AJI18 v Minister for Home Affairs
[2024] FedCFamC2G 670
•30 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AJI18 v Minister for Home Affairs [2024] FedCFamC2G 670
File number: MLG 201 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 30 July 2024 Catchwords: MIGRATION LAW – Extension of time and substantive application considered in a single hearing – Where no unreasonableness in the Authority’s adverse credibility findings because of inconsistencies between the Applicant’s SHEV Statement and SHEV Interview – Where no failure to consider components of Applicant’s claim – Where the country information rationally supported the Authority’s finding that the Sri Lankan authorities would not tolerate religious extreme action – Usual and proper approach where substantive grounds had reasonable prospects to extend time even if substantive application dismissed Legislation: Migration Act 1958 (Cth) s. 477 Cases cited: AFG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 585
AGC17 v Minister for Home Affairs (2021) FCA 1572
ASB17 v Minister for Home Affairs (2019) 268 FCR 271; [2019] FCAFC 38
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 133
BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865
BZD17 v Minister for Immigration (2018) 263 FCR 292
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DNQ18 v Minister for Immigration (2020) 275 FCR 517, [2020] FCAFC 72
Dranichnikov v Minister for Immigration (2003) 214 CLR 496
LPDT v Minister for Immigration [2024] HCA 12
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [2014] FCAFC 1
Minister For Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration v. SZVFW (2018) 264 CLR 541, [2018] HCA 30
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757; [2002] FCA 379
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission/s: 8 May 2024 Date of hearing: 8 May 2024 Place: Melbourne Counsel for the Applicant: Dr McBeth Solicitor for the Applicant: Carina Ford Immigration Lawyers Solicitor for the First Respondent: Mr O’Shannessy of Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 201/2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJI18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
30 JULY 2024
THE COURT ORDERS THAT:
1.Pursuant to s. 477(2) of the Migration Act 1958 (Cth), the time to make the originating application in this matter is extended up to, and including, 25 January 2018.
2.The application is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
WHAT IS THE NECESSARY BACKGROUND AND WHAT ARE THE ISSUES?
The Applicant is a Tamil Muslim from Sri Lanka. With his father, he was involved in an incident with Buddhist monks whilst transporting cattle. During this incident, his father was allegedly struck, and the Applicant retaliated by hitting a monk. The Applicant claims he faces a real risk of significant harm if he returns to Sri Lanka because he hit a monk, and on this basis, seeks a protection visa.
Under Part 7AA of the Migration Act 1958 (Cth), the Immigration Assessment Authority (Authority) accepted that the Applicant had hit a Buddhist monk in what it termed an “isolated event” (Reasons, [17]). In the critical part of its reasons, which the Applicant seeks to challenge on judicial review, the Authority found that the Applicant had given “grossly inconsistent” accounts of events in the altercation’s aftermath in his SHEV Application (the written visa application) and his SHEV Interview (oral departmental interview). The Authority found the following (Reasons, [12]):
Based on the grossly inconsistent nature of the applicant’s evidence, I do not accept that people that the applicant had an incident with regarding cattle came to his home, threatened his mother and threatened to kill him as a result of hitting Buddhist monk. I also do not accept that these men held his father for any extended period of time or that his mother had to ask for relative’s help in order to secure his release.
[Emphasis added]
At [17] of its reasons, the Authority returned to this issue of inconsistent information and said:
Given the grossly inconsistent nature of the information provided, I have serious credibility concerns regarding the applicant and aside from the isolated event where he and his father encountered and had an altercation with Sinhalese Buddhists when transporting cattle, I do not accept the remainder of the claimed events.
The “isolated event” aside, because the Authority did not accept the Applicant’s account of the remainder of events to be credible, it ultimately concluded that the “applicant does not face a real chance of persecution on returning to Sri Lanka.”
The Applicant made his judicial review application 86 days out of time. The parties agreed that I should deal with the extension of time application under s. 477(2) and the Applicant’s substantive application in a single hearing. For reasons set out below, I will grant the extension of time.
There are 3 grounds of review. I have found that none of the grounds is made out.
I will dismiss the application. My reasons follow.
