AMB19 v Minister for Immigration and Anor (No.2)
[2020] FCCA 1736
•30 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMB19 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 1736 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming fear of harm in Iran – claim based upon asserted homosexuality – applicant disbelieved – Authority finding material inconsistencies in the applicant’s account – whether the Authority misunderstood the applicant’s evidence, or misconceived the nature of the review, or unreasonably failed to consider getting new information considered – jurisdictional error established by the failure of the Authority to consider interviewing the applicant. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65, 473DC, 477 |
| Cases cited: AMB19 v Minister for Immigration & Anor [2019] FCCA 2693 AMB19 v Minister for Home Affairs [2020] FCA 439 AVQ15 v Minister for Immigration (2018) 266 FCR 83 BJK17 v Minister for Immigration [2019] FCAFC 171 BMV16 v Minister for Immigration(2018) 261 FCR 476 BZD17 v Minister for Immigration (2018) 263 FCR 292 CGL17 v Minister for Immigration [2018] FCA 1747 CGQ15 v Minister for Immigration (2016) 253 FCR 496 DBA16 v Minister for Immigration [2017] FCA 1580 DGZ16 v Minister for Immigration (2018) 258 FCR 551 DPI17 v Minister for Home Affairs [2019] FCAFC 43 DYK16 v Minister for Immigration (2018) 267 FCR 69 FND17 v Minister for Immigration [2019] FCA 1369 Minister for Immigration v CRY16 (2017) 253 FCR 475 Minister for Immigration v Eshetu (1999) 197 CLR 611 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZNPG [2010] FCAFC 51 Minister for Immigration v SZRKT (2013) 212 FCR 99 Minister for Immigration v SZUXN [2016] FCA 516 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 |
| Applicant: | AMB19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 43 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 June 2020 |
| Delivered at: | Sydney, by telephone to Perth |
| Delivered on: | 30 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A McBeth |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr V Murano |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 17 December 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 43 of 2019
| AMB19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 17 December 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
On 24 May 2013, the applicant, a citizen of Iran, arrived in Australia at Christmas Island as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 68, [6]; CB 11, Q 43; CB 46, Q 46-47.
On 16 June 2017, the applicant applied for the visa.[2] His claims for protection were set out in a statement accompanying the visa application[3] which may be summarised as follows:
a)in approximately 2006, he fell in love with a man (S) and, subsequently, commenced a secret sexual relationship with S;[4]
b)in approximately 2013, he confided in a friend that he was homosexual and that he was in a relationship with S; his friend reacted badly by trying to convince S to end the relationship and by telling S’s brother who was a member of the Basij;[5]
c)he was subsequently arrested by S’s brother and detained by the Basij.[6] While detained, he was physically assaulted while blindfolded and, because homosexuality is illegal in Iran, he denied his relationship with S for fear of his life;[7]
d)while detained by the Basij, he was pushed through a window and suffered cuts to his arm, fingers and forehead, he was bleeding profusely and was taken to hospital for treatment;[8]
e)after two days, he escaped from hospital and fled to another location where he stayed with a friend before departing for Australia;[9] and
f)although he is still in contact with his mother, no one in his family knows he is homosexual and he does not want them to find out as he believes they would stop talking to him.[10] If returned to Iran, he fears harm due to his homosexuality, including arbitrary detention and arrest, corporal punishment, torture and execution.[11]
[2] CB 21-CB 69.
[3] CB 68-CB 69.
[4] CB 68, [7].
[5] CB 68, [8].
[6] CB 68, [9].
[7] CB 68, [10].
[8] CB 68, [11].
[9] CB 68-CB 69, [12]-[13].
[10] CB 69, [16].
[11] CB 69, [17] and [18].
Independent of his claims relating to the incident with the Basij and the connection of S’s brother to the Basij, the applicant claimed to fear harm from the Iranian authorities and from non-state actors, from whom he would not receive state protection, on the basis of his homosexuality.[12]
[12] CB 69, [17]-[19]; CB 114, [5.16].
The applicant also made express claims to fear harm on the basis of imputed apostasy, imputed political opinion, status as a failed asylum seeker returning from Australia, and his western style of dress and clothing.[13]
[13] CB 110, [2.2]; CB 114, [6.1].
On 4 October 2018, the applicant’s representative provided written submissions to the delegate in support of the visa application.[14]
[14] CB 110-CB 116.
On 24 October 2018, the delegate refused the visa application[15] and, on 29 October 2018, the matter was referred to the Authority.[16]
[15] CB 117-CB 139.
