AJJ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 816
•5 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AJJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 816
File number: MLG 203 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 5 September 2024 Catchwords: MIGRATION – Protection visa – Where demeanour did not have a substantial bearing on the Authority’s adverse credibility finding as to the Applicant – Not unreasonable in the legal sense for the Authority not to interview the Applicant under s 473DC(3) of the Migration Act 1958 (Cth) – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 46A, 473DC Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AWB19 v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2022] FCA 983
CAF19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 937
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs v CRK19 [2021] FCA 107
Minister for Immigration and Border Protection v. SZSSJ (2016) 259 CLR 180
MZAJK v Minister for Immigration and Border Protection [2015] FCA 911
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of last submissions: 4 June 2024 Date of hearing: 4 June 2024 Place Melbourne Counsel for the Applicant: Mr Ayres Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 203 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJJ18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
5 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.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:
The issue for decision is whether the Immigration Assessment Authority acted unreasonably in the exercise its discretion under s. 473DC(1) of the Migration Act 1958 (Cth) in not getting new information by interviewing the Applicant.
For the reasons that follow, I have decided to dismiss the application for review.
GROUND 1: WAS THE DECISION OF THE AUTHORITY NOT TO INTERVIEW THE APPLICANT UNREASONABLE?
Ground 1 (the single ground) of the Applicant’s Amended Application is as follows:
1.The decision of the Immigration Assessment Authority not to interview the applicant was legally unreasonable.
Particulars
a. In a decision dated 17 November 2017, the Minister’s delegate refused the applicant’s application for a safe haven enterprise visa primarily because of adverse credibility findings that the delegate made about the applicant. The delegate made these findings following an interview that the delegate held with the applicant on 18 October 2017.
b. On review, the applicant requested the Immigration Assessment Authority to exercise its powers to get new information under s 473DC of the Migration Act 1958 (Cth) by conducting an interview with the applicant.
c. The Immigration Assessment Authority refused to interview the applicant, but then affirmed the delegate’s decision on the basis of adverse credibility findings that the Immigration Assessment Authority made about the applicant: see Decision, [20], [23]-[28], [33], [36].
d. In the circumstances, the Immigration Assessment Authority’s refusal to interview the applicant was unreasonable.
WHAT IS THE NECESSARY BACKGROUND?
The Applicant is a Sri Lankan Tamil. He is now 29 years old.
On 17 May 2012 (when he was just 16 years old) the Applicant arrived in Australia as an “unauthorised maritime arrival”.
On or around 3 August 2012, the Applicant first applied for a Protection (Class XA) visa. In a statutory declaration attached to the application, the Applicant claimed that he feared harm by the Sri Lankan Army and the Criminal Investigation Department because of his Tamil race and imputed political opinion supporting the Liberation Tigers of Tamil Eelam. The Applicant also claimed that he feared harm as a young male Tamil returning to Sri Lanka as a failed asylum seeker.
The First RRT hearing
On 4 October 2012 a delegate of the Minister refused to grant the protection visa. On 11 January 2013 the Refugee Review Tribunal (RRT) affirmed the refusal. On 13 December 2013 the Federal Magistrates Court ordered that the matter be reconsidered by the RRT. The materials do not expressly reveal the FMC’s reasons for remitting the matter for reconsideration.
I was, however, directed to a subsequent Federal Court decision of Logan J — made after a second RRT decision — in MZAJK v Minister for Immigration and Border Protection [2015] FCA 911, which even though there is a different pseudonym, concerned this Applicant. In MZAJK, the Applicant was ultimately unsuccessful in establishing jurisdictional error as to a second RRT decision made on 30 June 2014 described below. Logan J’s reasons in MZAJK disclose that the Minister conceded an error as to the first RRT decision as follows at [2]:
The conceded error was that the Tribunal had failed to consider the appellant’s then status as a minor when determining whether he was owed complementary protection.
The Second RRT hearing
On 30 June 2014, after the Minster’s concession of jurisdictional error before the FMC, a Second RRT decision affirmed the visa refusal.
There were some issues in this Second RRT hearing that retained some significance for the matter before me.