GROUND 1: DID THE AUTHORITY MAKE A LEGALLY UNREASONABLE DECISION BECAUSE OF ITS TREATMENT OF INCONSISTENCIES IN THE APPLICANT’S EVIDENCE?
Ground 1 was as follows:
The decision of the IAA was based on a finding that was irrational, in that it could not rationally be supported by the evidence before the IAA, namely that the applicant’s evidence was “grossly inconsistent,” or alternatively, the IAA’s treatment of the supposed inconsistencies in the applicant’s evidence constituted an erroneous approach to the review and a constructive failure to exercise jurisdiction.
Ground 1 focused on the Authority’s finding that the Applicant’s two accounts (in his written SHEV Application and in his SHEV Interview) were “grossly inconsistent”. This finding underpinned the Authority’s adverse credibility assessment of the Applicant.
The Authority’s reasons are set out in the long passage at [12] of its Reasons as follows:
12. […] The applicant claimed that his mother told his father’s family about the situation and requested that they bring back his father and his uncle and some other family members went to where the incident occurred and spoke to the monks who agreed to let his father go, however his father did not come home that night and stayed somewhere else at a relative’s home to avoid any doubts from the monks and the Sinhalese people who might check the house. This statement is inconsistent with the evidence that the applicant provided in his SHEV interview. At his SHEV interview, the applicant said that he was involved in an altercation with the Buddhist monks when he and his father were transporting cattle. When the altercation occurred, he left his father and went home. He said that his father was held there. He arrived home at sunset and his father came home the same day but after the sun had gone down. The applicant did not mention that his father went to stay at relative’s houses to avoid any confrontation with the Sinhalese as he had mentioned in his SHEV application. At his SHEV interview the applicant said that people that he recognised came to his home and threatened his mother. They pushed down the door and created a chaotic scene. They threatened his mother and threatened to kill him as he had hit a Buddhist monk. When asked how these men knew where the applicant lived he said that they would have known because of his father’s identity card that he was his son. However, earlier in the SHEV interview he said that his relatives had said that they ensured that these men did not know that he or his father was related. Based on the grossly inconsistent nature of the applicant’s evidence, I do not accept that people that the applicant had an incident with regarding cattle came to his home, threatened his mother and threatened to kill him as a result of hitting Buddhist monk. I also do not accept that these men held his father for any extended period of time or that his mother had to ask for relative’s help in order to secure his release.
[Emphasis added]
Legal principles
As the Applicant noted, a person who claims to be a refugee “will ordinarily provide an account of relevant events on multiple occasions” (AGC17 v Minister for Home Affairs (2021) FCA 1572, [41]). As a result, “it is inevitable that each version will be slightly different” W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757; [2002] FCA 379, [15] (approved in AGC17, [21])). Here, the Applicant had given two accounts of relevant events: first, in a written statement (SHEV Application) and, second, in an interview conducted with the Minister’s delegate (SHEV Interview). It was inevitable that there would be some differences between the two accounts.
Whether the way in which a decision-maker considers “inconsistencies” between different accounts an applicant gives at different stages of the visa application process in forming an adverse credibility assessment of the applicant gives rise to jurisdictional error will depend upon a close examination of the facts of the matter.
It may be that different accounts of an event may not be inconsistent at all. In ASB17 v Minister for Home Affairs (2019) 268 FCR 271; [2019] FCAFC 38, a Full Court held at [42]:
Differing accounts of the same event may not be “inconsistent” at all. One may be more detailed than another. One may have different emphasis. One may include a particular incident that another does not.
In AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 13 at [27], a Full Court held that the term “inconsistency”, where it underpins adverse credibility findings, should be used with appropriate caution and appreciation of “the danger of using labels or formulae which mask the need for deeper analysis”. The decision-maker must consider the “significance of the inconsistency having regard to the person’s case “as a whole” and the “weight to be given to it.” An inconsistency may be at the “periphery” or involve an “objectively minor matter of fact” (AVQ15, [28]) in which case it ought to be given limited significance.
Further, adverse credibility findings are not immune from judicial review, but caution must be exercised to avoid transgressing into impermissible merits review. The Full Court in AVQ15 set out among its summary of relevant principles at [41]:
(b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
[…]
(f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.