[16] CB 145.
On 14 November 2018, the applicant’s representative provided written submissions to the Authority.[17] Those submissions were considered by the Authority as it determined they did not constitute “new information”.[18]
[17] CB 148-CB 152.
[18] CB 161, [3]-[4].
On 17 December 2018, the Authority affirmed the delegate’s decision.[19] In doing so, it:
[19] CB 160–CB 171.
a)noted significant variations in the applicant’s evidence over time, including:
i)changes in the name of S’s brother and possibly the friend who had informed on the applicant and S;
ii)that in his arrival interview he did not mention being taken by S’s brother and assaulted such that he needed hospital treatment, or that he had stayed with a friend for two months; and
iii)the contradiction between the evidence given in his interview with the delegate and the arrival interview in respect of arrangements he had made to depart Iran;[20]
b)was concerned by the applicant’s failure to express any concern as to the possible fate of S;[21]
c)in light of the above, concluded that the applicant’s “increasingly embellished story is a fabrication” and that the applicant was not a witness of truth;[22]
d)noted the absence of corroborating evidence of the applicant’s homosexuality and, given its credibility findings, did not accept that the applicant was homosexual.[23] Given this finding, the Authority did not accept that the applicant would be imputed as holding political opinions against Iranian authorities or being an apostate or opposed to Islam because of his homosexuality;[24]
e)accepted the applicant suffers from a mental health condition.[25] However, having regard to country information, was not satisfied the applicant had a well-founded fear of persecution or faced a real risk of significant harm on this basis;[26] and
f)after having regard to country information, found the applicant would not face a real chance of harm on return to Iran because he had lived in Australia for several years and sought asylum.[27]
[20] CB 162-CB 163, [8]-[11].
[21] CB 163, [11].
[22] CB 163, [11].
[23] CB 163, [12] - [13].
[24] CB 164, [14].
[25] CB 164, [15].
[26] CB 165, [18]; CB 166, [23].
[27] CB 165, [19]; CB 166, [24].
On 8 February 2019, the applicant applied to this Court under s.477(2) of the Migration Act 1958 (Cth) (Migration Act) for an extension of time.[28] On 25 July 2019, this Court decided not to extend time under s.477(2).[29]
[28] CB 172-CB190.
[29] CB 207-CB 219; AMB19 v Minister for Immigration & Anor [2019] FCCA 2693 (Judge Vasta).
On 16 October 2019, the applicant sought judicial review under s.39B of the Judiciary Act 1903 (Cth) of the judgment and orders made by the this Court. On 6 April 2020, the Federal Court quashed this Court’s decision and remitted the matter for determination according to law.[30]
[30]AMB19 v Minister for Home Affairs [2020] FCA 439 (Colvin J).
On 28 May 2020, by consent, I ordered that the application under s.477(2) of the Migration Act be granted and that the matter be listed for final hearing.
The current proceedings
These proceedings began with a show cause application filed on 11 February 2019. The applicant now relies upon an amended application filed on 9 June 2020. There are three particularised grounds in that application:
1. The decision of the IAA was affected by jurisdictional error in that the IAA proceeded on a misunderstanding of the evidence, or alternatively, the decision of the IAA was based on an irrational finding, namely that the IAA incorrectly found that the applicant had given inconsistent evidence, or in the further alternative, that the IAA acted unreasonably in failing to exercise its power under s.473DC(3) to clarify the evidence before making a finding of inconsistency.
Particulars
a) The IAA at [11] placed significant weight on the supposed change of name of the brother of the applicant’s partner, [S], in concluding that the applicant was not a witness of truth.
b) Contrary to the IAA’s finding, the applicant’s evidence as to the name of [S’s] brother was consistent in his July 2013 arrival interview and his June 2017 statement.
c) The IAA’s finding of inconsistency was therefore irrational or constituted a misunderstanding of the evidence.
d) Alternatively, if the IAA considered the evidence ambiguous or potentially inconsistent, it was unreasonable not to exercise the power in s.473DC to seek clarification from the applicant before making the finding of inconsistency.
2. The IAA misconceived the nature of its review in that it failed to recognise the proper role of an arrival interview in the protection visa process and consequently erred in making an adverse credibility finding based on a misconception of the arrival interview.
Particulars
a) The IAA at [11] used the applicant’s omission of certain details during his arrival interview as a basis for making an adverse credibility finding.
b) The IAA failed to recognise that an arrival interview is not intended to be the occasion for a full recitation of an applicant’s claims for protection, such that omission of parts of an applicant’s story from the arrival interview is not inconsistent with the provision of more detailed evidence at a later stage in the process.
c) The IAA’s reliance on omission of certain details based on its misconception of the purpose of the arrival interview constituted jurisdictional error.
