AQK18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 475
•8 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AQK18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 475
File number: MLG 337 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 8 April 2025 Catchwords: MIGRATION – protection visa – judicial review of a decision of the Immigration Assessment Authority – where applicant was affected by the 2014 data breach – where applicant was found not to be a credible witness by the Authority – where impact of data breach considered by the Authority –where Authority considered claims about interpretation during delegate interview – credibility findings open - 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), Sch 1
Cases cited: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 Division: Division 2 Family Law Number of paragraphs: 79 Date of last submissions: 31 March 2025 Date of hearing: 31 March 2025 Place: Melbourne Solicitor for the Applicants: The Second Applicant appearing on behalf of the Applicants Counsel for the First Respondent: Mr J Lessing Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 337 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQK18
First Applicant
GDF18
Second Applicant
GDG18
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
8 APRIL 2025
THE COURT ORDERS THAT:
1.The application for judicial review filed on 12 February 2018 be dismissed.
2.The first and second 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:
INTRODUCTION
By way of an application filed on 12 February 2018, the first applicant (applicant) seeks judicial review of a decision of the second respondent (Authority) made on 7 February 2018. The Authority affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the three applicants a Safe Haven Enterprise visa (Class XE) (Subclass 790) (visa).
On 26 March 2018, orders were made by Judge McNab (as his Honour then was) that the first applicant’s two daughters be added to these proceedings, as the second and third applicants, and that the first applicant be appointed as litigation guardian for her daughters.
BACKGROUND
The applicant is a Sri Lankan citizen who arrived in Australia on 24 November 2012 as an unauthorised maritime arrival, accompanied by her two daughters.
On 10 February 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (arrival interview) (Court Book (CB) 9-26). The claims made by the applicant during the arrival interview can be summarised as follows (CB 21):
·The applicant claimed to fear harm as a Tamil female, and because she was regularly harassed by “CID and Army people”, who interfered with her and her husband’s business.
·The applicant claimed that she had witnessed two men being shot outside her husband’s shop, at which time, her husband had assisted one of the men by taking him to hospital.
·Following the shooting, the shooters returned to the applicant’s house and threatened her and her husband because her husband had provided aid to the injured man.
·The applicant claimed that the shooters threatened to abduct her children if her husband did not report to them the next morning. It was at this point that the applicant and her family fled their home.
On 10 March 2016, the applicant was invited by the (then) Department of Immigration and Border Protection (Department) to apply for the visa (CB 27-28).
On 13 May 2016, the applicant applied for the visa, listing her daughters as the second and third applicants (CB 36-76). Amongst the documents that accompanied the application was a summons to the applicant’s husband dated 20 December 2015 (CB 96-97) and a statement of the applicant which set out her claims for protection as follows (CB 77-83):
·The applicant’s childhood village (Thavisikulam) was close to a Sri Lankan Army (SLA) base. When there were attacks against the SLA, the SLA would often retaliate by committing violence against nearby villages, including the applicant’s village.
·The applicant’s sister was taken by the SLA and tortured and raped when the applicant was a child, in around 1990. Following this event, the applicant’s family, excluding her sister, father and elder brother, fled to India.
·Whilst in India, the applicant’s family home was bombed, and the applicant’s sister was killed. Following this, the applicant’s father and brother joined the family in India. The applicant’s family remained in India until 1993, during which time the applicant lived in and attended school in a refugee camp. In 1993, the family returned to Sri Lanka.
·In 1994, the applicant commenced working at a garments factory as a seamstress. The factory was located close to an SLA base, and the female employees of the factory were often harassed and sexually assaulted, leading to the factory closing in 2002.
·In 2005, the applicant married her husband. The applicant’s husband owned a vegetable shop which the applicant assisted in.
·On the night of 30 October 2012, the applicant witnessed two men being shot outside her husband’s vegetable shop. One man died immediately. The applicant’s husband assisted the other man by taking him to the hospital.
·The same night, two men came to the applicant’s house and asked why her husband had taken the injured man to the hospital. The applicant was raped by the two men that night. The applicant did not tell her husband about being raped until she had arrived in Australia.
·The same night, the applicant phoned her husband and told him not to come home. Instead, they met in Vavuniya, with the children, and escaped to Chatikulam to stay with a friend.
