Aib17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1017
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AIB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1017
File number(s): BRG 24 of 2022 Judgment of: JUDGE EGAN Date of judgment: 9 November 2023 Catchwords: MIGRATION– Whether the Immigration Assessment Authority erred in failing to consider whether new information was credible personal information – whether the Authority had made findings absent any factual foundation for them – whether the Authority failed to consider an integer of the applicants’ claims – whether the Authority ought to have interviewed the second applicant – no jurisdictional error established – application dismissed. Legislation:
Migration Act 1958 (Cth) ss. 5H, 5J, 473CD and 473DD.
Cases cited:
AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407.
ABT17 v Minister for Immigration (2020) 269 CLR 439.
AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503.
AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90.
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.
DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15.
Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16.
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403.
Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1.
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 2 November 2023 Date of hearing: 2 November 2023 Place: Brisbane Counsel for the Applicants Mr B McGlade Counsel for the First Respondent Mr J Byrnes Solicitor for the Applicants Corney & Lind Lawyers Solicitor for the First Respondent Clayton Utz Second Respondent Submitting appearance save as to costs ORDERS
BRG 24 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIB17
First Applicant
AIC17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Further Amended Application for Review filed on 3 November 2023 be dismissed.
2.The First Applicant pay the First Respondent’s costs of $8,371.30 under Division 1 of Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
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 Egan
Introduction
The first applicant arrived in Australia on 23 September 2012 with the second applicant who is his daughter. They were both unauthorised maritime arrivals.
The applicants each applied for a Safe Haven Enterprise Visa (SHEV) on 24 August 2015.
A delegate of the Minister refused to grant the visa applications on 23 August 2016.
It was recorded that the SHEV applications had been reviewed on two previous occasions and that, by a consent order made on 27 September 2021, the most recent review decision had been quashed, the matters having been remitted for reconsideration.
Having had the visa applications further rejected, the decision of the delegate was referred to the Immigration Assessment Authority (the Authority) for review.
On 15 December 2021, the Authority affirmed the decisions of the delegate.
Consideration of Amended Application for Review
At [25] of its reasons, it was recorded that when the SHEV applications were first before the delegate, only the first applicant had made protection claims, the second applicant having sought protection as a member of the first applicant’s family unit. Since then, the second applicant has also made protection claims having attained her majority.
At [26] of its reasons, the Authority summarised the claims of the first applicant as follows:
“[26] Applicant 1’s claims can be summarised as follows:
•He identifies as a Tamil Hindu although his father was Sinhalese. He is from Trincomalee and is married with 2 daughters and 1 son.
•He worked in Doha, Qatar from 2004 to 2006.
•When he returned to Trincomalee in 2006 he worked as an auto (three-wheeler) driver. His wife's cousin Ruben used hm frequently as a driver to transport him but also sometimes to transport goods. The goods were sometimes groceries, and sometimes medical supplies Ruben asked him to collect from the chemist.
•Applicant 1 became suspicious that Ruben might be in the LTTE. He asked his wife and
•she asked her family. They told her they had not heard from Ruben in sometime but
•they suspected he had joined the LTTE. Out of fear of being suspected of an LTTE
•connection himself applicant 1 distanced himself from Ruben. He last heard from Ruben
•in mid-2007.”
At [27] of its reasons, the Authority summarised the claims of the second applicant as follows:
“[27] Applicant 2’s claims can be summarised as follows:
•She comes from a mixed race Tamil and Sinhalese family.
•When she was 7 or 8 a naval officer from the nearby base sexually assaulted her a number of times. Her mother went to the base to complain.
•At age 7 she was also assaulted by the owner of the local grocery store, as was her older sister. She told her mother but her mother feared retribution from the store owner so did not report the matter to the police. She believes this man targeted her because of her mixed ethnicity. He still lives in the area and she fears he will target her again if she returns.
•She was also assaulted by an older brother of a friend once, and her mother confronted the boy’s family. The boy told her to ‘watch her back’ and she was fearful ever since he would seek her out to punish her.
•When she was 13 the naval officer assaulted her again. A week after this assault her father told her he was taking her to Australia.
•As a child she thought she was targeted by the naval officer because she was mixed race, but now she believes it was because of her dad and uncle’s involvement with the LTTE.