The plurality in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [2013] HCA 18, [72] set out a classic modern statement of legal unreasonableness as follows:
The more specific errors in decision-making, to which the courts often refer (166), may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another” (167). Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (168), Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
[Footnotes omitted]
In Li the High Court was dealing with the exercise of a statutory discretion. Legal unreasonableness is not confined to discretions and there may be unreasonableness as to how a decision-maker is “satisfied” (or not) that a visa applicant has satisfied visa criteria (Minister for Immigration v SZVFW (2018) 264 CLR 541, [2018] HCA 30; [81]–[83] (Nettle and Gordon JJ)). A decision will be legally unreasonable if it may be said “no sensible decision-maker with due appreciation of its responsibilities would have taken that course” (SZVFW, [69] (Gageler J) citing Li, [71] (Hayne, Kiefel and Bell JJ)). Subject to legal reasonableness being the “minimum to be expected of any reasonable repository of the power” (SZVFW, [52] (Gageler J)), the decision-maker had some latitude of choice as to those factual matters which informed the assessment of the Applicant’s credibility.
In BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 Mortimer CJ at [41] referred to legal unreasonableness as an “umbrella concept” with “irrational reasoning going to the material parts of the way in which a conclusion was reached and therefore a power is exercised, being described as one manifestation of legal unreasonableness”. As to irrational reasoning, there must be a “logical connection” between the material that was before the decision-maker and the conclusions drawn but “the strength of the logical connection is not material; as long as there was some logical connection, then that is all that was required” (BQG21, [30]).
In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11, Allsop CJ said at [11] that the task of judicial review is one of characterisation of the decision to be evaluated and whether a conclusion is reached as to whether the decision under review had the character:
…of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.
The standard of legal unreasonableness remains a “stringent” one: SZVFW, [11] (Kiefel CJ) citing Li, [108] (Gageler J).
Also, unreasonableness may arise in respect of irrational findings or reasoning along the way to a conclusion (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, [132]; followed in BZD17 v Minister for Immigration (2018) 263 FCR 292, [34]). The Applicant submits that this is a case of that kind where the Authority reasoned illogically or irrationally as to alleged “inconsistencies” between the SHEV Statement and SHEV Interview, which meant there was a material error along the way to the ultimate conclusions that the Applicant was not to be believed and did not satisfy the visa criteria.
This is a case in which the Applicant aims to identify specific errors in the reasoning process rather than proceed on the basis that the conclusion itself lacks an evident and intelligible foundation even if specific errors in reasoning process cannot be identified. Where, as here, there are reasons for the exercise of the power, “it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was” (Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [2014] FCAFC 1, [47]).
Finally, in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, a Full Court held at [34]:
The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error… It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question…. the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
The Authority’s reasons
The Authority accepted the Applicant’s central contention that in an incident with Buddhist monks whilst he and his father were transporting cattle, the Applicant hit a monk before fleeing the conflict, leaving his father with the monks. As noted, the Authority termed that incident an “isolated event.” The Authority rejected the Applicant’s account of the event’s aftermath because of inconsistencies between the SHEV Application and the SHEV Interview. This was part of its reasoning “along the way” (BZD17, above) in disbelieving the Applicant’s account of the “remainder of the claimed events” (Reasons, [17]), with the consequence that the Authority was not satisfied that the Applicant satisfied the criteria for the grant of a protection visa under s. 65 of the Act.
The Authority decided this matter on the papers. It made its assessment of the Applicant’s credibility by reference to the written SHEV Application and the SHEV Interview (as to which the First Respondent submitted it would have listened to the audio) (T83:L30).
The First Respondent submitted I ought not to be distracted by the use of the intensifying adverb “grossly” when the Authority wrote the Applicant’s evidence had a “grossly inconsistent nature.” The substance of the Authority’s analysis matters more than the particular words it chose to deploy. The issue is whether the reasons sufficiently lack a rational foundation or an evident or intelligible justification (Stretton, [11], above) for the Authority’s disbelief of the Applicant’s account. The fact that there is an “inconsistency” between two accounts the Applicant has given may (or may not) provide an evident and intelligible foundation for not believing the Applicant. If no reasonable decision-maker could have given any inconsistencies between the two accounts the weight the Authority did, the decision may be characterised as legally unreasonable (Li, above). The issue is not, however, whether the Authority undertook the best analysis of the evidence.