·Whilst in Chatikulam, the applicant and her husband decided to flee Sri Lanka. The applicant’s husband organised passage out of Sri Lanka in exchange for their house. They travelled to Negambu. In Negambu, the applicant and her husband were told that the husband would travel on the first boat, and the applicant and her children after that. The applicant was under the impression that she would ultimately meet her husband on the boat to Australia.
·The applicant’s husband’s boat was intercepted by the Sri Lankan Navy and he did not make it out of Sri Lanka.
On 13 March 2014, the applicant received a letter from the Department advising that a report had inadvertently been published to the Department’s website including personal information of people in immigration detention, on 31 January 2014 (data breach) (CB 272-273). The Department advised that some of the applicants’ personal information may have been accessed during the data breach.
On 5 August 2016, the Department acknowledged receipt of the applicants’ valid visa application (CB 166-177).
On 29 December 2016, the Department invited the applicant to attend an interview on 17 January 2017 (visa interview) (CB 179-197).
On 17 January 2017, the applicant attended the visa interview, along with her representative from Playfair Visa and Migration Services.
On 24 January 2017, the applicant’s representative provided further written submissions in support of the visa application (CB 199-215). These submissions sought to address, among other things: (1) the applicant’s credibility, particularly in relation to her claim to have been raped by two men; (2) the applicant’s fear of harm as a person of Tamil ethnicity and who is known to authorities; (3) the applicant’s fear of harm as a failed asylum seeker who departed Sri Lanka illegally; and (4) the applicant’s belief that she would be unable to relocate to another part of Sri Lanka should she return.
On 18 August 2017, a delegate of the Department refused to grant the applicant the visa (CB 217-238).
The delegate accepted that the applicant was a Sri Lankan citizen of Tamil ethnicity and Hindu faith and had departed Sri Lanka illegally. The delegate did not accept the applicant’s principal claims concerning the events of 30 October 2012. The delegate was not satisfied that the applicant’s profile gave rise to a relevant risk of harm on return to Sri Lanka.
On 18 August 2017, the decision of the delegate was referred to the Authority for review (CB 239-240).
On 11 September 2017, the applicant’s new representative, Wimal & Associates, provided a further submission, medical reports, and country information to the Authority (CB 266-314). The submission addressed the following matters:
First, that the visa interview was not conducted properly and according to rules of procedural fairness. The applicant’s representative said that “the applicant was provided with three different interpreters during the course of the interview, which made the applicant very unsettled and confused” (CB 267).
Second, that the delegate did not consider the potential impact to the applicant of the 2014 data breach on the applicant.
Third, that the delegate did not take into account a psychologist report prepared by Foundation House dated 30 March 2015 relating to the applicant, which they said was provided to the delegate as part of the applicant’s submissions filed on 24 January 2017.
Fourth, that the delegate did not consider the issue of relocation.
Fifth, that the delegate failed to consider the risk which the applicant and her daughters would face of sexual violence upon their return to Sri Lanka. On this point, the submission was made that the delegate failed to have regard to “country information such as the January 2017 DFAT Report on women in Sri Lanka; the US Department of State’s 2016 Human Rights Report on Sri Lanka which confirm the sexual and gender based violence; the UNFPA Report in 2015 that violence against women in Sri Lanka cut across all socioeconomic groups; the increase in reported incidents of sexual assault and rape and a majority of cases which go unreported because of social stigma” (CB 271).
Included in the supporting documents was an undated psychiatrist report relating to the applicant (CB 276-277), a referral letter from a mental health social worker dated 17 July 2017 (CB 282), and a Foundation House report relating to the applicant dated 30 March 2015 (CB 278-281).
DECISION OF THE AUTHORITY
On 7 February 2018, the Authority made a decision to affirm the decision of the delegate not to grant the applicants the visa and produced a set of written reasons (R) (CB 320-336).
The Authority identified the information that was before it and, in this context, found that both the undated psychiatrist report and the social worker referral report were from credible sources and concerned the applicant’s mental health so as to satisfy s 473DD(b) of the Migration Act 1958 (Cth) (Act). The Authority considered that there were exceptional circumstances to consider these items of new information (R, [7]-[8]).
