ARA19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 333
•12 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ARA19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 333
File number(s): ADG 64 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 12 March 2025 Catchwords: MIGRATION – Judicial review – review of decision of the Immigration Assessment Authority – whether unreasonable failure to exercise power to invite applicant for interview – where different findings less favourable to applicant made by the Immigration Assessment Authority – where Minister’s delegate had benefit of observing applicant’s demeanour – whether reasoning in relation to credibility irrational or illogical – whether reasoning in relation to credibility unreasonable – whether credibility reasoning made by reference to a false factual premise – whether material jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5H, 36, 473DC, 476 Cases cited: ABT17 v Minister for Immigration and Border Protection: [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
ATD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 576
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83; (2018) 261 ALR 227
BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; (2018) 260 FCR 116
BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 157 ALD 494
BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
CXS18 v Minister for Home Affairs [2020] FCAFC 18
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
DUZ17 v Minister for Immigration and Border Protection [2019] FCA 1593
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 152
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 CLD 248
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113; (2009) 112 ALD 501
Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225; (2019) 367 ALR 465
WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 1 July 2024 Date of hearing: 1 July 2024 Place: Perth Counsel for the Applicant: Mr M Boisseau Solicitor for the Applicant: Dentons Lawyers Counsel for the First Respondent: Mr A Chan Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 64 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARA19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
12 MARCH 2025
THE COURT ORDERS THAT:
1.The Originating Application filed on 21 February 2019, as amended by an Amended Originating Application filed on 6 May 2024, be dismissed.
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 LUCEV
INTRODUCTION
On 21 February 2019 the applicant, ARA19, filed an application for judicial review (“Judicial Review Application”) in the Adelaide Registry of the Court (then the Federal Circuit Court), under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). In February 2023 the Judicial Review Application was docketed to the now presiding Judge in the Perth Registry of the Court. At a directions hearing on 27 March 2023 the Court made orders, including orders allowing ARA19 to file and serve any amended Judicial Review Application. The time for compliance with those orders was extended several times, by consent. On 6 May 2024 ARA19 filed an amended Judicial Review Application (“Amended Judicial Review Application”).
The Amended Judicial Review Application seeks judicial review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) dated 23 January 2019 in which the Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) of 14 September 2018 not to grant ARA19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
At hearing the Court Book (“CB”) was marked as Exhibit 1. ARA19 also read the affidavit of Sarah Ruth Newman affirmed 6 May 2024 (“Newman Affidavit”).
All references to the Migration Act in these Reasons for Judgment are to the provisions therein as they were at the time of the Authority Decision.
BACKGROUND
The background to the matter is as follows:
(a)ARA19, a citizen of Sri Lanka, arrived on Cocos Island as an unauthorised maritime arrival on 30 August 2012: CB 140;
(b)on 7 October 2016 ARA19 lodged an application for the SHE Visa: CB 31-56;
(c)on 17 August 2018 ARA19 attended a SHE Visa interview with the Delegate (“Delegate Interview”): CB 92-94;
(d)on 14 September 2018 the Delegate’s Decision was to refuse to grant ARA19 a SHE Visa: CB 140-155 (the Delegate’s Decision – that is the Decision Record, bears a date of 14 August 2018: CB 151 – but this appears to be an error);
(e)on 17 September 2018 the matter was referred to the Authority: CB 156-161;
(f)on 8 October 2018 ARA19 provided written submissions and new information to the Authority: CB 167-172. Relevantly, ARA19 claimed that at the Delegate Interview, the Delegate interrupted him and prevented him from presenting his claims in full: CB 170; and
(g)on 23 January 2019 the Authority affirmed the Delegate’s Decision: CB 177-202.
ARA19’S CLAIMS
ARA19 claimed that:
(a)he is a Hindu Tamil from the Eastern Province of Sri Lanka: CB 61;
(b)during the war, the Liberation Tigers of Tamil Eelam (“LTTE”) were active in his area and required each family to send one person to join the LTTE, failing which the LTTE would come and forcibly recruit a family member: CB 66-67 at [7] and 183 at [15];
(c)in 2008, towards the end of the civil war, an armed group tried to forcibly recruit ARA19 but he ran away. That same night, that armed group came to his home to look for him. After this, ARA19’s parents sent him to Colombo to avoid being recruited. He studied whilst in Colombo: CB 67 at [8]-[10];
(d)in March 2009 the Sri Lankan Army (“SLA”) discovered that ARA19 was no longer living at home and assumed that he had joined the LTTE; CB 67 at [11];
(e)while he was in Colombo, the SLA conducted checks of houses to ascertain who was absent. The SLA suspected that ARA19 was absent from his house because he had joined the LTTE: CB 67 at [11];
(f)in July 2009 having been forced to return home to sit his A level exams he was taken from his house and detained by the SLA for a period of four days. The SLA took him to a house on the beach where he was questioned and beaten and detained for four days without food. During the period of detention, he was interrogated about his imputed LTTE activities and “tortured” by being beaten “with an iron rod” when his answers were not sufficient for the SLA: CB 103 at [4.10] and 183-184 at [16], and he suffered “significant injuries”: CB 103 at [4.10]. He was eventually released when his parents paid a large bribe to secure his release: CB 183-184 at [16];
(g)in September 2009 the SLA (including one of the men who had detained him in July 2009) came to ARA19’s home again. ARA19 escaped by the back door and fled to his grandmother’s home. After this incident, ARA19 returned to Colombo. The SLA continued to visit ARA19’s home: CB 185 at [20];
(h)between September 2009 and 2011 the SLA, and later the Criminal Investigations Division (“CID”), came to his family home looking for him;
(i)in 2012 ARA19 left Colombo and fled to Australia; and
(j)ARA19 feared harm for reasons including that he would be imputed with LTTE support or an adverse political opinion because of:
(i)his Tamil ethnicity:
(ii)absence from his home area in the closing days of the civil war, when many young Tamils were absent from that area because they had joined or been conscripted to the LTTE;
(iii)refusal to report to the SLA and CID;
(iv)illegal departure;
(v)his asylum application: CB 69-70 at [31]; and
(vi)his mother’s recent arrest, detention, torture and interrogation by the SLA about her LTTE involvement and why ARA19 was out of the country.