The Applicant contended that a comparison of the SHEV Application and the SHEV Interview discloses that the Applicant’s account “contrary to the IAA’s description, the evidence…was actually remarkably consistent.” The Applicant emphasised that in both accounts he had said:
(a)following the altercation, the Applicant fled home and his father remained with the group (SD, [3]; T22:L06);
(b)a group of men went to the Applicant’s house after he returned home that evening, threatened his mother at the door, and said they wanted to kill the Applicant because he had hit a Buddhist monk (SD, [4]; T25:L26 – T27:L12);
(c)the Applicant escaped out the back door (SD, [4]; T27:L04); and
(d)the Applicant’s relatives had to go to the place where the Applicant’s father was held to convince the group to release him (SD, [3]; T22:L7–15).
The contentious issues were as follows.
The Authority found that the Applicant had said in his SHEV Statement that his father did not come home on the day of the incident. The Authority found that (inconsistently) the Applicant had said in his SHEV Interview that his father did come home on the day of the incident.
In his SHEV Statement, the Applicant had written that he had reached his home “after 3½ hours” following the incident. It was “during sunset time, while my mother and I were alone at home some people came home shouting and knocked at the door.” The Applicant further added:
at the time the incident when the monks and their people stopped us, they did not know about the relationship between my father and me. They only knew about 2 men who were trying to bring cows to the village.
He wrote:
My mother later decided to inform my father’s family about the situation we were going through and request them to bring back my father. She told them the entire incident and that my father was still there with these people… My uncle and some other family members went to that particular place where the incident occurred and talked to the monks. They explained that my father and I were not related and that my father was only doing business. I worked for him on a daily basis and this is the reason why we were together bringing the cows to the village. They said to the monks that they only want to take my father home safe. They finally agreed and sent back my father. However my father did not come back home on that day, he stayed somewhere else at some relatives’ place just to avoid any doubts from the monks and the Sinhalese people who might check the house.
[Emphasis added]
In his SHEV Interview, the Applicant said that he reached home at “almost the sunset” the day of the altercation and his father arrived home later that day at “nighttime.” Specifically, in the SHEV Interview he said (T25:L16-25):
Interpreter: When I reached home, it was evening, almost the sunset. When my father returned home, it was the nighttime.
Interviewer: On that same day?
Interpreter: [Tamil language]
[redacted]: [Tamil language]
Interpreter: Yes, same day.
Interviewer: That same day.
[redacted]: [Tamil language]
Interpreter: He didn't come home because they claimed that I wasn't his son, so in order to avoid issues, they took my father to a different place.
There was a rational foundation for the Authority to find that there was an inconsistency between the Applicant’s two accounts as to whether his father has returned home that day. In his SHEV Statement the Applicant had said that his father did not come home the day of the incident. He said the monks had detained his father. On the sequence of events as he described it in the SHEV Statement, a group of people (associated with the monks) arrived that evening at his home and he fled out the backdoor. He said that “my mother later decided to inform my father’s family.” Only on his mother’s intervention a paternal uncle and “some other family members went to that particular place” of the incident where the monks continued to hold his father. The Applicant did not identify the time at which the family members “went” to the place of the altercation. It is possible that it was during that night but, on the Applicant’s account, it could not have been any earlier than that night. The incident had happened some 3½ hours away from the Applicant’s village. It is difficult to see how the father — even if the monks had quickly released him following the family’s intervention — would have returned home before the next morning. In any event on the account the Applicant gave in the SHEV Statement, his father did not come directly home but for some indeterminate period after his relatives had secured his release stayed at “some relative’s place just to avoid any doubts from the monks and the Sinhalese people who might check the house.”
