KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
ABT17 APPELLANT
AND
MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS
ABT17 v Minister for Immigration and Border Protection
[2020] HCA 34
Date of Hearing: 6 August 2020 Date of Judgment: 14 October 2020
M140/2019
ORDER
1.Appeal allowed.
2. Set aside the orders of the Federal Court of Australia made on 16 April 2019 and, in their place, order that:
(a) the appeal to that Court be allowed;
(b) the orders of the Federal Circuit Court of Australia made on 23 March 2018 be set aside and, in their place, it be ordered that:
(i) writs of certiorari and mandamus be issued to the second respondent quashing the decision made on 16 December 2016 and remitting the matter to be determined according to law; and
(ii) the first respondent pay the applicant's costs of the application for judicial review to the Federal Circuit Court of Australia; and
(c) the first respondent pay the appellant's costs of the appeal to that Court.
3. The first respondent pay the appellant's costs of the appeal to this Court.
On appeal from the Federal Court of Australia
Representation
M A Schilling with A N P McBeth for the appellant (instructed by Clothier Anderson Immigration Lawyers)
G A Hill for the first respondent (instructed by Sparke Helmore)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
ABT17 v Minister for Immigration and Border Protection
Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("IAA") – Review by IAA under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection ("Minister") refused to grant appellant temporary protection visa – Where delegate accepted appellant's account as plausible, but found appellant did not hold well‑founded fear of persecution based on country information – Where delegate's decision referred to IAA for review – Where IAA affirmed delegate's decision – Where IAA departed from delegate's assessment of appellant's credibility – Where under s 473DB IAA generally required to review fast track reviewable decision by considering review material, and without accepting new information or interviewing applicant – Where under s 473DC IAA may get new information not before Minister and that IAA considers may be relevant, including by inviting applicant to interview – Where under s 473DD IAA must not consider new information unless satisfied there are exceptional circumstances, and that new information was not and could not have been before Minister or is credible personal information – Whether legally unreasonable for IAA to depart from delegate's assessment of appellant's credibility without inviting appellant to interview – Whether appellant's demeanour "new information" within meaning of s 473DC – Whether failure to invite appellant to interview was material to IAA's decision.
Words and phrases – "credibility", "de novo review", "demeanour", "fast track reviewable decision", "Immigration Assessment…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Case
[2020] HCA 34
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by an applicant against the Minister for Immigration and Border Protection concerning a decision by the Immigration Assessment Authority (IAA) to affirm the refusal of a temporary protection visa. The applicant, an unauthorised maritime arrival from Sri Lanka, had claimed to fear persecution based on his ethnicity and past experiences with the Sri Lankan Army. The delegate of the Minister had accepted the applicant's account as plausible but ultimately refused the visa based on country information suggesting improved circumstances. The IAA, reviewing the decision under the fast-track provisions of the *Migration Act 1958* (Cth), departed from the delegate's assessment of the applicant's credibility, finding some claims exaggerated and others implausible, without inviting the applicant for an interview.
The central legal issues before the High Court were whether the IAA acted with legal unreasonableness in departing from the delegate's assessment of the appellant's credibility without inviting the appellant to an interview, whether the appellant's demeanour during the delegate's interview constituted "new information" under section 473DC of the *Migration Act*, and whether the IAA's failure to invite the appellant to an interview was material to its decision. These questions arose from the IAA's statutory obligation to review decisions, its discretion to consider new information, and the general requirement to conduct reviews without new interviews or information unless exceptional circumstances were met.
The High Court reasoned that the IAA's departure from the delegate's positive assessment of the appellant's credibility, particularly regarding the plausibility of his claims of torture, was legally unreasonable. The IAA's adverse findings about the appellant's demeanour during the delegate's interview, such as vagueness and hesitation, were found to be a departure from the delegate's direct observation and assessment of plausibility. The Court held that such a departure, especially when it led to a rejection of core claims, created an "informational gap" that could only be reasonably addressed by allowing the appellant an opportunity to be interviewed, as contemplated by section 473DC. The Court concluded that the failure to provide this opportunity was material to the IAA's decision.
The High Court allowed the appeal, setting aside the orders of the Federal Court and remitting the matter to be determined according to law. The decision also included orders for the Minister to pay the appellant's costs at various court levels.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Federal Court of Australia made on 16 April 2019 and, in their place, order that:
(a) the appeal to that Court be allowed;
(b) the orders of the Federal Circuit Court of Australia made on 23 March 2018 be set aside and, in their place, it be ordered that:
(i) writs of certiorari and mandamus be issued to the second respondent quashing the decision made on 16 December 2016 and remitting the matter to be determined according to law; and
(ii) the first respondent pay the applicant's costs of the application for judicial review to the Federal Circuit Court of Australia; and
(c) the first respondent pay the appellant's costs of the appeal to that Court.