At [47] of its reasons the Second RRT sets out that the Applicant said that:
He said in 2007 his father was kidnapped and released after 3 months and then regularly visited by the authorities and questioned, and developed fear. I encouraged the applicant to recount his experiences in more detail. He said he thought his father was kidnapped on a trip to [place name omitted] on suspicion of being LTTE. He said they looked for him and could not find him. He said his father then reappeared and returned to them. He said his father didn't tell the boys much, but told his mother in detail what had happened. He said his mother told him that people not in uniform, like army intelligence, kidnapped him on suspicion of being with the LTTE and questioned, beat and tortured him, but did not explain how he was tortured. He said his father became a changed man, full of fear; as other such people had been killed.
There was an issue as to how often the Applicant’s father went east to a LTTE controlled area for fishing. The RRT said in its decision at [40]:
He said his father would still go to the east up to the time he left Sri Lanka, but not always. He said his father reduced the frequency of those trips to the east from 2009 and now those trips had stopped.
The Second RRT had asked the Applicant, [53]:
…. if to the best of his knowledge, anyone in his family had in fact been involved with the LTTE or Tamil separatism. He said to the best of his knowledge his mother's family was not involved and he didn't know if his father was involved or not.
…
I asked if anything else made him suspect his father had substantial involvement with the LTTE. He said his father used to call people and get calls and would speak 'secretly' on the phone
[Emphasis added]
At [110] of its reasons, the Second RRT found:
I accept that the applicant’s brother was detained for some hours, abused and made to do chores in 2010.
In the decision at [61] the Second RRT said:
I informed him that my impression of his evidence was that his father had never come face to face with authorities since 2007. He said to his knowledge his father had never come face to face with authorities at the house after 2007 and after his release.
At [109] the Second RRT found that there was a question about whether the Applicant’s father was actually involved in the LTTE and the Tribunal thought probably not. It concluded:
The applicant’s evidence as to his father’s involvement with the LTTE is speculative and itself relies on inferences drawn by the applicant
As to his Applicant’s credibility the Second RRT found as follows [105]:
Despite his young age, of 18 years, the applicant was a responsive and thoughtful witness, who understood questions well and had relevant and prompt responses. He has maintained his claims consistently.
Although the Second RRT found that the Applicant’s account was credible, it also found that he did not have the kind of profile which meant that there was a real risk of serious harm should he return to Sri Lanka. The Second RRT held that [112]:
There appears to be no basis for government actors to impute to him a profile of being or being related to a person with links to the LTTE, or to any of the other risk profiles identified by UNHCR or the UK tribunal; and I find the government has not and will not impute him with any such profile.
The Applicant sought judicial review of the Second RRT decision but was unsuccessful before the Federal Circuit Court (as it was then known).
On 4 August 2015, the Applicant was unsuccessful in his appeal to the Federal Court in MZAJK before Logan J to which I have adverted above.
On 5 September 2017, because the Applicant was affected by a data breach in the immigration department, the Minister “lifted the bar” under s. 46A(2) of the Act and invited the Applicant to apply for a Temporary Protection visa or a Safe Haven Enterprise visa. The data breach is described in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 but its details are not materially relevant to the matter before me.
On 20 September 2017, the Applicant made a second application for the visa. The Applicant made two statements in support of his application for the visa: the first dated 19 September 2017, and the second statement dated 11 October 2017.
The transcript of the interview before the delegate
On 18 October 2017 the delegate conducted an in-person interview, the protection visa interview.
An interview transcript was in evidence before me (Ex. A-1, Annexure 1 to the affidavit of Ms Mason, the Applicant’s lawyer). The Applicant in his oral submissions before me took me to Q165–Q182 of the interview. The purpose of traversing questions in this way was to demonstrate that the delegate’s adverse conclusion as to the delegate’s credibility had a foundation not just in the answers that the Applicant gave but in the “manner in which they were given” (T31:L31).
An example is that the delegate was seeking to evaluate an apparent discrepancy between the Applicant’s statement to the Second RRT and the Applicant’s statement to him at Q181–Q182:
Q181. Okay. Again, I just wanted to – and I will put a discrepancy in your statement for your comment. In your Refugee Review Tribunal interview, you have stated that as per your knowledge your father has never come face to face with authorities at the – at the house after 2007 and after his release, but now you are saying that since he was released he has been questioned by the authorities, by army or by CID, until 2012. So which one is right?