Given that sequence of events, there was a rational foundation for the Authority to put weight on the inconsistency between the Applicant’s SHEV Statement that his father did not come home that day, and the Applicant’s statement in the SHEV Interview that his father returned home in the nighttime of the “same day.” It was open to the Authority to expect the Applicant to recall when his father returned home because this was an important matter in his overall account. The Authority was entitled to approach the material on the basis that the Applicant would know when his father whom he has left at the scene returned home. It was not a peripheral matter of the type contemplated in AVQ15 at [28] on which it was unreasonable for the Authority to place any significant weight.
Separately, the Authority set out in its reasons one finding which I consider does contain a factual error:
the applicant did not mention [at the SHEV interview] that his father went to stay at a relative’s house to avoid any confrontation with the Sinhalese as he mentioned in his SHEV application
The Applicant had, in fact, specifically said in his SHEV Interview “they took my father to a different place” which was consistent with him going to a relative’s house. I cannot see that there was any significance in any inconsistency between the Applicant’s reference to a relative’s house in the SHEV Statement and reference to a “different place” in the SHEV Interview. The Authority’s statement in its reasons (at [12]) that the Applicant did not mention that his father went to stay at a relative’s house in the SHEV interview does appear to contain a factual error. I do not find it was a material error to the reasoning in the context of the more important inconsistencies of when his father returned home (above) and how it was people (associated with the monks) arrived so quickly at his home (below).
The second issue that the Applicant sought to impugn on judicial review was the Authority’s finding that there was an inconsistency between his account (on the one hand) that the monks did not know that there was a father-son relationship between the two men involved in the incident and (on the other hand) about how if that were the case, it was that people associated with the monks involved in the incident arrived so quickly at the Applicant’s home in the altercation’s aftermath.
On the Applicant’s account in his SHEV Statement, it had taken him 3½ hours to get home. It was during sunset that “some people came home shouting and knocked at the door.” On that account, the angry people arrived at his home only shortly after he himself had arrived home.
I repeat the Authority’s reasons as to this issue here:
When asked how these men knew where the applicant lived he said that they would have known because of his father’s identity card that he was his son. However, earlier in the SHEV interview he said that his relatives had said that they ensured that these men did not know that he or his father was related.
The relevant extract from the Applicant’s SHEV Statement is as follows:
At the time of the incident when the monks and their people stopped us, they did not know about the relationship between my father and me. They only knew about 2 men who were trying to bring cows to the village.
[…]
My uncle and some other family members went to that particular place where the incident occurred and talked to the monks. They explained that my father and I were not related and that my father was only doing business. I worked for him on a daily basis and this is the reason why we were together bringing the cows to the village. They said to the monks that they only want to take my father home safe.
They finally agreed and sent back my father.
The relevant excerpts from the SHEV interview are as follows (T22:L6-20):
Interpreter: My father was left in the place where this problem happened. I had ran away and left that place. My relatives went to get him back to the village and they had told that I and my father were not related.
Interviewer: When you say your father stayed at that place, what do you mean? He didn't come home? How did he stay in that place?
Interpreter: [Tamil language]
[redacted]: [Tamil language]
Interpreter: When my relatives went to rescue him from that place, they said that my father and I had to relationship at all, that I was there only to assist him in the transport of the business, transport of the castle. Basically, they said, "You can keep the cattle and you can keep the money, but we want the person to be released so that we can take him home. If you want we will try to get that boy who assaulted the Buddhist priest and we will try to bring them to you. You're at liberty to seek that boy out and give him punishment."
And later, as follows (T27:10-22):
Interpreter: They threatened my mother saying, "It is your son who did this heinous crime. Do you know what he did? He hit a Buddhist priest. We know that he is your son. If we see him anywhere in the country, he'll be killed."
Interviewer: How do you think they're able come back to your house several hours away almost immediately that you arrived back home? How do they find out so quickly?
Interpreter: [Tamil language]
[redacted]: [Tamil language]
Interpreter: I don't know how they arrived there, but they would have identified the address through my father's ID card which they would have looked at because they had even detained there. Basically, they would have found out the address on the basis of the card and they also would have assumed that I'm the son of the person whom they are holding there.
As set out above, on the Applicant’s account in the SHEV Interview it was only after his mother’s intervention — after angry people had arrived at his home searching for him — that she contacted the father’s family and a paternal uncle and other family members went back to the place of the incident to secure the father’s release on the strength of an assurance that the person who had hit the monk (the Applicant) was not in fact related to the person (the father) whom the monks continued to hold.
