AMN18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1134
•6 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMN18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1134
File number: MLG 269 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 6 November 2024 Catchwords: MIGRATION – application for judicial review of decision of the former Immigration Assessment Authority - where Authority rejected claim based on the failure of the applicant to raise the claim in a series of interviews, including a screening interview and an arrival interview – whether it was unreasonable for the Authority to have recorded adverse finding without first exercising the power under s 473DC of the Migration Act 1958 (Cth) to get information from the applicant – whether case can be distinguished from Minister for Home Affairs v AYJ17- no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 473DC, 473DD
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: BIL18 v Minister for Home Affairs [2020] FCA 1367
Minister for Home Affairs v AYJ17 (2019 165 ALD 64; [2019] FCA 591
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submissions: 29 October 2024 Date of hearing: 29 October 2024 Place: Melbourne Counsel for the Applicant Mr M Kenneally Solicitor for the Applicant MP Migration Law Counsel for the First Respondent Ms J Lucas Solicitor for the First Respondent Australian Government Solicitor Solicitor for the Second Respondent Submitting appearance, save as to costs ORDERS
MLG 269 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMN18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for judicial review filed on 2 February 2018 and amended on 11 October 2024 be 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 SYMONS:
By an amended application filed on 11 October 2024, the applicant seeks review of a decision of the second respondent (Authority) made on 17 January 2018 affirming a decision of a delegate of the first respondent (Minister) not to grant him a Safe Haven Enterprise visa (visa).
BACKGROUND
The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 20 May 2013 (Court Book (CB) 353).
On 21 June 2013, the applicant participated in an enhanced screening interview (screening interview) (CB 11-20).
On 6 July 2013 the applicant participated in part 1 of an arrival and induction interview (arrival interview) (CB 21-40). The applicant participated in part 2 of the arrival interview on 2 April 2014 (CB 41-57).
On 3 August 2016, the (then) Department of Immigration and Border Protection (Department) invited the applicant to apply for the visa. He did so on 20 January 2017 with the assistance of a registered migration agent (CB 68-311).
The application for the visa was supported by documents that included a statement of the applicant dated 14 January 2017 (CB 127-134). The statement included a claim that the applicant had driven for the LTTE from 2002 in Batticaloa and had, in 2004, rejected an approach from the Karuna group to drive for them (Karuna group claim). The applicant claimed that he had a profile because of his imputed support of the LTTE and his refusal to join the Karuna group.
The applicant did not raise the claim that he had been asked to drive for Karuna in his enhanced screening interview. Nor does the claim appear in the record of the arrival interview.
On 5 May 2017 the applicant participated in a PV interview with a delegate of the Minister. A transcript of the PV interview was before the Court.[1]
[1] Annexure MP-1 of the Affidavit of Ms Maria Psihogios filed 2 October 2024.
On 13 May 2017 the delegate made a decision to refuse the applicant the visa (CB 350-368).
The delegate did not mention the screening interview or the arrival interview in their decision record. The delegate did refer to the Karuna group claim (CB 356) but did not expressly resolve it. The delegate found simply that it did not accept that the applicant would be at risk of persecution or harm by any paramilitary groups upon return to Sri Lanka (CB 358).
On 18 September 2017 the decision of the delegate was referred to the Authority for review (CB 370-376).
The applicant was represented before the Authority. On 4 October 2017, his representative sent the Authority an applicant submission and a collection of newspaper articles that were said to be admissible under s 473DD of the Migration Act 1958 (Cth) (Act) (CB 382-436).
On 10 October 2017, the Authority made a request to the Department for the audio recordings of part 1 and part 2 of the arrival interview (CB 438).
On 16 October 2017 the Authority acknowledged receipt of part 2 of the arrival interview and repeated its request for the audio recording for part 1 (CB 441).
On 16 October 2017, the Department informed the Authority that there was “no PV recording for Part one” and only the transcript was available (CB 442).
DECISION OF THE AUTHORITY
On 17 January 2018, the Authority affirmed the delegate’s decision to refuse the applicant the visa and provided a written statement of decision and reasons (Reasons) (CB 448-465).
The Authority conducted its review on the basis of the material that had been provided by the Secretary under s 473CB of the Act.
Relevant to this application for judicial review, the Authority recorded the applicant’s claim that after Karuna and Pillayan split from the LTTE he had been approached by Karuna to work as a driver but had refused (Reasons, [11]).
The Authority noted that on 6 July 2013 the applicant had participated in an “arrival entry” interview and recorded aspects of his evidence, including his response to being asked about his problems with the Karuna group in Batticaloa (Reasons, [16]).
