AGK18 v Minister for Immigration and Border Protection
[2024] FedCFamC2G 877
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AGK18 v Minister for Immigration and Border Protection [2024] FedCFamC2G 877
File number(s): MLG 135 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 13 September 2024 Catchwords: MIGRATION - application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed decision of first respondent that applicant is not a person in respect of whom Australia has protection obligations – consideration of the Authority’s application of s 473DD of the Migration Act 1958 (Cth) – found that it could not be inferred that the requisite assessment of the new information occurred – found the Authority conflated s 473DD(b)(i) and (ii) - found jurisdictional error – application allowed. Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2), 473DB(1), 473DC(1), 473DD, 474, 476 Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 29 April 2024 Place: Melbourne Counsel for the Applicant: Ms Pathanjalimanoharar Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr Yuile Solicitor for the First Respondent: Mills Oakley Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
MLG 135 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGK18
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Applicant’s Amended Application for an Order pursuant to s 476 of the Migration Act 1958 (Cth) be granted.
3.A writ of certiori be issued directed to the Second Respondent quashing the decision dated 22 December 2017.
4.A writ of mandamus be issued directed to the Second Respondent requiring it to reconsider and determine the applicant’s Application according to law.
5.The First Respondent pay the Applicant’s costs in the amount of $8,371.30.
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 J YOUNG:
INTRODUCTION
Before the Court is an Amended Application filed on 5 April 2024, in which the applicant seeks judicial review of a decision of the second respondent (Authority) dated 22 December 2017. By that decision, the Authority affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (Visa).
CONTEXT
The applicant is a citizen of Sri Lanka.
On 8 November 2012 the applicant arrived in Australia by boat as an unauthorised maritime arrival.
On 8 February 2017 the applicant applied for the Visa. The applicant’s claims were set out in a Statutory Declaration submitted with the Visa application and can be summarised as follows:
(1)his father disappeared in 2009. His mother told him she believed his father was abducted by the Criminal Investigations Division (CID) because he was suspected of assisting the Liberation Tamil Tigers of Eelam (LTTE);
(2)his problems began when he was at school in 2010 when the People’s Liberation Organisation of Tamil Eelam (PLOTE) forced him to put up posters for their election campaign;
(3)while putting up posters, he was caught by rival political party Eelam Revolutionary Organisation of Students (EROS). He was kept overnight at their compound;
(4)the next morning, the applicant was taken to the Eelam People’s Democratic Party (EPDP) camp where he was stripped to his underwear, photographed, had any identifying marks noted and was given cleaning work to do as punishment. At around 3.00pm that day, the CID came to the camp, took the information the EDPD had collected and he was released.
(5)three weeks later, a CID officer came to his house and said he was looking for weapons. The CID officer saw a picture of the applicant’s father on the wall and said words to the effect of “Suresh! Bloody tiger!”. The applicant claims that the CID officer’s recognition of his father is evidence that the CID must have kidnapped his father.
(6)he went to Colombo to organise a passport as he wanted to leave the country. Two days later, his mother called him and told him that the CID had come to the house looking for him. As the only adult male in the family, the applicant returned home to protect his family;
(7)the CID came to his house and “slapped” him in the face and told him to never leave the area without their permission;
(8)in March 2011, the applicant followed his employer to Jaffna on a work contract. After three days, the DIC again came to his house looking for him. The applicant returned home and reported to the CID office where CID officers beat him;
(9)in September 2011, he tried to get a passport but was unable to get clearance from the local village officer because he was on a list of people banned from leaving Vuvuniya;
(10)he eventually left for Australia around 3 June 2012, however, the boat was intercepted and returned to Sri Lanka. The applicant was arrested, remanded for 1 day and then released on bail;
(11)he returned home and CID officers came to the house. One of them squashed the applicant’s testicle with his foot and said “Next time there won’t be any warning. You will find his body somewhere and you will have to bring it home yourself”;
(12)he went to his grandmother’s house in Jaffna. Although he was warned not to leave Vavuniya, the applicant was scared to remain there;
(13)he left Jaffna on 20 September and stayed in Batticaloa for about a month until he boarded another boat for Australia;
(14)he fears if he returns to Sri Lanka he will be killed by the CID; and
(15)he fears he will be detained, tortured and killed by the CID because of the outstanding warrant and fears he will be charged with a second offence for departing Sri Lanka illegally.