•As a young single mixed race woman she will be harassed and vulnerable to sexual assault, and may be killed. She cannot return to her home in Trincomalee and would be forced to live elsewhere as a single woman with no-one to protect her.
•She will be imprisoned on return to Sri Lanka for leaving illegally. She would be targeted for sexual violence during the imprisonment.
•She no longer speaks Tamil or Sinhalese fluently, and her English language would make her stand out to the authorities.”
At [28] of its reasons, the Authority correctly identified the provisions of s. 5H(1) of the Migration Act 1958 (Cth) (the Act) for the purpose of determining whether a person is a refugee or not.
At [29] of its reasons, the Authority correctly identified what constituted a well-founded fear of persecution pursuant to the provisions of s. 5J of the Act.
At the hearing before the Court, the applicants relied upon a draft Amended Application for Review filed on 16 March 2023. The applicants were given leave to rely upon such Draft Amended Application on the undertaking of the solicitor for the applicant that steps would be taken forthwith to file such document in the Registry of the Court. The grounds of review were as follows:
“1. In respect of the new information provided by the First Applicant in [3] of his 18 September 2016 statutory declaration (to the effect that the homes of his relatives who he stayed with were located in uninhabited areas of Muthur in the forest):
(a) the Second Respondent (IAA) purportedly rejected that this was “credible personal information” for the purposes of s 473DD of the Migration Act 1958 (Cth) (Act) on the basis that “… I find the new information that he stayed with relatives who lived in uninhabited forests is not credible, for if they lived there the area was not ‘uninhabited’…” (IAA Reasons, [7]);
(b)such reasoning:
(i)did not provide a logical, rational or reasonable basis for finding that the “new information” was not “credible personal information” – and, in fact, the IAA’s reasons did not disclose any logical, rational or reasonable basis to support a conclusion that “new information” was not “credible personal information”; and/or
(ii) further or alternatively, was demonstrative of the IAA not properly considering the “new information” provided by the First Applicant in [3] of his 18 September 2016 statutory declaration;
(c)in consequence, the IAA’s decision was affected by jurisdictional error in that:
(i) the IAA’s decision was illogical, irrational and unreasonable; and
(ii)the IAA did not properly undertake the statutory task required by s 473DD of the Act of properly considering the “new information” and considering whether the “inew information” was (in fact) “credible personal information”.
2. The IAA’s decision was affected by jurisdictional error in that:
(a) the IAA made the following findings:
(i) “[d]uring and in the aftermath of the conflict [the subject of the Sri Lankan civil war], which ran from 1983 to 2009, family members of LTTE members faced monitoring, harassment and detention. When the war ended in 2009, thousands of LTTE members and suspects were taken into rehabilitation camps across the north and east of the country” (IAA Reasons, [35]);
(ii) in the period during 2010 and 2012, “LTTE suspects were being disappeared or sent to rehabilitation” (IAA Reasons, [42]); and
(iii) there was “sophisticated monitoring of the Tamil population by the authorities and the mass detention of suspected LTTE members and supporters at the end of the conflict [the subject of the Sri Lankan civil war]” (IAA Reasons, [44]);
3. The IAA’s decision was affected by jurisdictional error in that:
(a) the IAA failed to consider the claims and/or evidence before it to the effect that the First Applicant had facial scarring in consequence of him being beaten in 2010;
(b)further or alternatively to (a), it was legally unreasonable in the circumstances of the case for the IAA to not invite, or consider inviting, the First Applicant to give new information about the visual appearance of his facial scarring;
(c) further to (a) and (b) above, the IAA failed to consider the claims and/or evidence before it to the effect that, in 2010, the First Applicant was only able to get out of the hospital in way which avoided the detection of the men who were watching him in hospital (and thereby “escape” those men) by the staff at the hospital helping him to “escape” by his treating doctor giving him an early discharge and the hospital nurses helping the First Applicant to escape out the back entrance of the hospital;
(d) alternatively to (c):
(i) IAA’s findings in [42] of the IAA’s reasons (that the First Applicant was “was able to leave” the hospital and was “effect[ively] set free”) were illogical or irrational; and
(ii) consequently, the IAA’s decision was illogical and irrational.