3. The failure of the IAA to exercise or consider exercising its power under s.473DC of the Migration Act to get new information from the applicant was unreasonable in the circumstances.
Particulars
a) The IAA observed at [7] that the substance of the delegate’s interview with the applicant and the manner in which it was conducted was unsatisfactory for the purpose of concluding whether the applicant was in fact homosexual.
b) Despite the shortcomings of the delegate’s interview, the IAA did not exercise its power to invite the applicant to an interview to explore the question of the applicant’s homosexuality to the IAA’s satisfaction.
c) There is no evidence that the IAA considered exercising its power to interview the applicant.
d) The IAA at [13] did not accept that the applicant was homosexual, despite the observed flaws in the quality of the review material on that subject.
e) The failure of the IAA to exercise or consider exercising its power to get new information from the applicant before finding against him on the question of his sexuality was unreasonable in the circumstances.
I have before me as evidence the court book filed on 27 March 2019.
Both the applicant and the Minister filed pre-hearing written submissions and made submissions through their counsel at the trial of this matter on 26 June 2020. I have been assisted by those submissions.
Consideration
Ground 1 – did the Authority err in finding that the applicant had given inconsistent evidence?
Applicant’s contentions
At [11] of its decision record, the Authority found that the applicant’s narrative regarding his partner in Iran, S, the connection between S’s brother and the Basij, and the claims to have been detained and harmed by the Basij because of his relationship with S, to be a fabrication.
That finding was based on certain supposed inconsistencies, particularly the supposed change of name of S’s brother.[31]
[31] CB 163, [11].
Contrary to the Authority’s description at [8] that the applicant had said at his arrival interview that S’s brother was called A and the family name of both S and A was AP, the entry interview in fact records the applicant saying, “[S] is my partner, [A] is his brother [AP] is his brother’s name.”[32]
[32] CB 9.
The applicant submits that, contrary to the Authority’s finding, his evidence as to the name of S’s brother was consistent in his July 2013 arrival interview and his June 2017 statement.
It is therefore said to be apparent that the Authority relied on a misunderstanding of the applicant’s evidence in making a finding of inconsistency, to which it gave significant weight in concluding that the story was a fabrication and that the applicant was not a witness of truth. That finding in turn was crucial to the Authority affirming the review. That misunderstanding is said to constitute jurisdictional error by the Authority.[33]
[33] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1, [63].
Alternatively, the applicant contends that the finding that the applicant’s evidence was inconsistent in relation to the name of S’s brother was irrational, in that it could not rationally be supported by the evidence on which the Authority relied for that finding.[34]
[34] BZD17 v Minister for Immigration (2018) 263 FCR 292, [34] (Perram, Perry and O’Callaghan JJ); Minister for Immigration v SZMDS (2010) 240 CLR 611, [135] (Crennan and Bell JJ).
Because the irrational findings regarding inconsistencies were central to the Authority’s adverse credibility findings, they are material to the Authority’s decision.
It follows, in the applicant’s submission, that the Authority’s error, whether characterised as a misunderstanding of the evidence or one or more irrational findings, constitutes jurisdictional error.
Furthermore, as discussed in Ground 3, below, the Authority has the power under s.473DC(3) of the Migration Act to get new information from an applicant, including by seeking written answers to questions or inviting the applicant to an interview.
If the Authority considered that there was a potential discrepancy in the evidence, it was empowered by s.473DC to take steps that would have either confirmed its understanding or cleared up the confusion in the applicant’s favour.
It is said to have been unreasonable for the Authority to make that finding, in circumstances where the evidence was at best ambiguous, without first exercising the power at its disposal to satisfy itself of the true state of the evidence on which the finding was based.
Minister’s contentions
The Minister submits that on a fair reading of the Authority’s reasons,[35] no factual error was made because there were variations in the applicant’s evidence as to S’s brother’s name as follows:
a)at the entry interview, the applicant stated “[S] is my partner, [A] is his brother [AP] is his brother’s name” and that S “had another friend” who “was always telling [S] to stop having a relationship with me” and “told [A] about me”.[36] In its reasons, the Authority states that at the arrival interview the applicant stated that “[o]ne of [S’s] friends disapproved of the relationship and told [S’s] brother [A] about it … [S] and [A’s] family name was [AP]”;[37]
b)in the statement made by the applicant on 15 June 2017, the applicant said that he confided in a friend about his relationship with S, but his friend “told [S’s] brother [AP]”[38] (the name “[A]” is not mentioned at all in the statement). In its reasons, the Authority states that in the statement the applicant stated that S’s brother’s “name was [AP]”;[39] and
c)in its reasons, the Authority says that at the protection visa interview, the applicant “didn’t know much about [S’s] brother, only that he was in the Basij.” It may be inferred from this statement that the applicant said nothing about the name of S’s brother at the protection visa interview.[40]
[35] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[36] CB 9.