A In the past, did I tell that?
Q182. Yes, that's why I'm putting it to you.
A So if I said that in the past, then that – now currently what I am saying is the truth.
As is set out above, the Second RRT found that the Applicant’s father never came face-to-face with the authorities after 2007 (Second RRT, [61]). In his statutory declaration made in the lead up to the protection visa interview made on 9 October 2017, in explaining why he left Sri Lanka the Applicant had said apparently inconsistently the Second RRT’s finding that his father had not come face to face with authorities after 2007:
Our family were frequently tormented and travelled by the Army. The CID would also regularly come to visit and take a father away. My father became so exhausted enquiries he would sometimes try to hide from the authorities.
The delegate’s decision
On 17 November 2017, the delegate refused to grant the Applicant the visa.
The Applicant before me identified three key findings of fact — three inconsistencies — at paragraphs [7], [13] and [14] of the delegate’s reasons which underpinned the delegate’s decision and adverse assessment of the Applicant’s credibility.
In his statutory declaration made on 19 September 2017 in the lead up to of the protection visa interview, at [5], the Applicant had said his father was involved in the LTTE. The first inconsistency was that in the interview with the delegate, inconsistently with the unequivocal statement in the statutory declaration that his father was involved with the LTTE, the Applicant said to the delegate that he was not sure about his own father’s involvement with the LTTE (delegate’s reasons, [7]).
The second inconsistency concerned whether his father travelled to the east of the country after 2009 (delegate’s reasons, [13]). The Applicant had said before the Second RRT that his father continued to travel east until the Applicant left Sri Lanka in 2012 but, before the delegate, he “stated that he discussed this with his brother in Australia therefore after 2009 his father did not travel and this is the truth” ([13]).
The third inconsistency concerned whether the authorities continued to make inquiries of his father or threatened his father from 2009 to 2012. The delegate said at [14]:
He stated that in 2009 his father was enquired and threatened, saying that he will be abducted or killed. When he was asked who came to the house and threatened his father, he stated that it was the army or the CID, and they threatened until he left Sri Lanka in 2012.
However, as I have traversed above, in the RRT interview he had stated that his father never came in contact with the authorities after he was released in 2007. The Applicant clarified that his claim during his protection visa interview that his father was threatened and questioned by the authorities until 2012 is the truth ([14] –[15]).
The delegate found at [21]:
As discussed, I note there were several inconsistencies in his statement regarding his father’s travel and his father being interrogated after 2007. The applicant was unable to provide a reasonable explanation for the inconsistencies found in his statements since his arrival in Australia.
The delegate concluded at [22]–[23]:
21. … As discussed earlier, the applicant’s claims and responses regarding his father’s abduction in 2007 were vague and lacked details. As discussed, I note there were several inconsistencies in his statement regarding his father’s travel and his father being interrogated after 2007. The applicant was unable to provide a reasonable explanation for the inconsistencies found in his statements since his arrival in Australia.
22. ...Considering the inconsistencies in the applicant’s statements, his responses during the interview and the evidence before me, I am not satisfied that the applicant is telling the truth. Therefore I am not satisfied that the applicant’s father was abducted by the authorities in 2007 and the applicant’s family is being pursued by the authorities since then.
23.Whilst the applicant appeared to be credible on some aspects of his claims, namely his family education, I have significant concerns regarding his central claims in relation to the harm that he fears from the Sri Lankan authorities. It is my consideration that the applicant has embellished and exaggerated his claims in order to support his application for protection and I have concerns about his general credibility of his story.
[Emphasis added]
WHAT DID THE AUTHORITY DECIDE?
The matter was referred to the Authority for fast-track review under Part 7AA of the Act.
The Applicant requested that the Authority exercise its discretion to interview him
On 9 December 2017 the Applicant provided a submission to the Authority in which he requested the Authority exercise its powers to get new information under s. 473DC of the Act by conducting an interview with him. The Applicant’s submission included the following:
Request for Authority to interview applicant
It is submitted that in the particular compelling circumstances of the review the Authority needs to consider exercising its discretionary power under s 473DC(3) to invite the applicant to give oral evidence at an interview. These circumstances include (but are not limited to) the following:
1.Given the delegate's adverse credibility findings in relation to the applicant's claims concerning the abduction and detention of his father and the applicant's response in the attached statutory declaration, we submit you cannot make a proper assessment of the applicant's credibility without providing him an opportunity to address these findings at an interview.