4. It was legally unreasonable for the IAA to not invite the Second Applicant to attend before it for an interview.”
Ground 1 was a claim based upon the rejection by the Authority of what was claimed to be “new information” as set out in [3] of the first applicant’s statutory declaration dated 18 September 2016 [1] which relevantly was as follows:
“Initially after the incident of 2010, I lived with my wife’s relatives in Thambalagama where I received treatment from a native physician for my injuries. After that, I moved to my mother's village in Muthur. Muthur is a large area. I would sometimes stay with her at her home, but also moved and lived interior in the homes of other relatives that were located in uninhabited areas of Muthur in the forest.”
[1] See Volume 3 of Exhibit 1 at Court Book (CB) pp. 333-335
At [7] of its reasons, the Authority made a finding as follows:
“Similarly, I find the new information that he stayed with relatives who lived in uninhabited forests is not credible, for if they lived there the area was not ‘uninhabited’.”
Section 473DD of the Act relevantly provided as follows:
“473DD Considering new information in exceptional circumstances
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.”
It was submitted on behalf of the first applicant that the Authority’s finding did not provide a logical, rational, or reasonable basis for finding that the new information was not credible personal information under s. 473DD(b)(ii) of the Act. In the alternative it was submitted that the Authority had not properly considered the new information as set out in the 18 September 2016 statutory declaration. It was further submitted that the Court ought to find that such decision was illogical, irrational and unreasonable, and that the Authority had not properly undertaken its statutory duty to consider whether the new information was in fact credible personal information.
First, in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [11], Kiefel CJ said as follows:
“[10]In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case.
[11]Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”
In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 60-61, it was held per McKerracher, Griffiths and Rangiah JJ as follows:
“[60]In Minister for Immigration and Borter Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
[52]As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “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 as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship(2012) 202 FCR 1 (at 22–23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[54]… The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137–138 [151]–[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]–[62].
[55]Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137–138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT(2010) 189 FCR 577 at 598–599 [83]–[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship(2013) 135 ALD 276 at 291 [66]; SZWCO at [64]–[67].
[56]An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455–456 [14]–[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
[61]For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]–[27]).”
The Court finds that the finding of the Authority in question was open to it. Another reasonable decision-maker could have arrived at the same decision. No extreme illogicality has been identified. Further, the Court finds that the Authority did specifically consider whether the new information was credible personal information or not. It did so by specifically referring to what was an inconsistency in the characterisation of what constituted an uninhabited forest at [7] of its reasons.
In any event, the Court agrees with the submission made on behalf of Counsel for the first respondent to the effect that even if the resolution of the question as to whether the Authority ought or ought not to have considered the new information was resolved in favour of the applicants, any such decision could not realistically have resulted in the Authority arriving at a different decision on the question as to whether the decision of the delegate refusing the visa applications was to be affirmed or not. [2]
[2] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]-[46] per Bell,
The Authority dealt with relevant issues concerning the applicant’s claims that he had been in hiding after having allegedly been beaten by the Karuna Group in 2008 at [41] of its reasons as follows:
“[41]According to the 2017 UK Home Office report the current government under Sirisena has started to implement reforms to include Tamil as an official language, devolve power to Tamils and to protect democracy. In 2013 the UK Upper Tribunal Guidance case of GJ & Others (upheld by the Court of Appeal on 18 June 2014) found that Tamil ethnicity alone is not a basis for persecution in Sri Lanka. “The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE in the civil war. In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state of the Sri Lankan Government”. The Upper Tribunal went on to find that the LTTE in Sri Lanka is a spent force and the government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state. DFAT assesses that Sri Lankans of all backgrounds face a low risk of official or societal discrimination based on ethnicity including in relation to access to education, housing or employment. Whilst some Tamils report discrimination in public sector employment DFAT considers this is not a result of official policy, rather a result of Tamils having disrupted education and/or a lack of Singhalese language skills.”
The Authority also did not accept the first applicant’s version of events, relevantly setting out inconsistencies in the first applicant’s claims in [18], [25], [42] and [43] of its reasons.