The Authority noted also that the applicant had participated in an enhanced screening interview on 21 June 2013 and noted that the information from that interview was largely consistent with that given in his arrival interview, PV application and PV interview. The Authority recorded the applicant as having stated during that interview that he had started having problems with the Karuna group while he was driving for the LTTE in Batticaloa between 2002 and 2006 (Reasons, [16]).
The Authority noted again that the applicant had been consistent in the information he had provided to the Department at his advanced screening interview, arrival interview, PV application and interview. The Authority accepted that the applicant was a Tamil from Jaffna who had worked for the LTTE as a driver between 1999 and 2008, including in Batticaloa between 2002 and 2006 (Reasons, [19]).
The Authority took a different view of the applicant’s evidence concerning his interactions with the Karuna group. At Reasons, [20] it said:
In contrast to his evidence regarding his LTTE employment, I consider the applicant has provided inconsistent accounts as to why he left Batticaloa in 2006. The applicant claimed to have been approached before the split and that Karuna asked him to be his driver but he refused and said he was working for Vasanthan and because of this refusal he would be persecuted if captured. I am of the view the applicant has embellished his claims in this respect given he did not state so previously. In his arrival interview he simply stated after the Karuna group split and joined the armed forces it was threatening for him as he was working for the LTTE. At his advanced screening interview he stated after the split, the Pillayan and Karuna Groups chased them from Batticaloa; because of the Karuna Groups insistence/request they should leave Batticaloa, they returned to Vanni without taking any items. At his PV interview the applicant a number of times stated that because he had spent time in Batticaloa the Karuna and Pillayan group was known to him, the Karuna Group knew him well because he was working there. The applicant provided no details about being contracted specifically by Karuna himself, the circumstances in which he was allegedly asked to drive for him and that he refused to do so. I consider the applicant has fabricated this claim to enhance his profile and fear of persecution and that the real reason he fled Batticaloa was because as an LTTE worker he feared the Karuna Group and the fact that the Pillayan Group were committing atrocities. I am not satisfied on his return to Sri Lanka the applicant will be personally targeted by the Karuna Group or any other paramilitaries for refusing to drive for them over ten years ago given I have rejected this claim that he was asked directly by Karuna to drive for him and refused. Given the passage of time and his low level profile role as a driver for the LTTE, I am also not satisfied that the applicant would be targeted by the Karuna group or other paramilitaries because of his previous links to the LTTE.
The parties agree that the Authority should be understood as relying in this paragraph on the written record of interviews only.
JUDICIAL REVIEW
The applicant seeks judicial review of the decision of the Authority on the single ground that the Authority unreasonably failed to exercise the power under s 473DC(1) of the Act to get new information from the applicant. The new information is described as information about the circumstances of the screening interview and the arrival interview and information about the failure of the applicant to refer to the Karuna group claim in either of these interviews. In other words, according to the applicant, before relying on these interviews to record adverse findings, the Authority should have given him the opportunity to comment on both of these matters.
At the time the Authority made its decision, s 473DC (Getting new information) provided:
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under s 65; and
(b)the Authority considers may be relevant.
(2) The Immigration Assessment 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.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Applicant’s submissions
The applicant accepts that he must overcome a high bar in order to establish a ground of legal unreasonableness and that assessment of unreasonableness in the context of a decision made by the Authority must have regard to characteristics of the Part 7AA review, which include that it is designed, ordinarily, to proceed “on the papers”. The applicant accepts that he must demonstrate that the failure to exercise the discretion in s 473DC(1) of the Act lacked an evident and intelligible justification.
The applicant submits that the following considerations (also reflected in the particulars to the ground) operate cumulatively to give the failure to exercise the power an arbitrary and unreasonable quality.
First, both interviews were conducted over four years prior to the decision of the Authority.
Second, the delegate made no reference to the interviews in any part of the primary decision‑making process (being the PV interview and the decision record). There was no evidence that the applicant was aware of the specific interviews, or that they might be before the Authority and relied upon by it, including to reject the Karuna group claim.
Third, matters peculiar to each interview meant that they were potentially unreliable as evidence of an omission from which adverse inferences could be drawn. It was said to be significant that against Q. 32 “Why did you leave your country of nationality (country of residence)” the written record of part 1 of the arrival interview notes “*Due to time constraints the client was asked to be brief” (CB 29). As far as the screening interview was concerned, the applicant submitted that where this had occurred only a month after his arrival in Australia, it was unreasonable for the Authority to rely on it without any context from the applicant as to his state of mind at the time.