Additionally, the applicant submitted with his Visa application a letter in support of his claims from the purported President of PLOTE. The letter stated that the applicant was actively involved in PLOTE’s political activities, especially in the 2010 and 2011 election campaigns.
On 11 May 2017 the Delegate refused to grant the applicant the Visa. The Delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
On 17 May 2017, the Department of Immigration and Border Protection (Department) referred the Delegate’s decision to the Authority for review under Part 7AA of the Act.
On 8 June 2017 the applicant provided the Authority with a written statement addressing inconsistencies identified by the Delegate and further setting out his claims (2017 Statement). In the 2017 Statement the applicant addressed inconsistencies identified by the Delegate and provided what the applicant said was a clarified timeline of events in relation to CID visits.
AUTHORITY DECISION
On 22 December 2017, the Authority affirmed the Delegate’s decision not to grant the applicant the Visa.
At paragraphs [3] – [15] of its decision, the Authority set out the information it had before it, including new information provided to the Authority in the applicant’s 2017 Statement.
At paragraph [5] of its decision the Authority rejected that the 2017 Statement contained a clarified timeline, finding that the 2017 Statement provided a new sequence of events that was not before the Delegate and which was new information.
At paragraph [6], the Authority identified the following claims made by the applicant in the 2017 Statement as new information:
·When the CID visited his home after he was released from the EPDP camp they told him to stay away from their territory and were asking him what other activities he was involved in. He believes they thought he was involved in the LTTE. As he had attended a Martyrs Day Ceremony he now believes this further added to their suspicion of him but he did not disclose this as it did not occur to him to be relevant until recently (Martyrs Day Claim).
·The last time the CID went to his house was one or two weeks after the previous visit (after his return from the failed boat journey) when he believes they were under the influence of alcohol and they beat him with their hands (CID Last Visit Claim).
·He recently found out his grandmother had given money to the people smugglers to pay his bail and because of this he believes the people smuggler has the paperwork from the bail (Grandmother Claim).
To the extent the 2017 Statement contained new information, at paragraph [14], the Authority found the following:
I am not satisfied that the applicant could not have provided information about chronology, attending a Martyrs Day Ceremony, his grandmother paying for his bail or the CID’s questioning or suspicion of his LTTE involvement to the delegate before the delegate’s decision was made and I do not consider it plausible that he would not have appreciated the relevance of this information if true. The applicant has not satisfied me that this new information either could not have been provided to the delegate or that it is credible personal information. I am not satisfied that there are any exceptional circumstances to justify considering this information.
At paragraph [16] of its decision, the Authority summarised the applicant’s claims.
At paragraphs [17] – [44] of its decision, the Authority made a number of factual findings regarding the applicant, including: his father’s disappearance, his involvement with PLOTE’s 2010 election campaign, visits to his home by the CID, the arrest for his first illegal departure, visits by the CID since leaving Sri Lanka and his illegal departure.
At paragraph [48] if its decision, the Authority made the following findings:
I do not accept his father was abducted by the CID or that he had any involvement with the LTTE and I do not accept his father’s brother died fighting for the LTTE. I do not accept he was detained and mistreated by EROS, taken to the EPDP camp or visited by the CID in that camp or later at his home as a consequence of being caught putting up PLOTE’s posters. I do not accept the CID visited his home or harassed him in connection with his father, uncle or PLOTE activities. I do not accept that the applicant was on a “list” of people prohibited from leaving Vavuniya. I do not accept the applicant was arrested and released on bail for trying to depart Sri Lanka illegally in June 2012 or that CID were looking for him after his departure. I do not accept that he continues to be wanted by EROS, the CID or any other persons in connection with events in Sri Lanka prior to his departure.
After considering the applicant’s profile and relevant country information, the Authority found at paragraph [52] that there was not a real chance he would be detained, interrogated, tortured or otherwise harmed on his return to Sri Lanka by reason of his ethnicity, origin, imputed political opinion or previous experiences with the CID, PLOTE or because he has lived in Australia for five years. At paragraph [53], the Authority did not accept that the applicant was a person of interest to the authorities and was not satisfied that he faced a real chance of harm as a returning asylum seeker.
Accordingly, the Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act, and therefore did not meet the criteria in ss 36(2)(a) or 36(2)(aa) of the Act.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Authority’s decision on 18 January 2018. The applicant filed an Amended Application on 5 April 2024.