DELEGATE’S DECISION
In the Delegate’s Decision the Delegate accepted that ARA19:
(a)is of Tamil ethnicity;
(b)was born in and is resident of a district (“Home District”) in the Eastern Province of Sri Lanka;
(c)was approached by an unknown armed militant group with the purpose of recruitment;
(d)was questioned by the SLA in relation to his affiliation with the LTTE;
(e)was imputed with membership of the LTTE on account of his ethnicity and his long absences from his home village; and
(f)he departed Sri Lanka illegally in 2012: CB 143.
The critical integer of the Delegate’s Decision was that she did not accept that “the applicant is a person of [continuing] interest to the Sri Lankan authorities”: CB 143-144. Accordingly, despite accepting that ARA19 had previously been detained and tortured by the SLA and/or the CID due to his imputed LTTE membership, the Delegate was not satisfied that ARA19’s profile was sufficiently high that Sri Lankan authorities would regard him as a “threat to the state” and, giving significant weight to country information, determined that the risk of ARA19 being detained, tortured or otherwise seriously harmed was remote: CB 144-145.
AUTHORITY DECISION
The Authority reviewed the audio of the Delegate Interview: CB 179 at [7], as well as considering updated country information, and determined that there were exceptional circumstances to justify the consideration of new information provided by ARA19, namely that his mother and other organisers of a Temple pilgrimage had been arrested by SLA officers and detained, tortured and interrogated about his mother’s LTTE involvement and “why she had sent the applicant out of the country by illegal boat before the SLA had finished their investigations about his LTTE involvement”: CB 178 at [5]. This new information was, critically, information going directly to the question of ARA19’s continuing interest to the Sri Lankan authorities that had been the basis for the Delegate to conclude that ARA19 was not a person to whom Australia owed protection obligations.
In relation to the new claims about ARA19’s claimed LTTE involvement, the Authority considered ARA19’s submission that he did not raise them at the Delegate Interview because the Delegate repeatedly interrupted him and ARA19 did not want to interrupt the Delegate: CB 178-179 at [6]-[7]. Upon reviewing the Delegate Interview audio, the Authority found that ARA19 was not prevented from providing further information as a consequence of being interrupted by the Delegate or by the interpreter: CB 179 at [7]. The Authority further found that in respect of questions in which he only provided a yes or no answer, he did not seek to elaborate or qualify his answers, that the interpreter took time to clarify with ARA19 before translating his responses, and that ARA19 was able to provide his responses and that he understood it was his responsibility to specify his claims: CB 179 at [7].
The Authority found that the Delegate had repeatedly put to ARA19 her understanding of ARA19’s claims, and ARA19 had on each occasion confirmed that the Delegate had the correct understanding, and that when given an opportunity to provide any further information, ARA19 had provided other information but did not raise the new LTTE claims: CB 179-180 at [8]. The Authority was not satisfied that ARA19 could not have raised the claims earlier and found that the LTTE claims were inconsistent with ARA19’s evidence at the Delegate Interview, of doubtful veracity and concluded that there were no exceptional circumstances to justify considering them: CB 179-180 at [8];
In the Authority Decision the Authority:
(a)accepted:
(i)that ARA19 was the eldest son of a Tamil family from an area occupied by the LTTE during the war: CB 182 at [13];
(ii)that ARA19’s father, mother and two siblings continued to reside in the Home District and that ARA19 was a student before he departed Sri Lanka: CB 182 at [13].
(iii)that ARA19 was subjected to mistreatment by security forces during the war: CB 182 at [14];
(iv)that during the war LTTE involvement would at times be imputed on the basis of Tamil ethnicity: CB 182-183 at [14];
(v)having regard to the “forced recruitment practices of the LTTE”, that ARA19 was “approached by members of an armed group seeking to forcibly recruit him in 2008, but he was able to escape and then went to Colombo to avoid being recruited”, and that he had been approached by the LTTE at various times during the civil war but avoided forced recruitment: CB 183 at [15];
(vi)that he “was absent from his home during the last year of the civil war and that at that time as the [civil] war ended extensive screening processes were undertaken by authorities to identify persons connected with the LTTE, and many Tamils were identified as LTTE suspects through this process and were either sent to rehabilitation camps or otherwise dealt with under the PTA [Prevention of Terrorism (Temporary Provisions) Act 1975 (Sri Lanka)]”: CB 184 at [18]; and
(vii)that enquiries were made with ARA19’s family by authorities whilst he was in Colombo given his absence from his Home District, but did not accept that ARA19 was of any interest to authorities because of any real suspicions held at that time that he had joined or been conscripted to the LTTE, whether due to his absence from his Home District whilst he was in Colombo or for any other reasons: CB 185 at [19];
(b)found ARA19’s account of being taken by SLA members after his return home from Colombo to be implausible: CB 184 at [18];
(c)did not accept that ARA19 was in hiding from the SLA or any authorities in his home after his return from Colombo in 2009, that the SLA attended at his home to arrest him in September 2009, or that he escaped any attempts to take him: CB 185 at [20];
(d)did not accept that the SLA detained ARA19 in July 2009, or that he was interrogated, beaten or tortured, or that he was detained for four days, and further did not accept that the SLA or the CID later came looking for ARA19, whether in September 2009 or subsequently: CB 186 at [21];
(e)did not accept that ARA19 was pursued by the authorities, the SLA or CID when he was living in Colombo from 2009 to 2012, or that he was in hiding during that time, and summarised aspects of ARA19’s evidence at the Delegate Interview and considered it extremely unlikely that he could have avoided detection by the SLA in Colombo if he had shown his national ID or school ID card to the authorities as claimed: CB 186 at [21]. The Authority then found in any event that the fact that ARA19 could study in Colombo detracted from his claim that he was in hiding, even if he had a school ID as claimed. For the same reasons, the Authority also did not accept that an incident occurred in 2011 when the CID came to ARA19’s house to question his parents: CB 186 at [21]. The Authority found that the SLA, the CID and authorities did not have any real interest in ARA19 for any suspected LTTE involvement at any time up to his departure from Sri Lanka in 2012;
(f)accepted that ARA19 departed Sri Lanka illegally and that upon return he would be considered a failed asylum seeker who had lived in Australia: CB 186 at [22];