[37] CB 162, [8].
[38] CB 68, [8].
[39] CB 162, [9]
[40] CB 163, [10].
Having regard to the matters stated above, the Authority is said to have found, consistently with what was contained in the material before it, that the applicant had provided information that had varied because, at different points in time, he had said that S’s brother’s name was A and/or AP (without further clarification). In addition, at the protection visa interview, the evidence varied because the applicant did not provide the name of S’s brother.
The Minister submits in any event, that any misunderstanding of the evidence, or irrational finding on this issue (which is not conceded), would not be a jurisdictional error as that single error would not have affected the Authority’s state of satisfaction for the purposes of s.65 of the Migration Act.[41] The Authority did not place significant weight on this issue as alleged in the applicant’s written submissions[42] because it was only one of a number reasons why the Authority found the applicant was not a witness of truth, the other reasons being that:
a)the applicant’s evidence had possibly varied in respect of the name of the friend who had informed on the applicant and S; [43]
b)in his arrival interview, the applicant did not mention being taken by S’s brother and assaulted such that he needed hospital treatment, or that he had stayed with a friend for two months; [44]
c)there were contradictions between the evidence given in the applicant’s interview with the delegate and his arrival interview in respect of the arrangements he had made to depart Iran;[45] and
d)the applicant failed to express any concern as to the possible fate of S.[46]
[41] CGQ15 v Minister for Immigration (2016) 253 FCR 496 at [60] (McKerracher, Griffiths and Rangiah JJ), endorsing the principles set out in Minister for Immigration v SZUXN [2016] FCA 516 at [52] and [54]–[56] (Wigney J); AVQ15 v Minister for Immigration (2018) 266 FCR 83 at [41(d)] (Kenny, Griffiths and Mortimer JJ); SZMDS at [119], [130] and [132] (Crennan and Bell JJ).
[42] at [17].
[43] CB 162-CB 163, [8] - [11].
[44] CB 162-CB 163, [8] - [11].
[45] CB 162-CB163, [8] - [11].
[46] CB163, [11].
the Minister submits that, accordingly, in this case:
a)any misunderstanding of the evidence did not cause the Authority to fail to consider the applicant’s claims or otherwise fail to fulfil its statutory task;[47] and
b)any irrational finding was not critical to the Authority’s finding that the applicant was not a witness of truth.[48]
[47] Minister for Immigration v SZNPG [2010] FCAFC 51 at [28] (North, Lander and Katzmann JJ); Minister for Immigration v SZRKT (2013) 212 FCR 99 at [98] and [113] (Robertson J).
[48] CGQ15 at [60] (McKerracher, Griffiths and Rangiah JJ), endorsing the principles set out in SZUXN at [52] and [54]–[56] (Wigney J); AVQ15 at [41(d)] (Kenny, Griffiths and Mortimer JJ); SZMDS at [119], [130] and [132] (Crennan and Bell JJ).
In the alternative, the applicant submits[49] that if there were “a potential discrepancy in the evidence, it was empowered by s.473DC of the Migration Act to take steps that would have either confirmed its understanding or cleared up the confusion in the applicant’s favour” and that it was unreasonable for the Authority not to do so in this case. However, the Authority is said not to have acted in a manner that was plainly unjust, arbitrary, capricious, irrational, or lacking in evident or intelligible justification[50] because:
a)it was not required to inform the applicant of its specific reservations about his case and provide him with an opportunity to respond.[51] Unreasonableness will not arise simply from the Authority making factual findings different to the delegate without first considering the exercise of its powers under s.473DC(3);[52] and
b)the applicant has not identified any aspect of the delegate’s reasoning which indicates that the Authority was disadvantaged in comparison with the delegate (such as reliance on demeanour) which suggests that it was legally unreasonable for the Authority not to have exercised, or not to have considered exercising, its power under s.473DC(3) to ensure it was not deprived of relevant information or evidence.[53]
[49] [22] of the applicant’s submissions filed on 9 June 2020.
