AIB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FCA 1384
•4 December 2024
FEDERAL COURT OF AUSTRALIA
AIB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1384
Appeal from: AIB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1017 File number: QUD 539 of 2023 Judgment of: DERRINGTON J Date of judgment: 4 December 2024 Catchwords: MIGRATION – appeal from decision of Federal Circuit and Family Court of Australia (Division 2) – where primary judge dismissed application for judicial review – whether Immigration Assessment Authority (IAA) acted illogically or irrationally in concluding that information was not “credible personal information” for s 473DD of the Migration Act 1958 (Cth) (the Act) – whether IAA failed to consider integers of claims or evidence – whether any failure to consider was material – whether IAA’s reasoning in relation to second appellant’s claims or evidence was illogical or irrational – whether IAA erred in failing to invite second appellant to interview under s 473DC of the Act – no jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223
AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
DPI17 v Minister for Home Affairs (2019) 269 FCR 134
DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15
EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Singh v Minister for Home Affairs (2019) 267 FCR 200
SZSXH v Minister for Immigration and Border Protection [2014] FCA 914
Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia (2023) 297 FCR 143
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 95 Date of last submissions: 3 December 2024 Date of hearing: 7 November 2024 Counsel for the Appellants: Mr B McGlade Solicitor for the Appellants: Vocare Law Counsel for the First Respondent: Mr J Byrnes Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 539 of 2023 BETWEEN: AIB17
First Appellant
AIC17
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DERRINGTON J
DATE OF ORDER:
4 DECEMBER 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
Introduction
This is an appeal from a decision of a Judge of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) which dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (Authority). The Authority had affirmed the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), not to grant Safe Haven Enterprise visas (SHEVs) to the appellants.
Background
The appellants’ attempts to secure protection visas has a long history, with the present decision being the third time the Authority has reviewed the appellants’ SHEV applications. For present purposes, the following brief and expurgated version of the background facts is sufficient.
The first appellant arrived in Australia on 23 December 2012, accompanied by the second appellant, who is his daughter and was then a minor. They were both unauthorised maritime arrivals.
On 20 August 2015, the first appellant applied for a SHEV and his daughter sought the same visa on the basis that she was a member of her father’s family unit.
That application was first refused by a delegate of the Minister on 23 August 2016.
As mentioned, the rejection of the SHEV applications had been reviewed by the Authority on two previous occasions and the matter was remitted for reconsideration.
The SHEV applications were rejected for a further time with the consequence that the decision of the delegate was referred to the Authority for review.
On 15 December 2021, the Authority affirmed the delegate’s decision and provided written reasons in support of its decision.
The Authority’s decision
In broad terms, the appellants’ applications were founded upon the assertion that the first appellant was a Tamil (as was the second appellant) and that his older brother was a member of the Liberation Tigers of Tamil Eelam (LTTE). He also claimed that a person whom he had driven around regularly, whose name was Ruben, was also a member of the LTTE. By reason of these associations, he claimed that he would have an imputed affiliation to the LTTE and that he was persecuted by reason of that fact. It was also said that the authorities would believe that, from his association with Ruben, he would know the whereabouts of hidden LTTE weapons.
In support of that claim, the first appellant asserted that the “Karuna Group”, a paramilitary group opposed to the LTTE, had abducted and beaten him in 2008 because of suspected links to the LTTE. The delegate had not accepted that the first appellant was of adverse interest to the Karuna Group or the Sri Lankan authorities for any imputed association with the LTTE when he left Sri Lanka and nor would he be on his return.
In its Reasons, the Authority first dealt with the several sets of submissions and new information provided to it between 2016 and 2021 by the appellants. There is no need to consider at this point the extent to which the Authority received any new information under s 473DD of the Migration Act 1958 (Cth) (the Act), as it is dealt with specifically below.
The Authority then dealt with requests by both appellants to be interviewed for the purposes of the determination, though both requests were denied.
The Authority rejected the first appellant’s claim that his brother had been a member of the LTTE. It also found that if it was in error on that point, it did not accept that having a brother as a member of the LTTE in 1989 would give the first appellant or his family an adverse profile in 2021.
It then dealt with the claim that the first appellant may have an attributed association with the LTTE because he regularly transported Ruben, as well as goods and another person, in his vehicle when working as an auto driver. It appears that Ruben was suspected of being actively involved in the LTTE.
The first appellant had asserted that in 2008 he was beaten by members of the Karuna Group who were an anti-Tamil group. He claims that he was held overnight, beaten, tortured and interrogated. He says that he was released after payment of a bribe.