The Authority found that the country information provided with the further submissions predated the delegate’s decision and for this reason could have been provided earlier. The Authority was not satisfied that there were exceptional circumstances to justify considering the country information (R, [10]).
The Authority summarised the applicant’s claims comprehensively at R, [11].
The Authority accepted that the applicant was a Tamil Hindu female from the Northern province who was married in 2005 and had helped her husband with a vegetable shop. The Authority accepted that during the war the army would take things from the shop without paying but found that this activity occurred in the context of the war which ended in May 2009 (R, [14]).
In other respects, the Authority found that the applicant was not a credible witness, describing her evidence as “vague, repetitive and rehearsed” (R, [15]) and providing examples, taken from the visa interview. Amongst these, the Authority found that:
·The applicant’s evidence about her husband’s employment and living arrangements was hesitant, vague and changed (R, [17]);
·The applicant’s evidence about what happened to the shop involved the repetition of a rehearsed claim (R, [18]);
·The applicant’s evidence about whether the incident of 30 October 2012 had been reported was vague and hesitant and inconsistent with her written statement (R, [19]).
·The applicant’s evidence about the identity of the perpetrators of the alleged rape was vague, hesitant and evolved as it went along, rather than recounting a lived experience (R, [20]).
The Authority was also concerned that the applicant’s account of the 30 October 2012 event was inconsistent in several important respects, including about when the men came to the house and whether the applicant and her husband had witnessed the incident together. The Authority found that these inconsistencies operated across the arrival interview, the applicant’s 2016 statement and the visa interview and were not explained adequately when put to the applicant at the visa interview (R, [22]-[29]).
The Authority described the applicant’s evidence about the husband’s situation as vague, evasive and lacking in credibility (R, [30]). The Authority did not accept that the applicant would not know where he was living, given they talked daily on Skype. The Authority did not accept that the husband was in hiding or could not be found if he was wanted by the authorities. The Authority noted that the summon document provided by the applicant used the applicant’s address and the Foundation House report stated that the husband was permitted to return home after his boat was intercepted by the navy. The Authority did not accept that the applicant’s husband had been in hiding since 2012 and that instead, he continued to reside at the family home at the same address (R, [30]-[34]).
The Authority gave consideration to the 2015 summons that was said to relate to the applicant’s husband. The Authority identified several difficulties with the summons, including that the purpose for its issue was identified inconsistently, the applicant had no understanding of the document, the applicant had not asked her husband what he had been summonsed for, and the document was “vague on its face”. The Authority also took account of country information which indicated that there was a prevalence of fraudulent documents. The Authority placed no weight on the summons, or an untranslated Human Rights Commission card which referred only to a number and was not specific (R, [35]-[41]).
The Authority did not accept that the applicant had been raped, as claimed. In reaching this conclusion the Authority acknowledged that it might be difficult to disclose sexual assault but was concerned by the failure of the applicant to mention the event in the 2015 Foundation House report after she had been in receipt of counselling. The Authority also took account of the applicant’s evidence about the shooting incident and events surrounding the claimed rape which (as noted above) it had found to be characterised by repetitive, rehearsed and vague statements. The Authority considered the counselling and psychiatric report but found that the applicant was not a credible witness and had added the rape claim to enhance her protection claims (R, [43]-[45]). The Authority did not accept that the applicant’s mental state explained the very poor vague evidence about much of her claims and in particular her key claims of the 2012 incident (R, [48]).
Furthermore, the Authority did not accept the applicant’s poor evidence was a product of any issue with the interpretation. This finding reflected the failure of the applicant to raise any issue of interpreting with the delegate, the assessment of the delegate that there were no concerns with the interpreting, the view taken by the Authority (having listened to the audio of the visa interview) that the applicant was able to effectively communicate and there was “free flow” interpretation during the interview. The Authority also noted that on each occasion that a new interpreter was used, the delegate summarised where they were in the interview and what was to be covered next. The Authority noted that the applicant had a lengthy interview with breaks and was asked many times to provide details and elaborate. The Authority found that the interpreting was competent and reasonable, and the applicant had a meaningful opportunity to provide evidence (R, [49]-[51]).
The Authority considered the applicant’s claim to fear harm on the basis of her gender, witnessing a shooting incident, her husband’s rescue of one of the victims and her claimed LTTE imputed political opinion and fear of CID or authorities.