[50] See, BJK17 v Minister for Immigration [2019] FCAFC 171 at [49] (Middleton, Bromberg and Snaden JJ).
[51] DGZ16 v Minister for Immigration (2018) 258 FCR 551 at [72] (Reeves, Robertson and Rangiah JJ).
[52] DYK16 v Minister for Immigration (2018) 267 FCR 69 at [74] (Collier, Middleton and Rangiah JJ); DBA16 v Minister for Immigration [2017] FCA 1580 at [17] (Lee J).
[53] FND17 v Minister for Immigration [2019] FCA 1369 [39]–[43] (Griffiths J).
Resolution
The applicant submits that the Authority’s decision is affected by jurisdictional error on the basis that it either misunderstood evidence, or engaged in irrational reasoning, in finding that the applicant had provided inconsistent evidence in respect of the name of his partner’s brother. However, the relevant finding was that the applicant’s evidence had varied and is as follows: [54]
As can be seen from the summaries above, there has been quite a variation in the applicant’s evidence, including the change of name of [S’s] brother and possibly the friend who informed on the applicant and [S].
[54] CB 163, [11].
For the reasons set out below:
a)this finding was open to the Authority based on probative evidence before it; it is not to the point whether reasonable minds may have been able to draw different conclusions from the same evidence;[55] and
b)the Authority did not misunderstand the applicant’s evidence.
[55] SZMDS at [131] (Crennan and Bell JJ).
While it is true that there was some variation in the applicant’s evidence over time about S’s brother’s name, the significance of that is dubious. It is logical to suppose that S and his brother had the same family name [AP]. Sometimes the applicant referred to S’s brother as [A] and sometimes referred to him as [AP]. This might well be no more significant than the applicant referring to the brother by his family name instead of his given name (which is an exceptionally common one in Iran).
Had the Authority’s decision turned on the supposed discrepancy, it would be a matter of serious concern. I accept, however, the Minister’s alternative submission that the apparent confusion over S’s brother’s name was but one of a number of concerns the Authority harboured about inconsistencies or contradictions in the applicant’s evidence.
These were all matters which, if they had been dealt with by the Administrative Appeals Tribunal, could have been explored and hopefully clarified at a hearing pursuant to s.425 of the Migration Act. The Authority is, however, required to follow a stricter statutory process without, in the normal course, interviewing the applicant. That is a relevant consideration in relation to the third ground of review advanced.
In relation to this ground, the significance of the variation in S’s brother’s name is a matter about which reasonable minds can differ and, in the total scheme of the Authority’s reasons, any error by the Authority in dealing with the apparent discrepancy does not go to its jurisdiction.
Ground 2 – did the Authority misconceive the nature of its review?
Applicant’s contentions
As the Full Federal Court held in AVQ15, before finding that a visa applicant has given inconsistent evidence, it is essential that a decision-maker have regard to the context of the various processes in which the evidence was given. A finding of an inconsistency, particularly where one of the processes involved was a cursory arrival interview conducted several years earlier, may give rise to jurisdictional error if it is made without an appreciation and proper consideration of that context.
The Full Federal Court in that case held that the task: [56]
…requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.
[56] AVQ15 at [28] (Kenny, Griffiths and Mortimer JJ).
The Authority used the applicant’s omission of certain details during his arrival interview as a basis for making an adverse credibility finding.[57]
[57] CB 163, [11].
The applicant contends that it did so without proper recognition and consideration of the purpose of the arrival interview, described by the Full Federal Court in BMV16 v Minister for Immigration.[58] Among other matters, the Authority failed to recognise that an arrival interview is not intended to be the occasion for a full recitation of an applicant’s claims for protection, such that omission of parts of an applicant’s story from the arrival interview is not inconsistent with the provision of more detailed evidence at a later stage in the process.[59]
[58] (2018) 261 FCR 476, [8] (Mortimer, Moshinsky and Thawley JJ); citing W375/01A v Minister for Immigration [2002] FCAFC 89, [11]-[15] (Lee, Carr and Finkelstein JJ).
[59] AVQ15 at [25]-[28].
The Authority’s description of the applicant’s later, more detailed evidence, as an “increasingly embellished story”[60] compared with the evidence given at his arrival interview four years earlier is said to evince a lack of recognition by the Authority of the proper roles of an arrival interview and the more detailed opportunity for an applicant to expand on his or her claims at the interview with the delegate.
[60] CB 163, [11].