The applicant, while acknowledging the case sensitivity of decisions that concern legal unreasonableness, nonetheless submits that his case is similar to that considered by Moshinsky J in Minister for Home Affairs v AYJ17[2019] FCA 591. The applicant submits that in that decision, his Honour held that it was unreasonable for the Authority to rely on what was described as an “arrival and induction interview” without considering getting new information, where the applicant was likely able to provide relevant evidence about the interview (at [34]).
Although I did not understand the Minister to put materiality in issue, the applicant submitted that the composite effect of the Authority’s reliance on omissions from the screening interview and the arrival interview (along with the PV interview) was the central reason for the rejection of the Karuna group claim.
Minister’s submissions
The Minister submits that an evaluation of the approach taken by the Authority should reflect the following principles encapsulated in the decision of BIL18 v Minister for Home Affairs [2020] FCA 1367 at [20] (Wigney J):
There is nothing in the statutory scheme in Pt 7AA of the Act to suggest that the Authority is obliged to notify a referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. It must follow that the mere fact that the Authority is considering taking a different view of the material before the delegate does not oblige the Authority to request, or consider requesting, new information from the referred applicant. The “requirement for legal reasonableness is not a vehicle for effectively mandating the exercise of s 473DC in every case which involves the Authority overturning a positive finding made by a delegate on an issue that is dispositive to its review”: FGC17 v Minister for Home Affairs [2019] FCA 559 at [40].
The Minister submits that transposed to this case, these principles mean that the fact the Authority made findings on the basis of inconsistencies and/or omissions, which were not made by the delegate, cannot mandate the exercise of s 473DC.
The Minister makes the related submission that the applicant was not required to be put on notice that the content of interview records would be relied upon by the Authority. This was especially the case given that he was an active participant in both interviews, and he could not claim to have been unaware of the information disclosed (or not disclosed) in those forums.
The Minister submits that the applicant’s reliance on the decision of AYJ17 is misplaced because it can be distinguished on its facts, namely, that:
First, while the Authority in AYJ17 rejected a key claim of AYJ17 principally based on his failure to mention it in his “arrival interview”, this interview, despite the nomenclature, comprised Part A “Biodata” and Part B “Travel” (AYJ17 at [9]). It was a different kind of interview directed at the ascertainment of different information to either the screening interview or the arrival interview in this case. It created few, if any opportunities, to articulate claims for protection (AYJ17 at [34]).
By way of contrast, the written summary of the screening interview recorded (CB 16):
Q: You mentioned also you had a problem with Karuna Group, what did you mean by that?
A: While I was working in Batticaloa I was working with a group that went from Jaffna in northern division, when a split in the LTTE came up the Pillaiyan and Karuna Group chased us from Batticaloa. In fact I was living there with my family at the time. Because of that Karuna Groups insistence/request that we should leave Batticaloa we returned to Vanni without taking any items.
Q: So that was the only issue you had?
A: Yes
The screening interview also recorded in the interview summary that (CB 19):
The client stated that in 2006 he was forced to leave Batticaloa by the Pillaiyan and Karuna groups when they separated from the LTTE. He had to relocate to Vanni area.
As far as the arrival interview was concerned, the Minister emphasised that the written record stated (CB 29-30):
Q: What problems did you have with the Karuna Group in Batticola?
A: It was life threatening because KARUNA was with the LTTE but later split with LTTE and joined the armed forces, so it was threatening for me as I was working for the LTTE.
…
Q: Apart from what you have told me is there any other reason you left Sri Lanka?
A: My wife’s sister’s husband and daughter were involved with the LTTE and died a “hero’s death”. This was in about 2006 or 2007. So I am in danger from the military and CID due to this relationship. This is Killinochi.
Q: Any other reason?
A: No.
…
Q: What do you think would happen if you returned to Sri Lanka?
A: There would be danger to my life.
Q: From who?
A: From the military/armed forces, CID the intelligence and the Karuna group.
Q: Why would you be in danger from these organisations?
A: Because I was driver for the LTTE and I worked under two commanders BANU and VASANTH. And I saw VASANTH’s hands tried and shot in the paper.
Q: Is there any other reason you could not return to Sri Lanka?
A: No.
The Minister submitted that these extracts from the records of interview demonstrate that the screening and the arrival interviews both created opportunities for the applicant to identify, and then elaborate on, his claims to fear harm on return to Sri Lanka.
Second, in AYJ17, the applicant had described his brother’s death (this being the claim that was rejected) in every other interview. Here, instead, the Karuna group claim was not mentioned by the applicant in any of his interviews.
Third, the delegate had accepted AYJ17’s claim of his brother’s death and had specifically mentioned the consistency of AYJ17’s evidence on this claim in his interviews (AYJ17 at [15]). As earlier noted, the delegate in this case recorded no finding, one way or the other, about the veracity of the Karuna group claim.