(g)did not accept that the authorities held any records relating to ARA19, whether as an LTTE suspect or for any other reason that would attract any adverse interest in him and found that his illegal departure would not elevate his profile as a person of any adverse interest to the authorities: CB 186-187 at [23]. The Authority was not satisfied that ARA19 was of any adverse interest to the authorities such that they would continue to make inquiries about him: CB 186-187 at [23];
(h)found that the further information provided by ARA19 which showed his current interest to the Sri Lankan authorities was “implausible”: CB 188 at [25], in large part because (having rejected his account of being detained), there was “nothing to indicate that he had been pursued by authorities on account of any information or evidence that they had of his LTTE involvement whilst he was living in Sri Lanka”: CB 188 at [25];
(i)found the circumstances leading to his mother’s arrest by the SLA in September 2018 to be far-fetched and highly unlikely, and considered that ARA19 fabricated a tenuous link between his mother’s religious pilgrimage and any alleged LTTE connection: CB 188 at [25]. The Authority did not accept that the incident in September 2018 occurred or that ARA19 had a subjective fear that he will be abducted and killed by the SLA or authorities: CB 188 at [26]; and
(j)concluded that there was no “credible evidence before me that there has been any adverse interest in the applicant on account of any LTTE links since his departure”: CB 188 at [26].
The Authority found, based on its findings and country information, that ARA19 did not face a real chance of serious harm, did not have a well-founded fear of persecution, and did not meet ss 5H and 36(2)(a) of the Migration Act: CB 192-197 at [37]-[58], and similarly concluded that ARA19 would not face a real risk of significant harm and did not meet s 36(2)(aa) of the Migration Act: CB 197-198 at [59]-[64].
AMENDED JUDICIAL REVIEW APPLICATION
Grounds
There are three grounds of review in the Amended Judicial Review Application which are set out below at [15] (ground 1), [28] (ground 2) and [41] (ground 3).
Ground 1
Ground 1 of the Amended Judicial Review Application is as follows (with amendments and underlining excluded):
The Immigration Assessment Authority made a jurisdictional error in unreasonably failing to utilise its power under s 473DC of the Act to invite the Applicant to an interview in circumstances where it proposed to reach different and less favourable findings to the Applicant on a critical matter in circumstances where the delegate had the benefit of observing the Applicant’s demeanour.
ARA19’s submissions
ARA19’s submissions in relation to ground 1 were as follows:
(a)by proceeding to reject the central claim made by ARA19, that he was detained and tortured by the SLA on account of his imputed LTTE membership on the basis of an assessment of ARA19’s credibility - being a claim accepted by the Delegate - without taking the step of inviting ARA19 to interview so as to assess his demeanour for itself, the Authority fell into the error identified by the High Court in ABT17 v Minister for Immigration and Border Protection: [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 (“ABT17”);
(b)in ATD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 576 (“ATD19”) at [47] per Rangiah J the Federal Court observed that there are five questions arising in relation to the application of ABT17:
(i)whether there was an informational gap between the delegate and the Authority;
(ii)whether the Authority could have bridged any such gap by inviting the appellant to an interview;
(iii)whether any informational gap resulted in the Authority being disadvantaged in comparison with the delegate;
(iv)whether the failure to invite the appellant to an interview was unreasonable; and
(v)whether that failure was material;
(c)in the circumstances of the present case, the answer to each of those questions is “yes”;
(d)the Authority lacked the advantage enjoyed by the Delegate of being able to assess how ARA19 described being detained, tortured, and hit with an iron bar. These are the types of claims - traumatic, emotional, and likely to involve the witness reliving the events as they are recounted - in relation to which the significance of demeanour will be an “important aspect” of the information available to the decision-maker. Similarly, the Authority lacked the advantage enjoyed by the Delegate of being able to ask questions of ARA19 to clarify aspects of the account that it regarded as insufficiently detailed;
(e)this demonstrates an “informational gap” between the Delegate and the Authority, which the Authority could have bridged by inviting ARA19 to an interview;
(f)the Authority was unquestionably disadvantaged in comparison with the Delegate. The Delegate had believed ARA19. Why? There is no way of knowing - and the Authority could not exclude - whether the Delegate had been convinced by the expression on ARA19’s face as he recounted being tortured, spontaneous tears, or some other aspect of ARA19’s demeanour. The Authority was able to have recourse only to the audio recording, the written material and the country information, but was disadvantaged in being able to weigh a critical additional piece of material in reaching conclusions as to plausibility, when compared to the Delegate;
(g)the failure to invite ARA19 to an interview was, in all the circumstances, unreasonable. First, the claim in relation to which the Authority differed from the Delegate was the central claim made by ARA19. Second, the claim involved the sort of matter in relation to which questions of credibility will regularly be determinative. While a court would shrink from making a finding as to, say, the criminal offence of rape based solely on an audio recording, juries regularly find the allegation proven against a defendant beyond a reasonable doubt, even disregarding minor inconsistencies in account or the inherent implausibility of aspects of an account, based solely on their acceptance of the credibility and reliability of a compelling witness. Third, the Authority had other matters that troubled it, and - as in ABT17 - “could seek answers in relation to those aspects … by raising questions which had not previously been raised…” and thereby “develop an informed impression of the credibility of the [Applicant] based on his responses to such questions and an observation of his demeanour”: ABT17 at [15] per Kiefel CJ, Bell, Gageler and Keane JJ; and
(h)lastly, the failure to invite ARA19 to an interview was material. It could plainly, given the Delegate’s Decision to accept ARA19’s account, have led the Authority to a different conclusion as to the core claim ARA19 made. And, given the further information that the Authority found exceptional circumstances to receive addressed the remaining concern of the Delegate, which the Authority rejected upon the basis it was not satisfied that ARA19 had a profile with the SLA, it must necessarily be the case that ARA19 has shown that proceeding without jurisdictional error could have led to a different outcome: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 152 (“LPDT”) at [14] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.