In that regard, the Court respectfully adopts what was held by Allsop CJ in AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 at [62]-[64] where it was said:
“[62]As the Minister submitted, and as the Federal Circuit Court judge found, the appellant’s submission in this respect is difficult to accept when the nature of the IAA’s credibility findings is appreciated. The IAA pointed to a number of discrepancies and inconsistencies in the appellant’s claims, causing the IAA to find at [30] that the appellant’s evidence at the SHEV interview relating to key aspects of his material claims was internally inconsistent and that the appellant had not provided a truthful account of his past experiences relating to his material claims. The inconsistencies in the appellant’s evidence as to the nature and duration of the work he did for US aid projects, the year in which his employer was murdered, the threats he and his family received, the explosion near his house and what triggered him to leave Iraq were highlighted at [22]–[25] of the IAA’s decision, set out at [14] above. Further inconsistencies in the appellant’s evidence concerning his departure from Iraq to Australia were highlighted at [29] of the IAA’s reasons, set out at [16] above.
[63]In respect of the alleged car bomb attack, the IAA found at [26] that the appellant’s evidence was not compelling for the following reasons:
(1) In his visa application, the appellant stated that it occurred when he was driving to Anbar (from Baghdad), whereas in his SHEV interview he stated it occurred when he was driving on his way to Baghdad.
(2) The appellant’s evidence was not consistent as to the time he spent in hospital. In the visa application he stated that he spent three weeks in hospital. At the SHEV interview he stated that he stayed in hospital for nine months, then he stated he stayed in hospital for one and a half months and stayed at home for 11 months. Later in the interview, he stated he spent six months at his uncle’s house and had undergone surgery after five months.
(3) No documentation relating to the appellant’s injury and hospital treatment was provided.
(4) The appellant claimed that after the bomb attack he decided it was no longer safe in Iraq. He stated in his visa application that he travelled to Turkey and lived with his friend. However, he also gave evidence that he worked for a pharmaceutical company in Iraq from November 2010 to November 2011. At the SHEV interview he stated that he went to Turkey first in 2011 as part of his work for the pharmaceutical company. In this respect, the IAA found at [27] that the appellant’s continued presence in Iraq was not consistent with his claimed fear after the bomb incident.
[64]There is no direct challenge by the appellant to the credibility findings made by the IAA, including those at [26], [27], [30] and [32] of its reasons. This is not always fatal to an appellant’s case where it is said that an error as to central evidence affects the credibility findings made by a tribunal: see SZQYM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 779 at [23] and [136] –[145] . This is not, however, a matter in which the IAA made findings on the appellant’s credibility based on a false factual premise: cf SZQYM at [140].”
Further, the Court does not accept that the Authority was bound to apply the test in SZMTA in respect of its preliminary consideration as to whether or not it ought to find that the new information was or was not credible personal information. The Court accepts the submissions of Counsel for the first respondent, and the first respondent’s reliance placed upon the decision AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [78]-[89] per Banks-Smith and Jackson JJ and at [148]-[149] per Feutrill J where it was respectively held as follows:
Per Banks-Smith and Jackson JJ:
“[78]AZT22 contends that materiality is to be determined by reference not to the outcome of the counterfactual review as a whole, but rather by reference to the first task, such that the question is whether the Authority as a matter of reasonable conjecture could have found that the new information was credible and so it should have been considered as part of the review. AZT22 submitted that material which realistically could have been included for the purpose of the review was excluded, so that the review task then undertaken by the Authority was not the statutory task required of it. This argument was said to be based on DPT17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 15 . In that case, Colvin J held that s 473DD incorporated a threshold of materiality so that, in the case before him, the question was whether the Authority’s decision on the application of that section could realistically have been different. His Honour held that the requirement of materiality in the case before him was not to be applied to the ultimate decision the Authority made on review.
[79]However, during the hearing before us, counsel for AZT22 also submitted that if materiality is to be assessed with regard to the overall outcome, then once it is accepted that the Authority might have found that the new information was credible for the purpose of s 473DD, then it was capable of being believed — and it therefore follows that it could not be said that there was no realistic possibility of the claim being found to be true on review. So AZT22’s submissions on materiality were also directed to the ultimate outcome of the review as a whole.
[80]The Minister submitted that materiality was to be assessed by regard to the overall outcome, and cited a number of cases which he said exemplified this approach. The Minister referred to ABH18 v Minister for Home Affairs [2020] FCA 620 at [45] ; EAC16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1657 at [58] ; BWE17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 1087 at [36] -[38] ; and CDJ19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 345 at [39] -[41] . It can be accepted that each case is an example where the Court has considered the materiality of an error or purported error in relation to the application of s 473DD in the context of the ultimate outcome of the Authority’s review.