3. The first respondent pay the appellant's costs of the appeal to this Court.
Background
Background to the litigation
The issue presented by the appeal is whether the IAA acted with legal unreasonableness by departing from the delegate's assessment of the appellant's credibility, and thus the delegate's assessment of the plausibility of the appellant's claims. For the reasons which follow, it was legally unreasonable for the IAA to depart from the delegate's assessment of the plausibility of the appellant's claims, and the appeal should be allowed.The facts The appellant is a citizen of Sri Lanka of Tamil ethnicity who, on 27 August 2012, arrived in Australia by boat at an excised offshore place without a visa, and consequently as an "unauthorised maritime arrival" within the meaning of s 5AA of the Migration Act 1958 (Cth) ("the Act"). On 5August 2013, the appellant lodged an application for a temporary protection visa, which was invalid, but, on 23 October 2015, he lodged a further, valid application for a temporary protection visa in which he made the following claims:(1)In May 2009, whilst travelling to an internally displaced persons camp, members of the Sri Lankan Army ("SLA") detained the appellant's brother on suspicion of being a member of the Liberation Tigers of Tamil Eelam ("LTTE").(2)Shortly after the family's release from the displaced persons camp, SLA officers attended the appellant's home to question him about his travel history and involvement with the LTTE. A day later, the appellant received a letter requesting his attendance at an army camp where, upon his attendance, SLA officers interrogated him and severely beat him when he denied involvement with the LTTE. He was released later that day.(3)Subsequently, and over a period of a number of years, SLA officers repeatedly detained the appellant and accused him of being an LTTE member. They also beat him on these occasions.(4)In around May 2011, an SLA officer attended the appellant's home to request the appellant's attendance at the army camp. The appellant was asleep. His sister indicated to the officer that the appellant was not at home. The officer assaulted his sister and the appellant was woken by the noise and physically defended her. The following morning, a group of men detained the appellant for six days, during which time he was again beaten. The group of men indicated to the appellant that this was revenge for his defence of his sister. The appellant's brother achieved the appellant's release by paying a bribe.(5)In April 2012, the appellant was called again to attend at the army camp. He tried to escape but was recaptured and beaten severely.(6)Shortly after the appellant's arrival in Australia, SLA officers attended the appellant's home in Sri Lanka to inquire of his family as to the appellant's whereabouts.The delegate's decision On 21 September 2016, the Minister's delegate decided to refuse to grant the appellant a temporary protection visa. During the appellant's interview with the delegate ("the TPV interview"), the appellant, at the delegate's request, removed his shirt and showed the delegate scarring on his back which he said was inflicted by SLA officers. The appellant also disclosed to the delegate that he had been sexually tortured during the incident in which he was detained by the SLA for six days in May 2011, in addition to being locked up, deprived of food and beaten.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER AND KEANE JJ
NETTLE J
(dissent)
The delegate found that the appellant's evidence during the TPV interview, including that the appellant had been subjected to sexual torture during the 2011 incident, was plausible and broadly consistent with country information pertaining to the events which the appellant described. But based on country information pertaining to the improvement in circumstances relating to Tamils in Sri Lanka since the appellant's departure from that country, the delegate was not satisfied that there was any longer a real chance that the appellant would face serious or significant harm upon his return there, and, on that basis, found that the appellant could not be said to have a well-founded fear of being persecuted by the Sri Lankan authorities by reason of his Tamil ethnicity, his membership of particular social groups (broadly defined as "Tamils from the North" and "young Tamil males from Northern Sri Lanka"), or his status as a failed asylum seeker and a person who had illegally departed Sri Lanka.The IAA's decision The delegate's decision was referred to the IAA for review as a "fast track reviewable decision", pursuant to s 473CA of the Act. The IAA accepted some of the appellant's claims but found that others were exaggerated and embellished in order to enhance the appellant's "profile" as someone who would be of interest to the SLA or the Sri Lankan authorities. The IAA accepted that the appellant had "experienced regular, low-level harassment from members of the SLA on a day-to-day basis", and that, as a young male returnee from a displaced persons camp, he may have been viewed with a certain amount of suspicion by the SLA. But the IAA did not accept that the appellant was questioned and beaten in late 2009, or that he was targeted and beaten every three to four months by the SLA with a view to making him confess that he was in the LTTE. The IAA accepted that the appellant's brother had been detained for over two years on suspicion of being with the LTTE, but the IAA found it implausible that the appellant was not questioned about his brother during the time that the appellant was detained. The IAA was also not satisfied that the appellant was detained and sexually tortured in May 2011: first, because the appellant's family had not taken immediate steps to have the appellant released (as it was said they had done on other occasions); and secondly, because of the manner in which the appellant gave evidence at the TPV interview about his claim of sexual torture. In particular, from listening to an oral recording of the TPV interview, the IAA found that the appellant's evidence before the delegate was lacking in detail, the appellant appeared unable to expand in any detail on a number of his claims, and, at times, the appellant sounded vague and hesitant. The IAA also rejected the appellant's claim that he was detained and beaten in April 2012 and asked to sign a document admitting his LTTE involvement, because, the IAA said, the appellant's evidence about that claim had varied between his written claims and the evidence he gave in the TPV interview.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER AND KEANE JJ,