Minister’s submissions
The Minister’s submissions in relation to ground 1 were as follows:
(a)by this ground, ARA19 essentially relies upon the principles in ABT17 at [23]-[25] per Kiefel CJ, Bell, Gageler and Keane JJ, where the High Court held that in certain circumstances where there is an informational gap (such as the ability to assess an applicant’s demeanour) a failure by the Authority to exercise its power under s 473DC of the Migration Act can be legally unreasonable. The difficulty with this ground however is that principles in ABT17 are fact-dependent and must be understood against the circumstances in which the Court found that it was legally unreasonable for the Authority in that case to not interview the applicant and assess his demeanour;
(b)the Delegate’s Decision does not refer to ARA19’s demeanour at all, let alone that the credibility of ARA19’s claims was wholly or substantially assessed on the basis of his demeanour. ARA19 appears to accept this given he accepts that “there is no way of knowing” why the Delegate made findings different to those of the Authority: ARA19’s outline of submissions filed on 6 May 2024 at [19]. Where ARA19’s demeanour is not referred to at all in the Delegate’s Decision, the present case is not analogous to ABT17;
(c)it should also be highlighted that the following factual and legal bases informed why there was an evident and intelligible justification: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [76] per Hayne, Kiefel and Bell JJ, for the Authority to not interview ARA19:
(i)as has been confirmed by the Full Court of the Federal Court in cases like DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [76] per Reeves, Robertson and Rangiah JJ, the Authority is entitled to disagree with a delegate’s evaluation of the material without providing an applicant an opportunity to respond. The Full Court of the Federal Court reiterated the same principles in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 at [60] per Bromberg, Davies and O'Bryan JJ, namely that the Authority does not have to invite an applicant to give new information simply because it comes to a different conclusion than that reached by a delegate: BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; (2018) 260 FCR 116 at [71] per Kenny, McKerracher and White JJ. In BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 157 ALD 494 (“BMB16”) at [15] per Dowsett J, [38] per Besanko J and [88] per Charlesworth JJ, it was held that the delegate’s findings “do not control the reasons or findings of the Authority”. Any focus on the Delegate’s findings is therefore of little moment in any event, as the delegate’s findings do not control the reasons or findings of the Authority: BMB16 at [15] per Dowsett J, [38] per Besanko J and [88] per Charlesworth JJ;
(ii)at no point did ARA19 request that he be interviewed by the Authority. There was therefore no “trigger” for the Authority to consider exercising its power under s 473DC of the Migration Act to interview ARA19: DUZ17 v Minister for Immigration and Border Protection [2019] FCA 1593 at [51] per Beach J; and
(iii)the Authority was otherwise plainly aware of its s 473DC of the Migration Act power given it exercised it to obtain the updated DFAT report: CB 180 at [10]; and
(d)as such, ground 1 fails to demonstrate any error in the Authority Decision and must be dismissed.
Consideration of ground 1
In ABT17, ABT17 disclosed having been sexually tortured when detained by the Sri Lankan Army. While the delegate found ABT17’s account to be plausible but concluded for other reasons that there was no well-founded fear of persecution, the Authority (having listened to the audio of the delegate’s interview with ABT17) was not satisfied that the torture had occurred on the basis that ABT17’s account was lacking in detail and that he sounded vague and hesitant.
The plurality in ABT17 concluded that it was unreasonable for the Authority not to have used its powers under s 473DC of the Migration Act to bridge the informational gap between itself and the delegate by inviting ABT17 to an interview (whether in-person or by video-link). In ABT17 the plurality at [13]-[14] per Kiefel CJ, Bell, Gageler and Keane JJ stated that (emphasis added):
13.However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview – his or her demeanour.
14.An informational gap of that nature has potential to impact on the Authority’s assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority’s assessment of the referred applicant’s overall credibility. “Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker.”...
In ABT17 at [15] per Kiefel CJ, Bell, Gageler and Keane JJ the plurality in the High Court observed as follows:
The potential significance of demeanour is illustrated by the present case. Here, as will be seen, the Authority was troubled by a concern that the appellant's evidence in his audio recorded interview with the delegate was generally lacking detail and at times vague and hesitant. An interview was the obvious means by which the Authority might seek to resolve these matters of concern, given that the Authority was evidently not convinced by the country information alone to uphold the delegate's ultimate decision, however "plausible" the appellant's account of his personal circumstances might be. At an interview the Authority could seek answers in relation to those aspects of the appellant's evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant's responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.
The paragraphs in the plurality judgment in ABT17 at [23]-[25] per Kiefel CJ, Bell, Gageler and Keane JJ illustrate the importance of factual context (emphasis added):
23. To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.
24.The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
25.However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.
In ABT17 Nettle, Edelman and Gordon JJ, each writing separately, similarly found that it was unreasonable for the Authority to overturn a delegate’s finding as to an applicant’s credibility without giving due weight to the advantage enjoyed by a delegate in conducting the in-person interview: ABT17 at [69] per Nettle J, [87] per Gordon J and [112] per Edelman J.
In ARA19’s submissions it is asserted that the Delegate accepted a claim that ARA19 was detained and tortured by the SLA on account of his imputed LTTE membership, and that the Authority fell into the error identified by the High Court in ABT17 because it did not invite ARA19 for an interview with the Authority so as to be able to assess ARA19’s demeanour, particularly in relation to the claim that ARA19 had been tortured by the SLA.