He further claimed that on 26 December 2010, he was again abducted and beaten and interrogated. He says that he had to be taken to hospital for treatment. He claims that in the hospital he was observed by a group of men who were apparently involved in his abduction, but managed to evade them by being discharged early and with the assistance of nurses he was able to leave the hospital by the back entry.
The Authority accepted that the first appellant was beaten and extorted by the Karuna Group in 2008, though largely for the purposes of extorting money rather than because of suspected links to the LTTE.
It did not accept that he was abducted again in 2010 by that group. It considered the evidence surrounding his hospitalisation and concluded that it was more likely that he suffered the injuries for which he was treated in hospital in a road traffic accident.
It further held that, if it was wrong about the first appellant being taken for interrogation and being beaten by an unknown group in 2010, his treatment was inconsistent with him being held because it was believed that he knew of the location of LTTE weapons.
It was also found that, even if there had been suspicion of the first appellant’s involvement with the LTTE in 2008 to 2010, it is farfetched that 13 years later he would still have a profile of adverse interest.
In its reasons (at [43]), the Authority set out a number of circumstances on which it relied to conclude that the first appellant was not of interest to the Sri Lankan authorities for any imputed or actual association with the LTTE. It concluded (at [44]) that if the first appellant returned to Sri Lanka he would not be considered as having any association with the LTTE beyond “the same imputed association as for other ordinary Tamils who lived in the north or east of the country at that time”. It found that even if the authorities believed that he had been a member of the LTTE, that would not now make him a person of interest. At [45], it said:
… I consider it is farfetched the Sri Lankan authorities would have an adverse interest in [the first appellant] for a weak imputed association with the LTTE, when even former ordinary fighters with the LTTE are no longer of interest. I find [the first appellant] does not face a real chance of harm because of any low-level imputed LTTE association. …
The Authority then dealt with a claim that the appellants were of mixed Tamil and Sinhalese race and for this reason would not be accepted by either ethnicity. Whilst this was rejected, it also concluded that the type of social exclusion on which the appellants relied did not amount to serious harm in any event.
It further concluded (at [50] – [56]) that the appellants would not face serious harm on their return to Sri Lanka because of their illegal departure.
The Authority then considered the second appellant’s claim which concerned her allegations that in Sri Lanka she had been the victim of sexual assaults as a child between the ages of seven and thirteen. The details of those assaults were outlined in the Authority’s reasons. It then identified that the second appellant believed that at the time of the sexual assaults she was targeted because she was of mixed race, but that she now believed it was because of her father and uncle’s involvement with the LTTE. That was considered to be unlikely for the reasons set out at [63] of the reasons. The Authority also rejected her claimed fears about further sexual assault should she return to Sri Lanka.
In relation to its consideration of the occasioning of sexual assault on young women generally and on women in Sri Lanka, the Authority concluded that the second appellant did not face a real chance of sexual assault or other gender based violence were she to return.
In the result, the Authority found that the appellants did not meet the criteria for a SHEV and the delegate’s decision to refuse to grant the appellants’ SHEVs was affirmed.
Appeal to the FCFCOA
As mentioned, the appellants applied for judicial review of the Authority’s decision on 3 November 2023.
On 9 November 2023, the application was dismissed by a Judge of the FCFCOA.
For present purposes there is no need to consider at any length the reasoning of the primary judge.
Appeal to this Court
Before this Court, the appellants advanced four grounds of appeal in which they asserted that the primary judge erred by failing to find jurisdictional error in the Authority’s decision, though the second ground was ultimately not pressed. They were:
(a)that the Authority fell into jurisdictional error in illogically rejecting “new information” provided by the first appellant (being Ground 1);
(b)that the Authority failed to consider certain matters relating to the first appellant’s claim, namely facial scarring which he had sustained and his assertions about escaping from hospital. It was also alleged that the Authority’s reasoning in relation to the latter assertions was illogical (being Ground 3); and
(c)that the Authority unreasonably failed to invite the second appellant to attend an interview (being Ground 4).
Ground 1 – illogicality in the rejection of alleged “new information”
This first ground of appeal concerns the first appellant’s claims that, in the period between him being beaten and interrogated in 2010 and his leaving for Australia in 2012, the Sri Lankan authorities had continued to look for him, but could not find him because he was hiding between his wife’s relatives’ homes and his mother’s home. This assertion appeared in his statutory declaration of 18 September 2016, which was sent under cover of a letter from his migration agent. It said, inter alia:
Initially after the incident of 2010, l 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’ [sic] village in Muthur. Muthur is a large area. I would sometime [sic] 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.