The Amended Application contains the following grounds for judicial review (without amendment):
1.The IAA breached the procedural duty in s 473DD by failing to assess each piece of new information first against the criteria specified in each of s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a).
Particulars
a.At [5] and [6] of its Reasons, the IAA identified pieces of new information that were before it.
b.The IAA’s focus (at [7]-[9]) was on the ‘ample opportunities’ it said the Applicant had had to put his claims and to raise the matters raised in the new information rather than applying each of the s 473DD criteria to each piece of new information.
c.The IAA failed to assess each of the following pieces of new information first against the criteria specified in each of s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a):
i.the clarified timeline, identified as ‘new information’ by the IAA at [5], and dealt with at [12] and [14] of the Reasons;
ii.the Martyrs Day claim, identified as ‘new information’ by the IAA at [6], and dealt with at [10] and [14] of the Reasons;
iii.the claim regarding the CID beating the Applicant with their hands at the Applicant’s house while under the influence of alcohol, 1-2 weeks after he returned from a failed boat journey, which was identified as ‘new information’ by the IAA at [6], but not otherwise dealt with in the Reasons. It is inferred that when the IAA decided at [14] not to consider any of the new information that this included the new information regarding the CID beating at the Applicant’s home.
2.Further or alternatively, the IAA misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed when it reasoned on the premise that new information must be found to be true to be ‘credible personal information’ for the purposes of s 473DD(b)(ii).
Particulars
a.The IAA’s imposition of a higher standard of satisfaction than s 473DD(b)(ii) required is apparent from its conclusion at [14] that ‘I do not consider it plausible that [the Applicant] would not have appreciated the relevant of [the new information] if true (emphasis added).
b.It can also be inferred from the following findings of the IAA, which suggest that the IAA was using the word ‘credible’ to mean ‘true’, rather than ‘capable of being believed’:
i.‘if the new information in relation to the Martyrs Day Ceremony was credible he would have raised this at a much earlier stage’ (at [10]);
ii.in respect of the clarified timeline, the IAA ‘doubted the credibility’ of the new information (at [12]) because the IAA considered it to be inconsistent with previous material put forward by the Applicant, notwithstanding that the reason given by the Applicant (noted at [5] of the Reasons) for the clarified timeline was to address inconsistencies raised by the delegate.
3.Further or alternatively, the IAA engaged in irrational or illogical reasoning in its assessment of the evidence of the Applicant’s claims relating to the disappearance of his father and his father’s brother (Applicant’s uncle), and their connections with the Liberation Tigers of Tamil Eelam (LTTE).
Particulars
The IAA’s reasoning was irrational and/or illogical in respect of:
a.The IAA reaching the conclusion (at [19]) that the Applicant’s father was not involved with the LTTE in any way, without taking into account the Applicant’s evidence that a CID officer recognised a photograph of the Applicant’s father in his home and referred to him as a ‘bloody Tiger’ (at [28]) (a reference to the LTTE), and instead using the former conclusion to reject the latter evidence.
b.The IAA’s acceptance of the Applicant’s evidence that his uncle disappeared but not accepting the Applicant’s evidence that his uncle was involved with the LTTE (at [19] of the Reasons), in circumstances where:
i.on both occasions when the Applicant referred to his uncle it was in the context of the uncle’s involvement with the LTTE (at [19]); and
ii.the only inconsistency identified by the IAA was in respect of the date of the Applicant’s uncle’s disappearance (at [19]).
c.The IAA’s finding (at [19]) that the Applicant intentionally ‘fabricated’ a ‘2009’ date for his father’s disappearance as a more recent date (compared to the date of about 2008 that the IAA appears to have accepted at [47]) to improve his case, rather than finding that the Applicant recalled the date inconsistently on different occasions between 4 and 9 years later, in the context of:
i.the Applicant being about 14 years old at the time of his father’s disappearance, as accepted by the IAA (Reasons [47]);
ii.the Applicant having been aged ‘about 14 years old’ in about 2008 and his ‘inconsistent’ accounts having occurred in 2012 (entry interview), 2016 (SHEV statement) and 2017 (SHEV interview); and
iii.the Applicant’s recollection of the date of his uncle’s disappearance having shifted from 2009 (SHEV statement) to 2007 (SHEV interview) (Reasons [19]), which, applying the IAA’s logic in respect of the claims regarding the Applicant’s father, would be a shift less favourable to the Applicant’s case.