…
The Authority did not in its reasons give a defensible reason for why it did not exercise its discretion to get new information from the Applicant by an interview
The Authority’s reasons appear to disclose that it knew of its discretion under s. 473DC(1) to interview the Applicant. It set out its reasons for declining to do so in the following terms at [6] of its reasons:
I do not accept there is a need for an IAA interview. I consider the applicant has had plenty of opportunity to provide his claims at many interviews, many statements over the past four years. As well as department interviews, he has had a number of RRT hearings in 2013 and in two hearings in 2014, after having been remitted by the Federal Court. While some interviews have been as a minor, the applicant turned 18 in 2013. He has had interviews, hearings and statement opportunities as an adult also, the latest being in October 2017. Further, the delegate put the applicant on notice as to credibility concerns at the interview. Further, he has had representation.
I accept the Applicant’s submissions that the Authority’s reasons did not engage with the central issue as to whether in its conduct of a de novo merits review under Part 7AA it ought to exercise its discretion under s. 473DC to get new information by an interview because an assessment of his demeanour would have a significant bearing on the Authority’s assessment of the Applicant’s credibility.
Of course, chronologically, this Authority was conducting its review at a point in time (January 2018) before the High Court had handed down its decision in ABT17v Minister for Immigration and Border Protection and Another (2020) 269 CLR 439; [2020] HCA 34 (14 October 2020), the leading authority relevant to my decision to be made. Even though it was making its decision before ABT17, that does not detract from the fact that the central issue for the Authority was whether how the referred applicant presented in an interview before it may have a significant bearing on any assessment of his credibility as the Authority may reasonably undertake (see ABT17, [22]).
I accept the Applicant’s submission that the Authority’s reasons do not disclose a “defensible reason… from the Authority why the Authority should not observe the presentation of the applicant at an interview” (T32:L22). Even if the Authority did not give a defensible reason for not exercising its discretion to interview the Applicant in its reasons that does not compel a conclusion that it was unreasonable in the legal sense for the Authority to exercise its discretion not to interview the Applicant.
The Authority’s critical findings
A vague, inconsistent and changing account
The Authority found that “the applicant’s account of his father’s abduction in 2007 was “vague and lacked details”. The Authority continued, at [20]:
I accept, on the benefit of the doubt, that the applicant’s father was stopped at a checkpoint in 2007 and detained and tortured and released after 3 months.
At paragraph [23] of its reasons, the Authority found that: “the applicant’s account of continued harassment and monitoring of the family was vague and inconsistent and changed frequently”. The Authority found that the Applicant’s vague, inconsistent and changing account of such a crucial part of his claims was not minor, but significant. The Authority said ([23]):
Throughout his 2017 protection interview the applicant’s account of about the father’s questioning changed frequently (from until 2009, until 2012, to presently to he did not know). I consider the applicant’s vague, inconsistent and changing account of such a crucial part of his claims was not minor, but significant. I consider his poor account of such a crucial part of his claim indicates he was not recounting true events.
[Emphasis added]
Father’s involvement with the LTTE
The Authority found that the Applicant had not claimed that his father was involved with the LTTE at his arrival interview. The Authority found ([27]):
In his 2017 protection interview the applicant was vague and uncertain whether his father was involved with the LTTE. The applicant had not made any enquiries about this with his father. Further, the applicant did not have any knowledge of any claimed activities. Given this was a major part of his claim, even considering his age, I consider it is difficult to believe that he did not know more about this, particularly given his parents are still alive and his fortnightly contact with them and the prolonged application process. I consider the applicant added this claim to further enhance his protection claims.