The Authority referred to this new information in the first appellant’s statutory declaration in [7] of its reasons, where it said:
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’. …
It was not disputed that a jurisdictional error can result where a decision-maker’s reasoning underpinning a finding of fact is illogical, irrational or unreasonable: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, 517 – 518 [60]; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420, 446 [142]; EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409, 446 [84]; AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 [59].
Nevertheless, it must be kept in mind that the finding in this matter was part of a determination under s 473DD(b) of the Act, concerning whether the information in question was “credible personal information” as described in that section. That was a matter antecedent to the undertaking of the review, in that it was directed to ascertaining what information would be considered for the purposes of making a decision.
The critical issue is whether the Authority acted illogically or irrationally in concluding the first appellant’s assertions about where he was living was not “credible personal information”. In that regard, it can be accepted that the information was about the appellant, but the quintessential issue was whether it was credible.
On its face, the substance of the first appellant’s comment, that he lived in the homes of his mother’s relatives in an “uninhabited forest”, it is not credible. The statement is illogical and inconsistent and it is apparent that the Authority concluded that, because the statement was unintelligible, it was not credible. Far from the Authority’s conclusion in this respect being illogical or irrational, that reasoning was entirely sound. For instance, if the circumstances were that, in the first appellant’s statutory declaration, he had said in one part that he lived in a certain area with his relatives, and in another part of the same statement said that the particular area was uninhabited, the Authority should immediately identify the lack of credulity in the information being conveyed. It would then be entitled to conclude that the new information did not satisfy the requirements of s 473DD(b) of the Act. There is no reason why that same logic ought not apply when the two inconsistent statements are made in the same paragraph or even the same sentence. Either way, the statement lacks credulity.
During the hearing, the submissions for the first appellant moved to saying that the approach of the Authority in construing the first appellant’s statement was unreasonable. It was submitted that, rather than read what was put before it, the Authority should have construed the words used in a different way so that it meant that the first appellant lived in the relevant parts of the forest which were otherwise uninhabited, save for his wife’s relatives. That, with respect, is an attempt to rewrite the first appellant’s statement to mean something other than what was conveyed. Moreover, it is far from clear that that was what the first appellant meant to say.
There is no evidence as to how the statement came to be made, or what the first appellant meant by it. To give it some meaning other than its natural meaning would be to apply some exegesis which is not warranted. For instance, it may simply be that in the preparation of the statement, some accidental elisions of words have occurred leaving the statement as it is. To do as the first appellant asks is to engage in inappropriate speculation.
Whilst that is enough to reject the first appellant’s approach, it can be added that on the material before the Authority, the suggested construction which was sought to be placed on the statement may well be incorrect. The first appellant also requested that the Authority consider a statement by him dated 21 September 2021, in which he gave a different version of the circumstances of his residence with his mother’s relatives. He said:
In response to paragraphs 58 and 59 of the Second IAA Decision I would like to clarify that when I went into hiding, I hid in the jungle near my relatives’ homes rather than in their homes. I believed this was the safest place for me to hide as I knew the area and could rely on family for support where required.
Whilst that statement was also rejected by the Authority as not amounting to “credible personal information” within s 437DD(b) of the Act, it negates the construction which the first appellant now seeks to place on the statement in his statutory declaration.
It was submitted that, in the context of the Authority’s acceptance that the first appellant had “poor English”, a liberal construction should be given to his statement. The immediate difficulty here is that the statutory declaration does not suggest that the first appellant’s linguistic ability was poor. On any view, the words used in the declaration do not bespeak of a person with poor English. On the contrary, the statement is articulately worded and made in accordance with most grammatical rules. This may be the result of it having been prepared by a legal practitioner who was also the first appellant’s migration agent. In this respect, it appears that it was provided to the Authority under cover of a letter from the first appellant’s migration agent. Such circumstances tend to suggest that the words used by the first appellant in his declaration were those which he intended to use.
The result is that there was no unreasonableness in the manner in which the Authority determined that the statement in the first appellant’s statutory declaration was not credible. Its approach was logical and rational, and that remains so even if others might have adopted a different approach.
It was suggested that the primary judge erred by finding that the decision to conclude that the evidence was not credible would have been open to another decision-maker, and that his Honour ought to have considered whether the pathway of reasoning in fact adopted by the Authority was open. There is no need to engage in a nuanced debate about that. The substance of the primary judge’s conclusion was that it was open to the Authority to reject, as it did, the credibility of the statement and that conclusion has not been shown to be wrong.