If the version of the facts set out in ARA19’s submissions were correct there would be an error by the Authority, and in all likelihood that error would be material, and therefore jurisdictional: ABT17 at [13]-[15] and [23]-[25] per Kiefel CJ, Bell, Gageler and Keane JJ. The problem for ARA19 is that this ground proceeds on erroneous factual premises, specifically that the Delegate found that ARA19 had been tortured by the SLA and that demeanour was important in making that particular finding.
A reading of the Delegate’s Decision – and especially at CB 142-143 – shows that the Delegate made no finding that ARA19 was tortured, whether by the SLA or the CID. Further, a reading of the Delegate’s Decision in its entirety shows that at no stage did the Delegate refer to ARA19’s demeanour in support of any finding made by the Delegate.
The principles outlined above from ABT17 are necessarily responsive to the factual situation in each case. Here factual findings of the kind that would engage the principles set out in ABT17, or warrant an answer to the questions identified in ATD19, are simply not engaged because of the want of any relevant factual findings as to torture or demeanour in the Delegate’s Decision.
In the above circumstances, there was no reason for the Authority to interview ARA19, and it was reasonable not to do so, and ground 1 of the Amended Judicial Review Application is not made out.
Ground 2
Ground 2 is as follows (with exclusions and underlining omitted):
The Immigration Assessment Authority made a jurisdictional error by reasoning in relation to the credibility of the Applicant in an irrational or illogical manner.
ARA19’s submissions
ARA19’s submissions in relation to ground 2 were as follows:
(a)the approach of the Authority to the credibility of ARA19 was infected by irrational or illogical reasoning, and accordingly with jurisdictional error;
(b)in the present case, the Authority appears to have approached ARA19’s account with an unwarranted degree of scepticism and in a manner affected by confirmatory bias;
(c)the operative reasons given by the Authority for rejecting as “implausible” ARA19’s account of having been interrogated, tortured and detained are set out in the Authority Decision: CB 184-185 at [18];
(d)the first reason given was that the Authority was “not convinced that the applicant had a profile that would have attracted any adverse attention of the authorities”: CB 184 at [18]. This appears directly inconsistent with the later conclusion of the Authority that this was occurring at a time when “extensive screening processes” were underway to identify LTTE-connected persons during which “many Tamils were identified as LTTE suspects through this process and were either sent to rehabilitation camps or otherwise [detained] under the PTA”: CB 184 at [18];
(e)the second reason given was the assertion that “[t]he applicant did not have any information that he could give to the SLA, whether about any LTTE training or any work that he had done for the LTTE”. This approach is fundamentally illogical and involves hindsight bias. It would have been, of course, apparent to the Authority that there was no information that ARA19 could give to the SLA about the LTTE. But the SLA had no way to know this before it had completed its investigation of his LTTE activities;
(f)the third reason given was the assertion that “if the applicant was of any real concern [to] the authorities on account of any suspected LTTE involvement, I do not consider it plausible that he could have remained in his family house, even if by remaining there low-profile, and completed his school exams a month later”: CB 184 at [18]. The Authority has here either committed an error of fact or fundamentally ignored an aspect of ARA19’s claims. ARA19’s claim was that he had stayed in his family home for five days, not a month, before he was first detained by the SLA. After his release from detention upon the payment of a large bribe by his parents, ARA19’s evidence was that he was able to complete his school exams in August 2009, before undertaking some work experience during which time he again came to the attention of Sri Lankan government authorities, leading to him fleeing to Colombo in September 2009. The Authority failed to have any regard to the fact that ARA19’s evidence was that his parents paid a bribe to obtain his release from SLA custody – there is nothing implausible about a bribe providing a period of a few months’ grace from adverse attention by Sri Lankan government authorities. Indeed, this is consistent with ARA19’s written evidence at CB 68 at [20], to which the Authority appears to have given no weight:
…My family and I assumed that since we had paid the money for my release, the SLA would no longer be looking for me…
(g)a similar error is apparent from the Authority’s criticism of the plausibility of ARA19’s account on the basis that it is “highly likely that the SLA would have sought the applicant at his home as soon as they discovered that he had been released, if any such release was without their permission or knowledge”: CB 185 at [20]. This again fails to have regard to a critical aspect of ARA19’s claims, being that rather than the release being without the “permission or knowledge” of relevant operatives of the SLA, instead a bribe was paid to secure his release from detention, potentially on a temporary basis;
(h)the overall approach of the Authority appears to have been to disregard the evidence of ARA19 save and except where it was consistent with country information: CB 182-183 at [14], 183 at [15] and 185 at [19] and [20]. This was to approach ARA19’s evidence with an unwarranted degree of scepticism, and to effectively give no weight to the account given by ARA19, or alternatively to fail to have any regard to the prospect that the country information might not be fully accurate in all respects so as to rule out, for example, that ARA19 might have “run” through some “uninhabited jungle” “to the next village” and hidden at his grandmother’s home for a single night: CB 68 at [21], by reason of the “extensive presence of the military in the East at that time”;
(i)the approach of the Authority to the credibility of ARA19, in particularly taking such an unduly sceptical approach, is all the more unreasonable in circumstances where the Authority failed to have any regard to the advantage enjoyed by the Delegate in conducting the in-person interview before determining to overturn favourable credibility findings made by the Delegate: ABT17 at [69] per Nettle J, [87] per Gordon J and [112] per Edelman J; and
(j)the unreasonable approach of the Authority to the credibility of ARA19 is material. The Authority’s credibility findings were undertaken in a stepwise fashion, such that the earlier conclusions that ARA19’s account was implausible infected later conclusions. For example, the further information showing that ARA19’s mother had been detained and questioned about his LTTE activities was rejected on the basis that there was “nothing to indicate that he had been pursued by authorities on account of any information or evidence that they had of his LTTE involvement whilst he was living in Sri Lanka”: CB 188 at [25]. This intermediate factual finding was only available because the Authority had already rejected ARA19’s earlier account.