[Emphasis added]
The detention of the Applicant’s brother
The Authority said the following at [26]:
I consider the applicant has continued to add new accounts as the application progressed. For example, the applicant did not mention he was questioned and beaten during a curfew in 2010 in his 2012 statement or at RRT hearings in 2014. The applicant did not mention that his brother was questioned and beaten in 2010 in his 2012 statement and application. However, he added this claim at an RRT hearing. I consider if these events had occurred, he would have mentioned them earlier. I do not accept the applicant or his brother was detained, questioned or beaten in 2010.
[Emphasis added]
The Authority did not accept that the Applicant’s brother was taken by a van and held at an army camp in 2010 because the Applicant did not mention this in his statements which accompanied his application and only raised it in RRT hearings ([33]).
I repeat that the Second RRT had accepted (Second RRT reasons, [110]) that “the applicant’s brother was detained for some hours, abused and made to do chores” in 2010. The delegate did not make a finding one way or another about the detention of the Applicant’s brother in 2010 or refer to the issue at all in his reasons.
Secret phone calls
Further, the Authority said at [28]:
…I consider the applicant added the claim of secret phone calls in response to concerns raised and was making it up as he went along.
In that passage, the Authority departed from the Second RRT’s reasons, which had at least implicitly accepted the Applicant’s claim as to his father’s secret phone calls within the scope of overall positive assessment of the Applicant’s credibility. The delegate made no findings as to the father’s secret phone calls.
The Authority’s Conclusion
The Authority concluded in the following terms ([36]):
I have taken into account the applicant’s age at the time of the claimed events and his claimed emotional state but I do not consider that it adequately explains my concerns. Further, the applicant continued to give a confused and inconsistent account at his RRT hearings in 2014 and in his 2017 protection interview, as an adult. I consider the applicant has embellished his claims to enhance his protection claims. Having considered the applicant’s inconsistent, changing and vague evidence and his explanations, I find the applicant is not a credible witness.
The Authority affirmed the decision not to grant the Applicant a visa.
WHAT IS THE STATUTORY FRAMEWORK?
In terms of the statutory framework, under s. 473DC(2) the Authority “does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.” I accept that any assessment of whether the Authority acted outside the bounds of what was reasonable in the exercise its discretion as to whether to get new information by way of an interview must be closely informed by the statutory framework. Part 7AA provides a fast track process. The statutory setting is such that only exceptionally will the Authority consider new information including by way of an interview.
Nonetheless, the Authority has the power and a discretion to get new information under s. 473DC(1), including by interviewing the Applicant under s. 473DC(3). Its statutory discretion must be reasonably exercised. ABT17 was an example of a case in which a reasonable exercise of discretion compelled an interview.
Further, jurisdictional error will always be context specific. It would be in error to attempt to catalogue all the circumstances in which the s. 473DC discretion may be unreasonably exercised.
WHAT RELEVANT PRINCIPLES ARE DRAWN FOR THE AUTHORITIES?
Legal unreasonableness encompasses how a decision is made and is not confined to why it is made
In ABT17, the plurality explained at [19] that the implied condition of reasonableness is not confined to why a decision is made and that it extends to how a decision is made. Unreasonableness may arise if the decision-maker “makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course” (ABT17, [19]).
An “informational gap”
In ABT17, the delegate had accepted the visa applicant’s version of events as plausible and made a favourable credibility finding as to his narrative. In ABT17, the Authority was at a comparative disadvantage to the delegate because of what the plurality termed an “informational gap” (at [22]) because it only had access to an audio recording of the delegate’s interview and was missing “a visual impression of how the referred applicant appeared during the interview – his or her demeanour” (ABT17, [13]). Although it could “hear” the applicant the “informational gap” which led to a comparative disadvantage vis-à-vis the delegate was that it could not “see” the applicant so as to assess his credibility.
It was common ground before me that the same “informational gap” must have existed for the Authority in this case because the Authority had only the audio recording of the protection visa interview and had not seen the Applicant.
Importantly, in ABT17, even though the delegate had found that the applicant was plausible, the Authority rejected his account because of how he “sounded on the audio recording” (ABT17, [29]).
The High Court plurality found that the Authority had acted unreasonably when it did not invite the referred applicant to interview to gauge his demeanour for itself before it decided to reject an account given by the referred applicant in an audio-recorded interview, and accepted by the delegate, substantially on the basis of its own assessment of the manner in which the account was given.