[81]Even accepting the Minister’s submissions as to the manner in which materiality is to be assessed, an approach that was accepted by AZT22 as correct in the alternative, we consider the error made by the Authority was material to the outcome, applying the Nathanson threshold.
[82]The matters relied upon by the primary judge in finding any error immaterial were not, with respect, convincing. As a matter of reasonable conjecture, there is a prospect the new information would have been accepted as credible for the purpose of s 473DD, if it had been assessed in the context of the review material but free from infection from firm findings about the events of 2012. The matters raised are not inherently unbelievable, particularly when the Authority had otherwise accepted country information to the effect that events such as that described were widespread in Sri Lanka at the relevant time (at para 83, and see [34]–[35] and [47] above). AZT22 provided quite specific details of the alleged assault. It therefore does not follow, as the primary judge reasoned (at [58]) that the Authority would have made the same finding that BIR22 was not in hiding even if it had received the new information. As a matter of reasonable conjecture the new information was capable of changing the finding, had it been received
[83]Further, it is inaccurate to say that the Authority found the claim to be ‘not corroborative’ of the other evidence relating to the events of 2012. The Authority’s use of the expression ‘[not] particularly corroborative’ was equivocal, for the reasons we have given above.
[84]In support of his submission that any error was immaterial, the Minister also relied upon an ‘alternative’ finding in para 86 that the new information was not credible. The submission rests on the Authority’s statement in para 86 that ‘Further, aside from the problematic evidence in respect of the events of 2012 already discussed, I have concerns with aspects of the new information’. However, the Authority, having referred to those other matters, concluded that they lead it to ‘further doubt‘ the credibility of the new information. Therefore, the ‘problematic evidence’ remains one of the elements that gave rise to the doubt. The passage from para 86 which we have highlighted at [54] above shows that it was a significant element. The other matters added to that doubt. The problematic evidence was weighed in the balance in some manner.
[85]It is true that the Authority’s reasons include passages in which it found, not just that the new information was not credible (s 473DD(b)(ii)), but that also that it was not satisfied that exceptional circumstances existed to justify considering it (s 473DD(a)). But as was made clear in AUS17 at [11], the criteria in s 473DD(b) must be considered before determining whether there are exceptional circumstances for the purpose of s 473DD(a), and the Authority’s findings under s 473DD(b) must be factored into that determination. In the context of the present appeal, if the Authority had considered it credible that AZT22 had been raped, it might have accepted her asserted reluctance to speak of the incident as exceptional circumstances. A different approach to the credibility of the new information therefore could have affected whether it was received, and so affected the ultimate outcome of the review.
[86]The Minister further submitted that, having regard to the Authority‘s finding that AZT22 did not meet the description of a woman who might face a real chance of sexual violence or other harm upon return to Sri Lanka, then any assessment of her past experiences, including the new information, would have made no difference to the outcome. The Authority‘s finding on this aspect of her protection claim was based on country information, and had two limbs. First, the Authority referred to DFAT‘s assessment that overall women in Sri Lanka face a moderate risk of societal discrimination and violence, but such risk related particularly to domestic or intimate partner violence. Second, the Authority referred to DFAT information that there were legitimate concerns about the risks facing single women or all-female households. Although the Authority acknowledged that when AZT22 was living with her mother, men in army uniforms had come to the house (see [34] above), it concluded that it was not satisfied such an event would occur now, noting that if she were returned to Sri Lanka, AZT22 would be accompanied by her husband and live with him as part of the family unit.
[87]It can be accepted that domestic or intimate partner violence did not form part of AZT22‘s claims. However, as to the finding that risk was limited to single women or all-female households, as a matter of reasonable conjecture there could have been a different outcome if the Authority had regard to the evidence about the sexual assault. If, for example, that evidence were accepted on review, then the Authority would have considered her claims on the basis of a different profile and potentially come to a different conclusion. If the evidence were accepted, AZT22 would have the profile of a woman who had been visited by men in army uniforms (as already accepted) and had also been the victim of a serious assault at the hands of three Sinhalese men while her husband was not present at their house. The fact that she generally lived with her husband had not prevented such an attack. Further, if such evidence were accepted, then the events of 2012 involving both her and BIR22 may have been assessed differently, so that the Authority may have accepted that they had come to the adverse attention of the Sri Lankan security services or other person or groups, as claimed. These potentially different profiles may well have had an impact on the assessment of the protection claims.