The first appellant claimed that the alleged irrationality or illogicality in the Authority’s conclusion that the evidence sought to be advanced was not credible, was material and thereby resulted in jurisdictional error. In that respect, there was a debate between the parties as to the question of the materiality of an error of the type alleged and whether its effect is to be assessed by reference to the decisional process under s 473DD of the Act or by the impact on the ultimate outcome of the determination. The Court was taken to the possibly conflicting decisions of Colvin J in DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 and Feutrill J in AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223. Tempted as one might be to enter into that discussion, as it has been determined above that no unreasonableness arose and it is not necessary to address the issue of materiality, it is preferable to await an occasion where this particular issue is required to be addressed.
Grounds 3(a) and 3(b) – alleged failure to consider integers of claim or evidence
The next ground relied upon is that the Authority failed to consider an integer of the first appellant’s claim in relation to his alleged persecution.
The main substance of the first appellant’s claim was based on his interactions with the person referred to as Ruben whom, it was said, was involved with the LTTE. He claimed that he was at risk from persecution because of a consequential imputed association with the LTTE and that the risk of harm came from the Karuna Group. The first appellant claimed that he had been abducted and beaten by the Karuna Group in 2008, but was released following the payment of a bribe. He says that he was abducted a second time in 2010 by an unknown group and was again beaten as a result of which he suffered extensive injuries, including injuries to his face and head and injuries to his feet. He claimed that he was taken to the hospital and while he was there a group of men kept watch on him, but he managed to evade them by being released early and leaving the hospital with the assistance of the nurses who let him leave by the back door.
Principles concerning the obligation to consider
The broad principles concerning the obligation of administrative decision-makers to consider all the claims and integers of claims in a visa application were referred to in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503, 509 – 510 [18], and there is no need to repeat those principles here.
It is well-established that the Authority is obliged to consider the evidence and the materials before it. That arises in a number of ways. First, the Authority has a duty to review a decision by considering the review material provided to it as required by s 473DB of the Act, and has a similar obligation to review imposed by s 473DC of the Act, the latter carrying with it the obligation for the Authority to consider the evidence before it: Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia (2023) 297 FCR 143, 146 – 147 [11].
In undertaking the review, the Authority is also required to consider an applicant’s claims and the integers of those claims: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, 152 – 153 [42]. In doing so, it must consider them within the bounds of rationality and reasonableness: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 599 [25] (Plaintiff M1/2021). The degree of consideration required turns on, amongst other things, the centrality of the matter in question: Singh v Minister for Home Affairs (2019) 267 FCR 200, 210 [37(1)].
It should also be accepted that a decision-maker is required to read, identify, understand and evaluate the material before it, bringing their mind to bear upon it and to consider what weight or persuasive quality is thought appropriate to any relevant materials: Plaintiff M1/2021 at 598 [24]. The decision-maker must make a determination as to how and to what extent any relevant material might feed into the deliberative process and the ultimate decision: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271 [63(a)].
Further, it is regularly observed in this Court that an inference that a matter was not considered ought not too readily be drawn merely by the absence of a reference to it, where the reasons of the decision-maker are otherwise comprehensive and the issue has at least been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 – 605 [46] – [47]. Merely because a decision-maker does not refer to some piece of evidence or some issue does not mean it was not considered: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 617 [70]; SZSXH v Minister for Immigration and Border Protection [2014] FCA 914 [16]. Additionally, the mere fact that a decision-maker does not set out a finding on a matter may indicate that the decision-maker did not consider the matter to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 330 – 331 [5].
There did not appear to be any particular debate about the above principles concerning the Authority’s obligation to consider material.
Scarring evidence
Within this rubric, the first appellant’s initial complaint is that the Authority did not consider his facial scarring which he claims to have suffered in the course of the 2010 abduction and beating.
The Authority rejected the allegation that the first appellant was beaten in 2010 by the Criminal Investigations Department (CID), the Karuna Group or anyone else. It referenced (at [41]) the fact that the first appellant sought to support his claim of being beaten and sustaining facial injuries by producing medical evidence in the form of a report. However, the medical report stated that he was injured in a road traffic accident. He claimed that he conspired with the doctors to put this in his medical records because naming the CID as the perpetrator could cause him trouble. Whilst that was considered by the Authority to be plausible, the further explanation that they also agreed not to include injuries to his head and feet, which he claimed were sustained during his assault to the point he lost consciousness, was not. The medical report was detailed as to the multiple injuries which were identified and the treatment he was given for them. There was no mention of a head injury or damage to the first appellant’s feet. The follow up treatment of the first appellant was for a fracture of his shoulder and chest bone. The Authority considered it to be implausible that the medical records would be so different to the injuries which he had actually sustained. That is particularly so given that a head injury would not have been inconsistent with a road traffic accident, such that there was no reason why it would not have been recorded. It concluded that it was much more likely that the first appellant had, in fact, been involved in a road traffic accident in 2010, rather than being assaulted on a second occasion by the CID or the Karuna Group.