Demeanour may be important
In ABT17, the plurality also explained that sophisticated decision-makers are aware that intrinsic merit or demerit of an account is a surer guide to the assessment of credibility than demeanour. Nonetheless, an impression formed from demeanour may be an important aspect of the information available to the decision-maker. As the High Court plurality in ABT17 observed at [14]:
Impressions formed by a decision- maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker.” That has “long been recognised” and continues to be appreciated despite awareness on the part of sophisticated decision-makers that “an ounce of intrinsic merit or demerit” measured by reference to objectively established facts and the apparent logic of events “is worth pounds of demeanour”
[Emphasis added; citations omitted]
“Merely” because credibility is at issue that will not mean that the Authority acts unreasonably by not exercising its discretion to interview the Applicant
It is apparent from the plurality’s reasoning in ABT17 that “merely because credibility is an issue” the informational gap alone will not mean that it is unreasonable for the Authority not to interview an applicant. As the plurality said in ABT17 at [24]:
The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate
[Emphasis added]
Did the Applicant’s demeanour have a “significant bearing” on the Authority’s reasonable assessment of credibility?
As the plurality in ABT17 observed at [21], answering the question of whether it was unreasonable for the Authority not to exercise its discretion to interview the Applicant requires an examination of the “decision-making pathways reasonably open to the Authority”. The ABT17 plurality provided some further guidance as to the relevant principle at [22]–[23] of their reasons:
That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
[Emphasis added]
Further, at [23] the plurality said:
… it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate’s findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant’s appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant’s credibility without any need for the Authority’s assessment of credibility to coincide with the delegate’s assessment of credibility.
I frame the question to myself as follows: did this Authority reasonably undertake an assessment of the Applicant’s credibility without his or her demeanour in his interview with the delegate having a “significant bearing” on the Authority’s assessment.
If the Authority makes an adverse credibility assessment by reference to “country information” or “other information” (ABT17, [22]) then demeanour will not have a significant bearing. The Authority will not act outside the bounds of reasonableness by not getting new information by way of an interview.
Sometimes there may be objectively verifiable information — for example, in the nature of contemporaneous documents extrinsic to the Applicant’s account — that enable the Authority to make a credibility assessment on which demeanour will have no significant bearing.
Sometimes the content alone of what an applicant says may mean that the Authority may reasonably make an adverse assessment of an applicant’s credibility without demeanour having any significant bearing on that assessment. For example, an applicant may give an account which contains significant internal inconsistencies. An applicant may significantly change his or her account at different times such as an arrival interview, in documents prepared in support of a visa application and/or in a protection interview. An applicant may give an account inconsistent with the “apparent logic of events” (see: ABT17, [14]).
Moreover, having regard to [23] of the reasons in ABT17, it may be that if demeanour is at issue, “ordinarily” the Authority can proceed on the basis of a “second-hand description” of an applicant’s appearance in the review material or by taking into account a “description or impression of his or her appearance” in the referred material. That is, the plurality in ABT17 recognised that sometimes a second-hand assessment of demeanour will be reasonable under Part 7AA.
To the extent that the Applicant submitted to me that it will be unreasonable for the Authority not to interview a referred applicant in the absence of “objective information” which supports an adverse assessment of credibility such that demeanour is not relevant (T20:L21–25), my view is that submission overstates the position as the High Court explained it in ABT17. There may be other circumstances in which objective information is not available in which the Authority may nonetheless reasonably undertake an assessment of an applicant’s credibility in which demeanour has no “significant bearing” on that assessment.
A “significant” bearing
The debate between the parties before me was that the Minister submitted that it was the content of what the Applicant had said — the fact that that the Authority found that he had given an inconsistent narrative over time — that led to the Authority’s adverse credibility assessment. This was not a demeanour case.
In contrast, the Applicant submitted that for the Authority to make a reasonable assessment of the Applicant’s narrative, it required an assessment of how he gave his account as well as the content of his account. A reasonable assessment of his credibility required, in the circumstances of this case, as in ABT17, an interview.