[88]Once it is accepted that but for the error in its approach, there is a prospect that the Authority would have accepted the new information as credible for the purpose of s 473DD, then the counterfactual review would have included consideration of the new information. On that review, consideration of the new information may have influenced the manner in which the Authority assessed the events of 2012 and so AZT22’s protection claim. The undemanding standard referred to in Nathanson is met. Whether in fact the outcome would have been different is not to the point.
[89]Further, even if the approach in DPT17 were to be followed, then we consider that for the same reasons, the correction of error may have led to a different outcome, such that relief should be granted. It is therefore not necessary to determine the issue joined by the parties in this appeal about the correctness of DPT17.”
…
Per Feutill J:
“[148]In my view, it is correct that the scheme of Part 7AA contemplates a single review of a fast track reviewable decision by the Authority. However, the notion of a single review is not incompatible with a requirement that performance of that single review is subject to the condition that the Authority must perform the procedural duty and exercise procedural power according to law. Put another way, the Authority must perform the procedural duty to ‘consider’ the review material in order to make the ultimate decision in the exercise of the substantive review duty. That procedural duty is qualified by the procedural power of the Authority to get new information which it must also ‘consider’ if the criteria specified in s 473DD are met.
[149]It follows that the duty to exercise the substantive review power and make a decision to affirm or remit the fast track reviewable decision is subject to the condition that the Authority has performed the procedural duty and exercised the procedural power according to law. It is preferable to describe the procedural duty and power as conditions to the exercise of the power of review rather than ‘stages’ of the review with sequential or temporal components so as to avoid conceptual confusion or misunderstanding of the nature of the Authority’s substantive review duty.”
The Court respectfully does not consider that it was bound to follow the conceded obiter dicta of Colvin J in DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 at [48]-[55].
There was no basis for any submission that the Authority had not properly addressed the question as to whether or not the new information constituted credible personal information. There was no merit to Ground 1.
Ground 2 was a claim that findings of the Authority at [35], [42] and [44] of its reasons were made absent any documentation supportive of the factual findings as made. It was claimed that the decision was therefore illogical and irrational.
First, it is well accepted that reliance upon a no-evidence claim is thwarted if there is even a skerrick of evidence in support of the findings of the decision-maker. [3]
[3] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395
Second, at [22] of its reasons, the Authority noted that updated country information had been obtained, namely a DFAT Country Information Report for Sri Lanka dated 4 November 2019 and a UK Home Office Report from a fact-finding mission to Sri Lanka dated 20 January 2020. Further, at [48] of its reasons the Authority footnoted excerpts from such DFAT Report and the UK Home Office Report when making findings about the improved situation for Tamils after 2012, and how Tamils over time were not specifically targeted or otherwise suffered persecution merely because they were Tamils.
Relevant parts of the DFAT Report relating to LTTE profiling was contained in paragraphs numbered 3.10, 3.11, 3.15, 3.56, 3.57, 3.61, 3.75-3.77 and at 3.83. The Authority made findings consistent with such paragraphs.
Further, the OHCHR Report on Sri Lanka dated 16 September 2015 was also before the Authority, and at [95] thereof, consistent with findings of the Authority, it was said:
“Thousands of former LTTE combatants or people suspected of links to the LTTE, including children, were held in various often opaque systems of detention and rehabilitation, and were only gradually released. Some reportedly remain in detention to this day. Others remain unaccounted for and may have been the victims of summary executions or enforced disappearances that are examined in subsequent chapters.”
The Authority comprehensively dealt with questions relevant to events which transpired during the course of the war in Sri Lanka insofar as it affected Tamils or those suspected of being LTTE supporters. The Authority was not required to identify each and every aspect of the country information it had considered before it made relevant findings. To the extent that the claims of the applicants were clearly articulated, the Authority made relevant findings. [4] The fact that a claim might be said by an applicant to arise from materials before the Authority is not enough. [5] It ought to be inferred that the Authority had recourse to all relevant country information before it made its findings.
[4] AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18] per Collier,
[5] Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58],
Alternatively, even if it be found that the Authority had not had recourse to relevant material prior to making its findings, the Court does not accept the submissions on behalf of the applicants that any such error was material, such that had the Authority not erred it could realistically have arrived at a different decision.