The Authority then addressed the possibility that it might have been in error in relation to the claimed second assault. It determined that, if that were the case, the first appellant’s treatment was inconsistent with the narrative that he was wanted for holding LTTE weapons. The Authority identified that 2010 was a time when LTTE suspects were either abducted and never heard of again, or were sent to rehabilitation, but, by contrast, the first appellant was taken to hospital. Moreover, he was able to leave the hospital. In addition, it identified that, after 2010, the first appellant lived in the community without any further interactions with the Karuna Group, the CID or any other authority until he departed Sri Lanka in 2012. Though he said that he was hiding with his wife’s relatives and then with his mother, that was not accepted on the basis that the Sri Lankan authorities had collected and maintained sophisticated intelligence on former LTTE members and supporters, and he could have been found if he were of interest to them.
The Authority further concluded that even if there was a suspicion about him in 2010, on the basis that he may know something about LTTE weapons, it was farfetched to think that he would still have a profile of adverse interest that he had when he was set free in 2010 on the basis of driving Ruben 13 years earlier in 2008.
It was submitted on behalf of the first appellant that the existence of facial scarring was objectively capable of being seen as persuasive evidence supporting the claim that he was assaulted in 2010, and that this was particularly so because he had maintained these claims for some time. A further complaint was made that the Authority did not seek any new information from the first appellant, such as requiring him to appear before it, to enable it to view the scarring and form its own view as to its nature. It was in this context that it was alleged that the Authority’s failure to mention the facial scarring, or his claim that it arose in connection with the 2010 incident, evidenced that it failed to consider an important integer of his claim.
Though there is no doubt that the facial scarring was not mentioned in the Authority’s reasons, the omission to refer to it was unremarkable. The Authority had before it and relied upon medical evidence as to the nature and extent of any injuries suffered by the first appellant in 2010. Those records identified injuries to his chest and left shoulder for which he was given treatment. Though the first appellant had claimed that in the alleged beating he suffered head injuries and damage to his feet, there was no record of injuries to either of those parts of his body in that medical evidence, and no record of any treatment for such injuries either.
The difficulty with the first appellant’s claim that his facial scarring was not taken into account is that it is not probative of his claim that he was beaten in 2010. A similar issue arose in AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407. There, Allsop CJ addressed the probative weight which might be given to photographs of the appellant’s scarring which was alleged to have resulted from a bomb blast. The Chief Justice observed at [65]:
The IAA accepted that the appellant had scarring, but it was not satisfied that the injury occurred in the circumstances claimed. The IAA concluded that the photographs were of little probative force because, although they were corroborative of an injury, they offered no assistance in identifying the cause of the injury; the IAA noted at [15] that there could be many explanations for the scars in the photographs. Indeed, without further explanation, the photographs were only capable of supporting a conclusion that the appellant had scarring to numerous parts of his body: see BJK17 272 FCR at 23 [38]. This information is of little probative value in circumstances where the IAA accepted, in the absence of the photographs, that the appellant had scarring to his body and had incurred some type of injury. It is unclear how consideration of the photographs could have altered the conclusion of the IAA in these circumstances. As the Federal Circuit Court judge found at [39]:
… a series of photographs lacking any factual context was of no value to the Authority. Even if the Authority had considered that there were exceptional circumstances justifying its consideration of the photographs, any such consideration could not have realistically resulted in the Authority arriving at a different decision.
The same applies to the present circumstances. The fact that the first appellant had sustained scarring to his face at some time in his life is not probative of the claim that he was beaten in the head in 2010. The scarring may have occurred as the result of a number of different events in 2010 or at some other time.
The first appellant’s claim was that he was persecuted by reason of his perceived LTTE association and that could be evidenced by reason of the fact that he had been twice abducted, once by the Karuna Group and once by unknown persons. He gave evidence about those abductions. The Authority accepted that he had been abducted by the Karuna Group in 2008 for the purposes of extortion, but rejected that the second abduction had occurred. The evidence of the scarring was said to evidence the injuries sustained on that second occasion. However, it was not doubted that the first appellant sustained serious injuries in 2010; the question was as to their cause, and the scarring was not probative of that cause.