The Authority found, based on its rejection of the applicant’s claims concerning the 2012 shooting incident, that neither the applicant nor her family were of any interest to authorities. The Authority did not accept that the applicant, or her husband had any antigovernment or pro LTTE profile or that the applicant would be imputed with a political opinion in support of the LTTE or in opposition to the Sri Lankan state (R, [56]-[57]).
The Authority did not accept, having considered the applicant’s circumstances and the country information (which included the UNHCR eligibility guidelines) that the applicant faced a real chance of sexual harassment, violence, arrest, detention or persecution (R, [58]-[62]).
The Authority accepted that the applicants had been subject to an immigration data breach where their personal details (although not claims) had been disclosed for a short period on the immigration website in 2014. However, the Authority did not accept that this event raised the profile of the applicants and given its finding that the applicants were not of interest to the authorities, the Authority did not consider there to be any material significance to the applicants’ risk of harm that their personal details were included in the data breach (R, [64]).
The Authority accepted that if returned to Sri Lanka, the applicants would do so as failed asylum seekers. However, having regard to their lack of LTTE connection or anti-government profile, and country information concerning the return of failed asylum seekers, the Authority was not satisfied there was a real chance the applicants would be harmed by the Sri Lankan authorities because they had applied for asylum in Australia (R, [67]-[72]).
The Authority accepted that the applicant (but not her children) would be charged, remanded for a short period and fined for her illegal departure from Sri Lanka. Whilst it accepted that prison conditions were poor, it found that any detention would be brief and would not amount to serious harm (R, [73]-[83]). The Authority did not accept that any treatment or penalties the applicant might face as a failed asylum seeker or an illegal departee would constitute significant harm, even accounting for the applicant’s mental health (R, [89]-[90]).
APPLICATION FOR JUDICIAL REVIEW
On 12 February 2018, the applicants made an application to this Court for judicial review of the Authority’s decision.
On 28 November 2018, a Registrar of this Court made procedural orders including that the applicants file and serve at least 28 days prior to the final hearing any amended application, any supplementary court book, and written submissions. The applicants did not file these documents. The Minister filed written submissions on 14 March 2025.
The hearing of the applicants’ application for judicial review took place on 31 March 2025, on which occasion each of the applicants was present in Court and the second applicant made submissions on behalf of all applicants. An interpreter in the English and Tamil languages was available to translate proceedings for the assistance of the first applicant.
Prior to the hearing commencing, the second applicant was given a copy of the application document, the decision of the Authority and the Minister’s written submissions. At the outset, I explained to the second applicant that the hearing was concerned with the identification of jurisdictional error which in general terms comprehended issues of procedural fairness, whether the Authority had correctly applied the law, had taken account of relevant claims and material and/or had taken account of irrelevant material.
Grounds of Review
The application contains two grounds of review, the first being:
1.The decision of the IAA is affected by jurisdictional error.
Particulars
a.In early March 2014, the Secretary of the Department sent a standard form letter to the applicant. The letter informed her of the Data Breach and expressed deep regret. Her personal information had been accessed by authorities in another country, in this case we say Sri Lanka and was too narrow in that the assumption did not deal with the scenario of republication and fear of persecution by non-State that, because the Department had been responsible for the Data Breach, an officer of the Department “cannot effectively assess the real chance of serious or significant harm that it has placed the applicant in and should find that she is now a refugee sur place”.
b.In relation to the fact that she will be a returning failed asylum seeker, the Second Respondent has erred when it concludes that there is no real chance that any element in the process of screening these returnees would involve serious harm for the purposes of s.36(2)(a).
c.In considering whether there is a real risk of the applicant experiencing treatment involving “significant harm” for the purposes of s.36(2)(aa), the Second Respondent has taken into consideration that the applicant may be detained if she arrived over the weekend, which implies not for any longer than to days in a Sri Lankan prison. However, it then should have considered if it could be satisfied that any pain or suffering caused by severe overcrowding and poor and unsanitary conditions, should the applicant be remanded in custody, especially a single woman such as the applicant would be intentionally inflicted on the applicant, as required by the definition of cruel or inhuman treatment or punishment. In other words it should have evaluated the nature and gravity of that loss of liberty, especially in the light of her being a single Tamil woman who is returning with two female children, with no male. It should also have evaluated her position in the light of The January 2017 DFAT Country Information Report on women in Sri Lanka, the US Department of State’s 2016 Human Rights Report on Sri Lanka which confirms the sexual and gender based violence; The UNFPA Report in 2015 & The 2015 Report from the Immigration and Refugee Board of Canada.