At [35] of its reasons, the Authority set out an alternative basis for finding that the applicants’ claims were without merit. It found as follows:
“[35]If I am wrong on this point, and his older brother was in the LTTE, I do not accept this gave applicant 1 or his family an adverse profile. During and in the aftermath of the conflict, which ran from 1983 to 2009, family members of LTTE members faced monitoring, harassment and detention. When the war ended in 2009, thousands of LTTE members and suspects were taken into rehabilitation camps across the north and east of the country, yet no-one in applicant l's family was ever detained. Even if applicant l's older brother had been a member of the LTTE in the 1980s I find that 20 years later when the war ended applicant 1 and his family did not have an adverse profile for this reason. I consider applicant l's ability to hold a passport and travel in and out of Sri Lanka to Qatar multiple times between 2004 and 2006 is evidence he was not of adverse interest because of his brother. If his brother was an LTTE member killed in combat in the 1980s, I consider it far fetched that the authorities would come to know of this connection now, or have an adverse interest in applicant 1 because of it.”
The applicants’ submissions relating to the disappearance/rehabilitation of LTTE suspects and the monitoring of the Tamil population and detention of suspected LTTE members was fairly and squarely addressed by the Authority at [33]-[49] inclusive of its reasons where appropriate footnoting was made to country information.
There was no merit to Ground 2.
Ground 3 was a claim which in part asserted that the Authority had failed to consider the first applicant’s facial scarring in the context of his claimed beating in 2010. At [41] of its reasons, the Authority expressed its concern about the claim that the first applicant had been taken and beaten in 2010. The evidence before the Authority was equivocal, and the Authority was entitled to accept as factual that which was stated in the medical evidence before it, namely that injuries were suffered (with resultant scarring) as a result of the first applicant having been involved in a motor vehicle accident. The Authority found as follows:
“[41]Although I accept he was beaten and extorted by the Karuna group in 2008, I have concerns about the credibility of his claim to have been taken again in 2010. He claims his auto was stopped by three unidentified men speaking Sinhalese who took him to abandoned building and beat him unconscious, asking again about weapons. He was In support of the 2010 attack he provided medical evidence, however that evidence states he was injured in a road traffic accident. Applicant 1 says he conspired with the doctor to put this on the medical record, as naming the CID as the perpetrator could cause trouble. Whilst this may be plausible, his further explanation that they also agreed to not include injuries to his head and feet, which he claims were beaten during the assault to the point he lost consciousness, is implausible. The medical evidence provided states he suffered an impact on the chest and left shoulder. He received and x-ray and was given a sling and painkillers. There was no head injury, or mention of damage to his feet. He had follow up treatment in the orthopaedic dispensary for a fracture of the shoulder and chest bone. I consider it implausible the medical records would be so different to the actual injuries, particularly as to state he had a head injury would not have been inconsistent with a road traffic accident. If the CID or Karuna group or some other persons were watching him at the hospital, as claimed, the difference between his alleged injuries, and those recorded in the medical records, would have been obvious. I consider it is much more likely applicant 1 in fact suffered a road traffic accident in late 2010 rather than a second assault from the CID or Karuna group or any other group interested in him.”
Further, the submissions made on behalf of the applicants to the effect that the Authority had failed to consider relevant claims about how the first applicant had escaped from the hospital in 2010 were without merit. At [26] of its reasons at CB 482 the Authority identified the first applicant’s claim that he had colluded with a doctor so as to enable him to escape from the hospital without being detained by men who were said to have been keeping him under surveillance. At [42] of its reasons, the Authority contrasted the position of LTTE suspects either disappearing or being sent to rehabilitation with the first applicant’s claims that he had been taken to a hospital. The Authority noted that the first applicant had been able to leave the hospital and that he was not taken to a rehabilitation centre where other LTTE suspects had been detained.
The Authority had appropriately engaged with the first applicant’s claims about his having escaped from the hospital, finding that some 13 years later it was far-fetched to believe that he had any profile of significance which would give rise to his detention or to his suffering harm should he be returned to Sri Lanka. The findings made by the Authority were open to it based upon country information available to it.