Minister’s submissions
The Minister’s submissions in relation to ground 2 were as follows:
(a)the principles relating to jurisdictional error arising from irrational or illogical adverse credibility findings are well-settled: see for example the summary of the principles in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 (“DAO16”) at [30] per Kenny, Kerr and Perry JJ. In summary, the Court must engage in a fact-specific inquiry as to whether the decision-maker’s adverse credibility findings were not open to it: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 CLD 248 (“SZMDS”) at [135] per Crennan and Bell JJ, in the sense of demonstrating “extreme” illogicality or irrationality: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [148] per Robertson J;
(b)for the following reasons, the Minister contends that the Authority’s adverse credibility findings were open to it. In essence, it found that ARA19’s claims were not credible because:
(i)there were inconsistencies in ARA19’s new information and the claims he advanced at the Delegate Interview stage: CB 180 at [8];
(ii)ARA19’s claims about him being taken to a house in July 2009 and mistreated were implausible for a number of reasons, including that his profile (as a non-LTTE member who did not participate in political activities) was inconsistent with the purported high level of adverse attention he was receiving: CB 184 at [18]. His claims were also inconsistent with country information of screening and rehabilitation programs to identify LTTE suspects: CB 184 at [18]. ARA19 also remained in the family home and completed his exams there. The Authority found that this was inconsistent with country information about LTTE suspects being detained for lengthy periods at state facilities or detention centres: CB 184-185 at [18];
(iii)ARA19’s claims about uniformed men looking for him in September 2009 were similarly implausible because the Authority did not consider it plausible that ARA19 could escape the SLA where there was extensive military presence at the time, and then avoid detection for two months (while he was at his home) if the SLA were indeed looking for him: CB 185 at [20];
(iv)the fact that ARA19 was able to study in a British school in Colombo without incident from 2009 to 2012, being a Tamil away from home, was indicative that he was not of any interest to the SLA, even taking into account ARA19’s possession of a school ID card (which may satisfy the SLA that he was not of adverse interest): CB 186 at [21];
(v)ARA19’s family who remained in Sri Lanka, including his younger brother, had not been harmed or mistreated in any way: CB 187 at [23];
(vi)it found ARA19’s claims about his mother being arrested in September 2018 to be far-fetched and highly unlikely: CB 187-188 and [24]-[25]. Given country information showed that Hinduism was one of the major religions in Sri Lanka, it did not consider it likely that ARA19’s mother would be arrested in relation to a religious pilgrimage. The SLA’s purported knowledge of ARA19’s LTTE activity and interest in ARA19 was also inconsistent with ARA19’s clear claims that he was not in the LTTE: CB 188 at [25];
(vii)the SLA’s sudden interest in ARA19 despite the significant passage of time also led the Authority to doubt the credibility of his claims: CB 188 at [26];
(viii)the Karuna Group’s purported involvement in the release of ARA19’s mother was not supported by the evidence, given country information said that the Karuna Group no longer had any paramilitary operations: CB 188 at [26]; and
(ix)the SLA’s apparent interest in ARA19 being a military man or police officer was inconsistent with the evidence, given he had no military experience: CB 188 at [26];
(c)there was nothing “unduly sceptical” in the Authority’s approach, or anything unreasonable or illogical in its reference to country information which contradicted ARA19’s claims. It is well-settled that the choice and assessment of the weight to be given to country information are factual matters for decision-makers: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]-[14] per Gray, Tamberlin and Lander JJ. There is nothing legally erroneous in contrasting what country information describes as the situation in a particular country, and observing the differences between that country information and what an applicant claims has occurred to them: NAHI;
(d)even if any of the Authority’s adverse credibility findings were affected by error (which is not apparent or conceded), given the multitude of concerns, inconsistencies and implausibilities identified by the Authority, it was not material or jurisdictional. As was held by the Full Court of the Federal Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83; (2018) 261 ALR 227 (“AVQ15”) at [41(d)] per Kenny, Griffiths and Mortimer JJ:
… Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result.
(e)this is such a case. If ARA19 is only able to demonstrate error in an inconsequential, errant finding, the result would inevitably have been the same given the numerous concerns the Authority had with ARA19’s claims: LPDT at [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ; and
(f)ground 2 therefore fails to demonstrate error and must be dismissed.
Consideration of ground 2
As always, “[w]hether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae”: AVQ15 at [41](c) per Kenny, Griffiths and Mortimer JJ;
In relation to credibility findings alleged to be irrational or illogical the Court observes that:
(a)for the Authority Decision to be found to be affected by jurisdictional error on the ground of unreasonableness or illogicality, the Authority Decision must be one that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis: SZMDS at [130], [131] and [135] per Crennan and Bell JJ. SZMDS sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ. Further in order for jurisdictional error to be found a finding must reach a threshold of “extreme illogicality”: DAO16 at [4] and [30] per Kenny, Kerr and Perry JJ; and
(b)in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (“SZUXN”) the Federal Court, by reference to the judgment of the High Court in SZMDS and a number of relatively recent first instance Federal Court judgments, observed that:
(i)jurisdictional error may be established on the basis of illogical reasoning or illogical or irrational findings by the Tribunal in the course of reaching its final conclusion: SZUXN at [54] per Wigney J;
(ii)jurisdictional error will not be made out in relation to particular findings or reasoning challenged on the basis of illogicality or irrationality unless it is shown that those findings could not have been made, or that the reasoning could not have been employed, by a reasonable or rational decision-maker: SZUXN at [50] per Wigney J; and
(iii)it is not sufficient to establish illogicality, irrationality or unreasonableness simply because one conclusion has been preferred to another possible conclusion: SZUXN at [52] per Wigney J.
The factual findings of the Tribunal must be rationally made and based on probative material and logical grounds: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [40]-[55] per McKerracher, Griffiths and Rangiah JJ.
As is often observed in relation to country information the weight to be placed upon it is, generally speaking, a matter for the Authority to determine: NAHI at [11]-[13] per Gray, Tamberlin and Lander JJ; CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [37] per McKerracher, White and Colvin JJ.