Fourth, in AYJ17 the limited response given by the applicant at interview to the question “Why did you leave your country of nationality (country of residence)?” was considered by Moshinsky J to have been capable of encompassing the claim about the brother’s death (AYJ17 at [42]).
Fifth, the Authority’s conclusion in this case that the applicant had embellished his Karuna group claim was not only based on the fact that he did not make the claim in his interviews. It was also based on the fact that in his PV interview, the applicant “provided no details about being contacted specifically by Karuna himself, the circumstances in which he was allegedly asked to drive for him and that he refused to do so”.
The Minister submitted that as far as the PV interview had been concerned, the transcript of interview demonstrated that the applicant had been given ample opportunity to make the Karuna group claim but had failed to do so.[2]
[2] The Minister relied on T13, lines 24-31; T18, lines 25-30; T19, lines 3-6; T24 lines 20-30 and T25 (being the applicant’s representative’s submissions).
The Minister submitted that having regard to the facts and circumstances of this case, it was not unreasonable for the Authority not to have exercised its discretion pursuant to s 473DC of the Act.
CONSIDERATION
I do not consider that the failure of the Authority to exercise the discretionary power in s 473DC(1) of the Act to get information from the applicant in this case involved jurisdictional error.
While an evaluation of the reasonableness of the approach taken by the Authority must be responsive to the individual circumstances of the case, where both parties made submissions that engaged closely with the decision of AYJ17, it is appropriate to treat this authority as a useful comparator in the resolution of the applicant’s judicial review application.
Having now reviewed the decision of AYJ17, it strikes me that several matters that were significant in the disposition of the Minister’s unsuccessful appeal are absent in this case.
To begin with, the approach taken by the delegate in AYJ17 to the claim about his brother’s death was diametrically opposed to that taken by the Authority. As the Minister observed in his submissions, the delegate found that AYJ17 had provided consistent details in his entry interview, written application and PV interview and had accepted AYJ17’s claim about his brother’s death on that basis. Indeed, the delegate accepted the claims made by AYJ17 “in their entirety”.
By marked contrast, the Authority in AYJ17 zeroed in on the failure of AYJ17 to raise the claim about his brother in the arrival interview. The Authority found the omission “difficult to reconcile” with the later claim made by AYJ17 in the entry interview, TPV application and TPV interview. The view taken of the omission was instrumental in the rejection of this claim; while the Authority did have reservations about a death certificate provided by AYJ17, these reservations were secondary to its concern about the omission.
It is evident from the manner in which the Authority approached its finding about the death of AYJ17’s brother that there was an informational gap around the circumstances of the arrival interview that, if filled, might have satisfied the Authority to take a different (more benign) view of the omission. In other words, the inability to reconcile the early omission might have been cured.
In this case instead, the delegate did not make any express findings about the Karuna group claim and rejected, as a whole, the applicant’s claim to apprehend harm from para-military groups. The approach taken by the Authority was to view the applicant’s articulation of claims at interview as a whole. Where claims had been made consistently, the applicant obtained the benefit of a positive finding. Where claims had not been made consistently (including in the PV interview, which had occurred at a time close to the decision of the Authority) the Authority took the view that they were not genuine.
In AYJ17, while directed at a different ground, Moshinsky J accepted the primary judge’s characterisation of the finding by the Authority about the brother’s death as “perverse”. In my view, the same criticism cannot be levelled at the approach taken by the Authority to the disposition of the Karuna group claim. Instead, I consider that the reasoning adopted by the Authority was open on the material before it. While this does not directly answer the question of whether the failure to exercise the statutory power in s 473DC was unreasonable, where grounds of review are often inextricably linked and responsive to the same fundamental error, it reinforces my conclusion that there was no error in terms of unreasonableness in this case.
The second point of significant difference between AYJ17 and this case is in the quality of the opportunity afforded to the respective applicants in their early interviews. In this respect, I accept the submission of the Minister that having regard to the records of interview, the applicant in this case was given opportunities in both the screening interview and the arrival interview to identify and then expand upon his substantive protection claims. While I accept that these opportunities had some limits, they were nonetheless of a different character to the arrival interview that assumed dispositive significance in AYJ17 that was principally concerned with the collection of biodata and travel information.
ORDERS
The applicant has not established that the decision of the Authority is affected by jurisdictional error. In such circumstances, I will order that the application for judicial review filed on 2 February 2018 and amended on 11 October 2024 be dismissed.
I will make a further order that the applicant pay the Minister’s costs in the fixed amount prescribed by the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a proceeding concluded at final hearing.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 6 November 2024
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