The applicant also filed the following documents:
(1)an affidavit filed on 18 January 2018 which annexed the Authority’s Decision; and
(2)written submissions filed on 5 April 2024.
The Minister filed a Response on 4 March 2018. The Response contained the following grounds:
1.The application filed on 18 January 2018 seeks judicial review of a decision of the Immigration Assessment Authority (IAA) dated 22 December 2017.
2.The grounds of review pleaded are broad and lack meaningful particulars. Moreover, contrary to what is asserted by the grounds of review, the IAA does not fall into error by departing from the delegate's reasoning and is not obliged to put the applicant on notice that it may do so. See DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12.
3.The first respondent opposes all orders sought by the application on the basis that no arguable case for the relief sought is raised.
The Minister also filed written submissions on 17 April 2024.
The Hearing
The hearing took place on 29 April 2024. The applicant was represented by Ms Pathanjalimanoharar of Counsel and Mr Yuile of Counsel appeared for the Minister.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Grounds 1 and 2 deal with the Authority’s application of s 473DD of the Act. It is useful first to set out the relevant sections of the Act.
Section 473DB(1) of the Act provides as follows:
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
Section 473DC(1) of the Act provides as follows:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
Section 473DD of the Act provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The correct approach to considering new information pursuant to s 473DD was set out in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (AUS17) where, at [12] – [13] the High Court said:
Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non‑performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a) (footnotes omitted).
There is no dispute between the parties that the relevant legal principles are set out in AUS17.
Ground 1
Applicant’s submissions
By Ground 1 the applicant submits that the Authority did not perform the procedural duty in s 473DD. The applicant submits that the Authority was required to assess each piece of new information first against the criteria specified in each of s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). The applicant submits that in discussing whether the new information should be considered at paragraphs [7] - [14] the Authority is preoccupied with the “ample opportunities” the applicant had to put his claims and raise the new information, rather than applying the criteria in s 473DD.
The applicant submits that the Authority:
(a)conflated s 473DD(b)(i) and (ii) in relation to the Martyrs Day Claim;
(b)did not apply s 473DD to the clarified timeline discussed at paragraph [12] of the decision; and
(c)does not deal with the CID Last Visit Claim at all.
No issue is taken with the Authority’s approach to the Grandmother Claim.
The applicant submits that the error here is similar to that found in BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272 (BTA18).
Consideration
It is apparent that the Authority in its decision did not explicitly reference s 473DD or the criteria under that section that it was considering at various points in its reasons. I accept that this is not required and that it is sufficient if the Court “is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed in s 473DD(b) has been considered prior to a consideration as to whether exceptional circumstances exist for the purposes of s 473DD(a)”; APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79].
I reject the submission that the Authority was preoccupied with the “ample opportunities” the applicant had to put his claims and raise the new information. The Authority’s general comments at paragraphs [8] and [9] are in response to the applicant’s submissions, set out a paragraph [7] of the Authority’s decision, that the new information had not been previously provided because the applicant had not previously had legal representation, the events were a long time ago and he had not been questioned chronologically. Paragraphs [8] and [9] set out why those explanations were not accepted.
However, for the reasons that follow I do not consider that it can be inferred that the “requisite assessment occurred” and accordingly find that the Authority fell into error.
In relation to the Martyrs Day Claim at paragraph [10] of its decision the Authority said:
…Taking into account the level of personal involvement he had in organising and attending the ceremony, the seriousness of the consequences he claims flowed from this involvement and that he has previously provided other evidence which he claims contributed to his having an adverse profile with the authorities, I consider that if the new information in relation to the Martyrs Day Ceremony was credible he would have raised this at a much earlier stage.
(Emphasis added)
I accept the applicant’s submissions that in so finding the Authority conflated s 473DD(b)(i) and (ii). The Minister submits that this is not a conflation of s 473DD(b)(i) and (ii) but rather acknowledges a link between the two sections. The Minister submits that there is discussion in the decision around timing, not because the Authority conflated these issues but because credibility was connected to timing. For the following reasons I reject those submissions. Firstly, no express finding is made as to whether the Martyrs Day Claim could have been provided to the Delegate before the Delegate’s decision was made for the purposes of s 473DD(b)(i). Secondly, the reference to the credibility of the new information in paragraph [10] is by reference to the failure to have provided it to earlier. Thirdly, no express finding is made as to whether the information is credible personal information which was not previously known. Although a conclusory statement in respect of these matters is included at paragraph [14] of the Authority’s decision, I do not consider this remedies the failure by the Authority to undertake the relevant statutory task. That statement is unsupported by any reasoning. Accordingly, I consider that the Authority has conflated subsections 473DD(b)(i) and (ii), essentially treating whether the information could have been provided to the Delegate before the decision as determinative of whether the information is credible and in so doing fell into error.