The Court must bear in mind that:
(a)the Authority’s fact-finding is not reviewable by this Court if the findings of fact were open to the Authority, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and that the weight to be given to an applicant's claims and evidence is a matter for the Authority to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(b)it ought not adopt an approach to the Authority Decision which scrutinizes the Authority Decision over-zealously in search of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZMDS at [35] per Gummow ACJ and Kiefel J;
(c)it must read the Authority Decision fairly and as a whole: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ; BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 at [49] per Rangiah, White and O’Callaghan JJ; WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188 at [55] per Barker J;
(d)a decision may be unreasonable if it lacks an evident and intelligible justification: Li at [76] Hayne, Kiefel and Bell JJ. The question is whether a decision-maker could reasonably come to the conclusion reached: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [21] per Allsop CJ. The decision as a whole must be illogical or unreasonable to constitute jurisdictional error: Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225; (2019) 367 ALR 465 at [84]-[85] per Besanko, Banks-Smith and Colvin JJ; and
(e)the test for legal unreasonableness is stringent: Li at [113] per Gageler J; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1 (“SZVFW”) at [11] per Kiefel CJ, “extremely confined”: SZVFW at [52] per Gageler J, or requires something in “the realm of the extraordinary”: SZVFW at [70] per Gageler J.
The suggestion that the Authority’s finding that ARA19 had a profile which would not attract adverse attention is inconsistent with the extensive screening processes under way at the relevant time to identify LTTE–connected persons, and does not bear scrutiny. The fact that ARA19 was not identified by any such screening processes merely highlights the fact that he had no, or no sufficient, profile to attract the adverse attention of the Sri Lankan authorities.
The assertion that the Authority’s finding that ARA19 did not have any information that he could give to the SLA as being illogical and involving hindsight bias ignores the fact that it was open to the Authority, on the basis of the information that was before it, including ARA19’s history to make that finding and to conclude that it was a reason why ARA19 was not of any adverse interest to the SLA (or the Sri Lankan authorities otherwise). Further, the Authority’s conclusions with respect to ARA19’s profile made by reference to the fact that he remained in the family house, and that at some point later completed his school exams, again provide a proper basis for the findings that ARA19 was not of adverse interest to the SLA or the Sri Lankan authorities. It does not particularly matter for how long ARA19 was in the family home, or when it was that he completed his school exams, what matters is that he was able to do those things, and that those things did not draw him to the attention of the Sri Lankan authorities. The Authority Decision has to be viewed in its totality, and as the facts reveal ARA19 was able to travel from his Home District to Colombo, and to complete several years of study in Colombo. The Authority, having regard to country information, as it was entitled to do, found that that was indicative of ARA19 not having a profile which would attract the attention of the SLA or the Sri Lankan authorities. Likewise, the Authority considered that country information meant that it was unlikely that his mother’s Hindu pilgrimage was the subject of adverse interest to the authorities. Further, the fact that ARA19’s family were not harmed in any way since his departure to Australia (in 2012) was indicative that his family as a whole were not the subject of adverse attention from the SLA or the Sri Lankan authorities.
The combination of factual material and country information available to the Authority provided a proper basis for the Authority to draw the conclusions that it did. In the circumstances there was an adequate evidentiary basis for the Authority’s findings, and those findings were not findings which no reasonable decision-maker could make, and were not therefore illogical or irrational (or lacking in an intelligible justification): SZMDS at [130]-[135] per Crennan and Bell JJ; SZUXM at [50] and [52] per Wigney J, and certainly did not meet the test of “extreme illogicality”: DAO16 at [4] and [30] per Kenny, Kerr and Perry JJ, and therefore do not establish jurisdictional error on the basis asserted in ground 2. In essence, what ARA19 seeks to have the Court do in relation to ground 2 is to remake the factual findings made in the Authority Decision, and to thereby undertake impermissible merits review: Wu Shan Liang.
It follows from the above that ground 2 is not made out and does not establish jurisdictional error in the Authority Decision.
Ground 3
Ground 3 of the Amended Judicial Review Application is as follows (with exclusions and underlining omitted):
The Immigration Assessment Authority made a jurisdictional error in reasoning in relation to the credibility of the Applicant by reference to a false factual premise and thereby reached a conclusion that was unreasonable.
ARA19’s submissions
ARA19’s submissions in relation to ground 3 were as follows:
(a)in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113; (2009) 112 ALD 501 at [37] per Logan J, the Federal Court said “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”;
(b)in the present case, a central plank of the Authority’s assessment of ARA19’s credibility was simply wrong;
(c)central to the Authority’s consideration of ARA19’s credibility was the Authority’s finding that ARA19 said during the Delegate Interview that “whilst he was in Colombo, he was studying in a British school and had a school identification, which he would show together with his national ID whenever anybody asked about him” (emphasis added): CB 186 at [21]. The Authority considered at CB 186 at [21] (emphasis added) that given:
…the extensive military presence in the country at that time and the concern of authorities to identify LTTE suspects in the immediate post war period. If he had shown his national ID card to any Sri Lankan authorities enquiring about his identity and reasons for being in Colombo, I consider it highly likely that he would have been identified at that time, particularly as a Tamil being out of his home area, if he was of any real interest to authorities on account of any LTTE involvement. The fact that he was able to attend and study at a school in Colombo detracts from the credibility of any claims that he was in hiding…
(d)the Authority’s finding as to ARA19’s evidence at his Delegate Interview was erroneous. ARA19 in fact said (Newman Affidavit, Annexure A - Delegate Interview Transcript, p.4) (emphasis added):
…anytime anybody asked me I would show them the school ID. I never showed my national ID over there, so I only survived with my school ID…
(e)in light of the stepwise approach to credibility taken by the Authority, it is not “fanciful” or “improbable” that a correct approach on this factual issue could (not would) have led to a different outcome in relation to the other credibility findings and the outcome overall: LPDT at [14] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.