Ground one
The applicants’ submissions
When invited to address the Court, the second applicant identified five issues which she said were indicative of error in the decision of the Authority.
The first, which emerges from the formulation of the ground identified above, was that the Authority failed to properly consider the prospect that the data breach would expose the applicants to harm on their return to Sri Lanka. The second applicant submitted that the Authority did not turn its mind to the information that the authorities could have taken from the data breach. Had it done so, it would have found that this information, in combination with all the information about the applicant’s history, would have translated to a risk of mistreatment for the applicants on their return to Sri Lanka.
The second issue, also emerging from the formal ground one, was that the Authority had failed to consider the risk of harm, in the form of gender-based violence, to the applicant while in detention. The second applicant submitted that the Authority had failed to consider the applicant’s circumstances as a whole, which included not just her gender but her status as a single female.
The Minister’s submissions
The Minister submitted that ground one could be understood as comprehending two complaints. The first directed at the Authority’s treatment of the data breach claim and the second directed at its findings about the risk to the applicant while in remand, which it was said failed to appropriately take account of the applicant’s profile as a single woman.
As far as information about the data breach was concerned, the Minister submitted that the Authority had accepted the applicants had been subject to an immigration data breach where their personal details (though not their claims) were disclosed for a short period on the Department’s website. However, the Authority reasoned that there was no material significance to the applicants’ risk of harm from the data breach because the breach itself had not raised their profile, and the Authority had earlier not accepted that the applicants were of interest to the authorities. In other words, as the High Court had reasoned in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [90]-[91], even if the Sri Lankan authorities could have accessed all the information it would not have mattered because the applicants were not of interest to them.
Turning to the second complaint, the Minister noted that the Authority had accepted that the applicants were Tamil females and considered the position of women in Sri Lanka in a general sense and by reference to country information at R [59].
The Authority had then (between R [73]-[79]) accepted that the applicant had committed an offence by departing Sri Lanka without a passport, considered country information relating to treatment of illegal returnees, noted that reports of arrests and torture were in relation to known former LTTE members (a profile that on the Authority’s findings did not apply to the applicants or the applicant’s husband) and found that there was no real risk of torture, interrogation, mistreatment on arrival in Sri Lanka or during the questioning process to establish identity and bail.
The Minister noted that at R [80]-[81], the Authority had accepted that if the applicant arrived over the weekend she may be held in a prison until being brought before a magistrate. However, again by reference to country information and its findings in relation to the applicant’s profile, found that even as a woman with two daughters, the applicant did not face a real chance of torture, assault or mistreatment if held on remand or that any brief detention in the “generally poor, overcrowded and unsanitary” prison conditions amounted to serious harm. The Authority had expressly had cumulative regard to the applicant’s claims (R, [83]).
The Minister noted that the Authority had made similar findings in relation to the applicant’s complementary protection claims and was not satisfied the applicant would be subject to the death penalty, arbitrarily deprived of her life, tortured or sexually assaulted (R, [89]). The Authority was not satisfied that individually or cumulatively, any processes or penalties the applicant might encounter as a result of her illegal departure would constitute significant harm (R, [91]).
The Minister submitted that neither aspect of ground one established jurisdictional error given that the Authority considered the claims and submissions advanced by the applicants and did so in a manner that did not expose any evident unreasonableness.
Resolution – ground one
I am not satisfied that the Authority erred in connection with the applicants’ claim to apprehend harm relating to the data breach.
As noted earlier, the applicants in their submissions to the Authority, referred to the data breach and following some general observations about the scope of the data breach and steps taken by the Department to communicate to those affected about the disclosure, noted about the applicant that “[s]he is very concerned that the Sri Lankan authorities could have accessed such information and they would have knowledge about her and her claims and what she had said against the Sri Lankan government. The real test will come if she is forced to return to Sri Lanka. On arrival they would know who she was and all about her claims and she will no doubt be taken in for questioning where her fate will be unknown” (CB 269-270).