In this context, even if the Authority did not consider the scarring, it was not a failure to consider an integer of a claim, nor was it a failure to consider material which went to the centrality of an integer of a claim. At worst, it was some evidence which may or may not have supported one element of the claim.
The appellants failed to establish that the Authority did not consider the evidence of scarring. It is apparent that the Authority was fully aware of the evidence before it and its detailed and comprehensive reasons reveal that it had assessed and addressed that which had been provided to it. The thoroughness of the reasons supports the conclusion that it considered the material which was before it and, from that made the findings and drew the inferences which it did. The scarring was of little or no probative weight to the issues to be decided and the absence of any reference to it does not indicate that it was not considered.
Any error was not material
Even if it were assumed that the Authority failed to consider an integer of a claim, that failure was not material. After rejecting the first appellant’s claim that he had been abducted and beaten in 2010, the Authority considered what its conclusion would be if the abduction and beating had occurred. On that assumption, it concluded that the treatment of the first appellant was not consistent with the narrative that the Karuna Group or the Sri Lankan authorities considered that he had been holding or concealing LTTE weapons. In 2010, persons in Sri Lanka suspected of association with the LTTE were abducted and never heard from again or were sent to rehabilitation. That did not happen to the first appellant. On the contrary, he was allowed to go to hospital. Thereafter, he lived in the community without any subsequent interaction with the Karuna Group, the CID, or any other authority.
The necessary conclusion from the Authority’s findings is that, even if there was some error in failing to mention a piece of the evidence relevant to the alleged 2010 beating, the error was immaterial because there is no possibility that an alternative conclusion could have been reached if the alleged error had not occurred.
Grounds 3(c) and 3(d) – alleged failure to properly consider escape claim or evidence
The first appellant made the claim that when he was in hospital following the incident in 2010, he was watched by a group of men, and that he was only able to leave the hospital by escaping with the assistance of his doctor discharging him early and him being allowed to leave by the back entrance with the help of nurses. The first appellant’s precise claim as to the connection between those men and the group that had abducted him was somewhat unclear.
The first appellant claimed that the evidence of him leaving the hospital by the back entry with the assistance of nurses was an essential integer of his claim which the Authority failed to consider. He submitted that the evidence was significant to the Authority’s conclusion because part of its reasoning in rejecting his claim of being assaulted in 2010, was that he was able to leave the hospital and that he was, in effect, set free.
That submission conflates two findings of the Authority. The first is that the first appellant was able to leave the hospital. However, its reference to the first appellant being “set free” was a more general conclusion. It was directed to his general circumstances following his leaving the hospital. That is, the Authority found that he was not detained, put in a rehabilitation centre, arrested or abducted. On the contrary, he lived in the community without further interactions with the Karuna Group, the CID or any other authority until he left Sri Lanka, and that this was at a time when the intelligence services could find him if they wished to. It was in that more general sense that the Authority reached the conclusion that the first appellant was “set free”. With respect to the submissions made on behalf of the first appellant to the contrary, there is no reasonable way in which the Authority’s reasons can be interpreted otherwise.
Therefore, the real issue in relation to Ground 3(c) is that the Authority did not specifically address his claims that he left the hospital surreptitiously by the doctor discharging him early and him escaping out the back entrance with the assistance of nurses.
However, the Authority expressly referred to the evidence relevant to this issue. At [26] of its reasons, it identified that:
Whilst in hospital he and his wife noticed men watching him. The doctor also noticed it and discharged him early to escape the men. He went to stay with his wife’s family for 2 or 3 months, and then continued to stay in hiding at his mother’s house.
That was a recitation of the first appellant’s claims and it is clear that the Authority had them in mind. The reference to “escaping” the men is particularly relevant to the substance of the first appellant’s claim.
That same evidence was averted to in the Authority’s reasons (at [38]), where the following was observed:
… He claims that in the hospital he was observed by a group of men, but managed to evade them by being discharged after a few days and then staying in hiding with his wife’s relatives and then his mother. …
There is no doubt that the Authority was fully aware of this evidence and of its relevance to the first appellant’s claim that he was the subject of interest by Sri Lankan authorities or the Karuna Group. In addition, the Authority was clearly aware that this claim involved the assertion that he was under surveillance by those unknown persons and that he had evaded them by leaving the hospital in a surreptitious way. Whether he was assisted by nurses who let him leave by a back entrance is merely evidence called in aid of his claim that he had to leave by surreptitious means. Though those details were not mentioned by the Authority, they were not needed. Of themselves they do not constitute an integer of a claim or a matter of any centrality to the matter in question. They are mere surrounding evidential details of the allegation that subterfuge was required on the first appellant’s part to leave the hospital and it was not necessary for the Authority to articulate every single piece of evidence relevant to that matter. The Authority concluded that part of the first appellant’s claim was that he required subterfuge to avoid detection by men watching the hospital, and the evidence in question falls within that observation. It follows that even if that particular evidence had not been considered, there was no failure to consider a matter of substance.