Minister’s submissions
The Minister’s submissions in relation to ground 3 were as follows:
(a)by this ground, ARA19 contends that the Authority’s summary of ARA19’s evidence at CB 186 at [21] that he would show his national ID card alongside his school ID card to the Sri Lankan authorities was erroneous, and infected its later finding about it being “extremely unlikely” that he could have avoided detection in Colombo. This was so because his evidence at the Delegate Interview was instead that he would only show his school ID card;
(b)the Minister accepts, on the basis of the Delegate Interview Transcript, that the Authority made a factual error in the Authority Decision at CB 186 at [21] when it said that ARA19 would show both his national and school ID cards to the Sri Lankan authorities;
(c)nevertheless, the Minister contends that the above factual error is immaterial, and therefore not jurisdictional, given the Authority expressly said at CB 186 at [21] that (emphasis added):
…The fact that he was able to attend and study at a school in Colombo detracts from the credibility of any claims that he was in hiding, even if he had a school ID as maintained. Given that he was able to live and continue to undertake studies in Colombo over a two year period without incident, I do not consider his testimony about continuing enquiries being made by authorities with his family in relation to his LTTE connections to be plausible. Apart from the applicant’s claims to have been pursued initially because he had been absent for about one year in Colombo from 2008 to 2009, there is nothing further that had occurred since his claimed escape indicating that he was being pursued by or was of any adverse interest to Sri Lankan authorities…
(d)the emphasised words above show that the Authority’s ultimate conclusion would inevitably have been the same given it specifically said even discounting any protective effect the school ID had, it was not satisfied that ARA19’s claims were credible because he was otherwise able to live without incident in Colombo and nothing occurred post-2009: LPDT at [26] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ; and
(e)ground 3 therefore does not demonstrate any jurisdictional error in the Authority Decision, and must be dismissed.
Consideration of ground 3
It is convenient to set out the relevant part of the paragraph in the Authority Decision in relation to this issue, which is at CB 186 at [21] as follows:
…At his PV interview he was asked whether anything happened to him whilst he was living in Colombo between 2009 and 2012 that had made him leave Sri Lanka. He said that whilst he was in Colombo, he was studying in a British school and had a school identification, which he would show together with his national ID whenever anybody asked about him, however they would constantly visit his house back home and ask for him and ask whether he was part of the LTTE and had worked for the LTTE. However, I consider it extremely unlikely that he could have avoided being found in Colombo if he was a person of any adverse interest to the SLA or CID or any Sri Lankan authorities on account of any LTTE suspicions they had about him given the extensive military presence in the country at that time and the concern of authorities to identify LTTE suspects in the immediate post war period. If he had shown his national ID card to any Sri Lankan authorities enquiring about his identity and reasons for being in Colombo, I consider it highly likely that he would have been identified at that time, particularly as a Tamil being out of his home area, if he was of any real interest to authorities on account of any LTTE involvement. The fact that he was able to attend and study at a school in Colombo detracts from the credibility of any claims that he was in hiding, even if he had a school ID as maintained. Given that he was able to live and continue to undertake studies in Colombo over a two year period without incident, I do not consider his testimony about continuing enquiries being made by authorities with his family in relation to his LTTE connections to be plausible. Apart from the applicant’s claims to have been pursued initially because he had been absent for about one year in Colombo from 2008 to 2009, there is nothing further that had occurred since his claimed escape indicating that he was being pursued by or was of any adverse interest to Sri Lankan authorities. As such, I do not accept that the applicant was being pursued by any Sri Lankan authorities when he was living in Colombo or that he was in hiding during that time. For the same reasons, I do not accept the applicant’s claims that the SLA or CID or any Sri Lankan authorities had been constantly searching for the applicant at his family home and regularly attending there enquiring about his whereabouts and his LTTE connections at any time since he was living in Colombo from 2009 or 2012, and I do not accept the claimed incident in 2011 when the CID came to his house and questioned his parents about the applicant. I do not accept that the SLA or CID had any real interest in the applicant on any suspicions that he was involved with the LTTE. I am satisfied that the applicant was not a person of any interest to authorities at any time up to and including the time of his departure from Sri Lanka in 2012.
There is no doubt that the Authority made a factual error when it referred to ARA19 showing his national ID card to Sri Lankan authorities when enquiries were made about his identity and reasons for being in Colombo.
In LPDT at [13]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ the plurality observed as follows (footnotes omitted):
13.The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.
14.The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
It is plain from a reading of CB 186 at [21] that the outcome of the Authority Decision, namely that ARA19 was not a person of interest to the Sri Lankan authorities at any time up to his departure from Sri Lanka in 2012, was a finding about which there was not a realistic possibility of a different outcome even if the factual error had not been made. That is because the Authority found that even if ARA19 had, as he had maintained in the Delegate Interview, a school ID, and that had been shown, that did nothing to alter the Authority’s finding that because he was able to attend and study at a school in Colombo that that detracted from the credibility of claims that he was hiding, nor does it alter the Authority’s finding that because ARA19 was able to live and continue to undertake studies in Colombo over a two year period without incident that his testimony about continuing inquiries being made by the Sri Lankan authorities with his family into his alleged LTTE connections was not plausible. It is clear that those findings would still have been made even if the Authority had correctly concluded that ARA19 only showed his school ID when required to respond to queries from the authorities about his identify and reasons for being in Colombo. The alternative findings in relation to what would have occurred if ARA19 had a school ID as he maintained, correctly as it turned out, were findings that were open on the evidence before the Authority, and were not illogical or irrational or findings that no reasonable decision-maker might have arrived at: SZMDS at [131] and [135] per Crennan and Bell JJ.
It follows that the factual error made by the Authority is not material, and is therefore not jurisdictional. Ground 3 is therefore not made out.
CONCLUSION AND ORDERS
The Court has concluded that the Authority Decision is not affected by jurisdictional error. It follows that the Amended Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 March 2024
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