The Authority’s repeated highlighting of issues that were not mentioned, or not mentioned in detail, at the 2013 arrival interview formed the basis for the Authority’s findings of a number of “inconsistencies”, which in turn was the basis for the Authority’s adverse credibility findings.[61]
[61] CB 162-CB 163, [8]-[9], [11].
The applicant submits that the Authority’s findings of inconsistencies and/or embellishments, without regard to the proper roles of arrival interviews and subsequent written statements and detailed interviews, constitute a fundamental misconception of the Authority’s task and a constructive failure to review.
Minister’s contentions
Relying on AVQ15, the applicant submits that the Authority erred by placing too much emphasis on matters the Applicant did not mention in his arrival interview and, accordingly, constructively failed to exercise its jurisdiction. The Minister submits that, at its highest, the applicant displays “emphatic disagreement” with the Authority decision and, accordingly, does not identify any jurisdictional error.[62]
[62] SZMDS at [96] and [129] (Crennan and Bell JJ); Minister for Immigration v Eshetu (1999) 197 CLR 611 at [40] (Gleeson CJ and McHugh J).
In the extract from AVQ15 at [27] and [28], the applicant has omitted the passages which read as follows:
[27] … In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.
[28] … even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact.
In AQV15, the reasoning of the Kenny, Griffiths and Mortimer JJ in holding the decision was affected by jurisdictional error, at [29]–[33] and [48], turned on the fact that in a statutory declaration provided to the delegate, the appellant stated that he would “provide further information in relation to my protection claims during my interview with the DIAC officer”. However, the Administrative Appeals Tribunal overlooked oral evidence the appellant subsequently gave to the delegate. That is not the case here.
In this case, the matters the applicant omitted to mention in his arrival interview on 7 July 2013, and which were subsequently presented to the delegate or the Authority, were central and underpinned his claims. Those matters were as follows:
a)that he had been arrested by S’s brother, a member of the Basij, and assaulted such that he needed hospital treatment. This was first raised in the applicant’s statement dated 15 June 2017;[63]
b)that he had thereafter stayed with a friend for two months. This was raised for the first time in the applicant’s statement dated 15 June 2017 and then at his protection visa interview;[64] and
c)at the arrival interview, the applicant said a man named B, P or S arranged his travel to Australia from Indonesia but that he had arranged his own travel from Iran to Indonesia, and in his statement dated 15 June 2017 he said he did not tell anyone, other than his friend with whom he had been staying, about departing Iran. This was in contrast to his protection visa interview where he said that his brother made arrangements for him to leave Iran and bought tickets for him.[65]
[63] CB 9; CB 68, [9]-[10]; CB 163, [11].
[64] CB 9; CB 68, [13]; CB 69, [14]; CB 129-CB 130; CB 163, [11].
[65] CB 11.
The central significance to the applicant’s case of the matters not raised in the arrival interview but subsequently relied on is clear. In addition, those matters were not raised at the arrival interview despite the applicant being asked questions including: (1) What event caused you to leave Iran?;[66] (2) Were you ever arrested or detained by the police or security organisations?;[67] (3) Were there any armed groups, political groups, or religious groups operating in the area?;[68] and (4) Who made arrangements for you to travel to Australia.[69]
[66] CB 9.
[67] CB 10.
[68] CB 10.
[69] CB 11.
The Minister submits that in those circumstances, there was no constructive failure to exercise jurisdiction in the Authority reasoning that the applicant’s credibility was undermined by him seeking to rely on critical factual propositions in support of his claims to fear harm in Iran which were not mentioned at the arrival interview but raised subsequently.
Resolution
I accept the Minister’s submissions in relation to Ground 2. The applicant’s case developed over time in fundamentally important ways and the Authority was entitled to see significance in claims being made for the first time after the arrival interview.
The Authority, while it saw significance in the absence of any mention of important elements of the applicant’s claims at the arrival interview, and was also concerned at irreconcilable differences in the applicant’s account, did not approach its evaluative task with a misunderstanding of the purpose of the arrival interview.
I reject Ground 2.
Ground 3 – did the Authority unreasonably fail to consider exercising its power under s.473DC?
Applicant’s contentions
The fast track review conducted by the Authority under Part 7AA of the Migration Act is ordinarily to be conducted as a review on the papers without a hearing. That process is underpinned by an assumption that the applicant will have been afforded procedural fairness at the prior stage, including an opportunity to be heard in the interview with the Minister’s delegate.[70] It is on that basis that the applicant is not ordinarily given a hearing in a fast track review.