I note that the notion of demeanour having a “significant bearing” on a reasonable assessment of credibility is not a mathematical concept. Sometimes demeanour will play a major role in a credibility assessment, sometimes a peripheral role, sometimes no role at all. Any further gloss on the phrase “significant bearing” probably serves to confuse rather than clarify.
WHAT IS MY ANALYSIS?
The Authority undertook its assessment of the Applicant’s credibility within the bounds of reasonableness in a legal sense. The Applicant’s demeanour before the delegate had no significant bearing on the reasonable assessment it undertook.
A notable difference between ABT17 and the current case is that in ABT17 the Authority departed from the delegate’s favourable assessment of an applicant’s credibility and, on its review, reversed the delegate’s assessment and substituted its own adverse assessment of the applicant’s credibility based on its own assessment of his demeanour, namely that the applicant sounded vague and hesitant on the audio recording, despite it not having seen the Applicant itself.
In this case, in contrast, the Authority confirmed the delegate’s adverse credibility assessment and did not depart from it. A departure from the delegate’s assessment of credibility may not be a prerequisite to establishing that the Authority acted unreasonably in the legal sense in the exercise of its discretion not to interview an applicant. I accept the Applicant’s submissions that whether the Authority departed from or confirmed the delegate’s assessment of an applicant’s credibility is simply part of the “matrix” of circumstances. Nonetheless, the fact that the Authority confirmed the delegate’s adverse credibility assessment stands out as a significant difference between ABT17 and this case. In a practical sense, the Authority’s departure from the delegate’s credibility assessment in ABT17 given the informational gap and the Authority’s disadvantage relative to the delegate in assessing demeanour because of that informational gap was important to the result in ABT17.
Next, this was not a case in which the delegate’s assessment of the Applicant’s demeanour had a substantial bearing on the Authority’s assessment of his credit. In ABT17, demeanour was central to the Authority’s conclusion: the fact that the applicant “sounded” vague and hesitant on the audio recording and had a substantial bearing on the Authority’s adverse credit finding. In ABT17, it was readily discernible from the Authority’s reasons that the Authority had departed from the delegate’s finding because of demeanour.
In CAF19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 937 at [23], Cheeseman J said:
There may be an overlap between an assessment of the substance of what is said and the way in which it is said. For example, a finding that a person is vague or forgetful may at one level relate to the person’s demeanour, but it may also be a finding that is directed, either solely or in addition, to the content of the answers given: [citations omitted] Read fairly and in context, the Delegate’s critique of the appellant’s claims is directed primarily to the content of what he said.
[Emphasis added]
Also, at [30] Cheeseman J said of the case before her:
It is tolerably clear that the Authority arrived at its conclusion based primarily on its analysis of the substance of what was said, as opposed to on the basis of demeanour.
I further note that in CAF19 Her Honour said at [61]:
the Authority here (again, by contrast with the Authority in ABT17) expressed specific reasons for its rejection of the different claims advanced by the appellant which were not dependent on the manner of expression (i.e., demeanour) but with the content of the appellant’s claim.
In AWB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 983, Raper J identified the dispositive issue in ABT17 at [86] as follows:
the lack of opportunity, on the part of the IAA, to visually observe the appellant to give his evidence, when the delegate had been able to, given the prominence of demeanour in its findings.
[Emphasis added]
Raper J distinguished the case before her, namely AWB19, from ABT17, on the basis that there was nothing in the Authority’s reasons which “concerned the manner in which the appellant gave his account, which would therefore enable him to rely on ABT17” (AWB19, at [87]).
In this case, “read fairly and in context” the Authority’s critique of the Applicant’s claims and its adverse assessment of credibility was directed to the content of what he said and not his demeanour. It was about the content of his claims and not the manner in which he expressed them. The Authority assessed that he had made “inconsistent claims” and embellished them (Authority’s reasons, [36]). As in CAF19, the Authority’s adverse credibility assessment was “primarily” about the content of what was said and not about his demeanour.
To the extent the Authority made any adverse assessment of the Applicant’s demeanour by reference to his account being “vague” or “uncertain” the Authority was entitled to proceed on the basis of the “second-hand description of his or her appearance” set out in the delegate’s decision (see ABT17, [23])
The Second RRT
The Authority departed from the Second RRT’s positive findings as to the credibility of the Applicant’s narrative particularly as to the two issues of his brother being detained and abused in 2010 and his father speaking secretly on the telephone. The delegate made no findings one way or another as to those issues.