The delegate had expressed scepticism about this account in the SHEV Interview. Part of the transcript of the SHEV interview reads:
Interviewer: Even though your family offered to release the cows and just have your father returned safely, and made those declarations that they don't know who you are, before all that even happened, they had already come to your house looking for you. I'm finding that a little difficult to accept.
In summary, it was open to the Authority to find that there was an inconsistency with an account (on the one hand) that the monks did not know that there was a family connection between the father and the Applicant (son) and only released the father on an assurance that the two men were unrelated and (on the other hand) that people associated with the altercation had reached the Applicant’s home shortly after he did because they had read the address on the father’s ID card.
The Applicant relied on that part of the SHEV Interview where he first said “I don’t know how they arrived there” but then immediately offered the explanation of the ID card address. The Applicant characterised that answer as one in which the Applicant had speculated that his father’s ID Card would have provided the address, or the group would have made an assumption that father and son were related despite his relatives’ later contrary statements. That is one way in which a different decision-maker may have found the Applicant’s answers credible, but it does not mark the Authority’s findings as legally unreasonable. There was a rational foundation for finding that there was an inconsistency between the prompt arrival of angry people at the Applicant’s home and the securing of the father’s release on the basis of an assurance that the two men were not related. As Allsop CJ observed in Djokovic, “assessing illogicality is not an exercise in logical dialectic.” The decision-maker was entitled to form adverse conclusions about the Applicant’s credibility if different aspects of the Applicant’s account did not cohere.
In conclusion, the decision-maker’s finding that there was an inconsistency between the Applicant’s two accounts as to whether his father did or did not arrive home the day of the altercation did not lack a rational foundation such that it was a conclusion that had the character of being legally unreasonable. There was also a rational foundation for the finding that there was an inconsistency between the Applicant’s explanation that angry people (associated with the monks) had swiftly found his home by reference to the address on his father’s ID card and his account that his relatives had only later secured his father’s release because the monks had accepted an assurance that they were unrelated. Even if other views of the evidence were available, or the Authority’s conclusion was not the best view of the evidence, it was open to the decision-maker to take these matters into consideration in an adverse credibility assessment of the Applicant. These were issues at the centre of the Applicant’s account and not peripheral matters. There was an evident and intelligible foundation for its conclusions. It cannot be said that no reasonable decision-maker with a sensible appreciation of its responsibilities would have reached the decision the Authority did as to these inconsistencies.
The Authority’s conclusion is in the last two sentences of its Reasons at [12] was rationally open to it, namely:
[…] I do not accept that people that the applicant had an incident with regarding cattle came to his home, threatened his mother and threatened to kill him as a result of hitting Buddhist monk. I also do not accept that these men held his father for any extended period of time or that his mother had to ask for relative’s help in order to secure his release.
Ground 1 has not been made out.
GROUND 2: DID THE AUTHORITY FAIL TO CONSIDER COMPONENTS OF THE APPLICANT’S CLAIMS?
The Applicant’s lawyers’ submissions to the delegate included the following:
New developments since leaving his country
[…]
The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana.
Through these strong words of the Constitution, the Sri Lankan government has a duty of care to protect the monks. Therefore, whoever hits a monk will be charged of an illegal offence. From a 2016 Report entitled Muslim Minorities in Peril: The Rise of Buddhist Violence in Asia, it has been stated that in June 2014, four people were killed and eighty injured in an outbreak of violence in the highly-Muslim populated towns of Beruwala and Aluthgama after some Muslim youth were accused of attacking a Buddhist monk's driver. After the incident, Buddhist nationalists such as the Bodu Bala Sena (BBS) rallied through Muslim cities, which led to violence and a subsequent curfew installed by the government. According to some eyewitnesses, Muslims were pulled from local buses and beaten. During the two-day episode, sixty homes and Muslim businesses were destroyed. This scenario is only about attacking a monk's driver, the situation would have been of a more aggravating level if it was actually a monk who was attacked.