The Authority’s response to this claim was brief. However, importantly, it was made after the Authority had first recorded comprehensive findings about the applicant’s account of past events and then, at [57], had recorded the following:
…I do not accept the applicant or her family are of any interest to authorities. I do not accept the applicant has any antigovernment or pro LTTE profile or will in the future. I do not accept she has any criminal charges, warrants for arrest or is suspected or wanted for investigation for anything or any connection to the LTTE. I do not accept the applicant or her husband is perceived as LTTE member or associated or linked to the LTTE or supporter of the LTTE. I do not accept the applicant was raped or targeted by CID. I do not accept she will be imputed with a political opinion in support of the LTTE or in opposition to the Sri Lankan state.
Considered against these findings, it was not unreasonable for the Authority to reason that the disclosure of the applicants’ personal information (excluding information about their claims), would not elevate their profile or materially alter their risk of harm.
I am similarly unpersuaded that the Authority failed to consider a claim advanced by the applicants that the applicant would be at risk of significant harm while in detention because of her status as a female.
First, I accept that the Authority was aware that the applicants advanced a claim that the applicant’s gender would exacerbate her risk profile or give rise independently to a risk of relevant harm. This is evident from the Authority’s consideration at R [59] of country information concerning the treatment of Tamil females in Sri Lanka. The Authority, in this context, acknowledged that women throughout Sri Lanka, and especially those without a partner, faced significant challenges.
In the specific context of the detention environment, the Authority accepted that the applicant may be held in prison over the weekend if she arrived over the weekend. The Authority found however, by reference to country information, that this brief period of remand or detention would not amount to serious or significant harm, including, expressly by reason of the applicant being a woman with two daughters (R, [80], [88]-[89]).
Ground two
Ground two reads:
2.The decision of the IAA was affected by error in that the applicant was not accorded procedural fairness.
Particulars
The fact that three interpreters has been used to conduct this interview on the day was an unfair practice in that it was very unsettling on the applicant, who had to adjust to the three different interpreting styles and this subsequently affected her evidence. The decision maker/person conducting the said interview should have discontinued the interview after the second interpreter stated she could not continue and adjourned the matter to another date where an interpreter could be secured to conduct the entirety of the interview, without being replaced by another.
Applicant’s submissions
The second applicant explained that this ground was concerned with the conduct of the visa interview and the difficulties that the applicant had experienced because there had been multiple interpreters. The second applicant told the Court that parts of the applicant’s evidence had been misinterpreted because one or more of the interpreters had not spoken precisely the same dialect as the applicant and had not properly understood what she was saying. The second applicant was invited to identify any examples of evidence that had been misinterpreted but declined to do so.
Allied to this submission was the concern that in evaluating the evidence given by the applicant during the visa interview, the Authority had failed to consider how it might have been affected by the applicant’s mental health and experience of trauma. The suggestion was also made that the Authority should have turned its mind to whether the applicant, as a single mother of two daughters who had been living in Australia for three to four years, had been adequately supported during the visa interview.
The second applicant submitted further that the Authority had made unfair credibility findings about the applicant. She submitted that the Court should find that the applicant had been generally consistent in her account of events but to the extent there had been any inconsistency, this was minor and/or could be explained as a product of trauma and/or stress which might have produced memory loss. The Authority should have taken this possibility into account.
The second applicant identified R [22]-[24] as particular examples of how, had the Authority taken a benevolent view of the applicant’s mental health, it might not have found that her evidence was inconsistent or made adverse credibility findings based on these inconsistencies.
Minister’s submissions
The Minister submitted that in the context of a circumscribed Part 7AA review, the complaints identified in ground two should be understood as directed at the exercise by the Authority of the power contained in s 473DC of the Act to get new information from a review applicant. It being implicit in the applicants’ ground two that the power should have been exercised to “cure” deficiencies in the opportunity the applicant had to give evidence at the visa interview.
The Minster acknowledged that this power must be exercised reasonably but submitted that the occasion for its exercise did not arise here in circumstances where the Authority had acknowledged the agent’s submission about the inadequacy of the interpreting (R, [5]) and appeared cognisant of the submission during its substantive assessment of the applicant’s claims (R, [19]).