Further, the finding of the Authority that it did not accept that the first applicant was beaten in 2010 was an alternative basis for its not accepting the escape from hospital evidence which was given to it. Again, even if the Authority had erred by failing to have due regard to the escape evidence, such error was immaterial in that it could not realistically have resulted in the Authority arriving at a different decision in the light of its other findings. The Ground was without merit.
Ground 4 was a claim that it was unreasonable for the Authority to not invite the second applicant to attend before it for a second interview. It was submitted that had the second applicant been interviewed, the Authority would have had the benefit of examining her demeanour and that that would constitute new information. Reliance was placed upon ABT17 v Minister for Immigration (2020) 269 CLR 439 at [16]. It was submitted that the Authority’s refusal to interview the second applicant was unreasonable.
At [24] of its reasons, the Authority dealt with the second applicant’s request for an interview by the Authority as follows:
“[24]The applicant daughter’s claim that she will be targeted due to her father’s involvement in the LTTE is not a new claim as the applicant father has previously made this claim on her behalf. As discussed above I have rejected the applicant father’s new information that his brother was a member of or involved with the LTTE as lacking any credibility and therefore reject the applicant daughter’s claim that she will be targeted for reasons related to family connection to her uncle. The applicant father also made claims of fear of harm for reasons of his and his children’s mixed race on behalf of his daughter and I consider this is not new information. The applicant daughter has claimed that she will be imprisoned and harmed as she believes the Sri Lankan authorities “will know where she is” and “will want to find out more information from her.” I consider this is new information that could not have been provided to the delegate prior to her decision as she was a minor at the time and never interviewed. Over 6 ½ years have passed since the applicant daughter arrived in Australia and she is now an adult and I consider that it is credible personal information that she may be questioned by authorities on her return to Sri Lanka. Given the passage of a significant period of time since the delegate made her decision, I consider there are exceptional circumstances to justify consideration of the new information that the applicant daughter will be questioned on her return and she considers she is at risk of serious or significant harm as a consequence.”
In circumstances where the Authority had noted that the second applicant had conceded that she was too young at the time that she left Sri Lanka to have any knowledge of her father’s claims, and further where the second applicant’s claims about her being at risk should she be returned to Sri Lanka could be looked at by the Authority in the light of all relevant country information which was before it, the Court finds that the Authority did not err in not acceding to the request for an interview.
The review by the Authority was part of the fast-track review process which does not as a general rule allow for the conducting of extensive personal interviews. Section 473DC of the Act imposed a high threshold before the Authority was required to get, request or accept any new information. In Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16[6] at [30], the High Court held as follows:
“[30]The Minister submitted that an integer that militates against a conclusion of unreasonableness for a failure to inquire is the lack of any possibility of a useful result. So much can be accepted. If the Authority could not have reasonably expected any useful result it could not be unreasonable for it to fail to invite CHK16 to provide submissions with any new information. But, contrary to the Minister’s submissions, there are two reasons which indicate that the Authority might reasonably have expected a useful result from the agent. First, the Authority did not suspect that the agent was fraudulent. A plausible inference would simply have been that the agent had provided the wrong submissions. On that basis, the most likely outcome of an invitation to provide the correct submissions, containing any new information, would have been that they would be provided. Secondly, and in any event, even if the Authority had suspected fraud the most likely response by a fraudulent agent to an invitation to provide correct submissions with new information would have been to do so.”
[6] (2020) 271 CLR 550 at [30]
The Authority could not be criticised for not inviting the second applicant for an interview in circumstances where it could not have reasonably been expected that any real benefit would be achieved if that had been done. The present case is distinguishable from ABT17 v Minister for Immigration in that in ABT17 the Authority “was troubled by a concern that the appellant’s evidence in his audio recorded interview with the delegate was generally lacking detail and at times vague and hesitant”. The High Court held that an interview was the obvious means by which the Authority could resolve those matters of concern. In the present matter, the Authority had no such concerns and did not believe that the applicants’ case would be advanced by any interview being conducted. In such circumstances, the Authority did not err. Ground 4 was without merit.
The applicants have failed to establish jurisdictional error on the part of the Authority.
The Grounds of Review are without merit and the Amended Application for Review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty- eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 9 November 2023
Gageler and Keane JJ
ALR 403 at [17]
McKerracher and Banks-Smith JJ
[61] and [68] per Black CJ, French and Selway JJ
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