[Emphasis added and footnotes omitted]
With reference to that passage, the Applicant submitted that there was a distinct component of his claim that as a person who was known to have hit a Buddhist monk (as the Authority accepted) he was at a greater risk of harm than someone who was accused of assaulting a person one step removed from a monk – a monk’s driver (AS, [45]).
The relevant principle was not disputed. The Authority had an obligation to consider “a substantial, clearly articulated argument relying upon established facts” (Dranichnikov v Minister for Immigration (2003) 214 CLR 496, [24]). Its review function required it to consider all claims the Applicant made and their essential components or integers. If a claim was based on two foundations the Authority had to consider both foundations of a claim (Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136, [42]).
The reference to the Applicant as a person who had hit monk as a person at greater risk than a person who had hit a monk’s driver was not a separate component to the claim, it merely emphasised the primary claim. In Htun, Allsop J found that the Tribunal had not completed its review task because it failed to consider a sur place claim which was “conceptually, and in a commonsense way… quite distinct from” other claims. In a “commonsense way” the passage above did not advance a claim conceptually “distinct from” the primary claim. The primary claim was that the Applicant had hit a monk. Near the start of the submission above the Applicant’s lawyers set out the essential proposition that underpinned this passage “whoever hits a monk will be charged of an illegal offence.” The passage above did not advance a distinct claim.
The Applicant also submitted that the Authority failed to consider another claim “distinct from” matters personal to him that he was a Muslim and there was an increase in extremist group Bodhu Bala Sena (BBS) violence against Muslims in Sri Lanka. This claim was distinct from his claim about hitting a monk.
The Authority considered this submission in its reasons ([18]–[20]). It noted: “nationalist Buddhist groups such as Sinhala Ravaya (Sinhalese Roar) and BBS continue to stoke religious and ethnic tensions and are known to post religiously-motivated attacks on social media” (at [18]). The Authority found that “the country information strongly indicates that any racist or religious extreme action from groups such as the BBS or Ravaya will not be tolerated by Sri Lankan authorities” (at [18]). The Authority also found that “given the size of the Muslim population in Sri Lanka and the relatively low number of incidents of violence, there is a low risk of political or religious violence for Muslims in Sri Lanka” (at [20]).
By reference to that part of the Authority’s reasons at [18]–[20], the submission that the Authority made a jurisdictional error because it failed to consider a competent of the Applicant’s claim that the Applicant confronted a real risk of significant harm because a resurgent BBS was attacking Muslims cannot be sustained. This is because the Authority did consider the claim.
The submission under Ground 2 that the Authority did not consider a separate component of the claim that the Applicant was at greater risk than a person who had punched a monk’s driver cannot be made out because it was not a distinct component of the claim.
Under Ground 2, there was a separate integer of the Applicant’s claim that he was at risk as a Muslim from extremist religious violence groups such as BBS. The Authority considered that claim. The Applicant did not make out Ground 2 as far as he submitted the Authority failed to consider that claim. The Authority considered it and rejected that claim.
Ground 2 has not been made out.
GROUND 3: DID THE AUTHORITY MAKE A FINDING THAT WENT BEYOND THE COUNTRY INFORMATION?
As I have noted, the Applicant identified that the Authority disposed of his claim to fear harm from BBS by its finding at [18]: “The country information strongly indicates that any racist or religious extreme action from groups such as the BBS or Ravaya will not be tolerated by Sri Lankan authorities.”
Ground 3 in effect proceeds from a different premise than Ground 2 namely that Authority considered the claim but irrationally rejected it.
Ground 3 is that that the “the IAA made a finding that was irrational or was based on no evidence, in that the finding went well beyond the country information on which the IAA relied”.
In support of its finding that the Sri Lankan authorities would not tolerate religious extreme action from BBS or others, the Authority referred to two sources of country information:
(a)the January 2017 DFAT report; and
(b)the report of the United States Commission on International Religious Freedom.
In DNQ18 v Minister for Immigration (2020) 275 FCR 517, [2020] FCAFC 72, [53] the Full Court set out the relevant principle on which the Applicant relied. The context was the Full Court was referring to a finding based on a passage in a DFAT report:
…. The Authority’s finding reached well beyond the material before it, and in doing so it made a finding for which there was no evidence.