The Second RRT made a positive finding that it accepted the Applicant’s account that his brother was detained and tortured in 2010. The Second RRT appeared to accept that the Applicant’s father had engaged in secret phone calls as part of its overall positive assessment of the Applicant’s credibility. The Second RRT made its positive credibility finding at least in part because of the manner in which the Applicant gave his evidence as a witness: a demeanour finding. The Second RRT found that the Applicant gave his evidence in a way which was “responsive,” “thoughtful” and that he gave “prompt responses.” As a result, the Second RRT believed him (Second RRT reasons, [105]).
The Second RRT’s findings were before the Authority as part of the referred material. The Authority referred to them as a reason for not interviewing the Applicant, despite request.
In the context of the Second RRT’s positive demeanour finding and accepting the Applicant’s narrative as to these two issues, and in the context of the delegate making no findings as to these two issues, the Authority reversed the Second RRT’s findings. The Authority said that it did not accept that the Applicant’s brother had been detained and tortured. The Authority rejected the Applicant’s account that his father had engaged in secret phone calls and found that the Applicant “was making it up as he went along.” The Authority rejected these claims without getting new information so it could gauge the Applicant’s demeanour for itself.
As to these two issues (the Applicant’s brother’s 2010 detention and torture and the secret phone calls), there was an “informational gap” between the Authority and the second RRT, because the Applicant had appeared in person before the Second RRT. It had seen and heard the Applicant. As far as I know, the Authority had only the written reasons of the Second RRT’s decision. The Authority was therefore at a comparative disadvantage relative to the Second RRT in any assessment of the Applicant’s demeanour.
In DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [72] a Full Court of the Federal Court said:
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
Acknowledging, because of the particular procedural history of this matter, that I am dealing with findings by the Second RRT not the delegate (albeit I do not consider that creates any difference of principle), DGZ16 stands for the proposition that the Authority still did not have to notify the Applicant that it was considering taking a different view than did the Second RRT.
This case remains distinguishable from ABT17 because demeanour did not have a significant bearing on the Authority’ view. Notwithstanding the Second RRT’s positive finding as to the Applicant’s demeanour, it remained open to the Authority reasonably to make an adverse assessment of the Applicant’s credibility without interview because of subsequent events. The authority was able to make a reasonable assessment of his credibility referable to inconsistencies between his subsequent statutory declarations and in his protection visa interview hearing and the findings in the Second RRT. I find this Authority made its assessment primarily based on the content of what was said. The Second RRT’s positive demeanour based finding had been overtaken by subsequent events.
The Authority would only have been at the relevant comparative disadvantage relative to the Second RRT in the sense discussed in ABT17 if demeanour had a significant bearing on its adverse credibility assessment and it had substituted its own adverse assessment of the Applicant’s demeanour without gauging the Applicant’s demeanour for itself by way of an interview. The Authority did not proceed in that way. It made its adverse credibility assessment, as in CAF19, primarily by reference to the content of what the Applicant had said and particularly by reference to inconsistencies in his account over time.
Finally, I find the circumstances in Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs v CRK19 [2021] FCA 1070 are to be distinguished from the current case. Jurisdictional error is context sensitive. In CRK19, Kerr J found that the delegate made a finding — at least implicitly — on the basis of the visa applicant’s demeanour that he was to be believed (at [28]). Kerr J noted that the delegate had advantages that the Authority did not have in his assessment of the visa’s applicant’s demeanour and truthfulness because he had seen and heard the applicant (at [70]). The unreasonableness arose because the Authority departed from the delegate’s demeanour finding in circumstances in which it did not interview the applicant. In this case, the delegate did not rest his adverse credibility assessment on a demeanour finding. Also, in this case the Authority did not depart from the delegate’s positive demeanour findings. The Authority’s adverse credibility finding resulted primarily from the content of the Applicant’s statements, not his demeanour, and for those reasons I find that the decision in CRK19 is to be distinguished.
WHAT IS MY CONCLUSION?
The Applicant has not established jurisdictional error. I will dismiss the 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 ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 5 September 2024
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