The Minister noted that the Authority had ultimately rejected that the applicant’s “poor” evidence was due to any issue with interpreting but had done so having expressly rejected that there were any interpreting issues and having listened to and summarised the interactions between the applicant, the interpreters and the delegate (R, [49]-[50]). The Authority found that the interpreting was competent and reasonable, and that the applicant had a meaningful opportunity to provide evidence (R, [51]) and there was nothing evident that suggested the applicant did not understand the interpreter (R, [52]). The Minister submitted that the Authority had, as part of this evaluation, also considered the impact of the applicant’s mental health, given that it had discounted this as an explanation for the “very poor vague evidence” (R, [48])
The Minister submitted that in circumstances where the Authority had considered the applicant’s complains about interpretation in detail, including by reviewing the interview, and satisfied itself on logical and probative grounds that the applicant had been given a meaningful opportunity to provide evidence, there was no basis to conclude that it was unreasonable not to exercise the discretion in s 473DC of the Act.
The Minister submitted that the complaints made about the Authority’s credibility findings were misplaced given that the Authority had identified numerous inconsistencies about matters that transcended the minor or trivial. While the Minister accepted that credibility findings were not immune to challenge on judicial review, the submission was made that in this case there was nothing unreasonable in the approach taken by the Authority to the assessment of the applicant’s credit.
Resolution – ground two
As far as ground two should be understood as alleging that the failure on the part of the Authority to exercise, or consider the exercise, of s 473DC of the Act was unreasonable, I am not satisfied that the circumstances of this case warrant such a conclusion.
First, while not decisive of the point, I note that in the submissions to the Authority dated 11 September 2017, the Authority was not invited to exercise the power in s 473DC and neither were efforts made by the applicants’ migration agent to put before the Authority a further statement from the applicant that might have redressed inadequacies in the information that was conveyed during the visa interview. Instead, the focus of the submission was primarily on the procedure adopted during the interview. While it was said that this engendered confusion at times in the applicant and that the applicant had difficulty understanding one interpreter, no example was given as to how any of these issues ultimately impacted on the information provided by the applicant. The submission also acknowledged that at the end of the visa interview, the applicant’s lawyer agreed to provide the case officer with “written submissions re inconsistencies” (CB 268). It appears that this occurred on 23 January 2027 and that part of the submissions were directed at the issue of “credibility” and inconsistencies identified by the delegate during the visa interview (CB 201-207). The Authority had these submissions before it for the purpose of the review.
Second, I consider that the Authority engaged comprehensively with the claim made by the applicants concerning the alleged inadequacy of the visa interview process. The Authority listened to the recording and made observations concerning the responses given by the applicant and the manner in which the delegate conducted the interview. The Authority was satisfied that the applicant was able to communicate effectively. The Authority also noted that the applicant had been asked at the conclusion of the visa interview if there was anything else she wanted to add, to which she had responded in the negative.
I am also not satisfied that in assessing the applicant’s credibility the Authority erred by either failing to consider the impact of the applicant’s mental state on her ability to give evidence or because matters identified as inconsistent were minor or trivial in nature.
As far as the applicant’s mental state was concerned, it is apparent from the Authority’s reasons that it considered the medical reports about the applicant’s mental health and accepted that they disclosed a diagnosis of depression and PTSD (R, [47]). The Authority stated expressly that it had considered the applicant’s mental state in the assessment of the evidence and claims. It was open to the Authority to find that the applicant’s mental state did not explain the troubling characteristics of the applicant’s evidence.
The inconsistencies identified by the Authority were not trivial or minor in nature. They operated on the October 2012 incident, which was central to the applicant’s claims for protection and concerned detail about matters that were not peripheral to the claimed events.
There is no discernible error arising from the matters identified under ground two.
ORDERS
In circumstances where the applicant’s application for review does not disclose jurisdictional error and where on an independent analysis, I am unable to discern jurisdictional error, the application filed by the applicants on 12 February 2018 must be dismissed.
Given the Minister has successfully opposed the application, I will also order the first and second applicant pay his costs, which I fix in the scale amount for a final hearing set out in Part 2 of Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 8 April 2025
0
1
2