[Emphasis added]
The Authority was entitled to summarise the country information before it. The Authority referred to and footnoted various country information. I accept the First Respondent’s identification of the country information to which the Authority referred (or footnoted). The First Respondent traversed the country information in written submissions as follows:
(a) DFAT, “Country Information Report Sri Lanka,” 24 January 2017:
(i)[3.18]: …there has not been a large-scale incident since June 2014…The violence lasted two days and resulted in four deaths and more than 80 injuries…Following the riots, police imposed a two-day curfew and acted to prevent further protests in the area. Gnanasara continues to assert anti-Muslim sentiment publicly and is under ongoing judicial investigations.
(ii)[3.25]: …under the Prevention of Terrorism Act (PTA), certain actions by political parties or groups can be restricted. According to the PTA, any person who ‘causes or intends to cause commission of acts of violence or religious, racial or communal disharmony’ can be sentences to a maximum of five years’ imprisonment.
(b)US Commission on International Religious Freedom Annual Report 2015 – Sri Lanka”, US Commission on International Religious Freedom, 30 April 2015,
(i) While some concerns remain, USCIRF is encouraged by the new government’s statements and actions to promote religious freedom, national reconciliation and unity.
(ii) USCIRF has found that reports of abuses diminished significantly in the first months of 2015.
(c) US Department of State, “Sri Lanka – Country Report on Human Rights Practices 2015”, US Department of State, 13 April 2016,
(i) p 36: The Secretariat for Muslims reported a total of 37 separate incidents of hate directed at the Muslim community through the beginning of May. While the Buddhist Power Force (Bodhu Bala Sena or BBS) declined in both activity and influence as a result of the change of government, it was implicated in approximately 13 of these reported incidents.
(ii) p 36: The government’s reform agenda included a renewed commitment to investigate and prosecute officials implicated in criminal activity or responsible for inciting religiously based violence.
The country information to which the Authority referred to or footnoted is “probative” in the sense it rationally supports the Authority’s finding at [18] that available country information indicated that the Sri Lankan authorities would not tolerate religious extreme action from groups such as BBS. The Authority’s finding did not go “well beyond” the country information. As Cheeseman J held in AFG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 585 at [59] “mere disagreement with the Tribunal’s reading of country information does not amount to jurisdictional error”.
Ground 3 has not been made out.
THE EXTENSION OF TIME
I noted at the outset the threshold issue that the Applicant requires an extension of time pursuant to s. 477(2) of the Act if he is to pursue his application. He filed his application 86 days after the 35-day time limit s. 477(1) of the Act prescribes. The Court may extend time if it “is satisfied that it is necessary in the interests of the administration of justice” (s. 477(2)(b)).
Considerations relevant to the Court’s discretion as to whether to extend time include (non-exhaustively) the length of the delay, the explanation of the delay, any relevant prejudice to the First Respondent and the merits of the proposed substantive application (Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28, [12]).
The Authority made its decision on 27 September 2017. The Applicant said, by way of explanation for the delay, that he did not know that the Authority had made a decision until a departmental officer told him a decision had been made on 9 January 2018 (Applicant’s affidavit, 25 January 2018, Ex. A1, [6]–[10]). He was not challenged on this evidence. Ms Keating, the Applicant’s lawyer, deposed that the Authority’s notification of its decision to the Applicant appeared to have been sent to an old address (Second Keating Affidavit, Ex. A3 [13], [16]) Once the Applicant learned of the decision, he moved promptly to file his application in this Court on 25 January 2018.
The First Respondent claims no relevant prejudice by reason of the delay.
Usual and proper approach
Because s. 476A(3) provides that an appeal may not be brought against an order that refuses to extend time, the “usual and proper approach” in circumstances in which a court has considered an application for an extension of time and the substantive application in a single hearing is to grant the extension of time even if the substantive grounds have not been made out in circumstances in which those grounds had reasonable prospects of success (Tu’uta Katoa, [57]).
DISPOSITION
At least Ground 1 had reasonable prospects of success. I will grant the extension of time. I will dismiss the substantive application. I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 30 July 2024
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