In relation to the clarified timeline, at paragraph [12] of the decision the Authority said:
The new sequence of events (timeline) in relation to visits by the CID omits a number of additional occasions that the applicant has previously claimed, introduces an entirely new visit and is not only inconsistent with his verbal evidence but also his SHEV application, which makes me doubt the credibility of this new information.
Contrary to the applicant’s submission that the “IAA say only that due to inconsistencies with other evidence put forward by the Applicant, it doubts the credibility of the Clarified Timeline”, I consider it clear from the above that the Authority provided three bases upon which it found that the new information was not credible. However, the Authority provides no assessment of s 473DD(b)(i) in relation to this new information, nor any reasons for its conclusion in paragraph [14]. In those circumstances, as set out above, I do not consider paragraph [14] remedies the failure by the Authority to undertake the relevant statutory task, nor the contents of paragraph [8] which I have addressed earlier. Accordingly, I consider the Authority fell into error in relation to this new information also.
In relation to the CID Last Visit Claim, as set out above, paragraph [12] of the Authority’s decision includes reference to the introduction of an “entirely new visit”. Read in context, and in particular in light of the new information identified by the Authority in paragraph [6], this can only refer to the CID Last Visit Claim. Accordingly, I reject the Applicant’s submission that the Authority did not consider the CID Last Visit Claim at all. However, I do not consider that the Authority provides any assessment of s 473DD(b)(i) in relation to this new information nor any reasons for its conclusion in paragraph [14]. In those circumstances, as set out above, I do not consider paragraph [14] remedies the failure by the Authority to undertake the relevant statutory task, nor the contents of paragraph [8] which I have addressed earlier. Accordingly, I consider the Authority fell into error in relation to this new information also.
It follows that the Authority misapplied s 473DD and in so doing fell into error.
Ground 2
Applicant’s submission
By Ground 2, further or in the alternative to Ground 1, the applicant submits that the Authority erred when it reasoned on the premise that new information must be found to be true to be “credible personal information” for the purposes of s 473DD(b)(ii).
Given my findings in relation to Ground 1, it is not necessary that I consider Ground 2.
Ground 3
Applicant’s submission
By Ground 3 the applicant submits that the Authority engaged in irrational or illogical reasoning in its assessment of the evidence of the applicant’s claim relating to the disappearance of his father and his uncle and their connections with the LTTE. The applicant submits that the Authority’s reasoning shows an extreme level of illogicality or irrationality in the following three respects:
(a)in relation to the father’s disappearance;
(b)in relation to the reasons for the uncle’s disappearance; and
(c)in relation to the date of the father’s disappearance.
Consideration
The Authority summarised the Applicant’s claims regarding his father and uncle as follows in paragraph [16] of its decision:
…
•His father disappeared when he was about 14 years old. His mother told him she believed he had been abducted by the CID because they suspected him of assisting the LTTE. His father’s brother fought with the LTTE and his father assisted him with transporting things for the LTTE. His father’s brother is also missing.
…
•Three weeks later, a CID officer came to his come looking for weapons but searched bags and intimated family members while there. The applicant’s mother was convinced the CID officer was the one who kidnapped the applicant’s father because he recognised his father in the photos. After this incident he came under more scrutiny by the CID.
…
•He also fears… that he will disappear like his father did…
The characterisation, as irrational or illogical, of a finding made as part of the reasoning process underpinning a conclusion on a jurisdictional fact, is not easily made. The applicant must do more than merely disagree with the reasoning or resulting finding: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [124] per Crennan and Bell JJ. Engaging in a process of reasoning that is illogical or irrational is taken to refer to “extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148].