In any event, given the above findings as to the comprehensive nature of the Authority’s reasons, it is not possible to conclude that this evidence was not considered. The careful analysis of the material before it reveals a careful and fulsome consideration of all the relevant material. The first appellant has not established that the Authority overlooked any of the evidence surrounding the first appellant’s escape from the hospital.
Even if the Authority had overlooked the evidence referred to, and even if it was of centrality to an important part of the first appellant’s claim, the Authority’s subsequent findings render its omission immaterial. The issue about the first appellant’s departure from the hospital was one of a number of matters considered by the Authority and from which it concluded that he was of no interest to the Sri Lankan authorities. The other factors included that he was not detained in a rehabilitation centre where other LTTE suspects were (or where they were arrested or abducted), and that he remained in the community without further interaction with the authorities in circumstances where the sophisticated intelligence network of the Sri Lankan authorities would have been able to locate him if he were of interest. In addition to those matters, there was no evidence of any persons closer to the alleged LTTE member who continued to be of interest. From this the Authority concluded that, even if the first appellant was of interest in 2010 and was abducted and beaten, he would have no longer been at the time of the delegate’s decision. That conclusion negates any error which the Authority might have made in assessing the circumstances in which the first appellant evaded those who were watching him at the hospital.
In relation to these grounds, it should be concluded that there was no overlooking of evidence by the Authority, no illogical reasoning and no error by the primary judge in failing to detect any.
Ground 4 – refusal to invite the second appellant to an interview
The appellants further complained that the Authority unreasonably failed to invite the second appellant to attend an interview before it. It is to be recalled that when the SHEVs were applied for, the second appellant was a minor (being 16 years of age) and made no claims for protection in her own right. In the result, she was not invited by the delegate for an interview.
By the time the matter came before the Authority the second appellant was no longer a minor. On this occasion, she advanced her own claims for protection via two statutory declarations concerning past sexual assaults on her in Sri Lanka and her fears of that happening again were she to return.
In her statutory declarations she stated that she had requested an interview to further discuss her statements but she had never been interviewed in relation to her claims for a protection visa. In a letter of 4 October 2021, a Mr Goulding from Refugee Legal made extensive submissions on behalf of the second appellant to the Authority, and he specifically urged it to exercise its discretion under s 473DC(3) of the Act to invite her to give oral evidence at an interview to present her claims in person now that she is an adult.
In dealing with that request, the Authority noted that it was not until the second review that the second appellant had made her own protection claims. At that stage, she was over the age of 18 and no longer living in her father’s household. It identified that she had provided two detailed statements which had been accepted under s 473DD of the Act, but that there was no indication that she had further information that could only be given at an interview. It was also identified that she did not purport to have any new information to provide in support of her father’s claims. Indeed, she had acknowledged that she was too young when she left Sri Lanka to have any knowledge of those matters.
At [24] of its reasons, the Authority stated:
… Taking into account the limited form of review provided for in Part 7AA of the Act, the decision to not make claims in the original SHEV application, that there was no error by the delegate in not inviting her to an interview, there is no indication there is further new information to provide, and that she has had a reasonable opportunity to provide new information in written form to the IAA, I have decided not to exercise the discretion to invite her to an interview.
No unreasonableness in the omission to invite the second appellant for an interview
It is uncontroversial that a failure to invite a person for an interview under s 473DC(3) of the Act can amount to legal unreasonableness: Minister for Home Affairs v DUA16 (2020) 271 CLR 550, 563 – 564 [26] – [27] (DUA16); DPI17 v Minister for Home Affairs (2019) 269 FCR 134, 147 – 149 [35] – [43]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439, 444 – 452 [1] – [25]; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, 227 [21] (Plaintiff M174/2016).
However, in this case, the Authority’s determination not to exercise the power to interview the second appellant was entirely justifiable and logical.
First, it must be kept in mind that as a general rule, and subject to certain limited exceptions which do not apply here, the Authority is to conduct the review without accepting or requesting new information and without interviewing an applicant: Plaintiff M174/2016 at 227 [22]. This tends to minimise the circumstances in which it might be found that the Authority has acted unreasonably in determining not to conduct an interview.