[70] Plaintiff M174 v Minister for Immigration (2018) 92 ALJR 481, [45] (Gageler, Keane and Nettle JJ).
However, the Authority has discretionary power under s.473DC(3) of the Migration Act to get new documents or information from any person, including a power to invite the applicant to an interview. That power must be exercised reasonably.[71]
[71] Plaintiff M174 at [21] (Gageler, Keane and Nettle JJ).
In circumstances where the process before the delegate has been flawed in some respect, such that the applicant did not have a full opportunity to present his case, the Authority acting reasonably might be expected to exercise its discretion to invite the applicant to an interview to remedy that flaw.[72]
[72] Plaintiff M174 at [49] (Gageler, Keane and Nettle JJ).
The applicant submits that, similarly, where the Authority was itself dissatisfied with the quality of the evidence that it had before it, it will be unreasonable for the Authority to proceed to determine the review on the basis of that flawed evidence without exercising the powers at its disposal to remedy the problem.
In the present case, in relation to the applicant’s claim to fear harm because he was homosexual, the Authority observed in its decision record that the substance of the delegate’s interview with the applicant and the manner in which it was conducted was unsatisfactory for the purpose of concluding whether the applicant was in fact homosexual.[73]
[73] CB 162, [7].
Despite the shortcomings of the delegate’s interview, the Authority did not exercise its power under s.473DC(3) of the Migration Act to invite the applicant to an interview to explore the question of the applicant’s homosexuality to the Authority’s satisfaction.
There is no evidence that the Authority considered exercising its power to interview the applicant.
Had it exercised its power to invite the applicant to a new interview, the Authority could have posed questions suitably tailored to the Authority’s impression of the applicant as “an unsophisticated man”, which could have provided the applicant with an opportunity to convince the Authority of his central claim to be homosexual and provided the Authority with an opportunity to form a view on that crucial issue on the basis of an interview that it considered appropriately probative.
Instead, despite the flaws the Authority observed in the quality of the review material on the subject of the applicant’s sexuality, the Authority made a finding that the applicant was not homosexual on the basis of that material.[74]
[74] CB 163-CB 164, [13].
The applicant submits that, by completing the review without exercising, or considering exercising, its power to invite the applicant to an interview to rectify the identified deficiency in the review material on the subject of the applicant’s sexuality, the Authority acted unreasonably.[75] Specifically, in circumstances where the Authority was clearly dissatisfied with the manner in which evidence had been adduced from the applicant at the interview with the delegate, it was unreasonable for the Authority to conclude its review on that issue without providing the applicant an opportunity to provide evidence in a fair process.[76]
[75] Minister for Immigration v CRY16 (2017) 253 FCR 475.
[76] DPI17 v Minister for Immigration [2019] FCAFC 43.
The unreasonable failure of the Authority to exercise its power to get new information from the applicant in these circumstances is said to have constituted a failure to conduct the review required by statute.
Minister’s contentions
The Minister submits that:
a)contrary to what the applicant states in his written submissions,[77] the Authority at [7] did not observe that “the substance of the delegate’s interview with the applicant and the manner in which it was conducted was unsatisfactory for the purpose of concluding whether the applicant is in fact homosexual”. Instead, its observation was that answers to certain questions, as explained below, did not undermine the applicant’s claim that he is homosexual;
b)the Authority did not rely on the answers provided by the applicant to the delegate about his claimed homosexuality which required a “high level of emotional intelligence and/or insight to effectively answer” in circumstances where it noted that “many of the nuances intended by the delegate in the framing of his questions may very well have been lost when being translated into Farsi by the interpreter”.[78] The Authority did not consider the applicant’s “simplistic”[79] responses to such questions as a basis for rejecting his claims because those responses “could equally be the response of an unsophisticated man who has not particularly turned his mind to the reasons why he may act or feel as he does”; and
c)in rejecting the applicant’s claim of being homosexual, the Authority relied on the following factual discrepancies in the applicant’s evidence (which were separate and distinct from the matters mentioned above):[80]
i)that early in his protection visa interview he said he first realised he was homosexual in 2006 or 2007 (ie. when he would have been 23 or 24 years old), but later in the same interview said he was attracted to boys in school;[81]
ii)in his statement dated 15 June 2017 under the heading “After I arrived in Australia”, he makes no mention of any relationships since being in Australia;[82] and
iii)the applicant did not provide any corroborating evidence of his homosexuality by way of, for instance, text messages or emails from former partners[83] in circumstances where the applicant told the delegate that he had been involved in “around 14 or 15” homosexual relationships in Australia with the longest relationship lasting for “four or five months”.[84]
[77] at [35].
