information.
Ground 3 is not established.
CONCLUSION
For the reasons set out above, I grant the applicant an extension of time to file his application for judicial review. However, I do not grant leave to the applicant to rely on the further amended application dated 23 September 2021 and I dismiss the application for judicial review.
I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 27 January 2022
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