Secondly, it is now well established that the operation of s 473DC of the Act is not to be assessed through the lens of procedural fairness, and a high threshold needs to be satisfied before it can be concluded that a decision not to grant an interview would be unreasonable: DUA16 at 563 – 566 [26] – [34]. Unlike in that case, here there are no extreme, extraordinary or special circumstances. There was no indication that the second appellant had additional information to provide which would qualify as “credible personal information” which might be accepted by the Authority. Though she indicated that she wanted to discuss her claim, there was nothing to suggest that anything she had to say would further the matters of which the Authority was already aware.
Thirdly, this is not a case, as it was in DUA16, where the appellant was not given an opportunity to provide information to the Authority. Substantial information about her claims had been given to and accepted by the Authority and, as mentioned, there was no indication that she would be able to provide anything further.
Fourthly, the criticism that the Authority failed to appreciate that its observation of the second appellant might be new information can be rejected. It is contrary to the Authority’s finding that there was no indication as to further new information which might be provided. That conclusion can be taken to include that there is no new information which the second appellant might provide orally and nor was her possible demeanour suggested as being available new information. Indeed, the appellants’ criticism of the Authority is unwarranted in circumstances where it was not suggested to it that the second appellant’s appearance at an interview might provide credible new evidence via her demeanour.
Fifthly, the statement made in Mr Goulding’s letter that she wished to give evidence about her particular circumstances personally, does not suggest that she intended to provide additional information above and beyond that which had been set out in her two lengthy statements. There was, in fact, nothing in the letter which would put the Authority on notice that any circumstances existed which warranted, as a matter of fairness or importance, that the second appellant be interviewed.
Sixthly, a criticism was made that the Authority wrongly assumed that the second appellant had made a decision not to make claims in the original SHEV application. That is not correct. The Authority gave its reasons for rejecting the request for the holding of an interview at [24] of its reasons which is set out above. It did not there mistakenly conclude that it was the second appellant who made the decision not to make claims in the original SHEV application. All that is said is that a decision was made, and it seems likely that it was. Indeed, there is no evidence that no decision was made. The second appellant sought the SHEV as a member of the first appellant’s family unit and not more. Given that the appellants were represented by migration agents at the time, it can be assumed that all appropriate questions were asked of the second appellant to ascertain her position and the circumstances which she would face were she to return to Sri Lanka. It must have been determined that she should not make her own claims for protection, but to claim as a member of the first appellant’s family unit. Whether that decision was one of the second appellant or of the first appellant does not matter. Indeed, it might be accepted that the first appellant was unaware of the alleged sexual assaults committed against the second appellant at the time of the making of the initial SHEV application, however, that does not diminish the fact that it was determined that the second appellant would not make her own application. The import of the issue considered by the Authority was that no such claims had been advanced earlier in the decisional process and that was relevant to its decision whether to invite the second appellant to an interview.
The complaint made of the Authority’s observation about the making of the decision is erroneous and, indeed, it is one emanating from a perusal of the reasons with an eye attuned to error.
Seventhly, the Authority generally accepted the second appellant’s claims of past trauma and it was not in a position whereby any earlier Tribunal or decision-maker had been influenced in relation to her claim by any determination about her demeanour or the like. In this respect, there was no “informational gap” in the material before the Authority. Even if there was, as the Authority’s essential findings were directed to the prospective consequences for the second appellant were she to return to Sri Lanka, the issue of her demeanour was irrelevant.
Finally, the second appellant claimed that she had never been interviewed and, therefore, had never been given the fundamental opportunity which is afforded to other SHEV applicants to attend before a decision-making body and expand on, explain and be tested in respect of her written claim. With respect, that assertion is incorrect. At the time of the making of the SHEV application the second appellant could have made her own claim based on her own grounds. Had she done so, she would have had an interview about her claim. She was not denied that opportunity.
It follows that there is no error in the Authority’s decision not to exercise its power under s 473DC(3) of the Act not to interview the second appellant. Because there was no legal unreasonableness in the Authority’s decision there is no need to consider the question of materiality.
Conclusion on appeal
It follows that all of the appellants’ grounds fail. No error has been shown in the decision of the primary judge to refuse to quash the Authority’s decision. In the circumstances, the appeal is dismissed.
The appellants must pay the first respondent’s costs of and incidental to the appeal, to be taxed of not agreed.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington. Associate:
Dated: 4 December 2024
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