[78] CB 162, [7].
[79] CB 162, [7].
[80] CB 163, [13].
[81] CB 123-CB 124.
[82] CB 69, [15]-[16].
[83] CB 163, [13].
[84] CB 126.
Accordingly, the Minister submits that the circumstance of this case are different from CRY16 in the way described in DYK16 by Collier, Middleton and Rangiah JJ at [71]. In this case, “there is nothing … to suggest that the [applicant] did not have an adequate opportunity to advance any evidence or submissions he wished to in support of his claims, or that the IAA had disabled itself in some way from considering an issue” because:
a)first, as stated above, the Authority did not rely on the answers provided by the applicant of the type mentioned above;
b)secondly, this is not a case where the Authority decided a point which was not the point decided by the delegate,[85] ie. both the delegate and Authority found that the applicant was not homosexual as claimed;
c)thirdly, the Authority was not disadvantaged in comparison with the delegate[86] and had before it information that allowed it to reach a conclusion about whether the applicant is, in fact, homosexual, and did not need further information from the applicant on this issue to carry out its review function.[87] In addition to the review material, the Authority had before it, and considered, submissions from the applicant dated 14 November 2018 which directly addressed the delegate’s rejection of his claim to be homosexual;[88] and
d)fourthly, this is not a case like DPI17, where the Authority’s decision was held to be affected by jurisdictional error in circumstances where it did not interview an applicant but made adverse credibility findings when the delegate, who had interviewed the applicant, had accepted the applicant’s evidence primarily based on demeanour at interview.
[85] cf CRY16.
[86] FND17 at [39]–[43] (Griffiths J).
[87] CGL17 v Minister for Immigration [2018] FCA 1747 at [22] (Rangiah J).
[88] CB 148-CB 152; CB 161, [3]-[4].
Resolution
I find that jurisdictional error has been established in relation to this ground.
Importantly, at [7] of its reasons the Authority stated:
The applicant's central claim is that he fears harm in Iran due to his homosexuality. At the PV interview he was questioned in great detail on this point by the delegate. Although thorough questioning on his key claim is entirely appropriate, I note that many of the questions asked required a high level of emotional intelligence and/or insight to effectively answer. The applicant was asked such questions as what he thought about the fact that he was homosexual, whether he saw anything morally wrong with being homosexual and what made him different to the people around him. As noted above, the applicant was only schooled to age 15 or so and has been employed in predominantly manual fields. The delegate noted that "the applicant's responses were generic and unsophisticated in nature, and did not convey or demonstrate substantial personal investment or engagement with the topic." I am of the view that the applicant's simplistic responses to many of the delegate's questions could equally be the response of an unsophisticated man who has not particularly turned his mind to the reasons why he may act or feel as he does. I also note that many of the nuances intended by the delegate in the framing of his questions may very well have been lost when being translated into Farsi by the interpreter.
The Authority was, in that paragraph, pointing to a serious inadequacy in the interview conducted by the delegate. Moreover, the inadequacy went to the heart of the applicant’s claim, namely his homosexuality.
The inadequacy identified by the Authority was bad enough, but it was compounded by the Authority’s own deconstruction of the applicant’s evidence, which supported its adverse credibility findings. For example, at [13] the Authority found fault with the applicant stating he first realised he was homosexual in 2006 or 2007 and also saying that he was attracted to boys at school. If the applicant is, as the Authority suggested, a poorly educated and unsophisticated man who has not turned his mind as to the reasons why he might act or feel as he does, then it is hardly surprising that he might not have understood while at school that his attraction to boys was a latent expression of his sexuality.
The Authority’s reliance upon an interview which it itself found to be seriously flawed, in order to make adverse credibility findings to dismiss the applicant’s claim, is in my view wholly unsatisfactory. It was a problem that the Authority should have been alive to.
There is no indication that the Authority gave any consideration to getting further information or comment from the applicant, either in writing or at an interview. It is true that the applicant had the opportunity to make a submission but an interview would have provided the Authority with the opportunity to make its own assessment of the applicant’s credibility face to face, taking account of his limited education and unsophisticated character. Given that the issues were of fundamental importance, the Authority’s silence in relation to its power under s.473DC of the Migration Act gives rise to the inference that the Authority failed to consider exercising its power. That failure strikes at the heart of the review process in this case and thus goes to jurisdiction.
The applicant should receive the relief he seeks.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will make orders in the nature of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 July 2020
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