In relation to the father’s disappearance, the applicant submits that it was illogical and irrational for the Authority to first make an adverse finding about the credibility of the applicant’s claim about the involvement of the applicant’s father with the LTTE, based on inconsistencies in the applicant’s account, and then separately to consider later claims about a visit by the CID to the family home to make a further adverse finding, rather than considering the applicant’s claim regarding the CID officer recognising the photo of the applicant’s father as part of its assessment of the applicant’s claim that his father assisted the LTTE and was abducted by the CID because of this. In doing so the applicant submits that the Authority rejected the applicant’s claim that his father was involved with the LTTE and kidnapped by the CID without considering all the evidence.
I reject those submissions and accept the Minister’s submission on this point. A decision-maker may legitimately assess the evidence of a witness (or applicant) in different ways and provide different modes of reasoning in assessing the evidence given, including corroborative evidence. In Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, Gleeson J said at [12]:
The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. … It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
McHugh and Gummow JJ also said at [49]:
The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
As the Minister submits, the Authority was entitled to first consider the applicant’s evidence about when his father disappeared and why and to make findings on that claim before looking to the claimed later visit of the CID. That visit was a distinct event for the Authority to consider. It was open to the Authority to consider this event either with the applicant’s earlier evidence or to assess that earlier evidence first and then to reason from there. There is no irrationality or unreasonableness in the approach adopted by the Authority.
In relation to the reasons for the uncle’s disappearance the applicant submits that there was no rational basis for accepting the applicant’s evidence that he disappeared but not accepting the applicant’s evidence that his uncle was involved with the LTTE.
I reject those submissions.
At paragraph [19] of its decision, the Authority said:
Given the inconsistencies, I do not accept he feared bringing up certain claims in relation to the CID in the arrival interview because others told him he would be sent back if he did. Given he has consistently claimed his father disappeared, I am willing to accept this. Given the material inconsistencies I do not accept he disappeared later in 2009 or that he was abducted by the CID because of his work for the LTTE when helping his brother as claimed. I consider the later date a fabrication intended to bring his father’s disappearance closer in time to his departure from Sri Lanka in support his claim that he fled because he was of interest given his father’s involvement with the LTTE. The applicant first raised the claim that his uncle was a member of the LTTE in the statement, when he said he died fighting with the LTTE in 2009. He briefly mentioned his uncle again in the SHEV interview to support his claims about his father assisting the LTTE. In contrast to the statement, in the SHEV interview the applicant stated that his uncle disappeared in 2007. Given the inconsistencies and lack of detail, I do not accept his father’s brother fought and died fighting with the LTTE although I am willing to accept he disappeared when the applicant was younger.
Accordingly, the Authority’s reasons for not accepting that the applicant’s uncle fought and died fighting with the LTTE were the inconsistencies in the applicant’s evidence and the lack of detail. It appears from paragraph [19], when read as a whole, that the Authority had doubts about all of the claims that the applicant made about his uncle’s disappearance but was prepared to give the applicant the benefit of the doubt in relation to the issue of his uncle’s disappearance. The Authority set out logical reasons for not accepting the applicant’s evidence about his uncle. There was inconsistency about the date when the uncle is said to have disappeared and the applicant had failed to provide a level of detail beyond their claims. On that basis, it was not irrational for the Authority to reject that part of the applicant's claim.
Finally, as to the date of the applicant’s father’s disappearance, the applicant submits that it was illogical or irrational for the Authority to find that the applicant “fabricated” the date of his father’s disappearance, rather than simply recalled it incorrectly, in circumstances where the applicant was about 14 years old at the time and these accounts were given years later, the Authority had accepted that the father had disappeared in about 2008 and the Authority had found that the applicant’s recollection of the date of his uncle’s disappearance had shifted in the opposite direction.
I also reject those submissions. By those submissions, I consider that the applicant seeks impermissible merits review. In the applicant’s statement of the relevant facts the dates when the applicant said his father disappeared changed as between his arrival interview, his statement with his SHEV application and his SHEV interview. On the basis of the inconsistencies in the applicant’s factual assertions, I consider it was open to the Authority on the material before it to conclude that the applicant fabricated a disappearance date to bring the date closer to his departure date from Sri Lanka and better assist his case. Such a conclusion is neither illogical nor irrational.
For the above reasons, Ground 3 discloses no jurisdictional error on the Authority’s behalf.
DISPOSITION
For the reasons above, I have found that the Authority erred in its application of s 473DD. Accordingly, I grant the relief sought by the applicant and make the orders set out at the commencement of this judgment.
The Applicant seeks that the First Respondent pay its cost in the amount of $8,371.30. I note that this is in accordance with sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 13 September 2024
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